SUPREME COURT OF CANADA

Woelk v. Halvorson, [1980] 2 S.C.R. 430

Date: 1980-10-07

Henry Woelk and Marjorie Woelk Appellants;

and

Cameron Eric Halvorson Respondent.

1980: June 26; 1980: October 7.

Present: Laskin C.J. and Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Courts — Damages — Tort — Physical injuries — Amount awarded at trial reduced by appellate court — Function of appellate court in reviewing award of damages made at trial.

Matrimonial law — Loss or impairment of consortium — Claim at trial statutory and framed under s. 35(1) of The Domestic Relations Act — Reach of s. 35 of The Domestic Relations Act — The Domestic Relations Act, R.S.A. 1970, c. 113, s. 35, as amended by 1973 (Alta.), c. 61, s. 5(16).

This appeal concerns the function of an appellate court in reviewing an award of damages made at trial, and the limits of the reach of The Domestic Relations Act as amended by the addition of the present s. 35, in 1973. Appellants are husband and wife. The Court of Appeal reduced the amount awarded the husband for his claim for general damages suffered in an automobile accident from $30,000 to $15,000. The wife's claim at trial, while statutory and framed under s. 35(1) of The Domestic Relations Act, amounted to one for damages for the loss or impairment of consortium. The Court of Appeal reduced the amount awarded the wife from $10,000 to $100. This appeal resulted.

Held: The appeal should be allowed.

It is well settled that a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have to come to a different conclusion. It is only where a Court of Appeal concludes that there was no evidence upon which a trial judge could have reached that conclusion, or where he proceeded upon a mistake or wrong principle, or where the result reached at trial was wholly erroneous, that a Court of Appeal is entitled to intervene.

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The Court of Appeal considered and weighed the evidence and drew different conclusions from those of the trial judge. The Court of Appeal did not conclude that the trial judge acted upon a wrong principle or that there was no evidence to support the trial judge's conclusion. Weighing and evaluating the evidence lies fully within the province of the trial judge and, where there is evidence to support a finding which he has made, the fact that the Court of Appeal would have preferred to accept other evidence to the contrary, leading to a different conclusion, will not justify a reversal of the trial judge's conclusion. To interfere with the award made at trial constituted an error in principle on the part of the Court of Appeal. As there was evidence to support the conclusions reached by the trial judge, and since it cannot be said that the award was erroneous or that the trial judge proceeded on any incorrect principle, the award made at trial to the male appellant should be restored.

s. 35(1) of The Domestic Relations Act gives the action for loss or impairment of consortium statutory form, extends the right of action for loss of consortium to wives and, by its statutory pronouncement, creates a new cause of action which must be approached, freed from the limitations imposed by the earlier decisions in the common law. It is not open to the Court to treat the new cause of action as trivial and deserving of only token awards or to consider that the Legislature of Alberta, in passing s. 35, intended to preserve the old jurisprudence which had gone far to eliminate the right and render damage awards insignificant. The Legislature having created the right of the wife to damages and having omitted any restriction on damage awards, the Court must endeavour to assess the damages realistically, according to the evidence in each case. The Legislature did not intend to perpetuate an action leading to insignificant recovery and it did not regard the remedy as anomalous.

Although the word "deprive", which means total removal in its general meaning, is used in s. 35, the Court does not accept that the husband must be rendered virtually unconscious before the wife can be said to have been deprived of her society and comfort. A partial loss of the comfort and society of the spouse is sufficient to base the action. The extent or degree of loss will be reflected in the amount of the damage award.

Nance v. British Columbia Electric Railway Company Ld., [1951] A.C. 601; Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; McCannell v. McLean, [1937] S.C.R. 341, applied; Widrig v. Strazer et al., [1964] S.C.R. 376;

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Gorman v. Hertz Drive Yourself Stations of Ontario Ltd. et al., [1966] S.C.R. 13; Best v. Samuel Fox & Co. Ld., [1952] A.C. 716; Finney et al. v. Callender et al. (1971), 20 D.L.R. (3d) 301, referred to.

