Sickel v. Gordy et al., 2008 SKCA 100

• Judge: Richards, Smith and Wilkinson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 12, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKCA 100;(2008), 311 Sask.R. 235 (CA)

Sickel v. Gordy (2008), 311 Sask.R. 235 (CA);

      428 W.A.C. 235

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. AU.021

Catherine Bannerman and Joan Sickel-Luciuk, as Executrices of the Last Will and Testament of Nettie Sickel, Deceased, and on Their Own Behalf, Cheryl Sickel and Braxton Sickel, Linford Sickel and Calle Sickel, Suing by Their Litigation Guardian, Cheryl Sickel (plaintiffs/appellants) v. Cindy Millis Gordy, Tom Atkins, Midway Foods, Thomas Carnival, Inc. and Marvin Wentzell, Administrator Ad Litem of the Estate of Victoria Elizabeth Moore (defendants/respondents)

(No. 1065; 2008 SKCA 100)

Indexed As: Sickel v. Gordy et al.

Saskatchewan Court of Appeal

Richards, Smith and Wilkinson, JJ.A.

August 12, 2008.

Summary:

Atkins and Gordy were partners of Midway Foods. Midway Foods had a contract with Thomas Carnival Inc. for the provision of food concessions at exhibitions and carnivals operated by Thomas Carnival Inc. Moore, an employee of Midway Foods, was driving from Thunder Bay, Ontario, where Thomas Carnival Inc. had set up a carnival in the preceding days, to the next carnival location in Saskatoon, Saskatchewan. She was driving a truck owned by Gordy, which was pulling a fifth wheel trailer and a golf cart and trailer. The golf cart and trailer were owned by Atkins and Gordy, as partners of Midway Foods. Moore lost control of the truck and collided with another vehicle. Two men in the other vehicle (John and Lloyd Sickel) died as a result of the accident. Moore and her passenger were also killed. John Sickel's wife and children and the estate of Lloyd Sickel's wife sued Moore, Gordy, Atkins, Midway Foods and Thomas Carnival Inc. for damages pursuant to the Fatal Accidents Act and the Survival of Actions Act. The statement of claim also advanced a subrogated claim to recover benefits received by the deceased's dependents under the Workers' Compensation Act.

The Saskatchewan Court of Queen's Bench, in a decision reported at 255 Sask.R. 246, held that the collision was caused by Moore's negligence and that Gordy, as the owner of the vehicle, was liable for Moore's negligence. However, the court found no basis to impose vicarious liability on Atkins, Midway Foods or Thomas Carnival Inc. and dismissed the claims against those parties. The court also dismissed the subrogated claim brought on behalf of the Workers' Compensation Board. The plaintiffs appealed from the court's conclusions on the above issues. The appeal also raised several issues with respect to the court's assessment of damages.

The Saskatchewan Court of Appeal allowed the appeal in part. The court held that the trial judge erred in concluding that Gordy, Atkins and Midway Foods were not vicariously liable for Moore's negligence committed in the course of her employment. However, the trial judge did not err in concluding that Thomas Carnival Inc. was not vicariously liable for Moore's negligence. The determination of the dependency loss of John Sickel's wife was to be recalculated on the basis set out in the judgment. Similarly, the dependency loss of John Sickel's three children was to be recalculated on the basis of a dependency to the age of 21. The appeal of the dismissal of the claim of John Sickel's wife for loss of earnings pursuant to s. 4(2)(d) of the Fatal Accidents Act was allowed in part for the period of lost earnings up to the end of June 1996. The appeal was dismissed with respect to the subrogated claim of the Workers' Compensation Board and the claims for loss of counselling, support and guidance and loss of valuable services.

