Morgan v. Galbraith (2013), 340 B.C.A.C. 123 (CA);
579 W.A.C. 123
MLB headnote and full text
Temp. Cite: [2013] B.C.A.C. TBEd. JL.009
Peter Rhys Morgan (respondent/plaintiff) v. Kelly Galbraith (appellant/defendant)
(CA039914; 2013 BCCA 305)
Indexed As: Morgan v. Galbraith
British Columbia Court of Appeal
Tysoe, Bennett and Garson, JJ.A.
June 27, 2013.
Summary:
The plaintiff, aged 34 at the time of trial, was injured in a motor vehicle accident in 2006. The defendant admitted liability for the accident.
The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 576, awarded the plaintiff damages. The defendant appealed, submitting that the trial judge erred in assessing damages for future loss of earning capacity at $700,000 (before deducting 30% for failure to mitigate his damages) where the plaintiff was following the same career path that he would have chosen regardless of the accident. She also appealed the awards for past loss of income award and future cost of care. The plaintiff cross-appealed the judge’s reduction of his non-pecuniary damage award by 30% for failure to mitigate.
The British Columbia Court of Appeal allowed the appeal to the extent of setting aside the awards for past loss of income and future loss of earning capacity, and remitted the questions of the assessment of damages for past loss of income and future loss of earning capacity to the trial judge to decide in accordance with its reasons. The court declined to set aside the award for future cost of care. The court dismissed the cross-appeal.
Damage Awards – Topic 489
Injury and death – General damage awards – Cost of future care and treatment – See paragraphs 64 to 69.
Damages – Topic 1011
Mitigation – In tort – Personal injuries – Treatment for – See paragraphs 70 to 81.
Damages – Topic 1012
Mitigation – In tort – Personal injuries – Employment – See paragraphs 70 to 81.
Damages – Topic 1017
Mitigation – In tort – Reduction due to plaintiff’s conduct or provocation – See paragraphs 70 to 81.
Damages – Topic 1549
General damages – For personal injury – Impairment of earning capacity – See paragraphs 23 to 57.
Damages – Topic 1550.1
General damages – General damages for personal injury – Pretrial loss of wages or earnings – See paragraphs 59 to 63.
Damages – Topic 1567
General damages – General damages for personal injury – Future care and treatment – See paragraphs 64 to 69.
Practice – Topic 8817
Appeals – General principles – Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment – See paragraphs 59 to 63.
Cases Noticed:
Perren v. Lalari (2010), 285 B.C.A.C. 98; 482 W.A.C. 98; 3 B.C.L.R.(5th) 303; 2010 BCCA 140, appld. [para. 1].
Brown v. Golaiy (1985), 26 B.C.L.R.(3d) 353 (S.C.), refd to. [para. 24].
Morris v. Rose Estate (1996), 75 B.C.A.C. 263; 123 W.A.C. 263; 23 B.C.L.R.(3d) 256 (C.A.), refd to. [para. 56].
Mulholland et al. v. Riley Estate et al. (1995), 63 B.C.A.C. 145; 104 W.A.C. 145; 12 B.C.L.R.(3d) 248 (C.A.), refd to. [para. 56].
Chiu v. Chiu (2002), 174 B.C.A.C. 267; 286 W.A.C. 267; 2002 BCCA 618, appld. [para. 73].
Counsel:
M.H. Wright, for the appellant;
D.W. Darychuk and K. Deane-Cloutier, for the respondent.
This appeal was heard at Vancouver, B.C., on April 30, 2013, by Tysoe, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. On June 27, 2013, Garson, J.A., delivered the following reasons for judgment for the court.
