Saturday, March 21, 2009

Lodge v. Fraser Health Authority

At the interstection of Tort and Estate, you may find Lodge v. Fraser Health Authority, 2009 BCCA 108.

Winston Lodge sued the Fraser Health Authority after his common-law wife’s rings went missing. Patricia Joan McKay passed away at Peace Arch Hospital, which is operated by the Fraser Health Authority. When she died, she was wearing three rings, but they went missing shortly thereafter.

Mr. Lodge sued for the value of the rings. He also claimed aggravated damages, which means he was claiming some additional compensation for mental distress. The case went before a jury.

Before the jury made a decision, the trial judge ruled that the Fraser Health Authority did not owe a duty to Mr. Lodge personally. The rings belonged to Patricia McKay, and the claim had to be made on behalf of her estate. The trial judge allowed Mr. Lodge to amend his claim to advance the claim on behalf of Ms. McKay’s estate, as her executor.

Although Mr. Lodge could then advance the claim for compensation for the rings on behalf of the estate, the trial judge ruled that he could not claim aggravated damages on behalf of the estate. The trial judge held that Mr. Lodge did not have a sufficiently direct interest in the rings to advance the aggravated damages claim for mental distress arising from loss of the rings. Mr. Lodge was the residual beneficiary of the estate, but Ms. McKay did not specifically gift the rings to Mr. Lodge. It was in theory possible that the rings would have to be sold to pay creditors, or someone could advance a Wills Variation Claim with the result that the rings would go to someone else. Nor could a claim for aggravated damages be advanced on behalf of the estate, because previous cases in British Columbia held that aggravated damages could not be awarded to the estate of a deceased person.

The jury found that the Fraser Health Authority had been negligent, and awarded the estate $10,000 for the loss of the value of the rings.

The Fraser Health Authority appealed the award of $10,000 for the loss of the value of the rings, and Mr. Lodge cross appealed the decision of the trial judge to not allow the jury to consider making an award of aggravated damages.

The British Columbia Court of Appeal dismissed the Fraser Health’s Authority’s appeal, and allowed Mr. Lodge’s appeal.

Mr. Justice Bauman held that the facts as pleaded, if proven, could support an award of aggravated damages to Mr. Lodge personally. There was a sufficiently close proximity between the negligence of the Fraser Health Authority in losing the rings and any mental suffering that Mr. Lodge experienced for the Fraser Health Authority to owe him personally a duty of care. It was not necessary for Mr. Lodge to establish a proprietary interest in the rings for him to claim compensation for mental distress arising from any tortuous interference with the body or property of his common-law wife.

The Court of Appeal ordered that Mr. Lodge would be permitted to have a new trial at which his claim for damages for aggravated damages for mental distress would be considered. He will still need to prove his claim if he chooses to have a new trial.

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