Howes et al. v. Crosby et al., (1984) 2 O.A.C. 375 (CA)

• Judge: MacKinnon, A.C.J.O., Thorson and Goodman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 24, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 375 (CA)

Howes v. Crosby (1984), 2 O.A.C. 375 (CA)

MLB headnote and full text

Howes, Howes, Howes and Howes v. Crosby and Crosby

Indexed As: Howes et al. v. Crosby et al.

Ontario Court of Appeal

MacKinnon, A.C.J.O., Thorson and Goodman, JJ.A.

March 8, 1984.

Summary:

While walking with her family along the side of a country road, a five year old girl was struck and killed by a motor vehicle. The parents, brother and sister of the deceased girl sued the car owner and operator for damages. A jury held that the driver was 75% at fault for the accident, while the mother was contributorily negligent and 25% at fault for the accident. The jury awarded, inter alia, damages to the child's sister and brother and to her paternal grandparents, under the Family Law Reform Act. The car driver and owner appealed. The child's mother cross-appealed respecting, inter alia, the finding that she was contributorily negligent. The paternal grandparents cross-appealed respecting the amount of damages awarded to them. The child's family all cross-appealed respecting, inter alia, the trial judge's charge to the jury.

The Ontario Court of Appeal dismissed the appeal, but allowed the cross-appeal in part. The Court of Appeal held that the trial judge erred respecting his jury charge, but affirmed the jury's assessment of damages because it was neither inordinately high nor low. The Court of Appeal also affirmed the jury's finding of contributory negligence by the mother.

Damage Awards - Topic 97

Fatal accidents - Loss of companionship - Three children walked along the side of a country road with their mother - A passing car struck and killed the youngest child, a five year old girl - The children were very close to the girl, the deceased's seven year old sister especially so - The Ontario Court of Appeal affirmed a jury's award of $20,000 general damages to the sister, and $3,500 to the 16 year old brother, for the loss of care, guidance and companionship of the girl - See paragraphs 20 to 27 - The paternal grandparents, who lived nearby and saw the girl often, received $500 (grandfather) and $1,000 (grandmother) - See paragraphs 28 to 29.

Damage Awards - Topic 582

Torts affecting third parties - Mental shock - A five year old girl was struck and killed while walking on the side of a country road with her mother, brother and sister - The deceased and her sister, aged seven, were very close and did everything together - The Ontario Court of Appeal affirmed a jury's award to the sister of $10,000 general damages for nervous shock - See paragraphs 20 to 24 - The deceased's brother, aged 16, was greatly affected by the accident and loss - His school work, sleep and relationship with his family suffered - The court affirmed the jury's $4,000 damage award to him - See paragraphs 25 to 27.

Damages - Topic 1266

Losses by third parties - Mental shock - General - The Ontario Court of Appeal awarded a seven year old girl and a 16 year old boy general damages for nervous shock after they witnessed a car accident fatally injuring their five year old sister as she walked along a road.

Damages - Topic 2378

Torts causing death - Particular damage claims - Loss of care, guidance and companionship - The Ontario Court of Appeal awarded a seven year old girl and a 16 year old boy and their paternal grandparents general damages for loss of care, guidance and companionship of their five year old sister/granddaughter, who was killed in a car accident.

Practice - Topic 5196

Juries and jury trials - Charge to jury - Respecting weight of evidence - The Ontario Court of Appeal held that a trial judge erred in instructing a jury in a civil case as to what the attitude or conclusion of "most judges" would be to add weight to his own opinion - See paragraphs 41, 56.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - The Ontario Court of Appeal held that where a jury assesses damages, the trial judge should not give a range or scale of damages to guide them, either by referring them to awards in comparable cases or by telling them the conventional figure - If, however, counsel agree with the judge on a range of damages, that range may be put to the jury as an agreed range - An exception exists for "catastrophe" cases, where the jury may be advised of the upper limit contained in the "trilogy" of cases - See paragraphs 42 to 55.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - At a jury trial in a negligence action for damages for personal injuries, the trial judge gave a range or scale of damages to the jury, but stressed that the figures were not limits and could be ignored - The Ontario Court of Appeal held that the trial judge erred in instructing the jury, but refused to disturb the damages awarded, because they were not inordinately high or low - See paragraphs 53 to 55.

Practice - Topic 8806

Appeals - Duty of appellate court regarding damage awards by a jury - The Ontario Court of Appeal stated that if the appellate court believes that the damages awarded by a jury are too high or too low by 50%, it may conclude that the damages are inordinately high or low and either vary them accordingly or direct a new trial - See paragraph 47.

Torts - Topic 362

Negligence - Motor vehicle - Pedestrians - Contributory negligence - A mother and her three children walked hand-in-hand along the right side of a country road with their backs to traffic - The youngest child, a five year old girl, was closest to the road - The oldest child warned the family of an oncoming car behind them, but the mother failed to turn and observe the car - The family moved to the side but the girl still remained on the pavement's edge - The approaching car struck and killed the girl - The Ontario Court of Appeal affirmed a jury's finding that the mother was negligent and 25% at fault for the accident - See paragraphs 56 to 59.

Torts - Topic 8701

Duty of care - Particular relationships - Claims for nervous shock - General - The Ontario Court of Appeal awarded a seven year old girl and a 16 year old boy general damages for nervous shock after they witnessed a car accident fatally injuring their five year old sister as she walked along a road.

Cases Noticed:

Gray v. Alanco Developments Ltd. et al., [1967] 1 O.R. 597, appld. [para. 5].

Decorby v. Wascana Winter Club (1980), 3 Sask.R. 96 (Sask. C.A.), refd to. [para. 5].

Ward v. James, [1965] 1 All E.R. 564, appld. [para. 46].

Andrews v. Grand & Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 83 D.L.R.(3d) 452, refd to. [para. 51].

Thornton v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480, refd to. [para. 51].

Teno v. Arnold, [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609, refd to. [para. 51].

Counsel:

J.M. Dillon, for the appellants;

J.D. Searle, for the respondents;

B.A. Percival, Q.C., for the respondent, defendant by counterclaim, Vera Mary Howes.

This appeal was heard before MacKinnon, A.C.J.O., Thorson and Goodman, JJ.A., of the Ontario Court of Appeal on January 24, 1984. The decision of the Court of Appeal was delivered by MacKinnon, A.C.J.O., and released on March 8, 1984.