Damages - Topic 2104

Torts causing death - General - Damages recoverable - Nine months after being involved in a motor vehicle accident, Lloyd Sickel died from his injuries - His wife sued for damages - The wife died prior to the trial and her estate advanced its claim pursuant to the Fatal Accidents Act (FAA) and the Survival of Actions Act (SAA) - The Saskatchewan Court of Appeal held that the trial judge did not err in disallowing a subrogated claim of the Workers' Compensation Board for medical expenses paid by the Board on behalf of Sickel after the accident - While s. 4(2)(a) of the FAA allowed a claim for "any medical or hospital expenses of the person injured, consequent upon the injury, that would have been recoverable as damages by the person injured if death had not ensued", that claim was limited by the concluding words of s. 4(2), "if those expenses have been incurred by any of the parties for whom and for whose benefit the action is brought" - As these expenses were not incurred by any of the parties for whom and for whose benefit the FAA action was brought, they were not recoverable under that Act - Since the SAA only preserved rights of action vested in the deceased person at the time of death, it did not alleviate the limitations of claims under the FAA - Moreover, s. 6(1) of the SAA limited recovery to those damages that resulted in actual pecuniary loss to the deceased or the deceased's estate - Neither Sickel's wife nor her estate suffered actual pecuniary loss in relation to the medical expenses paid by the Workers' Compensation Board on behalf of Sickel - Accordingly, neither the FAA nor the SAA would permit this claim - See paragraphs 57 to 69.

Damages - Topic 2119.1

Torts causing death - Method of assessment of value of the dependency (lump sum) - Loss of deceased's future income - John Sickel was killed in a 1994 motor vehicle accident - His wife and children sued for damages under the Fatal Accidents Act - In calculating the loss of financial benefit to Sickel's wife, the trial judge concluded that Sickel would have earned an average of $11,000 a year until July 2000 - In that respect, the trial judge relied on Sickel's net earnings for the five years preceding his death and calculated a weighted average of those figures, to arrive at the sum of $10,872 (rounded up to $11,000) - On appeal, issue was taken with the calculation of Sickel's income for the period prior to July 2000 - The plaintiffs argued that the figures relied on showed a general, if not unvariable, increase in net earnings, year over year, and the trial judge therefore ought to have accepted the previous years earnings, almost $17,000, as a reasonable prediction of what Sickel would have earned had he lived - The Saskatchewan Court of Appeal held that "While he might have taken a more generous approach, I am unable to conclude that the trial judge made a palpable and overriding error in his calculation of this loss, or that his approach was unreasonable. There was not an invariable increase in Mr. Sickel's past earnings, year over year" - See paragraphs 70 to 74.

Damages - Topic 2119.1

Torts causing death - Method of assessment of value of the dependency (lump sum) - Loss of deceased's future income - John Sickel was killed in a 1994 motor vehicle accident - His wife and children sued for damages under the Fatal Accidents Act - The wife challenged the trial judge's conclusion that Sickel would have consumed 30% of the wife's income (as well as 18% of his income) and the trial judge's resulting adjustment of her dependency claim by that amount both in the past and in the future, based on her net earnings in the two years preceding Sickel's death - The Saskatchewan Court of Appeal allowed this ground of appeal - The amount awarded to the wife had to be increased by recalculating the reduction of her dependency claim based upon her own earnings in two respects - First, the percentage of the reduction had to take into account the children's claim on her income during their dependency, and, second, the calculations had to be based upon a finding of her actual income since the death of her husband and for the future - See paragraphs 75 to 83.

Damages - Topic 2255

Torts causing death - Calculation of value of particular dependencies - Children dependent upon father - John Sickel was killed in a 1994 motor vehicle accident - His wife and three children sued for damages under the Fatal Accidents Act - In calculating the loss of financial support for Sickel's dependants, the trial judge calculated damages only for the period until each child turned 18 years old - The Saskatchewan Court of Appeal held that "the trial judge erred in law in failing to take into consideration that the children's dependency on their father's income might well extend beyond the age of minority, and his assumption in that regard was clearly unreasonable in light of the evidence that the oldest child was, at the time of trial, pursuing post-secondary education ... the most reasonable prediction on the evidence is that the dependency of each child will extend to age 21. Damages under this head should be reassessed on that basis" - See paragraphs 84 to 88.

