Workers' Compensation Board (Alta.) v. Riggins et al., (1992) 131 A.R. 205 (CA)

JudgeHarradence, Hetherington and Major, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateSeptember 14, 1992
Citations(1992), 131 A.R. 205 (CA)

WCB v. Riggins (1992), 131 A.R. 205 (CA);

    25 W.A.C. 205

MLB headnote and full text

Richard G. Riggins, Allan S. Kay and Gordon W. Kay, carrying on the practice of law as a partnership under the firm name and style of Kay, Kay & Riggins, and the said Kay, Kay & Riggins (appellants/defendants/respondents by cross- appeal) v. Workers' Compensation Board (respondent/plaintiff/appellant by cross-appeal)

(Appeal No. 12012)

Indexed As: Workers' Compensation Board (Alta.) v. Riggins et al.

Alberta Court of Appeal

Harradence, Hetherington and

Major, JJ.A.

September 14, 1992.

Summary:

The Workers' Compensation Board claimed damages from a lawyer for professional negligence in the conduct and settlement of a personal injuries claim to which it was subrogated.

The Alberta Court of Queen's Bench, in a judgment reported 107 A.R. 314, allowed the action and assessed damages accordingly. The lawyer appealed. The Board cross-appealed the apportionment of liability.

The Alberta Court of Appeal dismissed the appeal and the cross-appeal.

Barristers and Solicitors - Topic 2501

Negligence - Standard of care - The Alberta Court of Appeal stated that "a lawyer is required to exercise the standard of care of the reasonably competent mem­ber of his profession similarly situated in the discharge of his retainer." - See para­graph 12.

Barristers and Solicitors - Topic 2587

Negligence - Particular negligent acts - Settlements - A lawyer acting on behalf of an injured worker and the Workers' Com­pensation Board (subrogated claim) rec­ommended settlement of the claim for $70,000 without reviewing current damage awards and without considering all heads of damages, including past lost income, cost of future care and prejudgment inter­est - The Alberta Court of Appeal affirmed that the lawyer was negligent.

Barristers and Solicitors - Topic 2663

Negligence - Damages - Measure of - [See Barristers and Solicitors - Topic 2587 ].

Barristers and Solicitors - Topic 2663

Negligence - Damages - Measure of - A lawyer acting for an injured plaintiff and the Workers' Compensation Board (subrogated claim) negligently settled the action - The Alberta Court of Appeal stated that the measure of damages against the lawyer was the difference between the amount that would have been awarded at trial and the settlement amount - If the judgment against the original tortfeasor would have been uncollectible, only nom­inal damages would have been awarded - The court stated that the plaintiff had the burden of proving collectibility, but only if the lawyer placed collectibility in issue (which he did not) - In the absence of evidence to the contrary, collectibility was presumed - See paragraphs 16 to 28.

Damage Awards - Topic 131

Personal injury and death - Leg injuries - Amputation - [See Damage Awards - Topic 150 ].

Damage Awards - Topic 150

Personal injury and death - Multiple injuries - An adult male was crushed between two vehicles - He was hospital­ized for three months following surgery for internal injuries and amputation of a leg just below the hip and insertion of a steel plate in the other leg - Persistent problems with prosthesis - Future surgery possible -The trial judge assessed $120,000 general damages for nonpecuniary loss - The Alberta Court of Appeal affirmed the decision.

Torts - Topic 395

Negligence - Motor vehicle - Standard of care of driver - Duty to pay attention - [See Torts - Topic 505 ].

Torts - Topic 444

Negligence - Motor vehicle - Rules of the road - Emergency vehicles - [See Torts - Topic 505 ].

Torts - Topic 505

Negligence - Motor vehicle - Parking or stopping - Marking or warning of parked or stopped vehicle - A county employee was seriously injured while repairing a bus that broke down on the highway - The employee failed to use warning flares or signals to mark the scene - His emergency vehicle was parked in front of the bus and its emergency signals were hidden from oncoming traffic - An oncoming vehicle struck the bus and crushed the employee between the bus and his own vehicle - The trial judge found both the driver and employee negligent and equally at fault - The Alberta Court of Appeal held that the trial judge did not err in apportioning liability equally - See paragraphs 9 to 10.

Cases Noticed:

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 12].

Spence v. Bell, [1982] 6 W.W.R. 385; 39 A.R. 239 (C.A.), refd to. [para. 12].

