Toneguzzo-Norvell v. Savein (1994), 38 B.C.A.C. 193 (SCC);
62 W.A.C. 193
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Jessica Teresa Toneguzzo-Norvell, an infant by her mother and guardian ad litem, Rosetta Carmela Toneguzzo (appellant) and Rosetta Carmela Toneguzzo (plaintiff) v. Nelson Savein (respondent) and Burnaby Hospital (respondent)
(No. 23195)
Indexed As: Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
January 27, 1994.
Summary:
A child sustained injuries due to oxygen deprivation during birth. The child suffered from mental retardation, blindness and a seizure disorder. The mother sued the defendant doctor and hospital for damages. Liability was admitted. The trial judge assessed damages accordingly. (See [1991] B.C.W.L.D. 1887; 27 A.C.W.S.(3d) 1171). The doctor and hospital appealed and the mother cross-appealed respecting quantum.
The British Columbia Court of Appeal, in a decision reported 16 B.C.A.C. 46; 28 W.A.C. 46, allowed the appeal in part and dismissed the cross-appeal.
The British Columbia Court of Appeal, in a decision reported 22 B.C.A.C. 173; 38 W.A.C. 173, settled the formal judgment, deducting $25,000 from the award for cost of care. This issue was raised in the defendants/appellants factum, but not dealt with at the time of the appeal. The mother and child appealed seeking an increase in the damage award.
The Supreme Court of Canada allowed the appeal in part.
Damages – Topic 1549
General damages – For personal injury – Impairment of earning capacity – [See both
Damages – Topic 1550
].
Damages – Topic 1550
General damages – For personal injury – Prospective loss of earnings – A child was severely injured during birth – The trial judge calculated damages for future earnings losses without deduction for personal living expenses – The Supreme Court of Canada affirmed a 50% deduction by the appeal court – The court held that the child was entitled to an award for lost earnings not only for the years she will actually live, but for the years she would have lived had she not been injured – A deduction for personal living expenses must be made from the award for lost earnings for the years she will actually live to avoid duplication with damages for future care costs – A deduction for personal living expenses should also be made from the award for lost earning capacity for the years after the child’s death (the “lost years”) – See paragraphs 26 to 31.
Damages – Topic 1550
General damages – For personal injury – Prospective loss of earnings – A child was severely injured during birth – Although only female earning tables were on the record, the trial judge, in calculating damages for loss of future earnings, considered the trend to increase and equalize the salaries of women with those of men, as a positive contingency justifying increasing the award – The appeal court affirmed the ruling – The mother and child appealed, arguing that an award based on male earning tables should be substituted for the award at trial – The Supreme Court of Canada dismissed this ground of appeal, noting that only the female earning table was on the record and the most the judge could do was consider the matter as a positive contingency – See paragraphs 20 to 24.
Damages – Topic 1557
General damages – For personal injury – Calculation and method of assessment – Life expectancy – A child suffered severe injuries from oxygen deprivation at birth – The trial judge calculated damages on the basis of a 25 year life expectancy from birth – The appeal court reduced life expectancy to 18 years from birth – The Supreme Court of Canada held that the appeal court erred in interfering with the trial judge’s conclusion on life expectancy and restored the trial judge’s ruling – See paragraphs 6 to 19.
Damages – Topic 1565
General damages – For personal injury – Deductions – Personal living expenses – [See first
Damages – Topic 1550
].
Practice – Topic 8800
Appeals – General principles – Duty of appeal court regarding fact findings by trial judge – The Supreme Court of Canada stated that “it is by now well established that a Court of Appeal must not interfere with a trial judge’s conclusions on matters of fact unless there is palpable or overriding error. In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it … A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal” – See paragraph 13.
Cases Noticed:
D.P. v. C.S., [1993] 4 S.C.R. 141; 159 N.R. 241; 58 Q.A.C. 1, refd to. [para. 13].
Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241, refd to. [para. 13].
Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 13].
Croke (a minor) v. Wiseman, [1981] 3 All E.R. 852 (C.A.), refd to. [para. 17].
Semenoff et al. v. Kokan et al. (1991), 4 B.C.A.C. 191; 9 W.A.C. 191; 59 B.C.L.R.(2d) 195 (C.A.), refd to. [para. 27].
Pickett v. British Rail Engineering Ltd., [1979] 1 All E.R. 774 (H.L.), refd to. [para. 27].
Skelton v. Collins (1966), 115 C.L.R. 94 (Aust. H.C.), refd to. [para. 27].
Authors and Works Noticed:
Cooper-Stephenson, Kenneth D., and Iwan B. Saunders, Personal Injury Damages in Canada (1981), p. 244 [para. 30].
New England Journal of Medicine, The Eyman Study, generally [para. 6].
Counsel:
Darrell W. Roberts, Q.C., Susan A. Griffin and Wendy A. Baker, for the appellant;
C.E. Hinkson, Q.C., and Cheryl L. Talbot, for the respondent Savein;
John G. Dives and P.A. Washington, for the respondent Burnaby Hospital.
Solicitors of Record:
Roberts, Muir & Griffin, Vancouver, British Columbia, for the appellant;
Harper Grey Easton, Vancouver, British Columbia, for the respondent, Savein;
Bull, Housser & Tupper, Vancouver, British Columbia, for the respondent Burnaby Hospital.
This appeal was heard on November 1, 1993, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered by McLachlin, J., in both official languages on January 27, 1994.
