Holloway Estate v. Giles et al., (2001) 201 Nfld. & P.E.I.R. 181 (NFTD)

• Judge: Dunn, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 22, 2001
• Jurisdiction: Newfoundland and Labrador
• Citations: (2001), 201 Nfld. & P.E.I.R. 181 (NFTD)

Holloway Estate v. Giles (2001), 201 Nfld. & P.E.I.R. 181 (NFTD);

    605 A.P.R. 181

MLB headnote and full text

Temp. Cite: [2001] Nfld. & P.E.I.R. TBEd. MY.031

Jacqueline Holloway, as Administratrix of the Estate of the late Hubert Gordon Holloway (plaintiff) v. Anthony Giles (first defendant) and Edward Richardson (second defendant)

(1994 St. J. No. 3501)

Indexed As: Holloway Estate v. Giles et al.

Newfoundland Supreme Court

Trial Division

Dunn, J.

May 22, 2001.

Summary:

During blizzard-type conditions Holloway pulled off to the side of the road to help another person who was stuck in the snow. While Holloway was in the process of shovelling out his motor vehicle he was struck by a tractor-trailer owned by Richard­son and operated by Giles. Holloway died in surgery the following day, leaving a wife and two children, ages 21 and 16. Holl­oway's widow commenced an action for damages against Richardson and Giles. Both liability and quantum were in issue.

The Newfoundland Supreme Court, Trial Division, allowed the action and assessed damages accordingly.

Damage Awards - Topic 97

Injury and death - Wrongful death and fatal accidents - Loss of guidance, care and companionship - A pastor of a Pentecostal Assembly was killed in a motor vehicle accident - His widow claimed damages for herself and their two children, ages 21 and 16 - The Newfoundland Supreme Court, Trial Division, awarded the younger son $4,000 - The older son was virtually inde­pendent and the wife had remarried - See paragraphs 121 to 127.

Damages - Topic 2113

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Upward adjustment for future income or income tax - A pastor of a Pentecostal Assembly was killed in a motor vehicle accident - His widow claimed damages - An issue arose respect­ing income tax gross-up - The Newfound­land Supreme Court, Trial Division, held that the rate to be utilized for purposes of the calculation of the tax gross-up was 18.75% - See paragraphs 113, 114.

Damages - Topic 2116

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Discount or capitalization rate and present value of future payments - A pas­tor of a Pentecostal Assembly was killed in a motor vehicle accident - His widow claimed damages - The Newfoundland Supreme Court, Trial Division, ordered a discount rate of 4% for the first 10 years and 2.5% thereafter - See paragraphs 113, 114.

Damages - Topic 2119.2

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Loss of deceased's income - Effect of tithing (religious donations) - A pastor of a Pentecostal Assembly was killed in a motor vehicle accident - His widow claimed damages - The pastor was required to tithe, that is, donate 10% of his income to the church - In fact, he remitted slightly more than this sum to the benefit of church endeavours - His wife continued the prac­tice after her husband's death - An issue arose as to whether the tithing contribution should be deducted from the pastor's income for purposes of determining past and future loss of income - The New­foundland Supreme Court, Trial Division, allowed no deduction on income in respect of tithing - See paragraphs 84 to 91.

Damages - Topic 2175

Torts causing death - Considerations which increase award - Investment management fees - A pastor of a Pentecostal Assembly was killed in a motor vehicle accident - His widow claimed damages - The New­foundland Supreme Court, Trial Division, ordered that a 5% administrative fee be included in the final award where the wife had no expertise in the area of handling substantial funds - See paragraph 116.

Damages - Topic 2252

Torts causing death - Calculation of value of particular dependencies - Wife and children dependent upon husband and father - A pastor of a Pentecostal Assem­bly was killed in a motor vehicle accident - His widow claimed damages for herself and their two children, ages 21 and 16 - The Newfoundland Supreme Court, Trial Division, noted that the parties agreed that the appropriate percentage applicable with respect to children was four percent - The court determined that the appropriate de­pendency ratio applicable respecting the wife was 68% - See paragraphs 92 to 103.

Damages - Topic 2253

Torts causing death - Calculation of value of particular dependencies - Wife depend­ent upon husband - [See Damages - Topic 2252 ].

Torts - Topic 377

Negligence - Motor vehicle - Standard of care of driver - Visibility reduced - Where centre line of road cannot be seen - White-outs - During white-out or blizzard-type conditions Holloway pulled off to the side of the road to help another person who was stuck in the snow - While Holloway was in the process of shovelling out his motor vehicle he was struck by a tractor-trailer owned by Richardson and operated by Giles - Holloway died in surgery the following day - His widow sued Giles and Richardson for damages - The Newfound­land Supreme Court, Trial Division, held that the accident was caused solely by Giles' rate of speed and negligent driving -Holloway was not contributorily negligent for stopping on the side of the road - See paragraphs 1 to 70.

