B.P.B. v. M.M.B., (2009) 276 B.C.A.C. 22 (CA)

• Judge: Mackenzie, K. Smith and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 19, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 276 B.C.A.C. 22 (CA);2009 BCCA 365

B.P.B. v. M.M.B. (2009), 276 B.C.A.C. 22 (CA);

    468 W.A.C. 22

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. AU.030

B.P.B. (respondent/plaintiff/appellant on cross-appeal) v. M.M.B. (appellant/defendant/respondent on cross-appeal)

(CA034317; 2009 BCCA 365)

Indexed As: B.P.B. v. M.M.B.

British Columbia Court of Appeal

Mackenzie, K. Smith and Chiasson, JJ.A.

August 19, 2009.

Summary:

A daughter sued her father for damages for physical and emotional abuse that occurred while she was a child. The daughter obtained default judgment. The father applied to set aside the default judgment.

The British Columbia Supreme Court, per Koenigsberg, J., dismissed the application. The father appealed.

The British Columbia Court of Appeal, in a decision 215 B.C.A.C. 153; 355 W.A.C. 153, dismissed the appeal. A damages trial was held.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. 698, and supplementary reasons reported at [2006] B.C.T.C. 1027, awarded the daughter $396,343.70 plus management fees of $18,000. The father appealed. The daughter cross-appealed. There was delay. The appeal and the cross-appeal were placed on the inactive list. The father moved for removal of his appeal from the inactive list.

The British Columbia Court of Appeal, per Frankel, J.A., in a decision reported at 253 B.C.A.C. 88; 425 W.A.C. 88, allowed the motion. The court ordered that both the appeal and the cross-appeal be removed from the inactive list. The appeal and cross-appeal proceeded.

The British Columbia Court of Appeal dismissed the appeal. The court, Mackenzie, J.A., dissenting respecting one aspect of the cross-appeal, allowed the cross-appeal on one issue.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damages - Topic 508

Limits of compensatory damages - General - Causes independent of wrongful act - From an early age through to her teen years, the plaintiff was regularly physically and emotionally abused by her father - She was sexually abused by an uncle when she was 10 and later by neighbours - The plaintiff successfully sued her father for damages for physical and emotional abuse - The trial judge held that, as a result of this abuse, the plaintiff suffered severe psychological injury - The trial judge made a global assessment of the damages and determined that 65% global non-pecuniary damages and aggravated damages and 85% of the global pecuniary damages were attributable to the father's conduct - The father appealed - The daughter cross-appealed, arguing that the trial judge should have given judgment against the father for 100% of the global damages assessed - The British Columbia Court of Appeal held that the trial judge failed to determine whether the plaintiff's psychological injury from multiple sources was divisible or indivisible - On the evidence, such a finding was not possible - The trial judge's conclusion that the father's abuse was of such severity that it alone would have caused significant permanent impairment of the plaintiff's psychological health and function was sufficient to hold him 100% liable for the damages that she sustained - The fact that her uncle's and neighbours' conduct exacerbated her condition was no answer - See paragraphs 33 to 56.

Damages - Topic 508

Limits of compensatory damages - General - Causes independent of wrongful act - The British Columbia Court of Appeal stated that "[t]he assessment of damages requires a determination whether the injury derived from multiple sources and whether it is divisible. If it is, responsibility is allocated to the individual sources of the injury. If the injury is indivisible, the court must consider the possible application of the thin skull or crumbling skull rules in the context of the victim's original condition. If the crumbling skull rule applies, it forms part of returning the victim to his or her original condition and the tortfeasor is not responsible for events that caused the crumbled skull. Absent the application of the crumbling skull rule, where the injury is indivisible, all tortfeasors who caused or contributed to the injury are 100% liable for the damages sustained by the victim." - See paragraphs 42 and 43.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - [See second Damages - Topic 508 ].

Damages - Topic 1297

Exemplary or punitive damages - Conditions precedent (or when awarded) - From an early age through to her teen years, the plaintiff was regularly physically and emotionally abused by her father - She was sexually abused by an uncle when she was 10 and later by neighbours - The plaintiff successfully sued her father for damages for physical and emotional abuse - The trial judge held that, as a result of this abuse, the plaintiff suffered severe psychological injury - The trial judge made a global assessment of the damages, including $25,000 for aggravated damages - She held that the combined amount of aggravated and non-pecuniary damages for which the father was liable ($78,000) (increased to $120,000 on appeal) was a significant punishment - Although the father's conduct would fulfill the criteria for an award of punitive damages, it could not be said that the combined non-pecuniary award was insufficient to achieve the goal of punishment and deterrence - Therefore, the trial judge declined to award both aggravated and punitive damages - The British Columbia Court of Appeal held that the trial judge did err in her consideration of punitive damages - See paragraphs 58 to 61.

Damages - Topic 1322.1

Exemplary or punitive damages - Bar - Award unnecessary - [See Damages - Topic 1297 ].

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, refd to. [paras. 1, 72, 101].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [paras. 1, 72, 101].

B. v. B. - see B.B. v. M.B.

B.B. v. M.B. (2005), 215 B.C.A.C. 153; 355 W.A.C. 153; 51 B.C.L.R.(4th) 26; 2005 BCCA 407, refd to. [para. 10].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 26].

Miracle Feeds v. D. & H. Enterprises Ltd. (1979), 10 B.C.L.R. 58 (Co. Ct.), refd to. [para. 29].

Blackwater et al. v. Plint et al. (2003), 192 B.C.A.C. 1; 315 W.A.C. 1; 235 D.L.R.(4th) 60; 2003 BCCA 671, refd to. [para. 40].

Blackwater et al. v. Plint et al., [2001] B.C.T.C. 997; 93 B.C.L.R.(3d) 228; 2001 BCSC 997, refd to. [paras. 41, 87].

A.C. et al. v. Y.J.C., [2003] O.T.C. 164; 36 R.F.L.(5th) 79 (Sup. Ct.), refd to. [para. 44].

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; 2003 SCC 52, refd to. [paras. 44, 72, 104].

S.Y. v. F.G.C., [1997] 1 W.W.R. 229; 78 B.C.A.C. 209; 128 W.A.C. 209; 26 B.C.L.R.(3d) 155 (C.A.), refd to. [para. 59].

Hutchings v. Dow et al. (2007), 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; 262 B.C.A.C. 318; 441 W.A.C. 318, refd to. [para. 69].

Dingle v. Associated Newspapers Ltd., [1961] 2 Q.B. 162 (C.A.), refd to. [para. 74].

Long v. Thiessen (1968), 65 W.W.R.(N.S.) 577 (B.C.C.A.), refd to. [paras. 91, 101].

Authors and Works Noticed:

Cheifetz, David, Apportionment of Fault in Tort (1981), pp. 5, 8 [para. 69].

Williams, Glanville L., Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Commonlaw Dominions (1951), pp. 1 [para. 69]; 3, 4 [para. 72]; 16 [para. 69]; 20 [para. 71].

Counsel:

J.O. Richardson, for the appellant;

G.E. Edwards and J.H. Oland, for the respondent.

This appeal and cross-appeal were heard in Vancouver, British Columbia, on February 9-10, 2009, by Mackenzie, K. Smith and Chiasson, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on August 19, 2009, when the following opinions were filed:

Chiasson, J.A. - see paragraphs 1 to 66;

K. Smith, J.A. - see paragraphs 67 to 98;

Mackenzie, J.A., dissenting respecting the cross-appeal - see paragraphs 99 to 110.