Smith v. Knudsen (2004), 206 B.C.A.C. 198 (CA);
338 W.A.C. 198
MLB headnote and full text
Temp. Cite: [2004] B.C.A.C. TBEd. DE.005
David A. Smith (appellant/plaintiff) v. Kelly Michael Knudsen (respondent/defendant)
(CA029452; 2004 BCCA 613; 2005 BCCA 347)
Indexed As: Smith v. Knudsen
British Columbia Court of Appeal
Rowles, Donald and Smith, JJ.A.
December 3, 2004 and June 22, 2005.
Summary:
The plaintiff, while competing in a triathlon, was injured when he veered right on his bicycle to avoid the defendant’s truck. He sued the defendant for damages for personal injuries. The jury found the plaintiff and defendant equally at fault for the accident and assessed the plaintiff’s non-pecuniary damages at $100,000. The plaintiff appealed, arguing that the jury’s apportionment of liability was unreasonable and unjust in view of the evidence as a whole and that the trial judge misdirected the jury on the burden of proof required to establish a loss of a business opportunity for purposes of assessing damages. The defendant cross-appealed respecting costs. Although the defendant had made an offer to settle for $50,000, which the plaintiff did not accept, the trial judge refused to award costs under rule 37(24)(a) holding that the provisions of the Negligence Act, which made no provision for costs and did not recognize the offer to settle rule, prevailed over rule 37(24)(a).
The British Columbia Court of Appeal dismissed the appeal as to the division of liability, but allowed the appeal on the claim for pecuniary loss on the ground of misdirection. The court ordered a new trial, but limited the issue to the plaintiff’s pecuniary damages based on his loss of opportunity claim. The court allowed the cross-appeal with respect to costs. The court held that rule 37(24)(a) and the Negligence Act could be read harmoniously and that rule 37(24)(a) ought to have been applied in this case. The court, therefore, set aside the orders as to costs and directed that the issue of costs of both the trial and the re-trial on the pecuniary loss claim be determined by the trial judge hearing the re-trial.
Damages – Topic 206
Entitlement – Chance – Loss of – Proof of reasonable probability of success – [See
Damages – Topic 1422
].
Damages – Topic 1422
Special damages – Loss of corporate opportunity – The plaintiff, while competing in a triathlon, was injured when he veered right on his bicycle to avoid the defendant’s truck and sued the defendant for damages for personal injuries – The jury found the plaintiff and defendant equally at fault for the accident and assessed the plaintiff’s non-pecuniary damages at $100,000 – The plaintiff appealed, arguing that the trial judge misdirected the jury on the burden of proof required to establish a loss of a business opportunity for purposes of assessing damages – The British Columbia Court of Appeal allowed the appeal, holding that the trial judge’s conclusion that he was required to instruct the jury that the plaintiff’s loss of opportunity claim had to be established on a balance of probabilities because it was a claim for “past” loss did not accord with the case authorities including Athey v. Leonati (SCC, 1996) – See paragraphs 9 to 38.
Practice – Topic 7245.7
Costs – Party and party costs – Offers to settle – Cases where liability apportioned – The plaintiff, while competing in a triathlon, was injured when he veered right on his bicycle to avoid the defendant’s truck and sued the defendant for damages for personal injuries – The jury found the plaintiff and defendant equally at fault for the accident and assessed the plaintiff’s non-pecuniary damages at $100,000 – Although the defendant had made an offer to settle for $50,000, which the plaintiff did not accept, the trial judge refused to award costs under rule 37(24)(a) holding that the provisions of the Negligence Act, which made no provision for costs and did not recognize the offer to settle rule, prevailed over rule 37(24)(a) – The defendant appealed respecting the costs ruling – The British Columbia Court of Appeal allowed the appeal, holding that rule 37(24)(a) and the Negligence Act could be read harmoniously and that rule 37(24)(a) ought to have been applied in this case – See paragraphs 39 to 51.