APPEAL from a judgment of the Court of Appeal for Alberta[^1], reducing the damages awarded the appellants at trial by Moshansky J. Appeal allowed.

A. D. Hunter, for the appellants.

M. J. Kelly, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This appeal concerns the function of an appellate court in reviewing an award of damages made at trial, and the limits of the reach of The Domestic Relations Act, R.S.A. 1970, c. 113, as amended by the addition of the present s. 35, in 1973.

The appellants are husband and wife. The husband was injured in an automobile accident on February 26, 1975. Liability has not been disputed. The only issue concerns the quantum of damages. The husband's claim was for damages suffered in the accident, and they were assessed at trial in the sum of $30,000, for general damages, with special damages in an agreed amount in excess of $14,000 not now in dispute. The wife's claim was expressed in the statement of claim in these words:

9. As a consequence of the injuries to the Plaintiff Henry Woelk as aforesaid the Plaintiff Marjorie Woelk has been deprived of the society and comfort of her co-Plaintiff Henry Woelk and brings this action pursuant to section 35 of The Domestic Relations Act, 1970, R.S.A. Chapter 113, as amended S.A. 1973 Chapter 61.

The trial judge assessed her damages at $10,000. In the Court of Appeal, the general damage award, for the husband, was reduced to $15,000; the award to the wife was reduced to $100. This

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appeal, by leave of this Court, granted January 22, 1980, resulted.

The husband, at the time of the accident, was 38 year of age and employed as a bus driver in Calgary. His wife was 41 years of age. They had two children, twin boys, aged about six years of age at the date of the accident. The trial judge found that prior to the accident the husband enjoyed good health, that he enjoyed a happy relationship with his wife and family, and that the family pursued together several outdoor activities, such as hiking, skating and tobogganing and, as well, he played baseball with his sons. Both husband and wife were active in the work of their church and they were, in all respects, a normal and happy family.

The physical injuries suffered by the husband consisted of a left frontal skull fracture, extending into the temporal area with approximately a 2 mm. separation but no displacement; a brain concussion with loss of consciousness for five days; a rupture of the spleen which required emergency surgery and removal; a laceration of the forehead which required 16 sutures; and a severe bruising and swelling of the eyelids. He spent 14 days in hospital, and then was released to convalesce at home. He suffered from double vision, headaches, dizziness and loss of balance, a drooping of the left upper eyelid, decreased hearing, weakness and acute depression. There was medical evidence to the effect that the drooping eyelid was a neurological manifestation of the plaintiff's head injury, caused by a mild paralysis of the third intercranial nerve, and that it would not improve. The other symptoms, according to medical evidence, would gradually clear up. However, for several months, he was unable to get up and move about without assistance. He required support when standing, and he was confined to bed for two to three months. He became very irritable; he could not tolerate noise and withdrew largely from family activities and concerns. He has refused to go out socially, or to have friends visit the home. He has become a virtual recluse, in the words of his wife ... "simply sitting and watching television whenever he is at home". He was unable to return to his

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job for 53 weeks. He would appear, according to the evidence and the findings of the trial judge, to have undergone a marked change of personality, and his capacity to enjoy life has greatly diminished. He has, according to the trial judge, suffered severe emotional injury, from which it would appear there is little hope of recovery.

The wife, who was formerly happily married and secure in a well-established home, now finds herself married to one whose behaviour she described as that of a 'zombie' who has withdrawn from almost all participation in family life. She is left with the burden of family cares and problems with practically no assistance from her husband. Her children prefer to go to their grandparents in their free time, rather than remain in the home. She works, and has actually extended her working hours from what they were formerly, in order to remain away from home for longer periods of time. Her participation in church activities has been greatly curtailed because of her husband's unwillingness to participate. She said that she had considered divorce but, up to the date of trial, her religious scruples had dictated against that step. She gave evidence, accepted by the trial judge, that she can no longer find any help or comfort in the society of her husband, her marriage has become a burden, and the home has ceased to be the happy one it was.

