Duncan Estate v. Baddeley et al., (1997) 196 A.R. 161 (CA)

• Judge: Lieberman, Kerans and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 08, 1997
• Citations: (1997), 196 A.R. 161 (CA);1997 CanLII 11516 (AB CA);145 DLR (4th) 708;196 AR 161;50 Alta LR (3d) 202;[1997] CarswellAlta 186;[1997] AJ No 339 (QL)

Duncan Estate v. Baddeley (1997), 196 A.R. 161 (CA);

    141 W.A.C. 161

MLB headnote and full text

Danny Howard Duncan, Administrator of the Estate of Dean Anthony Duncan, deceased, on behalf of the Estate of Dean Anthony Duncan, deceased, and on behalf of Phyllis Duncan and Trevor Scott Duncan, and Phyllis Duncan, Trevor Scott Duncan, infant by his Next Friend, Danny Howard Duncan and Danny Howard Duncan (appellants) v. Dwayne Leveson Baddeley (respondent)

(Appeal No. 9503-0408-AC)

Indexed As: Duncan Estate v. Baddeley et al.

Alberta Court of Appeal

Lieberman, Kerans and Côté, JJ.A.

April 8, 1997.

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 insurance company that the estate was an eligible claimant under the com­pany'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 insurance company, 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, allowed the appeal and ordered a new trial to assess the claim. 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.

Damages - Topic 2104

Torts causing death - General - Damages recoverable - [See Damages - Topic 2384 ].

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income - The defendant negligently caused the 16 year old deceased's death - Under ss. 2 and 5 of the Survival of Actions Act, a deceased person's cause of action survived his death for the benefit of his estate, but only for claims involving "actual financial loss" to the deceased or his estate - The Alberta Court of Appeal held that s. 5 precluded survival of claims for notional or fictive loss (e.g., punitive damages) or nonpe­cuniary loss - A claim for loss of future earnings by the deceased survived his death, because a deceased's loss of capac­ity to earn income was an "actual financial loss" - The court discussed the proper manner of assessing the present value of that loss - See paragraphs 6 to 46.

Torts - Topic 7905

Survival of actions - General - Injuries resulting in death - [See Damages - Topic 2384 ].

Words and Phrases

Actual financial loss - The Alberta Court of Appeal held that the phrase "actual financial loss", as found in s. 5 of the Survival of Actions Act, R.S.A. 1980, c. S-30, included a deceased's claim for loss of future earnings - See paragraphs 6 to 25.

Cases Noticed:

Galand Estate v. Stewart, [1993] 4 W.W.R. 205; 135 A.R. 129; 33 W.A.C. 129 (C.A.), refd to. [para. 7].

O'Shea Estate v. Litle (1989), 93 N.S.R.(2d) 416; 243 A.P.R. 416 (C.A.), refd to. [para. 7].

Ontario Minister of Highways v. Jennings, [1966] S.C.R. 532, refd to. [para. 10].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452, refd to. [para. 10].

Pickett v. British Rail Engineering, [1979] 1 All E.R. 774 (H.L.), refd to. [para. 10].

James Estate v. Rentz (1986), 69 A.R. 198; 27 D.L.R.(4th) 724 (C.A.), refd to. [para. 11].

Gammell v. Wilson; Furness v. Massey (B. & S.), [1981] 1 All E.R. 578 (H.L.), refd to. [para. 18].

B.P.I. Resources Ltd. v. Merrill Lynch Canada Inc. and Anderson (1989), 95 A.R. 211 (C.A.), refd to. [para. 30].

Steenblok v. Funk (1990), 46 B.C.L.R.(2d) 133 (C.A.), refd to. [para. 30].

Gerula v. Flores (1995), 83 O.A.C. 128; 126 D.L.R.(4th) 506 (C.A.), refd to. [para. 30].

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. 33].

Harris v. Empress Motors; Cole v. Crown Poultry Packers, [1983] 3 All E.R. 561 (C.A.), refd to. [para. 42].

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. 42].

Oliver v. Ashman, [1962] 2 Q.B. 210; [1961] 3 W.L.R. 669; [1961] 3 All E.R. 323 (C.A.), refd to. [para. 48].

Rose v. Ford, [1937] 3 All E.R. 359 (H.L.), refd to. [para. 49].

Benham v. Gambling, [1941] 1 All E.R. 7 (H.L.), refd to. [para. 50].

Harris v. Brights Asphalt Contractors, [1953] 1 All E.R. 395, refd to. [para. 52].

Richards v. Highway Ironfounders (West Bromwich), [1955] 3 All E.R. 205 (C.A.), refd to. [para. 52].

Phillips v. L. & S.W. Ry. (1879), 5 Q.B.D. 78 (C.A.), refd to. [para. 62].

Flint v. Lovell, [1934] All E.R. 200 (C.A.), refd to. [para. 75].

Statutes Noticed:

Survival of Actions Act, R.S.A. 1980, c. S-30, sect. 2, sect. 5 [paras. 6, 67].

Authors and Works Noticed:

Bowker, W.F., The Uniform Survival of Actions Act (1964), 3 Alta. L. Rev. 197, pp. 198 to 201 [para. 73].

Coopers-Stephenson and Saunders, Per­sonal Injury Damages in Canada (1981), p. 389 [para. 71].

Driedger, E.A., Construction of Statutes (3rd Ed. 1994), p. 131 [para. 8].

Englehart, K.G., Proof of Future Events: In Support of the Simple Probability Bur­den of Proof (1987), 8 Advocates Quar­terly 163, generally [para. 30].

Klar, Tort Law, p. 10 [para. 15].

Waddams, S.M., Law of Damages (2nd Ed. 1995), generally [para. 17].

Counsel:

Constance I. Taylor and R.H. Haggett, for the appellants;

Donald J. McGarvey and S. Webber, for the respondent.

This appeal was heard before Lieberman, Kerans and Côté, JJ.A., of the Alberta Court of Appeal.

On April 8, 1997, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Kerans, J.A. - see paragraphs 1 to 46;

Côté, J.A. - see paragraphs 47 to 64;

Lieberman, J.A., dissenting - see para­graphs 65 to 85.