King v. Goodman, [1940] SCR 541

Supreme Court of Canada

King v. Goodman, [1940] S.C.R. 541

Date: 1940-06-29

George Wesley King, Administrator of The Estate of Alice Winnifred King (Plaintiff) Appellant;

and

Joshua Goodman (Defendant) Respondent.

George Wesley King (Plaintiff) Appellant;

and

Joshua Goodman (Defendant) Respondent.

1940: June 5, 29.

Present: Duff C.J. and Crocket, Davis, Hudson and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Damages—Quantum—Action for damages for deceased’s loss of expectation of life, under The Trustee Act, R.S.O., 1937, c. 165, s. 37 (as it stood prior to amendment by 2 Geo. VI, c. 44, s. 3)—Inadequacy of sum awarded by jury—New trial for re-assessment of damages.

Plaintiff’s daughter, aged 23 years, was killed in an accident which he alleged was caused by negligence of defendant. Plaintiff sued for damages under The Fatal Accidents Act, R.S.O., 1937, c. 210, and also, as administrator of his daughter’s estate, for damages for her pain and suffering and loss of expectation of life, under The Trustee Act, R.S.O., 1937, c. 165, s. 37 (as it stood prior to the amendment by 2 Geo. VI, c. 44, s. 3). At trial the jury found defendant guilty of negligence causing the accident in the degree of 55%, and assessed the damages under each Act respectively at $500, and plaintiff recovered judgment for 55% thereof in each case. Plaintiff’s appeal to the Court of Appeal for Ontario was dismissed, and he appealed to this Court on the question of the quantum of damages.

Held: The jury’s assessment of damages under The Fatal Accidents Act should not be disturbed. But there should be a new trial for assessment of damages under The Trustee Act. Cases dealing with awards for loss of expectation of life reviewed.

Per the Chief Justice, Davis and Taschereau JJ.: It is impossible to say in this case that $500 can, in any view, be proper compensation for the loss of the expectation of life.

Per Crocket and Hudson JJ.: Considering the age, state of health and prospects of deceased, the amount awarded was so small as to indicate clearly that the jury did not appreciate the nature of the remedy provided by the statute.

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APPEAL by the plaintiff from the judgment of the Court of Appeal for Ontario dismissing his appeal from the judgment of McTague J.

The plaintiff sued for damages by reason of the death of his daughter, 23 years of age, who was killed in a motor car accident which the plaintiff alleged was caused by negligence of the defendant. The deceased was a passenger in a car driven by one Brady, with which the defendant’s car collided.

The plaintiff brought an action on behalf of himself and his wife under the provisions of The Fatal Accidents Act, R.S.O., 1937, c. 210, and also an action as administrator of the estate of his daughter, claiming in the latter action damages for the deceased’s shortened expectation of life and pain and suffering, under s. 37 of The Trustee Act, R.S.O., 1937, c. 165 (as it stood before the amendment by s. 3 of 2 Geo. VI, c. 44, which amendment was subsequent to the commencement of plaintiff’s action and therefore, under the provisions of said s. 3, did not apply). The two actions were consolidated. The consolidated action was tried before McTague J. with a jury. The jury, in answers to questions submitted to them, found that the accident was caused by the negligence of both the defendant and Brady, and ascribed the degrees of negligence as follows: against defendant 55%; against Brady 45%. They assessed the damages at $500 under The Fatal Accidents Act and at $500 under The Trustee Act; and plaintiff recovered judgment for 55% of said sums, namely, $275 in each case. Plaintiff appealed to the Court of Appeal for Ontario, complaining (inter alia) against the amount of damages awarded by the jury. His appeal was dismissed, and he appealed to the Supreme Court of Canada, limiting his appeal to the question of the quantum of damages. During the hearing of the appeal this Court stated that it would not interfere with the amount of damages as assessed by the jury under The Fatal Accidents Act, and the reasons for judgment now reported deal with the question as to the amount of damages under The Trustee Act.

R.A. Hughes for the appellant.

J.D. Watt for the respondent.

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The judgment of the Chief Justice and Davis and Taschereau JJ. was delivered by

DAVIS J.—By sec. 3 of The Trustee Amendment Act, 1938 (2 Geo. VI, ch. 44), assented to April 8, 1938, the Ontario Legislature amended subsec. 1 of sec. 37 of The Trustee Act (R.S.O., 1937, ch. 165) by adding at the end thereof the words:

provided that if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso shall not be in derogation of any rights conferred by The Fatal Accidents Act.

The amendment was expressly declared by subsec. (2) of said sec. 3 not to apply to pending litigation. The writs in these actions, one under The Fatal Accidents Act and one under The Trustee Act, were issued March 2, 1938, and the actions were consolidated by an order dated March 24, 1938. We have therefore in this appeal to consider the question of damages for the loss of the expectation of life as the law stood prior to the amendment to The Trustee Act on April 8, 1938.

