Holloway Estate v. Giles et al., (2004) 233 Nfld. & P.E.I.R. 229 (NFCA)

• Judge: Cameron, Welsh and Mercer, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: February 04, 2004
• Jurisdiction: Newfoundland and Labrador
• Citations: (2004), 233 Nfld. & P.E.I.R. 229 (NFCA);2004 NLCA 8

Holloway Estate v. Giles (2004), 233 Nfld. & P.E.I.R. 229 (NFCA);

    693 A.P.R. 229

MLB headnote and full text

Temp. Cite: [2004] Nfld. & P.E.I.R. TBEd. FE.012

Anthony Giles (first appellant) and Edward Richardson (second appellant) v. Jacqueline Halloway, as Administratrix of the Estate of the late Gordon Holloway (respondent)

(03/84; 2004 NLCA 8)

Indexed As: Holloway Estate v. Giles et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Cameron, Welsh and Mercer, JJ.A.

February 4, 2004.

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, in a decision reported 201 Nfld. 181; 605 A.P.R. 181, allowed the action and assessed damages accordingly. Richardson and Giles appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeal, but only as to the percentage to be applied for tax gross-up on damages. In all other respects the decision of the trial judge was affirmed.

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 trial judge held that the rate to be utilized for pur­poses of the calculation of the tax gross-up was 18.75% - The Newfoundland and Labrador Court of Appeal varied the tax gross-up to 15.5% - See paragraphs 52 to 59.

Damages - Topic 2117

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Contingencies (incl. remarriage) - A pastor of a Pentecostal Assembly was killed in a motor vehicle accident - His widow claimed damages - An issue arose respecting the effect of the wife's remar­riage in assessing damages - The trial judge, noting that the widow was not in a better financial position since her remar­riage did not make any adjustments in compensation because of the remarriage - The Newfoundland and Labrador Court of Appeal affirmed the decision - See para­graphs 45 to 51.

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 trial judge allowed no deduction from income in respect of tithing - The Newfoundland and Labrador Court of Appeal affirmed the decision - See paragraphs 27 to 35.

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 trial judge ordered that a 5% administration fee be included in the final award where the wife had no expertise in the area of handl­ing substantial funds - The Newfoundland and Labrador Court of Appeal held that the trial judge made no palpable and overrid­ing error in setting the administration fee in this case - See paragraphs 60 to 66.

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 trial judge determined that the appro­priate dependency ratio applicable respect­ing the wife was 68% - The Newfoundland and Labrador Court of Appeal affirmed the decision - See paragraphs 36 to 43.

Damages - Topic 2253

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

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - A trial judge allowed the plaintiff's action for damages for personal injuries after he was struck by a tractor-trailer owned and operated by the defendants - The defendants appealed both liability and quantum - The Newfoundland and Labrador Court of Appeal discussed the applicable standard of review - The correctness standard was to be applied to questions of law - With respect to ques­tions of mixed fact and law, the court stated that "the decision must be examined to determine whether the trial judge has made some extricable error in principle with respect to the characterization of the standard or its application, in which case it is to be examined on a standard of correct­ness. Failing that the standard is palpable and overriding error ... the distinction can be difficult in practice. However, where the only point at issue is the interpretation of the evidence as a whole an appellant must demonstrate a palpable and overrid­ing error" - The damages assessment would only be set aside if the trial judge applied a wrong principle of law or the amount awarded was so inordinately high or so inordinately low as to make it an entirely erroneous estimate of the damages - See paragraphs 7 to 9.

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See Practice - Topic 8800.1 ].

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - [See Practice - Topic 8800.1 ].

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 trial judge 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 - Giles and Richardson appealed, arguing that the trial judge erred in not finding contributory negligence - The Newfoundland and Labrador Court of Appeal dismissed the appeal - See paragraphs 1 to 23.

Cases Noticed:

Wickberg v. Patterson, [1997] 4 W.W.R. 591; 196 A.R. 43; 141 W.A.C. 43 (C.A.), refd to. [para. 5].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 7].

Nance v. British Columbia Electric Rail­way Co., [1951] A.C. 601, refd to. [para. 9].

