Shaw Estate and Shaw v. Roemer and Smith Transport Co. Ltd., (1982) 51 N.S.R.(2d) 229 (CA)

• Judge: Cooper, Hart and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 31, 1982
• Jurisdiction: Nova Scotia
• Citations: (1982), 51 N.S.R.(2d) 229 (CA)

Shaw Estate v. Roemer (1982), 51 N.S.R.(2d) 229 (CA);

    102 A.P.R. 229

MLB headnote and full text

Shaw Estate and Shaw v. Roemer and Smith Transport Co. Ltd.

(S.C.A. No. 00873)

Indexed As: Shaw Estate and Shaw v. Roemer and Smith Transport Co. Ltd.

Nova Scotia Supreme Court

Appeal Division

Cooper, Hart and Macdonald, JJ.A.

March 31, 1982.

Summary:

The plaintiffs brought a negligence action for damages for personal injuries and death caused by a motor vehicle accident. The driver was killed and the three passengers injured.

The Nova Scotia Supreme Court, Trial Division, in a decision reported in 46 N.S.R.(2d) 629; 89 A.P.R. 629, held that the defendants were 80% at fault. The court held that the deceased driver was 10% at fault and that the driver and two of the three passengers were 10% contributorily negligent for failing to wear their seat belts. The deceased's estate and the deceased's wife appealed. The defendants cross-appealed.

The Nova Scotia Court of Appeal dismissed the appeal and cross-appeal.

Damage Awards - Topic 81

Injury and death - Fatal accidents - Father and husband earning $30,000.00 per year and having net worth of approximately $1,000,000.00 - President, major shareholder and driving force behind company which was sold for $1,000,000. and a holding company established for the benefit of the wife and four children - Joint life expectancy of wife and husband was 32.18 years - The Nova Scotia Court of Appeal affirmed a trial judge's award of $50,000.00 to the wife and $10,000.00 to each child under the Fatal Injuries Act - See paragraphs 5, 51 to 71.

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - The Nova Scotia Court of Appeal held that a trial judge erred when he declined to include lost inheritance when assessing damages under the Fatal Injuries Act - The court held that damages under the Act are not dependent on foreseeability - See paragraph 43.

Damages - Topic 2104

Torts causing death - General - Damages recoverable - The Nova Scotia Court of Appeal stated that damages recoverable under the Fatal Injuries Act are limited to pecuniary losses - See paragraph 44.

Damages - Topic 2104

Torts causing death - General - Damages recoverable - The Nova Scotia Court of Appeal stated that an award under the Fatal Injuries Act must be reduced by any contributory negligence of the deceased, because the survivors' right of action is based on the deceased's right had he survived - See paragraph 42.

Damages - Topic 2110

Torts causing death - Method of assessment of value of the dependency - Lump sum - General - The Nova Scotia Court of Appeal stated that in assessing damages under the Fatal Injuries Act the court must not look to the needs of the dependants but to the loss the family has suffered through the death of a breadwinner - The court stated how to determine the damages - See paragraphs 48 and 49.

Damages - Topic 2111

Torts causing death - Method of assessment of value of the dependency - Lump sum - Loss of future inheritance - A father and husband died, preventing him from inheriting an interest in his grandfather's estate which, but for the untimely death, he was almost certain to share in - The Nova Scotia Court of Appeal held that the loss of inheritance should be included when assessing damages under the Fatal Injuries Act for loss suffered by the dependents - See paragraphs 72 and 73.

Damages - Topic 2119

Torts causing death - Method of assessment of value of the dependency - Lump sum - Matters which reduce the value of the dependency - As a result of the husband's death, the widow was able to purchase property from the husband's family at considerable savings - The Nova Scotia Court of Appeal held that the benefit should be considered in determining damages under the Fatal Injuries Act - See paragraph 74.

Damages - Topic 2140

Torts causing death - Deduction from lump sum pecuniary loss of pecuniary advantages resulting from the death - Acceleration of benefits - The Nova Scotia Court of Appeal held that the immediate financial benefit accruing to the deceased's survivors, which resulted directly from the death, should be considered in assessing damages under the Fatal Injuries Act, but the full amount of the funds should not be deducted from the survivors' loss - See paragraph 69.