Fisher v. Knibbe (1992), 125 A.R. 219; 14 W.A.C. 219 (C.A.), refd to. [para. 16].

Rowsell v. Pettit (1968), 1 D.L.R.(3d) 268 (Ont. C.A.), affd. [1970] S.C.R. 865, refd to. [para. 17].

Page v. Barrister (1971), 3 N.B.R.(2d) 773; 20 D.L.R.(3d) 532 (C.A.), refd to. [para. 17].

Caisse populaire D'Inkerman Ltée v. Doir­on (1985), 61 N.B.R.(2d) 123; 158 A.P.R. 123; 32 C.C.L.T. 73 (C.A.), refd to. [para. 17].

Greiner v. Gates (1986), 45 Sask.R. 148 (Q.B.), refd to. [para. 17].

Whissel et al. v. Stewart and McKay (1987), 82 A.R. 204 (Q.B.), refd to. [para. 17].

Bank of Montreal v. Aitken (1989), 38 B.C.L.R.(2d) 377 (S.C.), affd. 52 B.C.L.R.(2d) 211 (C.A.), refd to. [para. 17].

Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [para. 31].

Counsel:

G.K. Randall, Q.C., for the appellants;

C.S. Brooker, Q.C., and K.J. Warren, for the respondent.

This appeal and cross-appeal were heard before Harradence, Hetherington and Major, JJ.A., of the Alberta Court of Appeal.

On September 14, 1992, Major, J.A., delivered the following judgment for the Court of Appeal.

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    ...Alberta (1996), 179 A.R. 32; 132 D.L.R.(4th) 695 (Q.B.), refd to. [para. 181]. Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205; 5 Alta. L.R.(3d) 66 (C.A.), refd to. [paras. 181, Fisher v. Knibbe (1992), 125 A.R. 219; 14 W.A.C. 219; 3 Alta. L.R.(3d) ......
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    ...511 (Ont. C.A.), affd. [1980] 2 S.C.R. 118; 32 N.R. 594, refd to. [para. 59]. Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205; 5 Alta. L.R.(3d) 66, agreed with [para. Authors and Works Noticed: Blom, Joost, Mistaken Bids: The Queen v. Ron Engineerin......
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    • Canada (Federal) Supreme Court (Canada)
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    ...511 (Ont. C.A.), affd. [1980] 2 S.C.R. 118; 32 N.R. 594, refd to. [para. 59]. Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205; 5 Alta. L.R.(3d) 66, agreed with [para. Authors and Works Noticed: Blom, Joost, Mistaken Bids: The Queen v. Ron Engineerin......
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21 cases
  • Kelly v. Lundgard,
    • Canada
    • Court of Appeal (Alberta)
    • 4 Enero 1999
    ...Alberta (1996), 179 A.R. 32; 132 D.L.R.(4th) 695 (Q.B.), refd to. [para. 181]. Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205; 5 Alta. L.R.(3d) 66 (C.A.), refd to. [paras. 181, Fisher v. Knibbe (1992), 125 A.R. 219; 14 W.A.C. 219; 3 Alta. L.R.(3d) ......
  • Mallet v. Administrator of the Motor Vehicle Accident Claims Act,
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    ...v. Hanna (1996), 148 N.S.R.(2d) 377; 429 A.P.R. 377 (C.A.), refd to. [para. 71]. Workers' Compensation Board (Alta.) v. Riggins et al. (1996), 131 A.R. 205; 25 W.A.C. 205; 95 D.L.R.(4th) 279 (C.A.), refd to. [para. M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 ......
  • MJB Ent. Ltd. v. Defence Constr. Co., (1999) 237 N.R. 334 (SCC)
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    • 22 Abril 1999
    ...511 (Ont. C.A.), affd. [1980] 2 S.C.R. 118; 32 N.R. 594, refd to. [para. 59]. Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205; 5 Alta. L.R.(3d) 66, agreed with [para. Authors and Works Noticed: Blom, Joost, Mistaken Bids: The Queen v. Ron Engineerin......
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    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 22 Abril 1999
    ...511 (Ont. C.A.), affd. [1980] 2 S.C.R. 118; 32 N.R. 594, refd to. [para. 59]. Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205; 5 Alta. L.R.(3d) 66, agreed with [para. Authors and Works Noticed: Blom, Joost, Mistaken Bids: The Queen v. Ron Engineerin......
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