Millott Estate et al. v. Reinhard et al., 2001 ABQB 1100

• Judge: Fraser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 21, 2000
• Citations: 2001 ABQB 1100;(2001), 306 A.R. 1 (QB)

Millott Estate v. Reinhard (2001), 306 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. DE.110

Lauretta Millott as Administratrix of the Estate of James Ian Millott, the Estate of James Ian Millott, Lauretta Millott, Steven Millott, and Samantha Millott, a minor by her next friend Lauretta Millott (plaintiffs) v. Carl Ivar Reinhard, Williams Moving & Storage (Cranbrook) Ltd., Reinhard Moving & Storage Ltd. and Univan Leasing Limited (defendants)

(Action No. 9901-15453; 2001 ABQB 1100)

Indexed As: Millott Estate et al. v. Reinhard et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Fraser, J.

December 18, 2001.

Summary :

Millott was killed when the motorcycle he was riding collided with a tractor-trailer. His estate, wife and children sued the tractor-trailer driver and the owners of the tractor and trailer.

The Alberta Court of Queen's Bench held that the defendant driver's negligence was the sole cause of the accident, Millott was not contributorily negligent and the owner defendants were jointly and severally liable for the damages on the basis of vicarious liability. The court assessed damages.

Damage Awards - Topic 499

Injury and death - General damage awards - Transportation - Millott, aged 42, died in a collision - His estate, wife and two children sued for damages - His wife and daughter made a claim for, inter alia, transportation damages - Millott had done all the necessary driving for the family, as he was the only licensed driver - His wife testified that she would never get a driver's licence, particularly in light of the way Millott died - The Alberta Court of Queen's Bench held that the wife's trans­portation damages were $79,625 and the daughter's were $7,000 - See paragraphs 322 to 328.

Damages - Topic 2117

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Contingencies - [See Damages - Topic 2379 ].

Damages - Topic 2117

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Contingencies - Millott, a 42 year old husband and father of two, died in a collision - His wife claimed that their marriage had virtually no chance of ending in divorce and that she was unlikely to remarry; therefore, these contingencies should not be taken into account in assess­ing damages - The Alberta Court of Queen's Bench found that the Millott's were happily married, but that it could not find that there was a 0% chance that they would have divorced - Statistics for such possibilities as divorce and remar­riage were the fairest and most reasonable way to make the necessary analysis - In addi­tion, a mortality contingency should logi­cally be included - See paragraphs 216 to 217.

Damages - Topic 2119

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Matters which reduce the value of the dependency - Millott died in a collision - At issue was the extent, if any, to which his wife's income should be included in the dependency calculations (sole, cross or modified dependency) - The wife presented an "economic theory" for the sole depend­ency approach, arguing that she had not "saved" the portion of her income that she used to spend on her husband (cross dependency approach), but had actually been prevented from spending that portion of her income as she wished to spend it - Thus, under economic theory, she was worse off because she could not use the money for its first and best use - The Alberta Court of Queen's Bench rejected the argument - The court had to recognize actual net economic loss - See paragraphs 240 to 253.

Damages - Topic 2119

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Matters which reduce the value of the dependency - Millott, a 42 year old husband and father of two, died in a colli­sion - At issue was the extent, if any, to which his wife's income should be included in the dependency calculations (sole, cross or modified dependency) - The Alberta Court of Queen's Bench stated that it "would reserve sole dependency for cases where the sole income-earner is deceased. ... sole dependency is inappropri­ate for a dual income household. Some adjustment must be made for the survivor's income, because the loss incurred by the survivor must take into account the value of the financial gain to the survivor from no longer spending a portion of the survi­vor's income on the deceased." - See paragraph 255.

Damages - Topic 2119

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Matters which reduce the value of the dependency - Millott, a 42 year old husband and father of two, died in a colli­sion - At issue was the extent, if any, to which his wife's income should be includ­ed in the dependency calculations (sole, cross or modified dependency) - The wife had not yet returned to work at the time of trial, more than three years after the acci­dent - The Alberta Court of Queen's Bench held that it would have been reason­able for the wife to return to work one year after her husband's death - The court used sole dependency to calcu­late income dependency for one year and cross depend­ency thereafter - See para­graphs 203 to 206 and 240 to 261.