Practice – Topic 8825.3
Appeals – General principles – Duty of appellate court regarding apportionment of fault by trial judge or jury – The plaintiff, while competing in a triathlon, was injured when he veered right on his bicycle to avoid the defendant’s truck – The defendant was unaware of the triathlon and backed out of his driveway after seeing the plaintiff approaching, but thought that he had time to back out – The plaintiff sued the defendant for damages for personal injuries – The jury found the plaintiff and defendant equally at fault for the accident – The plaintiff appealed, arguing that the jury’s apportionment of liability was unreasonable and unjust in view of the evidence as a whole – The British Columbia Court of Appeal refused to interfere with the jury’s ruling – The court stated that while the appeal court might not have reached the same division or liability as the jury, the court was not persuaded that the verdict was so plainly unreasonable and unjust that no jury acting judicially could have reached it – See paragraphs 9 to 18.
Torts – Topic 6603
Defences – Contributory negligence – Apportionment of fault – General – [See
Practice – Topic 8825.3
].
Cases Noticed:
Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 5].
Toronto Railway Co. v. King, [1908] A.C. 260 (P.C.), refd to. [para. 15].
Bisson v. Powell River (District) (1967), 62 W.W.R.(N.S.) 707 (B.C.C.A.), refd to. [para. 17].
Mallett v. McMonagle, [1970] A.C. 166 (H.L.), refd to. [para. 23].
Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 23].
Malec v. Hutton (J.C.) Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.), refd to. [para. 23].
Sales v. Clarke (1998), 113 B.C.A.C. 26; 184 W.A.C. 26; 57 B.C.L.R.(3d) 36 (C.A.), refd to. [para. 23].
Steenblok v. Funk, [1990] 5 W.W.R. 365; 46 B.C.L.R.(2d) 133 (C.A.), refd to. [para. 28].
Schrump v. Koot (1977), 18 O.R.(2d) 337 (C.A.), refd to. [para. 28].
Kovats v. Ogilvie, [1971] 1 W.W.R. 561 (B.C.C.A.), refd to. [para. 28].
Moyer v. Bosshart et al. (1994), 44 B.C.A.C. 161; 71 W.A.C. 161; 7 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 30].
Prebushewski v. Kelly, [1994] B.C.J. No. 1610 (S.C.), affd. [1996] B.C.J. No. 412 (C.A.), refd to. [para. 30].
Gill v. Probert et al., [2001] B.C.A.C. Uned. 94; 2001 BCCA 331, refd to. [para. 31].
Schellak v. Barr et al. (2003), 176 B.C.A.C. 146; 290 W.A.C. 146; 8 B.C.L.R.(4th) 245; 2003 BCCA 5, leave to appeal refused (2003), 321 N.R. 198; 202 B.C.A.C. 320; 331 W.A.C. 320 (S.C.C.), refd to. [para. 32].
Blackwater et al. v. Plint et al., [2004] 3 W.W.R. 217; 192 B.C.A.C. 1; 315 W.A.C. 1; 235 D.L.R.(4th) 60; 2003 BCCA 671, refd to. [para. 35].
Jennings Estate et al. v. Gibson et al. (1994), 48 B.C.A.C. 1; 78 W.A.C. 1; 96 B.C.L.R.(2d) 342 (C.A.), refd to. [para. 38].
Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 41].
Flatley v. Denike and Gelbart (1997), 87 B.C.A.C. 127; 143 W.A.C. 127; 144 D.L.R.(4th) 450 (C.A.), refd to. [para. 44].
Statutes Noticed:
Negligence Act, R.S.B.C. 1996, c. 333, sect. 2(c), sect. 3 [para. 43].
Rules of Court (B.C.), Supreme Court Rules, rule 37(24)(a) [para. 40].
Authors and Works Noticed:
Smith, C. Lynn, and Bouck, J.C., Civil Jury Instructions (1989), generally [para. 28].
Counsel:
P.M. Sweeney and M.R. Scherr, for the appellant;
H.F. Turnham and S. Stewart, for the respondent.
This appeal was heard on May 27, 2004, at Vancouver, British Columbia, before Rowles, Donald and Smith, JJ.A., of the British Columbia Court of Appeal. Rowles, J.A., delivered the following judgment for the court on December 3, 2004. Supplementary reasons were released on June 22, 2005.