Torts - Topic 380

Negligence - Motor vehicle - Standard of care of driver - Dangerous highways or adverse driving conditions - White-outs - [See Torts - Topic 377 ].

Torts - Topic 393

Negligence - Motor vehicle - Standard of care of driver - Circumstances requiring caution or extreme caution - White-outs - [See Torts - Topic 377 ].

Torts - Topic 462

Negligence - Motor vehicle - Speed - Where reduced speed required - Road conditions - White-out - [See Torts - Topic 377 ].

Torts - Topic 463

Negligence - Motor vehicle - Speed - Where reduced speed required - Poor or obstructed visibility - White-out - [See Torts - Topic 377 ].

Torts - Topic 500

Negligence - Motor vehicle - Parking or stopping - On highway - White-out - [See Torts - Topic 377 ].

Torts - Topic 502

Negligence - Motor vehicle - Parking or stopping - On a dangerous highway - White-out - [See Torts - Topic 377 ].

Torts - Topic 6610

Defences - Contributory negligence - Motor vehicle accidents - [See Torts - Topic 377 ].

Cases Noticed:

Ryall v. Coombs (1995), 131 Nfld. & P.E.I.R. 299; 408 A.P.R. 299 (Nfld. T.D.), affd. (1996), 141 Nfld. & P.E.I.R. 142; 443 A.P.R. 142 (Nfld. C.A.), refd to. [para. 48].

McKee v. Malenfant, [1954] S.C.R. 651, refd to. [para. 67].

McKay and MacNutt v. Toole et al. (1984), 65 N.S.R.(2d) 426; 147 A.P.R. 426 (T.D.), refd to. [para. 68].

Keizer v. Hanna and Buch, [1978] 2 S.C.R. 342; 19 N.R. 209; 82 D.L.R.(3d) 449, refd to. [para. 71].

Briffett v. Gander and District Hospital Board et al. (1996), 137 Nfld. & P.E.I.R. 271; 428 A.P.R. 271 (Nfld. C.A.), refd to. [para. 73].

Ratansi v. Abery (1994), 97 B.C.L.R.(2d) 74 (S.C.), affd. (1995), 5 B.C.L.R.(3d) 88 (S.C.), refd to. [para. 88].

McLean et al. v. Carr Estate et al. (1994), 125 Nfld. & P.E.I.R. 165; 389 A.P.R. 165 (Nfld. T.D.), refd to. [para. 95].

Healey Estate and Healey v. Brown and Guillerault (1979), 21 Nfld. & P.E.I.R. 414; 56 A.P.R. 414 (Nfld. C.A.), refd to. [para. 95].

Nielson et al. v. Kaufmann (1986), 13 O.A.C. 32; 54 O.R.(2d) 188; 26 D.L.R.(4th) 21 (C.A.), refd to. [para. 95].

Julian v. Northern & Central Gas Corp. (1980), 11 C.C.L.T. 1 (Ont. C.A.), refd to. [para. 95].

McNichol Estate and McNichol v. Mardell, [1984] 5 W.W.R. 177; 55 A.R. 161 (C.A.), refd to. [para. 103].

Howitt v. Heads, [1973] Q.B. 64; [1972] 2 W.L.R. 183; [1972] 1 All E.R. 491, refd to. [para. 103].

Thring Estate v. Vecchioli (1987), 62 Sask.R. 83 (Q.B.), refd to. [para. 110].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257, refd to. [para. 113].

Beam v. Pittman et al. (1994), 122 Nfld. & P.E.I.R. 181; 379 A.P.R. 181 (Nfld. T.D.), refd to. [para. 114].

O'Hara et al. v. Belanger (1989), 98 A.R. 86; 69 Alta. L.R.(2d) 158 (Q.B.), refd to. [para. 115].

Canadian Pacific Ltd. et al. v. Gill et al. (1973), 37 D.L.R.(3d) 229 (S.C.C.), refd to. [para. 117].

Dewhurst Estate v. Schmidtke, [1995] B.C.J. No. 2401 (S.C.), dist. [para. 125].

Statutes Noticed:

Highway Traffic Act, R.S.N. 1990, c. H-3, sect. 110(1), sect. 140(1), sect. 140(2), sect. 146, sect. 200(1) [para. 45].

Authors and Works Noticed:

Cooper-Stephenson, Ken, Personal Injury Damages In Canada (2nd Ed. 1966), pp. 671, 672 [para. 92]; 705, 706, 707 [para. 113].

Counsel:

Dana Lenehan, for the plaintiff;

Robert Sinclair, for the defendants.

This action was heard by Dunn, J., of the Newfoundland Supreme Court, Trial Divi­sion, who delivered the following decision on May 22, 2001.