Kwong Estate and Kwong v. Alberta et al., (1978) 14 A.R. 120 (CA)

• Judge: McGillivray, C.J.A., Lieberman, Prowse, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 28, 1978
• Citations: (1978), 14 A.R. 120 (CA)

Kwong Estate v. Alta. (1978), 14 A.R. 120 (CA)

MLB headnote and full text

Kwong Estate and Kwong v. Province of Alberta, Thompson Estate, Stephaniuk and Lazarak

Indexed As: Kwong Estate and Kwong v. Alberta et al.

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Lieberman, Prowse, Moir and Haddad, JJ.A.

December 28, 1978.

Summary:

This case arose out of the claim by the dependants of a deceased for damages for his death. The deceased was a physician, who lived alone in a small community where he practised. His family lived in Edmonton nearby. Years previously the furnace in the leased house in which the physician lived was converted from oil to gas. The conversion was approved by an inspector of the Gas Protection Branch of the Province of Alberta. Regulations under the Gas Protection Act, R.S.A. 1970, c. 156, required a warning to be attached to the blower compartment of new gas furnaces warning that the compartment must be kept closed. No warning was placed on the converted furnace, because the warning was not required to be placed on converted furnaces. On a day when the furnace malfunctioned and the physician was waiting for service, he apparently removed the blower compartment cover with the result that he was asphyxiated in his bed later that night. The physician's dependants brought an action in negligence for damages against the man who converted and serviced the furnace, the inspector who had originally approved the conversion, the owner of the house and the Province of Alberta, which employed the inspector. The claim against the Province was based on the allegation that the Province owed a duty to users of converted furnaces to place the warning on the blower compartment, which was required for new units. In a judgment unreported in this series of reports the Alberta Supreme Court, Trial Division, dismissed the action against all defendants but the Province, which was found liable to the plaintiffs. The Trial Division held that, where the Gas Protection Branch had very broad control over the use of furnaces, there was a duty to warn users of the dangers of removing the compartment cover. The Province appealed.

The Alberta Court of Appeal allowed the appeal and dismissed the action against the Province. The Court of Appeal held that the failure to require a warning to be placed on converted units was merely administrative nonfeasance, for which the Province was not liable - see paragraphs 1 to 74.

Although it was unnecessary in view of the dismissal of the action, Moir, J.A., reviewed the assessment of general damages for the death of the physician and would have reduced the award of the trial judge from $450,000.00 to $245,500.00 - see paragraphs 149 to 193.

Prowse, J.A., dissenting, would have dismissed the appeal of the Province and was of the opinion that there was a duty on the Gas Protection Branch to warn users of converted furnaces of the danger of removing the blower compartment cover - see paragraphs 78 to 128.

Damage Awards - Topic 81

Personal injuries and death - Fatal accidents - Death of father and husband - A physician, aged 36, was killed, leaving surviving his wife, aged 26, who was a pharmacist, and two children, aged four and two - The physician's income from all sources was approximately $86,000.00 a year - He was very frugal and concentrated on building an estate - The Alberta Court of Appeal assessed general damages for death in the amount of $245,500.00 - See paragraphs 149 to 193.

Damages - Topic 2100

Torts causing death - General principles - The Alberta Court of Appeal explained and demonstrated the process of assessing general damages for the wrongful death of a young physician with a high annual income, who concentrated on building an estate - See paragraphs 149 to 193 - The Court of Appeal stated that a court can use various approaches in determining actual pecuniary loss from death and is not restricted to use of the multiplier approach - See paragraphs 162 to 177.

Damages - Topic 2112

Torts causing death - Method of assessment of value of the dependency (lump sum) - Multiplier - The Alberta Court of Appeal rejected the use of a multiplier in determining general damages for the death of a young physician with a high annual income who concentrated on building an estate - See paragraphs 158 to 177.

Damages - Topic 2140

Torts causing death - Deductions from lump sum of pecuniary advantages resulting from death - Acceleration of benefits - The Alberta Court of Appeal held that an amount should be deducted for the acceleration of the benefit or present payment from the estate - See paragraphs 140 to 183.

Torts - Topic 9152

Duty of care - Particular relationships - Claims against public authorities - Administrative nonfeasance - The Alberta Court of Appeal held that no action lay for administrative nonfeasance of a government safety authority, as distinguished from operational malfeasance - See paragraphs 51 to 52.

Torts - Topic 9158

Duty of care - Particular relationships - Claims against public authorities - Safety inspection authority - The deceased's oil-fired furnace was converted to gas and approved by an inspector of the Gas Protection Branch of the provincial government - Under the Gas Protection Regulations a warning was required to be placed on new furnaces warning that the blower compartment must be kept closed - No warning was placed on the deceased's furnace blower, because none was required on conversion units - Several years later the furnace malfunctioned and the deceased removed the blower cover, resulting in his death from asphyxiation - The deceased's estate claimed that the Gas Protection Branch was negligent in failing to warn the deceased of the danger of removing the panel - The Alberta Court of Appeal dismissed the action and held that the Gas Protection Branch was not liable for failing to require warnings to be placed on converted furnaces - The Court of Appeal drew a distinction between administrative nonfeasance in failing to require the warning and operational malfeasance in carrying out the inspection - See paragraphs 1 to 74.

Cases Noticed:

Dutton v. Bognor Regis United Co. Ltd. and another, [1972] 1 All E.R. 462, not folld. [para. 28].

Anns et al. v. London Borough of Merton, [1977] 2 All E.R. 492, appld. [paras. 30, 92].

Geddis v. Bann Reservoir Proprietors (1878), 3 App. Cas. 430, dist. [para. 31].

Home Office v. Dorset Yacht Co. Ltd., [1970] 2 All E.R. 294, dist. [para. 31].

