Crosby v. O’Reilly et al., [1975] 2 SCR 381

Supreme Court of Canada

Crosby v. O’Reilly et al., [1975] 2 S.C.R. 381

Date: 1974-06-28

Douglas R. Crosby, Administrator of the Estate of Douglas Kim Crosby (Plaintiff) Appellant;

and

Victor Vincent O’Reilly and Gulf Oil Company Ltd. (Defendants) Respondents.

1974: May 30; 1974: June 28.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Damages—Deceased killed in automobile accident—Damages for shortened expection of life—Quantum—Loss of amenities of life not to be considered as an additional head of damage—The Trustee Act, R.S.A. 1955, c. 346, s. 32 (now The Administration of Estates Act, R.S.A. 1970, c. 1, s. 51).

The deceased, 22 years of age, died almost instantly in a two car collision for which the respondents admitted liability. He was an exceptional person both in educational achievement and in the range of his interests, and a brilliant career as a research physicist had been forecast for him. In an action brought under s. 32 of The Trustee Act (Alta.), the jury awarded $90,000 for loss of expection of life. The Appellate Division reduced the award to $10,000. An appeal by the administrator of the estate was then brought to this Court.

Held: The appeal should be dismissed.

On the question of the loss of the amenities of life as a second head of damage in a survival action in tort brought by the deceased’s personal representative, the Appellate Division correctly rejected the present appellant’s submissions for its recognition as such. Where the claim is asserted in a survival action, there is nothing but duplication of the recognized claim for shortened expectation of life.

The Court could not agree with the Appellate Division that where a survival action for the benefit of a deceased’s estate is tried by judge and jury the jury should be instructed as a matter of law that $10,000 is the present upper limit of an award. Rather than fix

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the direction as one of law governing the upper limit of an award, the trial judge should direct the jury, in the light of the evidence respecting the deceased in all of his or her qualities, mode of life and prospects, in the light of age and physical condition, that a figure beyond a particular sum, which may be less than $10,000, may be regarded as excessive.

Rose v. Ford, [1937] A.C. 826, followed; Benham v. Gambling, [1941] A.C. 157; Bechtold v. Osbaldeston, [1953] 2 S.C.R. 177, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], reducing the amount of general damages awarded by a jury on a claim under s. 32 of The Trustee Act. Appeal dismissed.

K.L. Crockett, Q.C., for the plaintiff, appellant.

J.D. Cregan, Q.C., for the defendants, respondents.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This case originated in an action brought under s. 32 of The Trustee Act, R.S.A. 1955, c. 346 (now s. 51 of The Administration of Estates Act, R.S.A. 1970, c. 1) by the administrator of the estate of Douglas Crosby who died almost instantly in a two car collision for which the respondents admitted liability. The action was tried by Manning J. and a jury who were charged that they were to assess damages on only the one head of loss of expectation of life. The jury brought in a verdict of $90,000. On appeal, the Alberta Appellate Division reduced the award to $10,000. The plaintiff has appealed to this Court, seeking, inter alia, a restoration of the jury’s verdict and submitting, moreover, that the jury should have been directed to consider two heads of damage, namely, loss of expectation of life and loss of the amenities of life.

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Section 32 of The Trustee Act reads as follows:

32. (1) The executors or administrators of any deceased person may maintain an action for any tort or injury to the person or to the real or personal estate of the deceased except in cases of libel and slander, in the same manner and with the same rights and remedies as the deceased would if living have been entitled to do.

(2) The damages when recovered form part of the personal estate of the deceased.

(3) The action shall be brought only within one year after the death of the deceased person.

This provision was taken over by Alberta from the Trustee Ordinance of the Nort West Territories, 1903 (2nd sess.), c. 1, s. 29, and hence was in force there long before the enactment by the British Parliament of the Law Reform (Miscellaneous Provisions) Act, 1934 (U.K.), c. 41, which, by s. 1(1), provided that causes of action subsisting against or vested in a person on his death should survive against OF for the benefit of his estate. In Rose v. Ford[2], the House of Lords held that a claim for shortened expectation of life could be asserted by the personal representative of a deceased, killed by another’s negligence, as being one that had vested in the deceased at his death and hence was covered by the survival statute. This decision was then followed in various Canadian provinces which, having had similar legislation to that later enacted for England, now recognized a head of damage not theretofore apparent to their courts. The question of the correctness of the decision in Rose v. Ford, which is to give damages for death otherwise than under fatal accidents legislation, has been the subject of some periodical literature in this country: see, for example, Wright, “The Abolition of Claims for Shortened Expectation of Life by a Deceased’s Estate”, (1938) 16 Can. Bar Rev. 193; Bowker, “The Uniform Survival of Actions Act”, (1964) 3 Alta. L. Rev. 197; Laycraft, “Survival of Claims for Loss of Expectation of Life”, (1964) 3 Alta. L. Rev. 202; and cf. Dunlop, “The High Price of Sympathy, Damages for Personal Injuries”,

