Ashcroft v. Dhaliwal et al., 2008 BCCA 352

• Judge: Huddart, Kirkpatrick and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 28, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 352;(2008), 259 B.C.A.C. 160 (CA)

Ashcroft v. Dhaliwal (2008), 259 B.C.A.C. 160 (CA);

    436 W.A.C. 160

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. SE.018

Elisabeth Ashcroft (appellant/plaintiff) v. Gursharan Dhaliwal and Jagpal Trucking Ltd. (respondents/defendants)

(CA35058; 2008 BCCA 352)

Indexed As: Ashcroft v. Dhaliwal et al.

British Columbia Court of Appeal

Huddart, Kirkpatrick and Tysoe, JJ.A.

September 16, 2008.

Summary:

The plaintiff was injured in two motor vehicle accidents nearly a year apart. She sued the driver and the owner of the vehicle involved in the first accident. The claim for the second accident was settled. At issue was whether the present defendants were liable for the plaintiff's cumulative injuries, including those received in the second accident. If so, then what should be done respecting the money that the plaintiff had been paid in settlement of the second accident.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. C65, found that the causal connection between the first defendant's driving and all of the plaintiff's injuries had been established. The court determined damages. The court held, inter alia, that the settlement amount for the second "relatively minor" accident should be deducted from the global damage award of $400,000 against the defendants. The amount was revealed to be $315,000. The plaintiff appealed.

The British Columbia Court of Appeal dismissed the appeal.

Damages - Topic 510

Limits of compensatory damages - Prohibition against double recovery - The plaintiff was injured in two motor vehicle accidents nearly a year apart - She sued the driver and the owner of the vehicle involved in the first accident - The claim for the second accident was settled - The trial judge found that the causal connection between the first defendant's driving and all of the plaintiff's injuries had been established - The trial judge held that the settlement amount for the second "relatively minor" accident should be deducted from the global damage award of $400,000 against the defendants - The amount was revealed to be $315,000 - The plaintiff appealed - The British Columbia Court of Appeal dismissed the appeal - The fundamental principle of damage awards was that the plaintiff should be "compensated for the full amount of his loss, but not more" - The court held that the proper focus of a damage award was on the plaintiff's loss; the court should not encourage settlement with the promise that plaintiffs might have the opportunity for double recovery; and there was no valid policy reason for treating concurrent and consecutive torts differently when both were necessary causes of an indivisible injury and its consequential losses.

Damages - Topic 510

Limits of compensatory damages - Prohibition against double recovery - The plaintiff was injured in two motor vehicle accidents nearly a year apart - She sued the driver and the owner of the vehicle involved in the first accident - The claim for the second accident was settled - The trial judge found that the causal connection between the first defendant's driving and all of the plaintiff's injuries had been established - The trial judge held that the settlement amount for the second "relatively minor" accident should be deducted from the global damage award of $400,000 against the defendants - The settlement amount was revealed to be $315,000 - The plaintiff appealed - She effectively sought an exception to the rule against double recovery for settlement proceeds - She argued that the court had to ignore settlement proceeds in these circumstances to encourage the settlement of claims - The British Columbia Court of Appeal stated the plaintiff's argument as follows: when the plaintiff settled with the second tortfeasor, the settling parties would have estimated the amount remaining to be recovered from the first tortfeasor - By settling with the second tortfeasor, the plaintiff took the risk of undercompensation; that the trial judge would make a less favourable award against the first tortfeasor than the settling parties had anticipated - The plaintiff risked settling for too little against the second tortfeasor - However, the converse of this risk was that a trial judge could make a more favourable award against the first tortfeasor than the settling parties had anticipated and thus the plaintiff would be overcompensated for her loss - Effectively, the plaintiff argued, this opportunity to profit from overcompensation was necessary to offset the risk of undercompensation if settlement was to be encouraged in multiple tortfeasor situations - The court rejected the argument and affirmed the principle against double recovery - See paragraphs 26 to 44.

Damages - Topic 1695

Deductions for payments or assistance by third parties - General - Settlement - By nonparty whose unrelated tort also caused injury - [See both Damages - Topic 510 ].