Damages - Topic 2372

Torts causing death - Particular damage claims - Loss of wages or earnings of dependent - John Sickel was killed in a 1994 motor vehicle accident - He was survived by a wife and three young children - Sickel's wife claimed for past and future loss of income related to the fact that, following Sickel's death, she cut back on the number of days that she was working, subsequently took a stress leave from work, ultimately resigned her position, worked very little for several years, and eventually took on a less demanding job at a reduced salary - The trial judge denied this claim in its entirety - On appeal, the Saskatchewan Court of Appeal held that the learned trial judge failed to give proper effect to s. 4(2)(d) of the Fatal Accidents Act in failing to allow this claim for the period up to the time that the wife quit her employment altogether, at the end of June 1996 - Expert evidence was not required to support such a claim in light of the clear finding of the trial judge that the children were having significant difficulty in dealing with their father's death - The wife's decision as to how best to meet their needs was entitled to some consideration and deference - In addition, she relied on the advice of her doctor in relation to the leave of absence - However, the court held that after the wife finally terminated her employment at the end of June 1996, she had decided to make a substantial lifestyle change and, absent more evidence that the needs of the children in relation to their father's death reasonably required such a dramatic change, the decision not to allow that part of the claim was not unreasonable - Accordingly, the court allowed the wife's claim for loss of earnings up to the end of June 1996 - See paragraphs 98 to 126.

Damages - Topic 2377

Torts causing death - Particular damage claims - Loss of parent's guidance and support - John Sickel was killed in a 1994 motor vehicle accident - His wife and three children sued for damages under the Fatal Accidents Act - The children were aged 10, almost six and three years old at the time of Sickel's death - The trial judge awarded each child $1,500 per minority year as damages for the loss of counselling, support and guidance of John Sickel - On appeal, the plaintiffs argued that the awards were unreasonably low - The Saskatchewan Court of Appeal dismissed this ground of appeal - See paragraphs 89 to 93.

Damages - Topic 2379

Torts causing death - Particular damage claims - Loss of housekeeping or handyman services - Two men died as a result of a motor vehicle accident - The wives of the deceased argued that the trial judge erred in dismissing their respective claims for damages of $500 per month for general pretrial loss of household services of the two deceased on the basis that only pecuniary losses were recoverable under the Fatal Accidents Act - The Saskatchewan Court of Appeal held that "pre-trial loss of housekeeping capacity above and beyond the actual cost of replacement services is to be classified a non-pecuniary loss, whereas future loss is a calculation of the estimated future pecuniary loss. The same principle would apply to a claim, under the Fatal Accidents Act, for past loss of services. In my view the trial judge did not err in concluding that the general and unspecified loss of past valuable services (over and beyond the specific claims for reimbursement for the costs of actual replacement services) is a non-pecuniary claim and, as a result, is not recoverable pursuant to s. 4 of the Fatal Accidents Act" - See paragraphs 94 to 97.

Master and Servant - Topic 3679

Liability of master for acts of servant - Torts - General - Acts in course of employment - Atkins and Gordy were partners of Midway Foods - Midway Foods had a contract with Thomas Carnival Inc. for the provision of food concessions at exhibitions and carnivals operated by Thomas Carnival Inc. - Moore, an employee of Midway Foods, was driving from Thunder Bay, Ontario, where Thomas Carnival Inc. had set up a carnival in the preceding days, to the next carnival location in Saskatoon, Saskatchewan - She was driving a truck owned by Gordy, which was pulling a fifth wheel trailer and a golf cart and trailer - The golf cart and trailer were owned by Atkins and Gordy, as partners of Midway Foods - Moore lost control of the truck and collided with another vehicle - The trial judge held that the collision was caused by Moore's negligence and that Gordy, as the owner of the vehicle, was liable for Moore's negligence - However, the trial judge held that there was no basis to impose vicarious liability on Atkins, Midway Foods or Thomas Carnival Inc. - The Saskatchewan Court of Appeal held that the trial judge applied the wrong legal principles and thereby erred in concluding that Gordy and Atkins and their partnership business Midway Foods were not vicariously liable for Moore's negligence, committed in the course of her employment - Moore was doing precisely what she was required as a term of her employment to do: driving a vehicle pulling two trailers from one carnival site to another in order to assist in transporting the employer's operation to the new site - However, the trial judge did not err in concluding that Thomas Carnival Inc. was not vicariously liable for Moore's negligence - The facts of the case did not fall within the exception to the rule that a person engaging an independent contractor was not vicariously liable for the negligent conduct of the independent contractor - See paragraphs 23 to 51.