Damages - Topic 2119.1

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Loss of deceased's future income - Millott, a 42 year old husband and father, died in a collision - Four years earlier, because of a shoulder injury, he had to leave a warehouseman/supervisor position, at which he earned $41,000 annually - After the injury, the Workers' Compensa­tion Board supplemented his income to $33,000 - The Board also financed one year of Millott's retraining in a two year Hotel and Restaurant Management program - The Alberta Court of Queen's Bench held that Millott would have reached a management position in the hotel industry, ultimately reaching compensation of $60,000 per year - The court applied, inter alia, a retirement age of 62, a 6% benefit rate, a .75% productivity factor, and a 3.85 discount rate - See paragraphs 158 to 202 and 211 to 228.

Damages - Topic 2119.1

Torts causing death - Method of assess­ment of value of the dependency (lump sum) - Loss of deceased's future income - Millott, a 42 year old husband and father of two, died in a collision - The Alberta Court of Queen's Bench discussed the ap­pro­pri­ate dependency rate (percentage of Millott's income that the family consumed) - The court applied the standard depend­ency rate of 70% for a couple, with 4% added for each child (78%) - See para­graphs 234 to 239.

Damages - Topic 2140

Torts causing death - Pecuniary advantages deducted from damages for death - Accel­eration of benefits - The Alberta Court of Queen's Bench stated that "a matrimonial home which passes to a surviving spouse by the operation of joint ownership is not an 'accelerated inheritance'" - See para­graph 232.

Damages - Topic 2379

Torts causing death - Particular damage claims - Loss of housekeeping or handy­man services - Millott, a 42 year old hus­band and father of two, died in a collision - The Alberta Court of Queen's Bench estimated that 10% of the household ser­vices performed by Millott were for his sole benefit and did not need to be replaced for the family to maintain its standard of living - However, the econ­omies of scale offset the fact that his wife was "saving" time on housework because he was no longer alive - Therefore, there was no significant cross dependency issue and the amount of services that needed to be replaced was 90% - The court held that $18 per hour was an appropriate rate for maintenance and repair in the handyman area - The court reduced the amounts by 35% for general contingencies - See para­graphs 266 to 321.

Damages - Topic 2384

Torts causing death - Particular damage claims - Loss of future income - Millott, a 42 year old husband and father of two, died in a collision - The Alberta Court of Queen's Bench held that Millott's family status was important in determining his estate's claim for a "lost years' award" - His personal living expenses would have varied depending on how many of his children were in the home at the time (life cycle approach) - The appropriate personal living expense rates were 35% (both chil­dren at home), 44% (one child at home) and 50% (no children remaining at home) - Taxes were to be deducted from the gross income figures before other deduc­tions were made - Further, the estate claim had to be reconciled with the depen­dency claim to prevent double recovery - See paragraphs 331 to 347.

Torts - Topic 379

Negligence - Motor vehicle - Standard of care of driver - Imminent danger, "agony of the moment" or "agony of collision" - A tractor-trailer was travelling in the center of three north bound lanes - The driver intended to exit into a driveway off the right lane - He moved the tractor into the left lane (the trailer remained in the center lane) before moving it back towards the right - Meanwhile, Millott, a motorcyclist, turned left onto the highway and moved from the left to the right lane, in an attempt to overtake the tractor-trailer - He collided with the tractor-trailer in the right lane - The Alberta Court of Queen's Bench held that the tractor-trailer driver's negli­gence was the sole cause of the accident - After leaving the curb lane open, he failed to ensure that the cut back movement could be made safely - Further, he failed to make the right turn from as close as practicable to the right side of the road - Millott was not contributorily negligent - Further, even if some of Millott's reactions were otherwise negligent, they were excus­able in the emergency circumstances cre­ated by the tractor-trailer driver - See paragraphs 2 to 152.

Torts - Topic 412

Negligence - Motor vehicle - Rules of the road - Making turns - Right turns - [See Torts - Topic 379 ].

