Lai v. Gill et al., [1980] 1 SCR 431

Supreme Court of Canada

Lai v. Gill et al., [1980] 1 S.C.R. 431

Date: 1980-03-18

Adeline Lai, suing on her own behalf and on behalf of Jimmy Lai, the other parent of Linda Li‑Ken Lai, Deceased, pursuant to the Families’ Compensation Act Appellants;

and

Surgit Kor Gill, Davinder Singh and Ivor Milburn Respondents.

1980: March 18.

Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Damages—Intersection accident—Child killed as result of collision between two vehicles—Award of damages at trial reduced by Court of Appeal—Reduction not warranted in law.

Andrews et al. v. Grand & Toy Alberta Ltd. et al., [1968] 2 S.C.R. 229, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia, which judgment reduced to $12,500 the award of damages made by the trial judge in the amount of $25,000 in favour of the appellant under the provisions of the Families’ Compensation Act, R.S.B.C. 1960, c. 138, in respect of the death of her child, Linda Li-Ken Lai. Appeal allowed.

John Parker, for the appellants.

R.B. Harvey and K. Gill, for the respondents.

The judgment of the Court was delivered orally by

MARTLAND J.—We are all of the opinion that this appeal should be allowed. The reasons given by the Court of Appeal for reducing the amount of damages awarded at trial do not, in law, warrant such reduction. This Court in Andrews et al. v. Grand & Toy Alberta Ltd. et al.[1], at p. 235, stated that an appellate court is not justified in substituting a figure of its own for that awarded at trial unless it is satisfied that a wrong principle of law was applied or that the overall award is a wholly

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erroneous estimate of damages. The Court of Appeal has found that the trial judge was clearly aware of the principles to be applied. It did not find the award at trial to be wholly erroneous, but merely expressed the view that it was “on the high side”. It substituted its own estimate for that of the trial judge. In so doing, it erred.

The appeal is allowed, the judgment of the Court of Appeal is set aside and the judgment at trial is restored. The appellants are entitled to costs in this Court and in the Courts below.

Appeal allowed with costs.

Solicitors for the appellants: Parker & Wylie, Vancouver.

Solicitors for the respondents: Thompson & McConnell, Vancouver.