Reilly v. Lynn,

• Jurisdiction: British Columbia
• Judge: Southin, Low and Smith, JJ.A.
• Neutral Citation: 2003 BCCA 49
• Citation: (2003), 178 B.C.A.C. 69 (CA),2003 BCCA 49,10 BCLR (4th) 16,178 BCAC 69,[2003] BCJ No 133 (QL),(2003), 178 BCAC 69 (CA),[2003] B.C.J. No 133 (QL),178 B.C.A.C. 69
• Date: 24 January 2003
• Court: Court of Appeal (British Columbia)

Reilly v. Lynn (2003), 178 B.C.A.C. 69 (CA);

    292 W.A.C. 69

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. FE.024

Robert Duff Reilly (respondent/appellant on cross appeal/plaintiff) v. Michael W. Lynn (appellant/respondent on cross appeal/defendant)

(CA026594; CA026922; CA028565; 2003 BCCA 49)

Indexed As: Reilly v. Lynn

British Columbia Court of Appeal

Southin, Low and Smith, JJ.A.

January 24, 2003.

Summary:

The plaintiff bicyclist sued the defendant motor vehicle driver for damages for injuries suffered when struck on a highway. Liability was admitted.

The British Columbia Supreme Court, in a decision reported at [1999] B.C.T.C. Uned. 701, allowed the action and assessed dam­ages, including substantial damages for loss of income earning capacity. In supplemen­tary reasons reported at the same time, the court awarded a management fee to the plaintiff and dismissed his claim for increased costs. In a decision reported at [2001] B.C.T.C. 709, the Supreme Court resolved two further issues: the deductions from damages under s. 25 of the Insurance (Motor Vehicle) Act and its Regulations, and again the issue of increased costs, which the Supreme Court eventually awarded at 50 percent of special costs. The defendant appealed. The plaintiff cross-appealed.

The British Columbia Court of Appeal, Southin, J.A., dissenting in part, allowed the appeal respecting damages for loss of earn­ing capacity and also allowed the appeal from the order for increased costs.

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - The British Columbia Court of Appeal gen­erally discussed the assessment of damages for loss of earning capacity - See para­graphs 100 to 101.

Damages - Topic 1549

General damages - For personal injury - Im­pairment of earning capacity - A new­ly-called lawyer, age 29, suffered a mild trau­matic brain injury - The trial judge found that (1) his cognitive function was perma­nently impaired, (2) he would never again practice law and (3) he would be limited to part-time, low-paying jobs - The British Columbia Court of Appeal found no basis to interfere with these findings, but held that the trial judge erred in assess­ing dam­ages for loss of earning capacity - The judge used an excessively mathemati­cal ap­proach, based his calculations on evi­dence to which he should have given no weight, treated as a certainty the possibility that the plaintiff might work as a lawyer in Van­couver and earn a higher than average income, and failed to properly adjust for contingencies - See paragraphs 102 to 130.

Damages - Topic 1684

General damages - Evidence - Actuarial evidence - A newly-called lawyer, age 29, suffered a mild traumatic brain injury - At trial, both parties presented actuarial evi­dence to assist the court in assessing dam­ages for impairment of earning capacity - The plaintiff's expert's report provided a figure for earnings of an above-average male lawyer in British Columbia based on a magazine survey - The article was not in evidence - Neither actuary testified - The British Columbia Court of Appeal held that the trial judge erred in relying on the opinion in the report without proof of any of the underlying facts that would establish the validity and reliability of the survey upon which it was based - See paragraphs 109 to 113.

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - The British Columbia Court of Appeal stated that the burden was on the party to prove the facts upon which his expert's opinion was based, or the opinion would be given no weight - See paragraph 113.

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - [See Dam­ages - Topic 1684 ].

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - In a motor vehicle accident case, the trial lasted 23 days, with 45 witnesses, including 13 experts - The plaintiff was awarded over $2.7 million damages, plus increased costs at 50 percent of special costs - The dis­crepancy between the fees taxable under scale 5 and the fees notionally earned by the plaintiff's lawyers on an hourly basis was substantial - The trial judge called the case one of "unusual difficulty" - The British Columbia Court of Appeal held that there was nothing unduly complicated about this litigation - The trial judge exer­cised his discretion without any evidentiary basis for his costs conclusion - The court substituted an order for costs to the plain­tiff at scale 5 - See paragraphs 131 to 146.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - The British Columbia Court of Appeal held that it could not, matters of credibility aside, recast the findings of fact made by the trial judge - See paragraph 96.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The British Columbia Court of Appeal held that it could not alter a damage award simply because, on the evidence, it would come to a conclusion different from that of the trial judge - The court, however, may vary a damage award if it concluded that the trial judge in as­sessing the damage award applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one), or if the amount awarded was either so inordinately low or high that it must be a wholly erro­neous estimate of the damage - See para­graphs 96 to 99.

Cases Noticed:

Enge v. Trerise and Busst (1960), 26 D.L.R.(2d) 529; 33 W.W.R.(N.S.) 577 (B.C.C.A.), refd to. [para. 9].

Powell v. Streatham Manor Nursing Home, [1935] A.C. 243 (H.L.), refd to. [para. 14].

Vancouver Milling Co. v. Farrell (1922), 67 D.L.R. 237 (B.C.C.A.), refd to. [para. 14].

Lowe Chong Co. v. Coast Vegetable Mar­keting Board (B.C.), [1937] 3 W.W.R. 406; 51 B.C.R. 559 (C.A.), refd to. [para. 22].