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(1967) 17 U. of T. L.J. 51 at pp. 55ff. It is enough to say here that such a claim exists in Canada today only in Alberta and in Manitoba, in both of which Rose v. Ford has been consistently followed, there having been no legislative abrogation of its principle in those provinces as has been the case elsewhere in Canada. In the present case, neither party has urged that the principle of Rose v. Ford be re-examined. Indeed, counsel for the appellant asks that it be extended. I proceed therefore with the issues raised in this appeal, accepting the correctness of Rose v. Ford as far as it goes.

The evidence makes it clear that the deceased, 22 years of age at the time of his death on March 21, 1967, was an exceptional person both in educational achievement and in the range of his interests, and a brilliant career as a research physicist was forecast for him. He was unmarried and had no dependants, so that no issue arises of any possible concurrent or overlapping claims under fatal accidents legislation. To the extent that a substantial award should be made in a survival action for the benefit of a deceased’s estate, this is a case where, having regard to its favourable facts, it should be done.

On the basis that the damages are awarded only for shortened expectation of life, the question at issue is the extent of the compensable interest of the deceased’s personal representative in a loss that is personal to the deceased. The anomaly of an award in any amount is obvious if it be the case that it is compensation to the injured party and not penalty or punishment of the wrongdoer that is the governing principle. We are not concerned with a case where it is the tortfeasor who has died. That

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would present an entirely different situation from the standpoint of compensating the injured party.

In the present case, the Alberta Appellate Division, founding itself upon the judgment of the House of Lords in Benham v. Gambling[3], concluded that the sum to be awarded must be determined as a matter of law because it is not amenable to fact. This is, it seems to me, too rigid a position to take because, it being accepted that shortened expectation of life is compensable in favour of an estate, there must still be variation in awards, however narrow the range, according to what Lord Simon in Benham v. Gambling described as “the prospective balance of happiness in years that the deceased might otherwise have lived”. The Appellate Division made its award of $10,000 by adopting as a conventional award the sum of $7,500, sustained by this Court in Bechtold v. Osbaldeston[4], and raising it to recognize the difference in the value of money since that case was decided. It is clear that this was not done as an exercise in mathematical accuracy, but as a matter of choosing a sum that would be the upper limit of a conventional approach to this head of damage in Alberta. Subject to the question whether the loss of amenities of life should have been considered as an additional head of damage and to the assertion of the Alberta Appellate Division that the trial judge should have instructed the jury that $10,000 was the upper limit, I would not interfere with the reduced award by the Appellate Division on a matter which has become a local provincial question in Canada.

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Turning to the question of the loss of the amenities of life as a second head of damage in a survival action in tort brought by the deceased’s personal representative, I am of the opinion that the Alberta Appellate Division correctly rejected the present appellant’s submissions for its recognition as such. I say nothing about it as a separate head of damage in an action by an injured living person, be he or she permanently unconscious or not, nor about its relation in that connection to a claim for shortened expectation of life. Where, however, the claim is asserted in a survival action as here, I can see nothing but duplication of the recognized claim for shortened expectation of life, even if it be the case that in a living person situation loss of the amenities of life may call for a larger award than would be given for loss of expectation of life alone: cf. Fleming, Law of Torts, 4th ed., 1971, at pp. 207-8.

I cannot agree with the Alberta Appellate Division that where a survival action for the benefit of a deceased’s estate is tried by judge and jury the jury should be instructed as a matter of law that $10,000 is the present upper limit of an award. I do not think that damages can be so exactly defined by putting them on the basis of a legal limitation. At the same time, it is only common sense, where an appellate court is to have the final say on what is a proper conventional figure, that the jury be given careful guidance lest the result be, as here, an extravagant figure leading to successive appeals at a risk of costs that will eat up the ultimate award. Rather than fix the direction as one of law governing the upper limit of an award, the trial judge should direct the jury, in the light of the evidence respecting the deceased in all of his or her qualities, mode of life and prospects, in the light of age and physical condition, that a figure beyond a particular sum, which may be

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less than $10,000, may be regarded as excessive.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Crockett, Hattersley, Ketchum & Niziol, Edmonton.

Solicitors for the defendants, respondents: Milner & Steer, Edmonton.