Interest - Topic 5139

Interest as damages - Torts - Negligence - Wrongful death - The Nova Scotia Court of Appeal held that a trial judge properly awarded pre-judgment interest on a general damages award under the Fatal Injuries Act, because the award represented a pecuniary loss suffered as of the date of death - See paragraphs 79 to 82.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence of passengers - Failure to use safety equipment - Seat belts - The Nova Scotia Court of Appeal stated that failure to use a seat belt was not negligence per se and because there was no mandatory seat belt legislation in Nova Scotia, a defendant had to prove that a plaintiff, who did not wear a seat belt, was at common law, contributorily negligent for failing to take precautions to minimize his injuries - The court affirmed a trial judge's decision that the plaintiffs were 10% at fault for failing to wear their seat belts - See paragraphs 19 to 39.

Torts - Topic 393

Negligence - Motor vehicles - Standard of care of driver - Circumstances requiring caution or extreme caution - A trailer separated from a tractor while travelling on a highway at night - The tractor driver turned and attempted to warn oncoming traffic by flashing his lights between high and low beam - The plaintiff driver failed to decelerate and hit the trailer - The Nova Scotia Court of Appeal affirmed a trial judge's finding that the plaintiff driver was 10% at fault for failing to heed the warnings of the tractor driver - See paragraphs 1 to 18.

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - The Nova Scotia Court of Appeal affirmed a trial judge's finding that the plaintiff driver was probably travelling in excess of the posted speed limit, but was not negligent because he was not travelling at a dangerously excessive speed prior to the accident - See paragraphs 1 to 18.

Torts - Topic 486

Negligence - Motor vehicle - Equipment and lights - Trailers - A trailer separated from a tractor while driving on a highway at night - The Nova Scotia Court of Appeal affirmed a trial judge's finding that the tractor driver was negligent for failing to properly connect the trailer to the tractor - See paragraphs 1 to 18.

Torts - Topic 486

Negligence - Motor vehicle - Equipment and lights - Trailers - A trailer separated from a tractor while driving on a highway at night - The Nova Scotia Court of Appeal affirmed a trial judge's finding that the defendant transport company was negligent for failing to properly repair the connecting unit on the trailer - See paragraphs 1 to 18.

Torts - Topic 505

Negligence - Motor vehicle - Stopping - Warning of stopped vehicles - A trailer separated from a tractor while travelling on a highway at night - The tractor driver turned and flashed his headlights between high and low beam to warn oncoming drivers - The Nova Scotia Court of Appeal affirmed a trial judge's decision that the flashing lights lessened a motorist's chances of seeing the trailer, but although such was a serious judgment error, it was not negligence - See paragraphs 1 to 18.

Cases Noticed:

Yuan et al. v. Farstad et al. (1968), 66 D.L.R.(2d) 295, consd. [para. 24].

MacDonnell et al. v. Kaiser (1968), 68 D.L.R.(2d) 104, consd. [para. 25].

Beaver et al. v. Crowe et al. (1977), 18 N.S.R.(2d) 562; 20 A.P.R. 562, consd. [para. 26].

Maddison et al. v. Rushton (1978), 26 N.S.R.(2d) 582; 40 A.P.R. 582, consd. [para. 28].

Genik v. Ewanylo (1980), 3 Man.R.(2d) 317; 12 C.C.L.T. 121, consd. [para. 29].

Froom v. Butcher, [1976] Q.B. 286, consd. [para. 31].

Littley v. Brooks, [1932] 2 D.L.R. 386, refd to. [para. 42].

Fuller v. Atlantic Trust Company (1967-68), 53 M.P.R. 254, consd. [para. 44].

Keizer v. Hanna et al. (1978), 19 N.R. 209; 82 D.L.R.(3d) 449, consd. [para. 45].

Lewis v. Todd et al. (1981), 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, consd. [para. 46].

Jones and Jones v. Johnson (1977), 18 N.S.R.(2d) 67; 20 A.P.R. 67, refd to. [para. 27].

Statutes Noticed:

Contributory Negligence Act, R.S.N.S. 1967, c. 54, sect. 1(1); sect. 1(2); sect. 2, sect. 5 [para. 36].

Fatal Injuries Act, R.S.N.S. 1967, c. 100, sect. 4(1) [para. 41].

Counsel:

R. Peter Muttart and H. Trevor Wheeldon, for the appellants;

John M. Davison, Q.C., for the respondents.

This appeal was heard on February 9, 1982, by COOPER, HART and MACDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On March 31, 1982, HART, J.A., delivered the following decision for the Appeal Division: