Duncan Estate v. Baddeley, (1999) 231 A.R. 330 (QB)

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 02, 1999
• Citations: (1999), 231 A.R. 330 (QB)

Duncan Estate v. Baddeley (1999), 231 A.R. 330 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. FE.039

Danny Howard Duncan, Administrator of the Estate of Dean Anthony Duncan, deceased, on behalf of the Estate of Dean Anthony Duncan, deceased (plaintiff) v. Dwayne Leveson Baddeley (defendant)

(Action No. 9003-02692)

Indexed As: Duncan Estate v. Baddeley

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

February 2, 1999.

Summary:

The defendant negligently caused the death of the 16 year old deceased. At issue was whether a claim in tort for the deceased's future lost earnings survived his death for the benefit of his estate. The estate also sought a declaration against the deceased father's insurer that the estate was an eligible claimant under the insurer's excess coverage endorsement.

The Alberta Court of Queen's Bench, in a judgment reported 161 A.R. 357, allowed the claim for a declaration against the insurer, but dismissed the claim for future lost earn­ings because it did not survive the deceased's death. Alternatively, the claim did not suc­ceed because the future lost earnings were not proved on a balance of probabilities and, in any event, the claim would be limited to what the deceased would have left to his heirs at the end of his normal life span. The estate appealed.

The Alberta Court of Appeal, Lieberman, J.A., dissenting, in a decision reported 196 A.R. 161; 141 W.A.C. 161, allowed the appeal. A claim for lost future earnings survived the deceased's death and was to be assessed on a simple probabilities basis as a loss of a chance, with appropriate discounts to be applied. The court ordered a new trial to assess the claim. Leave to appeal to the Supreme Court of Canada was denied (see 225 N.R. 397; 212 A.R. 397; 168 W.A.C. 397).

The Alberta Court of Queen's Bench assessed loss of future earnings.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - Duncan, aged 16, was killed in a motor vehicle accident -His estate claimed for loss of future earning capacity - The parties agreed that Duncan's gross income had he lived would have been $1,006,500 - The estate argued that the appropriate method of assessment was to 1) determine Duncan's gross income, 2) deduct income tax that would likely have been paid, 3) deduct expected personal living expenses and 4) deduct a further amount to reflect the contingencies inherent in predicting Duncan's life and earnings into the future - The Alberta Court of Queen's Bench accepted this approach - The court awarded Duncan's estate $425,000 for loss of earning capac­ity.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 492 ].

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income - [See Damage Awards - Topic 492 ].

Cases Noticed:

Harris v. Empress Motors Ltd.; Cole v. Crown Poultry Packers, [1984] 1 W.L.R. 212; [1983] 3 All E.R. 561 (C.A.), refd to. [para. 12].

Semenoff et al. v. Kokan et al. (1991), 4 B.C.A.C. 191; 9 W.A.C. 191; 84 D.L.R.(4th) 76 (C.A.), refd to. [para. 14].

Brooks v. Stefura, [1998] 9 W.W.R. 312; 222 A.R. 345 (Q.B.), refd to. [para. 18].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 22].

Dube v. Penlon (1994), 21 C.C.L.T.(2d) 268 (Ont. Gen. Div.), refd to. [para. 28].

Brown et al. v. University of Alberta et al. (1997), 197 A.R. 237 (Q.B.), refd to. [para. 28].

Granger et al. v. Ottawa General Hospital et al. (1996), 7 O.T.C. 81 (Gen. Div.), refd to. [para. 28].

Authors and Works Noticed:

Cooper-Stevenson, Personal Injury Dam­ages in Canada (2nd Ed. 1996), pp. 476, 477 [para. 46].

Kemp and Kemp, The Quantum of Dam­ages (2nd Ed.) (Looseleaf), pp. 26002/6, 26002/7 [para. 13].

Counsel:

C.I. Taylor and R.H. Haggett, for the plaintiff;

D.J. McGarvey, for the defendant.

This matter was heard by Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 2, 1999.