Wilson et al. v. Russell et al., (2000) 145 B.C.A.C. 305 (CA)

• Judge: Lambert, Hall and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 06, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 145 B.C.A.C. 305 (CA);2000 BCCA 611

Wilson v. Russell (2000), 145 B.C.A.C. 305 (CA);

    237 W.A.C. 305

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. FE.031

Scott MacLean Wilson, an infant by his Guardian Ad Litem, Carol Wendy Wilson, the said Carol Wendy Wilson, Donald MacLean Wilson and Tartan Tree Farms Ltd. (plaintiffs/respondents) v. Anthony John Russell, John Webster Russell and Michael Matt Nahirney also known as Michael Nahirney (defendants/appellants)

(CA026240; 2000 BCCA 611)

Indexed As: Wilson et al. v. Russell et al.

British Columbia Court of Appeal

Lambert, Hall and Saunders, JJ.A.

November 6, 2000.

Summary:

In 1993 Scott Wilson, 16, was a passenger in a car driven by Anthony Russell and owned by J.W. Russell. The car crossed the centre line and struck another car driven by Nahirney. Scott suffered severe injuries and endured long periods of hospitalization and rehabilitation. To date, he had undergone 17 surgeries. He now suffered significant brain damage, a dramatic facial deformity, poor strength, coordination and balance, impaired vision, a continuous weeping eye and a running nose, facial numbness, very poor short term memory and seizures. It was unlikely he would ever be gainfully employed. Scott and his parents sued the Russells and Nahirney for damages for Scott's personal injuries. The Russells did not admit liability.

The British Columbia Supreme Court, in a decision reported in 19 B.C.T.C. 209, held that Anthony Russell's negligence caused the accident and Scott's injuries. Nahirney was not negligent as he had no time to take evasive action. The court awarded Scott $250,000 for general damages, $19,793.04 for special damages, $72,760 for past wage loss, $1,799,241.60 for loss of capacity to earn income and $958,304 for the cost of future care. The court allowed the parents' "in-trust" claim for their services performed, awarding the mother and father $30,000 and $20,000 respectively. The court awarded Scott and his parents special costs as against the Russells for all matters relating to establishing liability where they had refused to admit liability and made no serious challenge at trial to the case against them or to Nahirney's liability. The defendants appealed.

The British Columbia Court of Appeal, Saunders, J.A., dissenting as to costs, allowed the appeal in part by reducing the award for past wage loss to correct a mathematical error. The court further reduced the amount of the award for loss of earning capacity to reflect an increase for contingencies. The court allowed the appeal with respect to special costs and substituted an order for 50 percent of special costs.

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - A 16 year old boy suffered significant brain damage, a dramatic facial deformity, poor strength, coordination and balance, impaired vision, a continuous weeping eye and running nose, facial numbness, very poor short term memory and seizures - Long periods of hospitalization and rehabilitation - 17 surgeries - Unlikely to be gainfully employed - The British Columbia Court of Appeal affirmed an award of $250,000 general damages for nonpecuniary loss - See paragraph 8.

Damage Awards - Topic 105

Injury and death - Head injuries - Skull fracture and closed head injuries - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 106

Injury and death - Head injuries - Seizures - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 110

Injury and death - Head injuries - Nose - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 117

Injury and death - Head injuries - Facial injuries (incl. scarring) - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 119

Injury and death - Head injuries - Multiple head injuries - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 121

Injury and death - Head injuries - Affecting sense of balance - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 227

Injury and death - Eye injuries - Impaired vision - [See Damage Awards - Topic 102 ].

Damages - Topic 1556

General damages - For personal injury - Calculation and method of assessment - Contingencies - Deduction for - A 16 year old boy suffered significant brain damage, a dramatic facial deformity, poor strength, coordination and balance, impaired vision, a continuous weeping eye and running nose, facial numbness, very poor short term memory and seizures - Long periods of hospitalization and rehabilitation - 17 surgeries - The boy, a moderate grade 10 student, would likely have gone into the family nursery/landscaping business but now was unlikely to be gainfully employed - The British Columbia Court of Appeal held that a 20 percent deduction for contingencies from the award for loss of earning capacity was too little - The court reduced the award from almost $1,800,000 to $1,400,000 - See paragraph 11.

Practice - Topic 7452

Costs - Solicitor and client costs - Entitlement to - Neglect or misconduct - In a motor vehicle accident case by an injured passenger against the driver and owner of the motor vehicle, these defendants did not admit liability - The trial judge awarded the plaintiff passenger special costs against these defendants for the one-half day of trial devoted to the question of their liability - The British Columbia Court of Appeal held that the decision to fail to admit liability was not conduct worthy of reproof or rebuke - The court substituted an award of 50 percent of special costs for the award of special costs - See paragraph 14.

Practice - Topic 7453

Costs - Solicitor and client costs - Entitlement to - Delaying tactics and unduly prolonging proceedings - [See Practice - Topic 7452 ].

Counsel:

M.M. Skorah and J.K. Lamb, for the appellants;

W.J. Harris and G. Hilliker, for the respondents.

This appeal was heard before Lambert, Hall and Saunders, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on November 6, 2000, when the following opinions were filed:

Lambert, J.A. (Hall, J.A., concurring) - see paragraphs 1 to 14, 17;

Saunders, J.A. (dissenting as to costs) - see paragraph 16.