Semenoff et al. v. Kokan et al., (1991) 4 B.C.A.C. 191 (CA)

• Judge: Hinkson, Hutcheon and Legg, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 13, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 4 B.C.A.C. 191 (CA)

Semenoff v. Kokan (1991), 4 B.C.A.C. 191 (CA);

    9 W.A.C. 191

MLB headnote and full text

Valerie Semenoff, as Committee of Gordon Semenoff on behalf of the said Gordon Semenoff, and Valerie Smeneoff in her own right (plaintiffs/respondents) v. Dr. P.J. Kokan (defendant/appellant) and Dr. Robert L.D. Adams, The Association of the Sisters of Charity of Providence in British Columbia operating as St. Paul's Hospital and Dr. Patrick J. Murray (defendants)

(No. CA011882)

Indexed As: Semenoff et al. v. Kokan et al.

British Columbia Court of Appeal

Hinkson, Hutcheon and Legg, JJ.A.

September 16, 1991.

Summary:

The plaintiffs sued a doctor for damages arising from medical negligence. The doctor admitted liability. The trial judge assessed damages in decisions reported 42 B.C.L.R.(2d) 6 and 45 B.C.L.R.(2d) 294. The doctor appealed and the plaintiffs cross-appealed.

The British Columbia Court of Appeal allowed the appeal and cross-appeal.

Damages - Topic 1548

General damages - Personal injuries - Management of fund fee - The plaintiff was incapacitated as a result of medical negligence - His wife was appointed as his committee - The plaintiff and his wife sued the doctor - The wife claimed she was entitled to a fund for acting as a committee under the Patients Property Act - The British Columbia Court of Appeal allowed the wife a fund representing 3% of the plaintiff's damage award - See paragraphs 32 to 36.

Damages - Topic 1550

General damages - Personal injuries - Prospective loss of wages or earnings - The plaintiff sustained brain and spinal cord injuries as a result of medical negligence - The plaintiff was thereafter functioning as a quadra-paretic and had minimal awareness of his surroundings - The trial judge awarded $545,320 for loss of income for his "lost years" (i.e., the years of the working life he could have expected had it not been shortened by the injuries) - The trial judge refused to deduct an amount for the plaintiff's hypothetical living expenses during the "lost years" - The British Columbia Court of Appeal held that a deduction should have been made for living expenses and reduced the award for loss of income for the "lost years" by 33% - See paragraphs 6 to 18.

Damages - Topic 1550

General damages - Personal injuries - Prospective loss of wages or earnings - The plaintiff sustained brain and spinal cord injuries as a result of medical negligence - The plaintiff was thereafter functioning as a quadra-paretic and had minimal awareness of his surroundings - The trial judge determined the plaintiff's life expectancy to be five years and awarded $158,300 for loss of income during the five year period - The judge deducted 40% for living expenses during this period - The British Columbia Court of Appeal removed the 40% deduction - See paragraphs 27 to 31.

Damages - Topic 1550.1

General damages - Personal injury - Pre-trial loss of wages or earnings - The plaintiff was incapacitated as a result of medical negligence - The plaintiff and his wife sued the doctor - The wife claimed for wages lost by she and her father when they gave up full time jobs for over a year to be near the plaintiff while he was resident in a hospital under nursing care - The British Columbia Court of Appeal rejected this claim - See paragraphs 38 to 41.

Damages - Topic 1560

General damages - Personal injuries - Factors tending to reduce award - [See both Damages - Topic 1550 ].

Damages - Topic 1565

General damages - Personal injuries - Deductions - [See both Damages - Topic 1550 ].

Damages - Topic 1770

Deductions for payments or assistance by third parties - By statute or government - Hospital or medical care - The plaintiff was injured as a result of medical negligence - The Medical Services Commission paid $29,135.15 for medical services received by the plaintiff - The plaintiff sued the doctor - An issue arose over whether the plaintiff had a right of action against the doctor to enable the Commission to recover its subrogated claim - The British Columbia Court of Appeal held that the plaintiff could not recover the $29,135.15 because the plaintiff was under no legal obligation to pay the medical expenses - See paragraphs 19 to 26.

Cases Noticed:

Pickett v. British Rail Engineering Ltd., [1979] 1 All E.R. 774, appld. [paras. 7-9].

Skelton v. Collins (1965-66), 115 C.L.R. 94 (Aust. H.C.), appld. [para. 8].

Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 10].

Harris v. Empress Motors Ltd., [1984] 1 W.L.R. 212 (C.A.), appld. [paras. 16, 17].

Flaherty v. Hughes (1952), 6 W.W.R.(N.S.) 289 (B.C.C.A.), appld. [para. 21].

Wipfli v. Britten (1985), 56 B.C.L.R. 273 (C.A.), appld. [para. 22].

Heltman v. Western Canadian Greyhound Lines Ltd. (1966), 57 W.W.R.(N.S.) 449 (B.C.C.A.), appld. [para. 24].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; 61 D.L.R.(4th) 577, refd to. [paras. 28, 29].

Statutes Noticed:

Medical Service Act Regulations, sect. 4.06 [para. 20].

Patients Property Act, R.S.B.C. 1979, c. 313, sect. 14(1), sect. 14(2) [para. 33].

Authors and Works Noticed:

Kemp and Kemp, The Quantum of Damages, p. 6026 [para. 16].

Waddams, The Law of Damages (1983), generally [para. 10].

Counsel:

Harvey J. Grey, Q.C., and P. McGivern, for the appellant;

   D.B. Kirkham, Q.C., for the respondents.

This appeal was heard in Vancouver, B.C., on June 13, 1991, before Hinkson, Hutcheon and Legg, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered by Hutcheon, J.A., on September 16, 1991.