Alice Winnifred King, a young woman of 23 years of age, was struck by the respondent’s motor car and died within a few hours from her injuries. The consolidated action went to trial before McTague J. with a jury. The jury found both parties to the accident at fault and apportioned fault, 55% against the respondent and 45% against the deceased. The jury assessed the damages under The Fatal Accidents Act at $500 and under The Trustee Act at $500. It is not disputed that the jury intended the $500 for loss of expectation of life to be in addition to the $500 under The Fatal Accidents Act. The appellant appealed to the Court of Appeal for Ontario against the quantum of the damages but the appeal was dismissed. The appellant then appealed to this Court.

As to the amount of damages under The Fatal Accidents Act, counsel for the appellant did not press that branch of his appeal and the Court in any event stated during the hearing that it would not interfere with that amount. The other branch of the appeal, the amount of damages for the loss of the expectation of life, has occasioned our serious consideration. The appellant contends that $500 was plainly an erroneous estimate of the loss of

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the expectation of life by the young woman of twenty-three years. In Rose v. Ford[1] the deceased woman was about the same age and the House of Lords awarded £1,000 for loss of expectation of life. In Shepherd v. Hunter[2], where a jury, after a proper summing up, had awarded £90 in respect of the loss of expectation of life by a healthy child, aged three, who was killed in a road accident, the Court of Appeal considered the verdict was clearly erroneous and directed a new trial in order that the amount might be re-estimated by another jury. In Bailey v. Howard[3], the loss of expectation of life by a child of three years had to be valued. The jury awarded £1,000 and the Court of Appeal refused to interfere. In Ellis v. Raine[4], a child of eight years had been killed by a motor car. The jury awarded £125 damages under The Fatal Accidents Act and no damages for loss of the expectation of life. The Court of Appeal sent the case back to be re-tried on the two issues of the amount of damages.

In the very recent case of Mills v. Stanway Coaches Ltd.[5], the deceased was a married woman thirty-four years of age and in good health. She survived the accident for only four days and for most of that time she was unconscious. The jury assessed the loss of the expectation of life at £2,000 but the Court of Appeal reduced the amount to £1,000.

We think that it is impossible to say in this case that $500 can, in any view, be proper compensation for the loss of the expectation of life. The learned trial judge, McTague J., appears to have taken the same view of the verdict in this regard because after the verdict he suggested to counsel that they endeavour to agree upon some compromise, stating that in his opinion it would be advisable to do so in view of the amount of damages that had been awarded. Counsel for both parties before us stated that they would be willing to have the Court re-assess the damages if we came to the conclusion that the amount awarded by the jury could not stand, but we

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think that the only safe course, if the parties themselves cannot now agree upon an amount, is to have the damages assessed by another jury.

The appeal should therefore be allowed and a new trial should be directed, limited to the assessment of damages in respect of the claim sued upon under The Trustee Act. The appellant should have his costs both in this Court and in the Court of Appeal. The appellant will have his costs of the action down to and including those of the abortive trial; the costs of and consequent upon the new trial will be dealt with by the trial judge.

The judgment of Crocket and Hudson JJ. was delivered by

HUDSON J.—There were two actions: the first arising out of the claim under The Fatal Accidents Act, R.S.O., 1937, chap. 210, and the second under The Trustee Act, R.S.O., 1937, chap. 165.

The plaintiff was awarded by a jury damages of 55% of $500 under the provisions of The Fatal Accidents Act. The plaintiff was also awarded 55% of $500 under the provisions of The Trustee Act. On appeal to the Court of Appeal for Ontario, this decision was not disturbed. From that decision the present appellant now comes to this Court, the appeal being limited solely to the quantum of damages.

The question of the amount awarded under The Fatal Accidents Act was disposed of at the hearing before us and need not now be further considered.

The provision of The Trustee Act applicable and in force at the time of the accident is section 37 (1):

37. (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered hall form part of the personal estate of the deceased.

Miss King lived for a very short time after the accident. The principle upon which damages should be awarded in this case has been the subject of a great deal of discussion both in Canada and in England. The most authoritative statement is in the case of Rose v. Ford[6].

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The statute provides that the administrator may maintain an action for injuries to the person of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do.

The court whose business it is to fix the damages is given the very difficult task of postulating the situation of the deceased having brought an action herself for damages for the loss of what remained of her life. Inevitably opinions would vary within very wide range as to what should be awarded in a case of this kind. In a good many of the reported cases the amount awarded has been regarded as excessive in courts of appeal and that amount reduced. In some, where it was so small as to indicate that the trial court did not fully appreciate the nature of the action, the amount has been increased.

I think, in the present case, considering the age, state of health and prospects of the late Miss King, that the amount awarded was so small as to indicate clearly that the jury did not appreciate the nature of the remedy provided by the statute. For this reason, I am of opinion that the matter should be sent back to the trial court for a re-assessment of damages on the issue under The Trustee Act. The appellant should have his costs here and in the Court of Appeal and also his costs of action in any event.

Appeal allowed in part with costs, and a new trial ordered as to the amount of damages in respect of the claim under The Trustee Act.

Solicitors for the appellant: Hughes & Laishley.

Solicitors for the respondent: Herridge, Gowling, MacTavish & Watt.