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Master and Servant - Topic 3679 ].

Torts - Topic 2550

Vicarious liability - For independent contractors - General - [See Master and Servant - Topic 3679 ].

Torts - Topic 7905

Survival of actions - General - Injuries resulting in death - [See Damages - Topic 2104 ].

Workers' Compensation - Topic 3641

Subrogation - Rights of subrogated party - General - [See Damages - Topic 2104 ].

Cases Noticed:

Bazley v. Curry - see P.A.B. v. Children's Foundation et al.

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, consd. [para. 23].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, consd. [para. 46].

Savage v. Wilby, [1954] S.C.R. 376, refd to. [para. 47].

H.L. v. Canada (Attorney General) et al., [2003] 5 W.W.R. 421; 227 Sask.R. 165; 287 W.A.C. 165; 2002 SKCA 131, refd to. [para. 55].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 55].

Valness v. MacLowich (1997), 155 Sask.R. 267 (Q.B.), refd to. [para. 59].

Graff v. Wellwood (1991), 93 Sask.R. 74; 4 W.A.C. 74 (C.A.), consd. [para. 64].

Ratansi et al. v. Abery et al., [1994] B.C.T.C. Uned. C28; 97 B.C.L.R.(2d) 74 (S.C.), refd to. [para. 85].

Spillane v. Wasserman (1992), 13 C.C.L.T.(2d) 267 (Ont. Gen. Div.), refd to. [para. 85].

Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R.(2d) 318 (S.C.), refd to. [para. 85].

Simon v. Wright (1988), 27 B.C.L.R.(2d) 272 (S.C.), refd to. [para. 85].

Savoy et al. v. Robichaud and Robichaud (1985), 65 N.B.R.(2d) 187; 167 A.P.R. 187 (T.D.), refd to. [para. 85].

Duong Estate v. Au (1984), 29 Man.R.(2d) 206 (Q.B.), refd to. [para. 85].

Naeth v. Warburton (1992), 103 Sask.R. 130 (Q.B.), refd to. [para. 90].

Daum v. Schroeder et al. (1996), 143 Sask.R. 192 (Q.B.), refd to. [para. 96].

McCallum v. Ritter, [1990] 5 W.W.R. 660; 83 Sask.R. 303 (C.A.), refd to. [para. 96].

Burgess v. Management Committee of the Florence Nightingale Hospital for Gentlewomen and Another, [1955] 1 All E.R. 511 (Q.B.), dist. [para. 113].

Maylon v. Plummer, [1964] 1 Q.B. 330, refd to. [para. 114].

Griffiths v. C.P.R. (1978), 6 B.C.L.R. 115 (C.A.), dist. [para. 115].

Luethi v. Hague (1977), 5 A.R. 225; 3 Alta. L.R.(2d) 393 (T.D.), dist. [para. 120].

Statutes Noticed:

Fatal Accidents Act, R.S.S. 1978, c. F-11, sect. 3(1), sect. 4 [para. 53].

Survival of Actions Act, S.S. 1990-91, c. S-66.1, sect. 3, sect. 6(1) [para. 54].

Authors and Works Noticed:

Atiyah, Patrick S., Vicarious Liability in the Law of Torts (7th Ed. 1967), pp. 371 to 373 [para. 47].

Bruce, Christopher J., Assessment of Personal Injury Damages (4th Ed. 2004), pp. 61 to 66 [para. 79].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 671 [para. 82]; 675, 676 [para. 85]; 689, 690 [para. 122].

Salmond and Heuston, R.F.V., The Law of Torts (19th Ed. 1987), p. 220 [para. 26].

Counsel:

Wayne M. Rusnak, Q.C., and Ronald Balacko, for the appellants;

Neil B. Fisher, for Midway Foods, Tom Atkins and Thomas Carnival, Inc.;

Ian T. Tulloch, for Cindy Millis Gordy and Marvin Wentzell.

This appeal was heard on March 12, 2008, before Richards, Smith and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Smith, J.A., on August 12, 2008.