Webb v. Attewell et al. (No. 2) (1994), 50 B.C.A.C. 1; 82 W.A.C. 1; 100 B.C.L.R.(2d) 135 (C.A.), refd to. [para. 22].

Cole v. Cole, [1944] 1 D.L.R. 37; 59 B.C.R. 372 (C.A.), refd to. [para. 23].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 32].

Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), refd to. [para. 45].

McLoughlin v. O'Brian, [1982] 2 All E.R. 298 (H.L.), refd to. [para. 47].

Copoc et al. v. Chief Constable of the South York­shire Police, [1991] 4 All E.R. 907; 131 N.R. 194; [1992] 1 A.C. 310 (H.L.), refd to. [para. 47].

Alcock v. Chief Constable of South York­shire Police - see Copoc et al. v. Chief Constable of the South York­shire Police.

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1; 16 D.L.R.(4th) 1, refd to. [para. 50].

Lankenau Estate v. Dutton (1991), 79 D.L.R.(4th) 705; 55 B.C.L.R.(2d) 218 (C.A.), refd to. [para. 50].

Dulieu v. White & Sons, [1901] 2 K.B. 669, consd. [para. 53].

Farm Credit Corp. v. Valley Beef Pro­ducers Co-operative Ltd. et al. (2002), 223 Sask.R. 236; 277 W.A.C. 236; 218 D.L.R.(4th) 86 (C.A.), refd to. [para. 63].

R. v. Cooper, [1969] 1 All E.R. 32 (C.A.), refd to. [para. 68].

Swain v. Dennison, [1967] S.C.R. 7; 58 W.W.R.(N.S.) 232, refd to. [para. 76].

Komnick System Sandstone Brick Machin­ery Co. v. Morrison (1920), 28 B.C.R. 207 (C.A.), refd to. [para. 77].

Nance v. British Columbia Electric Rail­way Co., [1951] 3 D.L.R. 705; [1951] A.C. 601 (P.C.), refd to. [para. 78].

Taylor v. Ankenman and Jaegli Enterprises Ltd., [1981] 2 S.C.R. 2; 40 N.R. 4, refd to. [para. 79].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [paras. 79, 97].

Stein Estate et al. v. Ship Kathy K et al., [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 79].

Tucker v. Asleson et al. (1993), 24 B.C.A.C. 253; 40 W.A.C. 253; 102 D.L.R.(4th) 518; 78 B.C.L.R.(2d) 173 (C.A.), refd to. [para. 80].

Armagas Ltd. v. Mundogas S.A., [1985] 3 All E.R. 795 (C.A.), refd to. [para. 86].

Benmax v. Austin Motor Co., [1955] 1 All E.R. 326 (H.L.), refd to. [para. 91].

Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 168 D.L.R.(4th) 637; 58 B.C.L.R.(3d) 305 (C.A.), refd to. [para. 98].

Woelk v. Halvorson, [1980] 2 S.C.R 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 99].

Cory et al. v. Marsh (1993), 22 B.C.A.C. 118; 38 W.A.C. 118; 77 B.C.L.R.(2d) 248 (C.A.), refd to. [para. 99].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 100].

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. 101].

Steenblok v. Funk (1990), 46 B.C.L.R.(2d) 133 (C.A.), refd to. [para. 101].

Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), refd to. [para. 101].

Rosvold v. Dunlop et al. (2001), 147 B.C.A.C. 56; 241 W.A.C. 56; 84 B.C.L.R.(3d) 158 (C.A.), refd to. [para. 101].

Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.), refd to. [para. 101].

Mulholland et al. v. Riley Estate et al. (1995), 63 B.C.A.C. 145; 104 W.A.C. 145; 12 B.C.L.R.(3d) 248 (C.A.), refd to. [para. 101].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 113].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 113].

Vaillancourt v. Molnar Estate (2002), 176 B.C.A.C. 109; 290 W.A.C. 109 (C.A.), refd to. [para. 114].

West v. Cotton et al. (1995), 63 B.C.A.C. 53; 104 W.A.C. 53; 10 B.C.L.R.(3d) 73 (C.A.), refd to. [para. 117].

Nelson v. Nelson (1994), 50 B.C.A.C. 150; 82 W.A.C. 150; 98 B.C.L.R.(2d) 182 (C.A.), refd to. [para. 117].

Imeson v. Greenwood (1999), 129 B.C.A.C. 120; 210 W.A.C. 120; 71 B.C.L.R.(3d) 79 (C.A.), refd to. [para. 124].

Rieta v. North American Air Travel Insur­ance Agents Ltd. (1998), 105 B.C.A.C. 239; 171 W.A.C. 239; 52 B.C.L.R.(3d) 114 (C.A.), consd. [para. 135].

Lucas v. Hardie et al., [1998] B.C.T.C. Uned. 602 (S.C.), refd to. [para. 140].

Counsel:

A.M. Mersey, J.W. Marquardt and K.N. Grieve, for the appellant;

J.E. Murphy, Q.C., and E.P. Good, for the respondent.

This appeal and cross-appeal were heard on April 29 and 30, 2002, at Vancouver, British Columbia, before Southin, Low and Smith, JJ.A., of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered on January 24, 2003, when the following opinions were filed:

Southin, J.A., dissenting in part - see paragraphs 1 to 94;

Low, J.A. (Smith, J.A., concurring) - see paragraphs 95 to 147.