Mulholland v. Riley Estate (1995), 63 B.C.A.C. 145 (CA);
104 W.A.C. 145
MLB headnote and full text
Margaret Mulholland, an infant by her guardian ad litem, Pauline Mulholland and the said Pauline Mulholland (plaintiffs/respondents) v. Madeline Riley, deceased (defendant) and Insurance Corporation of British Columbia (third party/appellant)
(CA017175)
Indexed As: Mulholland et al. v. Riley Estate et al.
British Columbia Court of Appeal
McEachern, C.J.B.C., Southin and Hollinrake, JJ.A.
August 21, 1995.
Summary:
The plaintiff passenger sued her driver’s estate for damages received in a car accident. Liability was admitted. The trial judge allowed the action and assessed damages accordingly. The driver’s insurer appealed the awards for nonpecuniary damages and for loss of earning capacity. The passenger cross-appealed the finding that she was 25 percent contributorily negligent for failing to wear a seat belt.
The British Columbia Court of Appeal dismissed both the appeal and cross-appeal.
Damage Awards – Topic 102
Injury and death – Head injuries – Brain damage – A 15 year old female suffered a moderately serious closed head injury, with concomitant difficulties in memory, personality change, comprehension problems and slowed motor function – Long term disability respecting high level language function and memory – Reduced her educational options and occupational alternatives; would be unable to work full time more than three-four days per week – Not likely to succeed in full secondary education – Five percent increased risk of epilepsy – Difficulties with fatigue – The British Columbia Court of Appeal affirmed general damages of $175,000 for nonpecuniary loss – See paragraphs 8 to 28.
Damage Awards – Topic 105
Injury and death – Head injuries – Skull fracture and closed head injuries – [See
Damage Awards – Topic 102
].
Torts – Topic 346
Negligence – Motor vehicle – Passengers – Contributory negligence of passenger – Failure to use safety equipment – Seat belts – The British Columbia Court of Appeal affirmed that a passenger was 25 percent contributorily negligent for failing to wear a seat belt – See paragraphs 50 to 52.
Cases Noticed:
Lawin v. Jones (1994), 49 B.C.A.C. 249; 80 W.A.C. 249; 98 B.C.L.R.(2d) 126 (C.A.), consd. [para. 18].
Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, consd. [para. 26].
Reekie v. Messervey (1989), 36 B.C.L.R.(2d) 316 (C.A.), refd to. [para. 30].
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [para. 36].
Counsel:
J.S. Carfra, Q.C., for the appellant;
J.A. Vanstone and A. de Tuberville, for the respondents.
This appeal was heard in Victoria, British Columbia, on May 9, 1995, before McEachern, C.J.B.C., Southin and Hollinrake, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered in Vancouver, British Columbia, on August 21, 1995, and the following opinions were filed:
Hollinrake, J.A. (McEachern, C.J.B.C., concurring) – see paragraphs 1 to 54;
Southin, J.A. – see paragraphs 55 to 63.