Grossman et al. v. The King, [1952] 1 S.C.R. 571, dist. [para. 32].

R. v. Hochelaga Shipping and Towing Company Limited, [1940] S.C.R. 153, dist. [para. 33].

Stevens and Willson v. The Municipal Corporation of Chatham, [1934] S.C.R. 353, appld. [para. 40].

Schacht v. O'Rourke et al. (1974), 3 N.R. 453; [1976] S.C.R. 53, dist. [para. 34].

Wing v. Moncton, [1940] 2 D.L.R. 740, appld. [para. 43].

Seguin v. Hawkesbury, [1955] O.R. 956; [1955] 5 D.L.R. 809, appld. [para. 44].

East Suffolk Rivers Catchment Board v. Kent, [1941] A.C. 74; [1940] 4 All E.R. 527, appld. [para. 44].

Wellbridge Holdings Limited v. The Metropolitan Corporation of Greater Winnipeg, [1972] 3 W.W.R. 433; [1971] S.C.R. 957; 22 D.L.R.(3d) 470, appld. [para. 46].

Bowen et al. v. Edmonton No. 2, 8 A.R. 336; [1977] 6 W.W.R. 344, appld. [para. 47].

Canadian Federation of Independent Businesses et al. v. The Queen (1974), 49 D.L.R.(3d) 718; [1974] 2 F.C. 433, appld. [para. 48].

Prince Edward Island v. Canada (1976), 66 D.L.R.(3d) 465, revd. 20 N.R. 91, consd. [para. 49].

Ostash et al. v. Sonnenberg et al. (1968), 63 W.W.R.(N.S.) 257, dist. [para. 51].

Montreal and Mulcair (1898), 28 S.C.R. 458, appld. [para. 52].

McCrea et al. v. The Corporation of the City of White Rock, [1975] 2 W.W.R. 593, consd. [para. 54].

Roe v. Minister of Health, [1954] 2 Q.B. 66, appld. [para. 63].

Indian Towing Co. v. United States (1955), 350 U.S. 61, consd. [para. 110].

Hughes v. Lord Advocate, [1963] 1 All E.R. 705, refd to. [para. 124].

Glasgow Corp. v. Muir, [1943] 2 All E.R. 44, refd to. [para. 124].

Gehrmann et al. v. Lavoie (1975), 6 N.R. 570; [1976] 2 S.C.R. 561, not folld. [para. 135].

Keizer v. Hanna and Buch (1978), 19 N.R. 209; 82 D.L.R.(3d) 449, appld. [para. 135].

Taylor v. O'Connor, [1970] 1 All E.R. 365, refd to. [paras. 138, 163].

Andrews v. Grand & Toy Ltd. (1978), 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; [1978] 2 S.C.R. 229, consd. [paras. 138, 170].

Andrews v. Grand & Toy Ltd. (1976), 64 D.L.R.(3d) 663, refd to. [para. 170].

Livingstone v. Rawyards Coal Company (1880), 5 A.C. 25, appld. [para. 138].

Cookson v. Knowles, [1978] 2 All E.R. 604; [1978] 2 W.L.R. 979, refd to. [paras. 143, 163].

Ciniewicz v. Braiden (1965), 52 W.W.R.(N.S.) 111, consd. [para. 162].

Nance v. B.C. Elec. Ry. (1951), 2 W.W.R.(N.S.) 665; [1951] A.C. 601, appld. [para. 163].

Bishop v. Cunard White Star Company Limited, [1950] P. 240, refd to. [para. 163].

Mallet v. McMonagle, [1970] A.C. 166, refd to. [para. 163].

Hossack et al. v. Hertz Drive Yourself, [1966] S.C.R. 28, appld. [para. 167].

Davies v. Powell Duffryn Associated Collieries Ltd., [1942] A.C. 601, refd to. [para. 163].

Kirshman Estate v. Nichols, [1950] 2 W.W.R. 420, appld. [para. 183].

Foster v. Kerr, [1940] 1 W.W.R. 401, appld. [para. 183].

Ponyicki v. Sawayana, [1943] S.C.R. 197, appld. [para. 183].

Maltais v. C.P.R., [1950] 2 W.W.R. 145, appld. [para. 183].

Daniel v. Jones, [1961] 1 W.L.R. 1103, appld. [para. 183].

Heatley v. Steele Company of Wales, [1953] 1 W.L.R. 405, appld. [para. 185].

Statutes Noticed:

Gas Protection Act, R.S.A. 1970, c. 156, sect. 5, sect. 9(1), sect. 10 [para. 96]; sect. 11 [para. 126].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 81(1)(g.1), sect. 81(1)(g.2) [para. 190].

Proceedings Against the Crown Act, R.S.A. 1970, c. 285, sect. 5 [paras. 21, 85].

Authors and Works Noticed:

English Working Paper on Assessment of Damages No. 41 (1971), paras. 162 ff. [para. 170].

Goldsmith on Damages [para. 180].

Street, Principles of the Law of Damages (1962), pp. 132-134 [para. 170].

Counsel:

D.G. Ingram and Wallis Kempo, Q.C., for the respondents;

B. Karrel and E.L. Bunnell, for the appellant.

This case was heard before McGILLIVRAY, C.J.A., LIEBERMAN, PROWSE, MOIR and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On December 28, 1978, the judgment of the Appellate Division was delivered and the following opinions were filed:

McGILLIVRAY, C.J.A. - see paragraphs 1 to 74;

LIEBERMAN, J.A. - see paragraphs 75 to 77;

PROWSE, J.A., dissenting - see paragraphs 78 to 148;

MOIR, J.A., - see paragraphs 149 to 193.

HADDAD, J.A., concurred with MOIR, J.A.