Shapiro v. Dailey et al., 2012 BCCA 128

• Judge: Ryan, Tysoe and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 07, 2011
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 128;(2012), 320 B.C.A.C. 13 (CA)

Shapiro v. Dailey (2012), 320 B.C.A.C. 13 (CA);

    543 W.A.C. 13

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MY.010

Laura Rose Shapiro (respondent/plaintiff) v. Randy Wayne Dailey (appellant/defendant) and J & S Dickson Enterprises Ltd. (defendant) and Insurance Corporation of British Columbia (appellant/third party)

(CA038247; 2012 BCCA 128)

Indexed As: Shapiro v. Dailey et al.

British Columbia Court of Appeal

Ryan, Tysoe and Neilson, JJ.A.

March 19, 2012.

Summary:

The plaintiff sued for damages for injuries suffered in a motor vehicle accident. The defendant was an uninsured motorist. The Insurance Corporation of British Columbia (ICBC) filed an appearance to the action under s. 21(7) of the Insurance (Motor Vehicle) Act.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 770, awarded the plaintiff $1.4 million in damages. ICBC initiated an appeal under s. 20 of the Act. The plaintiff brought a preliminary application, raising the issue of whether ICBC could appear to an action pursuant to s. 21 of the Act on behalf of a defendant as an insured motorist, but following the trial judgment appear on an appeal from the judgment on behalf of the defendant as an uninsured motorist pursuant to s. 20 of the Act.

The British Columbia Court of Appeal, in a decision reported at 312 B.C.A.C. 115; 531 W.A.C. 115, held that ss. 20(6) and (7) of the Act did not preclude ICBC from appearing to an action under those provisions after it had previously intervened in the action at trial under s. 21 of the Act. The appeal proceeded.

The British Columbia Court of Appeal allowed the appeal in part.

Damage Awards - Topic 488

Injury and death - General damage awards - Costs of housekeeping services and child care - The plaintiff sued for damages for injuries suffered in a motor vehicle accident - The trial judge awarded the plaintiff $1.4 million in damages, including $180,359 for loss of housekeeping services and $32,115 for nanny services (award for future care) - The British Columbia Court of Appeal allowed the appeal in part, reducing the award for future care by $32,115 - The award for nanny services was not justified - The trial judge made a deduction from the award for housekeeping on the basis that the plaintiff would have required these services anyway due to her career - He erred in failing to apply the same approach to the claim for a nanny - Further, since that would be a full-time position, there was no basis for reducing it proportionately as was done with the homemaking services - The court considered whether it would be appropriate to award a smaller amount for nanny services, representing the fact that the plaintiff's disability would require her to have a nanny even while she was on maternity leave, something that might not have been necessary absent her injuries - The court concluded, however, that, the many contingencies and uncertainties surrounding the terms and timing or a nanny's retainer made such an award too speculative - See paragraphs 43 to 57.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff sued for damages for injuries suffered in a motor vehicle accident - The trial judge awarded the plaintiff $1.4 million in damages, including $900,000 for loss of future earning capacity - The defendants appealed, asserting that the trial judge erred in assessing the plaintiff's claim for loss of future earning capacity - The defendants argued that the award of $900,000 was excessive and said a proper award would fall between $200,000 and $300,000 - The defendants made the following submissions: (1) the award rested on misapprehensions of evidence by the trial judge; (2) the trial judge ignored the evidence showing the plaintiff was performing satisfactorily in full-time work; and (3) the award was based on a mathematical calculation of her loss, instead of a proper assessment - The British Columbia Court of Appeal rejected this ground of appeal - The court appreciated that the trial judge did not enunciate the express basis on which he reached his assessment of $900,000, and agreed that the award fell at the high end of the spectrum - Nevertheless, the court was satisfied that there was an evidentiary basis to support the award and it was not so inordinately high that it represented a wholly erroneous estimate of the plaintiff's loss of future earning capacity - See paragraphs 12 to 42.

Torts - Topic 6610

Defences - Contributory negligence - Particular cases - Motor vehicle accidents - The plaintiff sued for damages for injuries suffered in a motor vehicle accident - The trial judge awarded the plaintiff $1.4 million in damages - The defendants (Dailey and J & S Dickson Enterprises Ltd.) appealed, asserting that the trial judge erred in failing to find the plaintiff was contributorily negligent for the accident - The British Columbia Court of Appeal rejected this ground of appeal - The trial judge correctly observed that the onus to prove contributory negligence rested on the defendants - Their argument was based solely on the thesis that because another driver (Marlatt) stopped and saw Dailey's car approaching, the plaintiff could and should have stopped in time to avoid the collision - This ignored several distinctions between the circumstances facing the plaintiff and Marlatt - Significantly, Marlatt saw Dailey's vehicle only after she had stopped - She could not recall whether the plaintiff's vehicle entered the intersection before or after this - The plaintiff was the dominant driver with the right of way as she entered on the green left-turn signal - It was reasonable for her to assume a red light for westbound traffic, and focus on making her turn - While the details of the traffic island were unknown, the evidence did establish the plaintiff's sight line differed from that of Marlatt - The trial judge could properly conclude there was insufficient evidence to support a finding that the plaintiff could have reasonably become aware of Dailey, and had a sufficient opportunity to avoid the collision - Any doubt in that respect had to be resolved against Dailey - See paragraphs 3 to 11.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 9].

Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.), refd to. [para. 10].

Rosvold v. Dunlop et al. (2001), 147 B.C.A.C. 56; 241 W.A.C. 56; 84 B.C.L.R.(3d) 158; 2001 BCCA 1, refd to. [para. 35].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 37].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 38].

Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 40].

Morris v. Rose Estate (1996), 75 B.C.A.C. 263; 123 W.A.C. 263; 23 B.C.L.R.(3d) 256 (C.A.), refd to. [para. 40].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), refd to. [para. 41].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 51].

Counsel:

R.C. Brun, Q.C., and S.M. Rowed, for the appellant, R. Dailey;

K.E. Jamieson, for the appellant, ICBC;

G.K. Macintosh, Q.C., and A.C.R. Parsons, for the respondent.

This appeal was heard on November 7, 2011, at Vancouver, B.C., by Ryan, Tysoe and Neilson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Neilson, J.A., on March 19, 2012.