Torts - Topic 427

Negligence - Motor vehicle - Rules of the road - Overtaking - Duty of overtaking driver - [See Torts - Topic 379 ].

Torts - Topic 428

Negligence - Motor vehicle - Rules of the road - Overtaking - Duty of driver being overtaken - [See Torts - Topic 379 ].

Torts - Topic 6610

Defences - Contributory negligence - Par­ticular cases - Motor vehicle accidents - [See Torts - Topic 379 ].

Cases Noticed:

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241; 25 Alta. L.R.(3d) 297, refd to. [para. 21].

Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; 86 N.R. 241; 29 O.A.C. 1, refd to. [para. 21].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 25].

Wickberg v. Patterson (1997), 196 A.R. 43; 141 W.A.C. 43 (C.A.), refd to. [para. 26].

Toll v. Canadian Pacific Railway (1908), 1 Alta. L.R. 318 (C.A.), refd to. [para. 31].

Swartz Brothers Ltd. v. Wills, [1935] S.C.R. 628, refd to. [para. 46].

Khalil v. Gunn et al. (1999), 254 A.R. 238 (Q.B.), refd to. [para. 47].

Petijevich et al. v. Law (1968), 1 D.L.R.(3d) 690 (S.C.C.), refd to. [para. 47].

Baron v. Coolidge, [1975] A.J. No. 36 (Dist. Ct.), refd to. [para. 51].

Charet v. Boonstra et al. (1997), 210 A.R. 121 (Q.B.), refd to. [para. 52].

Vollrath v. Bruce (2000), 282 A.R. 364 (Q.B.), refd to. [para. 52].

Cheung v. Champion, [1999] A.R. Uned. 119 (Q.B.), refd to. [para. 53].

Todd v. Pana and Browning Ferris Indus­tries Ltd. (1986), 71 A.R. 202 (Q.B.), refd to. [para. 82].

Elliott v. Hill Brothers Expressways Ltd. et al. (1999), 232 A.R. 258; 195 W.A.C. 258 (C.A.), refd to. [para. 88].

Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), refd to. [para. 118].

McElhatton v. Wales (2000), 255 A.R. 183; 220 W.A.C. 183 (C.A.), refd to. [para. 119].

Moseley v. Spray Lakes Sawmills (1980), Ltd. et al. (1997), 194 A.R. 384 (Q.B.), dist. [para. 140].

Canadian Pacific Ltd. et al. v. Gill et al., [1973] S.C.R. 654; 37 D.L.R.(3d) 229, refd to. [para. 145].

Spratt v. Edmonton (City), [1942] 2 W.W.R. 456 (Alta. T.D.), refd to. [para. 146].

Elliott v. Hill Brothers Expressways Ltd. et al. (1998), 221 A.R. 277 (Q.B.), affd. (1999), 232 A.R. 258; 195 W.A.C. 258 (C.A.), refd to. [para. 149].

Duncan Estate v. Baddeley et al. (1997), 196 A.R. 161; 141 W.A.C. 161 (C.A.), leave to appeal refused (1997), 225 N.R. 397; 212 A.R. 397; 168 W.A.C. 397 (S.C.C.), refd to. [para. 155].

Brooks et al. v. Stefura (2000), 266 A.R. 239; 228 W.A.C. 239 (C.A.), consd. [para. 229].

Kwong Estate and Kwong v. Alberta et al. (1979), 14 A.R. 120; 96 D.L.R.(3d) 214 (C.A.), affd. (1979), 29 N.R. 295; 18 A.R. 358; 96 D.L.R.(3d) 214; 105 D.L.R.(3d) 576 (S.C.C.), refd to. [para. 230].

Schiewe Estate v. Skogan et al., [1996] 8 W.W.R. 635; 185 A.R. 321; 40 Alta. L.R.(3d) 153 (Q.B.), revd. in part [1999] 5 W.W.R. 419; 228 A.R. 68; 188 W.A.C. 68; 67 Alta. L.R.(3d) 76 (C.A.), leave to appeal denied (1999), 243 N.R. 393; 237 A.R. 200; 197 W.A.C. 200 (S.C.C.), refd to. [para. 237].