United Food and Commercial Workers, Local 1252 Fishermen's Union v. Cashin et al. (2002), 216 Nfld. & P.E.I.R. 41; 647 A.P.R. 41; 217 D.L.R.(4th) 620; 2002 NFCA 48, refd to. [para. 9].

Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608, refd to. [para. 10].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 10].

Schiewe Estate v. Skogan et al., [1996] 8 W.W.R. 635; 185 A.R. 321 (Q.B.), refd to. [para. 19].

Weaver v. Gifford et al. (1988), 90 N.B.R.(2d) 361; 228 A.P.R. 361 (T.D.), refd to. [para. 19].

Schiewe Estate v. Skogan et al., [1999] 5 W.W.R. 419; 228 A.R. 68; 188 W.A.C. 68; 1998 ABCA 347, leave to appeal refused (1999), 243 N.R. 393; 237 A.R. 200; 197 W.A.C. 200 (S.C.C.), refd to. [para. 20, footnote 4].

Keizer v. Hanna and Buch, [1978] 2 S.C.R. 342; 19 N.R. 209, refd to. [para. 25].

Shaw Estate et al. v. Roemer et al. (1982), 51 N.S.R.(2d) 229; 102 A.P.R. 229 (C.A.), refd to. [para. 25].

Willey Estate v. Cambridge Leaseholds Ltd. (1975), 8 Nfld. & P.E.I.R. 20; 8 A.P.R. 20 (P.E.I.C.A.), refd to. [para. 27].

Krause et al. v. Davey, [1971] 2 O.R. 670 (H.C.), refd to. [para. 27].

Ratansi v. Abery (1994), 97 B.C.L.R.(2d) 74 (S.C.), refd to. [para. 28].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 35].

Nielsen et al. v. Kaufmann (1986), 13 O.A.C. 32; 54 O.R.(2d) 188 (C.A.), refd to. [para. 39].

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. 39].

Parsons Estate v. Guymer (1998), 110 O.A.C. 362; 162 D.L.R.(4th) 390 (C.A.), refd to. [para. 45].

Ball v. Kraft (1966), 60 D.L.R.(2d) 35 (B.C.S.C.), refd to. [para. 45].

Thring Estate v. Vecchioli (1987), 62 Sask.R. 83 (Q.B.), refd to. [para. 48].

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. 50].

McLoughlin et al. v. Luff (Ray) Ltd. et al. (2003), 221 Nfld. & P.E.I.R. 54; 661 A.P.R. 54 (Nfld. and Lab. C.A.), refd to. [para. 50].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 52].

O'Hara et al. v. Belanger (1989), 98 A.R. 86; 69 Alta. L.R.(2d) 158 (Q.B.), refd to. [para. 56].

Davies Estate v. Robertson et al. (1984), 5 O.A.C. 393 (C.A.), refd to. [para. 57].

Mandzuk v. Vieira and Insurance Corp. of British Columbia, [1988] 2 S.C.R. 650; 89 N.R. 394, refd to. [para. 60].

Townsend v. Kroppmanns et al. (2002), 171 B.C.A.C. 11; 280 W.A.C. 11; 2002 BCCA 365, refd to. [para. 61].

Authors and Works Noticed:

Bruce, C.J., Assessment of Personal Injury Damages (3rd Ed. 1999), p. 54 [para. 40].

Cooper-Stevenson, K., Personal Injury Damages In Canada (2nd Ed. 1996), pp. 671, 672 [para. 41]; 709 [para. 54, foot­note 9].

Gravells, N., Three Heads of Contributory Negligence (1977), 93 L.Q.R. 581, gen­erally [para. 11].

Klar, L.N., Tort Law (3rd Ed. 2003), p. 457 [para. 11].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), p. 448 [para. 16].

Osborne, Philip H., The Law of Torts (2000), c. 2, s. D [para. 17].

Waddams, Stephen M., The Law of Dam­ages (Looseleaf Ed.), para. 6.80 [para. 25].

Counsel:

Robert M. Sinclair, Q.C., and Deanne M. Penney, for the first and second appel­lants;

Dana Lenehan, Q.C., and Jennifer New­bury, for the respondent.

This appeal was heard on November 20-21, 2003, by Cameron, Welsh and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal. The following decision of the court was delivered on February 4, 2004, by Cameron, J.A.