Practice - Topic 9851

Settlements - General - [See second Damages - Topic 510 ].

Cases Noticed:

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; [1997] 1 W.W.R. 97; 140 D.L.R.(4th) 235, consd. [para. 6].

Long v. Thiessen (1968), 65 W.W.R.(N.S.) 577 (B.C.C.A.), refd to. [para. 9].

Pryor v. Bains (1986), 69 B.C.L.R. 395 (C.A.), refd to. [para. 11].

Misko v. John Doe et al. (2007), 229 O.A.C. 124; 87 O.R.(3d) 517; 286 D.L.R.(4th) 304; 2007 ONCA 660, refd to. [para. 14].

A.O. v. J.V. et al. (2002), 158 O.A.C. 188; 59 O.R.(3d) 384; 212 D.L.R.(4th) 558 (C.A.), refd to. [para. 14].

Bracey v. Jahnke (1997), 92 B.C.A.C. 254; 150 W.A.C. 254; 34 B.C.L.R.(3d) 191; 147 D.L.R.(4th) 632 (C.A.), dist. [para. 14].

E.D.G. v. Hammer et al., [2003] 2 S.C.R. 459; 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193; 230 D.L.R.(4th) 554; 2003 SCC 52, refd to. [para. 19].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103; 69 D.L.R.(4th) 25; 30 C.C.E.L. 161; 3 C.C.L.T.(2d) 1, refd to. [para. 22].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1; 113 D.L.R.(4th) 1, refd to. [para. 24].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Middelkamp et al. v. Fraser Valley Real Estate Board et al. (1992), 17 B.C.A.C. 134; 29 W.A.C. 134; 71 B.C.L.R.(2d) 276; 96 D.L.R.(4th) 227 (C.A.), refd to. [para. 28].

Dos Santos Estate v. Sun Life Assurance Co. of Canada (2005), 207 B.C.A.C. 54; 341 W.A.C. 54; 40 B.C.L.R.(4th) 245; 249 D.L.R.(4th) 416; 2005 BCCA 4, refd to. [para. 28].

Gnitrow Ltd. v. Cape plc, [2000] 1 W.L.R. 2327; [2000] 3 All E.R. 763 (C.A.), refd to. [para. 29].

Dixon v. British Columbia (1980), 24 B.C.L.R. 382; 128 D.L.R.(3d) 389 (C.A.), appld. [para. 31].

Lawson v. Burns, [1976] 6 W.W.R. 362 (B.C.S.C.), refd to. [para. 32].

Bryanston Finance Ltd. v. de Vries, [1975] Q.B. 703; [1975] 2 All E.R. 609 (C.A.), refd to. [para. 32].

Hutchings v. Dow et al., [2007] 5 W.W.R. 264; 238 B.C.A.C. 139; 393 W.A.C. 139; 66 B.C.L.R.(4th) 78; 2007 BCCA 148, leave to appeal refused [2007] 3 S.C.R. ix; 379 N.R. 391, refd to. [para. 35].

Alderson et al. v. Callaghan et al. (1998), 111 O.A.C. 141; 40 O.R.(3d) 136; 42 C.C.L.T. 230; 21 C.P.C.(4th) 224 (C.A.), refd to. [para. 40].

Authors and Works Noticed:

Mackenzie, Kenneth C., Apportionment of Damages Between Successive Tortfeasors After Athey, Paper presented to the Administrative Law Conference of the Continuing Legal Education Society of British Columbia (April 23, 2004), pp. 5.1.2, 5.1.3 [para. 18].

Williams, Glanville L., Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Commonlaw Dominions (1951), p. 1 [para. 35].

Counsel:

T.R. Berger, Q.C., and J.S. Mackoff, for the appellant;

P.G. Foy, Q.C., and A.M. Gunn, Jr., for the respondents.

This appeal was heard at Vancouver, B.C., on April 28, 2008, by Huddart, Kirkpatrick and Tysoe, JJ.A., of the British Columbia Court of Appeal. Huddart, J.A., delivered the following reasons for judgment for the court on September 16, 2008.