Murray Estate et al. v. Advocate Contract­ing Ltd. et al. (2001), 195 N.S.R.(2d) 313; 609 A.P.R. 313 (S.C.), refd to. [para. 237].

Nielsen et al. v. Kaufmann (1986), 13 O.A.C. 32; 54 O.R.(2d) 188 (C.A.), refd to. [para. 237].

Hechavarria et al. v. Reale et al., [2000] O.T.C. 791; 51 O.R.(3d) 364 (Sup. Ct.), refd to. [para. 240].

Labbee et al. v. Peters et al. (1997), 201 A.R. 241 (Q.B.), affd. (2000), 261 A.R. 141; 225 W.A.C. 141 (C.A.), refd to. [para. 247].

Riches v. Miller, Cline, Hannah, General Motors of Canada Ltd. and Harley Estate et al. (1984), 50 A.R. 92 (C.A.), refd to. [para. 248].

Rose Estate v. Belanger (1985), 32 Man.R.(2d) 282; 17 D.L.R.(4th) 212 (C.A.), refd to. [para. 249].

Braun Estate v. Vaughan et al., [2000] 3 W.W.R. 465; 145 Man.R.(2d) 35; 218 W.A.C. 35 (C.A.), refd to. [para. 249].

Robb Estate et al. v. St. Joseph's Health Care Centre et al., [2000] O.T.C. 23 (Sup. Ct.), refd to. [para. 252].

Nemetchek v. University Hospitals Board et al. (2000), 265 A.R. 264 (Q.B.), refd to. [para. 280].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 282].

PTI Group Inc. v. BOT Quebec Ltée et al. (1995), 166 A.R. 104 (Q.B.), affd. (1996), 193 A.R. 143; 135 W.A.C. 143 (C.A.), refd to. [para. 283].

Wood v. Grand Valley Railway Co. (1915), 51 S.C.R. 283, refd to. [para. 283].

Taguchi Estate et al. v. Stuparyk (1994), 148 A.R. 359; 16 Alta. L.R.(3d) 72 (Q.B.), affd. (1995), 169 A.R. 8; 97 W.A.C. 8; 29 Alta. L.R.(3d) 175 (C.A.), leave to appeal dismissed (1995), 195 N.R. 159; 181 A.R. 79; 116 W.A.C. 79 (S.C.C.), refd to. [para. 286].

Duncan Estate v. Baddeley (2000), 266 A.R. 323; 228 W.A.C. 323 (C.A.), refd to. [para. 331].

Harris v. Empress Motors Ltd., [1983] 3 All E.R. 561 (C.A.), refd to. [para. 335].

Rewcastle Estate v. Sieben (2001), 296 A.R. 61 (Q.B.), refd to. [para. 336].

Duncan Estate v. Baddeley (1999), 231 A.R. 330 (Q.B.), refd to. [para. 339].

Authors and Works Noticed:

Brown, C.L., A Case Comment on Duncan v. Baddeley (1999), 37 Alta. L. Rev. 772, pp. 797 to 803 [para. 338].

Bruce, C.J., Assessment of Personal Injury Damages (3rd Ed. 1999), pp. 55, 56 [para. 241]; 58 [para. 254]; 59 [para. 269]; 210 [para. 236].

Cooper-Stephenson, K., and Saunders, I., Personal Injury Damages in Canada (2nd Ed. 1996), p. 671, 672 [para. 246].

Waddams, S.M., The Law of Damages (2000) (Looseleaf Ed.), para. 6.410 [para. 231].

Waddams, S.M., The Law Damages (2nd Ed. 1983), generally [para. 283].

Counsel:

M.B. Warren and N.C. Mayer, for the plaintiffs;

K.B. Haluschak and M.J.M. Hokanson, for the defendants.

This action was heard on November 14 to December 21, 2000, January 22 to 25 and May 1 to June 1, 2001, by Fraser, J., of the Alberta Court of Queen's Bench, Judicial Centre of Calgary, who delivered the follow­ing decision on December 18, 2001.