Lewis v. Todd and McClure and Canadian Provincial Insurance Co., (1980) 34 N.R. 1 (SCC)

• Judge: Laskin, C.J.C., Dickson, Beetz, Estey and McIntyre, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 28, 1980
• Jurisdiction: Canada (Federal)
• Citations: (1980), 34 N.R. 1 (SCC);34 NR 1;14 CCLT 294;115 DLR (3d) 257;1980 CanLII 20 (SCC);[1980] 2 SCR 694

Lewis v. Todd (1980), 34 N.R. 1 (SCC)

MLB headnote and full text

Lewis v. Todd and McClure and the Canadian Provincial Insurance Company

Indexed As: Lewis v. Todd and McClure and Canadian Provincial Insurance Co.

Supreme Court of Canada

Laskin, C.J.C., Dickson, Beetz, Estey and McIntyre, JJ.

October 28, 1980.

Summary:

This case arose out of an action in negligence by the widow of a policeman for damages for the policeman's death after he was run over while investigating a traffic accident. The Ontario High Court allowed the action, held the defendant driver wholly at fault and awarded $175,000 damages to the widow and the three children plus $20,000 to the children for the loss of moral education, guidance and training. The Ontario Court of Appeal allowed the defendant's appeal, held the policeman 25% at fault and reduced the award to $62,252. The widow appealed.

The Supreme Court of Canada allowed the appeal and restored the judgment of the trial judge.

Damage Awards - Topic 81

Personal injuries and death - Fatal accidents - Father and husband - A policeman, aged 32, was killed, leaving surviving his wife, age 27, and three children age 9-5 - He earned $14,100 a year - The Supreme Court of Canada restored an award of damages to the wife and children of $175,000 plus $20,000 to the children for loss of moral education, guidance and training - See paragraphs 12 to 55.

Damages - Topic 1558

General damages for personal injuries - Calculation - Evidence - Actuarial evidence - The Supreme Court of Canada discussed the pertinence of actuarial evidence in the assessment of damages for personal injuries and death - See paragraph 28.

Damages - Topic 2116

Torts causing death - Method of assessment of value of dependency - Discount or capitalization rate and present value of future payments - The Supreme Court of Canada applied a capitalization rate of 8.25%, ruling that the determination of a discount or capitalization rate was a factual issue and turned on the evidence in each case - See paragraphs 30 to 39.

Damages - Topic 2117

Torts causing death - Method of assessment of value of dependency - Contingencies - The Supreme Court of Canada restored a deduction for contingencies of less than 10% and generally discussed the issue of contingencies in the assessment of damages - See paragraphs 44 to 48.

Damages - Topic 2121

Torts causing death - Deductions from value of dependency - Income tax - A trial judge in assessing damages for death made no deduction for income tax - The Supreme Court of Canada stated that income tax should be deducted from the deceased's income in calculating the annual dependency, but held in the circumstances that no income tax deduction should be made, because there was no evidence on the issue and, 8.5 years having elapsed since the accident, it would be unjust to order further proceedings - See paragraphs 40 to 43.

Interest - Topic 5136

Interest as damages - Torts - Negligence - General - The Supreme Court of Canada in awarding interest from the date of judgment at trial to the date of payment of judgment generally discussed the issue of interest - See paragraphs 51 to 54.

Interest - Topic 5145

Interest as damages - Rate of interest applicable - The Supreme Court of Canada awarded interest at the rate of 8.25% from the date of judgment to the date of payment in an action of damages for death - See paragraphs 15 to 54.

Practice - Topic 8800

Appeals - General principles - Duty of appeal court regarding findings of fact by a trial judge - A policeman was run over and killed while conducting an investigation of a traffic accident - The trial judge allowed the policeman's wife's action in negligence for damages for his death and held that the driver of the vehicle which struck him was wholly at fault - The Court of Appeal allowed the appeal and held that the driver was 75% and the policeman 25% at fault - The Supreme Court of Canada restored the judgment of the trial judge, because the trial judge did not misapply the standard of care or misapprehend the evidence and made no palpable or overriding error in his judgment - See paragraphs 7 to 11.

Cases Noticed:

Stein et al. v. The Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359, appld. [para. 9].

Keizer v. Hanna and Buch, [1978] 2 S.C.R. 343; 19 N.R. 209, consd. [para. 23].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R. (3d) 609, consd. [para. 23].

Andrews v. Grand & Toy (Alberta) Ltd., [1978] 2 S.C.R. 299; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 83 D.L.R.(3d) 452, consd. [para. 26].

Thompson v. Board of School Trustees, [1978] 2 S.C.R. 267; 19 N.R. 552; [1978] 1 W.W.R. 607; 83 D.L.R.(3d) 480, consd. [para. 26].

Mallett v. McMonagle, [1970] A.C. 166, not folld. [para. 32].

Livingstone v. Rawyard Coal Company (1880), 5 App. Cas. 25, appld. [para. 40].

Fenn v. The City of Peterborough (1978), 25 O.R.(2d) 399, appld. [para. 54].

Statutes Noticed:

Interest Act, R.S.C. 1970, c. I-18, sect. 13, sect. 14 [para. 53].

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 52 [para. 53].

Authors and Works Noticed:

Braniff and Pratt, Tragedy in the Supreme Court of Canada: New Developments in the Assessment of Damages for Personal Injuries (1979), 37 U.T. Fac. L. Rev. 1, 26 [para. 32].

Gibson, Repairing the Law of Damages (1978), 8 Man. L.J. 637, 651 [para. 32].

Counsel:

Earl A. Cherniak, Q.C., and Mary Anne Sanderson, for the appellant;

M.N. Ellis, Q.C., and I.M. Thompson, for the respondents.

This case was heard on February 25, 1980, at Ottawa, Ontario, before LASKIN, C.J.C., DICKSON, BEETZ, ESTEY and McINTYRE, JJ., of The Supreme Court of Canada.

On October 28, 1980, DICKSON, J, delivered the following judgment for the Supreme Court of Canada: