Laichkwiltach Enterprises Ltd. v. Ship F/V Pacific Faith et al., (2009) 272 B.C.A.C. 103 (CA)

• Judge: Newbury, Low and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 19, 2008
• Jurisdiction: British Columbia
• Citations: (2009), 272 B.C.A.C. 103 (CA);2009 BCCA 308

Laichkwiltach Ent. v. Ship Pacific Faith (2009), 272 B.C.A.C. 103 (CA);

    459 W.A.C. 103

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. AP.028

Laichkwiltach Enterprises Ltd. (appellant/plaintiff) v. The Owner and All Others Interested in F/V "Pacific Faith", Pacific Faith Fishing Co. Ltd. and Richard Sewid (respondents/defendants)

(CA035748; 2009 BCCA 157;

  2009 BCCA 308)

Indexed As: Laichkwiltach Enterprises Ltd. v. Ship F/V Pacific Faith et al.

British Columbia Court of Appeal

Newbury, Low and Frankel, JJ.A.

April 8, 2009 and June 30, 2009.

Summary:

The plaintiffs' fishing vessel was damaged in a dockside collision with the defendant's vessel. The plaintiffs sued for damages for the repairs to their vessel, marine surveys and fuel costs for taking the vessel to and from the shipyards where repairs were carried out.

The British Columbia Supreme Court allowed the action in part. The court found the cost of repair to be $36,800, less 67% due to betterment. This yielded the sum of $12,144. To this, the court added the cost of two marine surveys and some dismantling totalling $5,475 and fuel costs of $213.60. The plaintiffs appealed. The defendants cross-appealed.

The British Columbia Court of Appeal allowed the appeal and the cross-appeal in part. The cost of repair was $22,355 but the betterment factor was 33%, yielding the sum of $14,977.85. The court upheld the $5,475 award for the survey costs and the $213.60 award for fuel costs.

Damages - Topic 1441

Special damages - Cost of surveying damage - The plaintiffs' fishing vessel was damaged in a dockside collision with the defendant's vessel - The plaintiffs sued for damages for expenses that included marine surveys and fuel costs for taking the vessel to and from the shipyards where repairs were carried out - The trial judge awarded $5,475 for the survey costs and $213.60 for the fuel costs - The defendants appealed, saying that most of the survey fees were for inspection and assessment of the vessel with respect to repair items either rejected by the trial judge or not claimed by the plaintiffs - The other survey fees were not disputed - The British Columbia Court of Appeal rejected the argument and dismissed the appeal - The result alleged by the defendants was not determinative of the issue - The additional investigatory costs were reasonably incurred as a natural and probable consequence of the tort - See paragraphs 41 to 47.

Damages - Topic 1450

Special damages - Transportation (incl. vehicle requirements) - [See Damages - Topic 1441 ].

Damages - Topic 1836

Torts affecting goods - Damage to goods - Measure of damages - [See Damages - Topic 1845 ].

Damages - Topic 1845

Torts affecting goods - Damage to goods - Repair - General - The plaintiffs' fishing vessel was damaged in a dockside collision with the defendant's vessel - The plaintiffs sued for damages for the repairs to their vessel, which included a new stern ramp - The new stern ramp replaced a "ramp that was in a deteriorated condition and which was overdue for maintenance pre-collision" - The trial judge assessed an amount of damages and reduced it by a betterment factor of 67% - The British Columbia Court of Appeal reduced the betterment factor to 33%, holding as follows: "The analysis of the trial judge, in my opinion, was incomplete. He seems to have quantified betterment on the basis that there was an immediate need for extensive repair as of the date of the collision rather than repair to an uncertain extent at some unknown time in the future. He failed to consider the lack of precision in the evidence when he calculated betterment at what I consider to be a high percentage. The analysis must conclude with a determination of what is reasonable and what is fair to both parties. It has to be remembered that the cause of the immediate need for repair was the tortious act of the [defendants]. The evidence they presented went only part way toward establishing that there was a significant and immediate betterment of the ramp condition. In my opinion, the appropriate amount of deduction for betterment from the proven cost of repair is 33%" - The plaintiffs did not have to adduce opinion evidence of the depreciation or life span of the old ramp - They were not entitled to the full cost of repairs - Betterment was a question of fact - See paragraphs 1 to 40.

Cases Noticed:

Collins Bay Rafting & Forwarding Co. v. Kaine (1898), 29 S.C.R. 247, refd to. [para. 29].

Maritime Telegraph and Telephone Co. v. Ship Dumurra (1977), 15 N.R. 382; 75 D.L.R.(3d) 766 (F.C.A.), dist. [para. 30].

Harbutts Plasticine Ltd. v. Wayne Tank & Pump Co., [1970] 1 Q.B. 447; 1 Lloyd's Rep. 15 (C.A.), dist. [para. 30].

Upper Lakes Shipping Ltd. v. St. Lawrence Cement Inc. (1992), 89 D.L.R.(4th) 722 (Ont. C.A.), appld. [para. 35].

Nan v. Black Pine Manufacturing Ltd. (1991), 55 B.C.L.R.(2d) 241 (C.A.), refd to. [para. 36].

Prince George (City) v. Rahn Bros. Logging Ltd. et al. (2003), 176 B.C.A.C. 195; 290 W.A.C. 195; 9 B.C.L.R.(4th) 253; 2003 BCCA 31, refd to. [para. 36].

Authors and Works Noticed:

Waddams, Stephen M., The Law of Damages (2007 Looseleaf Ed.), p. 5-47 [para. 44].

Counsel:

D.K. Jones, for the appellant;

D.F. McEwen, Q.C., for the respondents.

This appeal was heard at Vancouver, B.C., on November 19, 2008, by Newbury, Low and Frankel, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., on April 8, 2009, by Low, J.A., with supplementary reasons filed on June 30, 2009.