In the Court of Appeal, Moir J.A., who wrote the judgment of the Court, considered the award to the husband to be too great. He reached this conclusion upon a review of the evidence, from which, it would appear, he drew different conclusions than did the trial judge. He went on to say:

Looking at the award of $30,000 general damages the physical injuries do not justify any such award. The spleen was surgically removed, there was an undisplaced skull fracture, double vision for a few weeks and some loss of balance and a drooping eyelid. All physical injuries had healed long before a year was up. The large portion of this award must be for pain and suffering and loss of amenities. There is no pain and suffering

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attributable to the injury. The award is for loss of amenities. This is for lack of motivation, tiredness and the failure to communicate with the wife. It appears to me that this is a wholly erroneous estimate of the value of those injuries considering the award in cases such as the paraplegic cases where the maximum for total loss of amenities has been fixed at $100,000. In the result I would allow the appeal from this portion of the award and reduce the general damages to $15,000 which is a very generous award in my opinion.

The trial judge who heard the evidence considered that the physical injuries, suffered by the male appellant, were more serious than did the Court of Appeal and they were not entirely cleared up. The drooping eyelid—of some consequence to a bus driver—was a continuing problem and was associated with mild paralysis of the third intercranial nerve. The more significant damage, however, in the trial judge's view, stemmed from the non-physical results to the appellant's attitude and outlook on life involving a change in personality.

It is well settled that a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion. It is only where a Court of Appeal comes to the conclusion that there was no evidence upon which a trial judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at the trial was wholly erroneous, that a Court of Appeal is entitled to intervene. The well-known passage from the judgment of Viscount Simon in Nance v. British Columbia Electric Railway Co. Ld.[^2], at p. 613,—approved and applied in this Court in Andrews v. Grand & Toy Alberta Ltd.[^3]—provides ample authority for this proposition. He said:

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The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage .. .

This principle has long been established. An earlier example of its application in this Court in somewhat different circumstances may be found in McCannell v. McLean[^4].

It is evident from a perusal of the reasons for judgment of the Court of Appeal, that it considered and weighed the evidence, and drew different conclusions from those of the trial judge. The Court of Appeal made no finding that the trial judge acted upon a wrong principle, nor did it conclude that there was no evidence to support the trial judge's conclusion. Weighing and evaluating the evidence lies fully with the province of the trial judge and, where there is evidence to support a finding which he has made, the fact that a Court of Appeal would have preferred to accept other evidence to the contrary, leading to a different finding, will not justify a reversal of the trial judge's conclusion. To interfere, then, with the award made at trial constituted, in my view, an error in principle on the part of the Court of Appeal: see Widrig v. Strazer et al.[^5], and Gorman v. Hertz Drive Yourself Stations of Ontario Ltd. et al[^6]. An examination of the evidence revealed that, while there was some conflict with respect to the male appellant's mental and emotional condition, there was evidence to support the conclusions reached by the trial judge and, in my view, it

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cannot be said that the sum of thirty thousand dollars, in this case generous, is wholly erroneous, nor that the trial judge proceeded on any incorrect principle. In my opinion, the thirty thousand dollar award made at trial to the male appellant should be restored.

The wife's claim at trial, while statutory and framed under s. 35(1) of The Domestic Relations Act of Alberta, amounts to a claim for damages for the loss or impairment of consortium. I observe that the section refers to the deprivation of the comfort and society of the spouse. While those words, it was said, are not exhaustive of all the elements attributed to the older expression 'consortium' in the common law authorities, in my opinion they do refer to that concept and, when used in a statute dealing with domestic relations, the words are broad enough on their ordinary meaning to embrace the historic concept of consortium. This action, it has been said, had its origins in the mediaeval concept that a husband had a proprietary interest in his wife and interference with that right would raise a claim at law for damages. Writers have classified invasions of the right of consortium into two categories: 'intentional', such as enticement, abduction or seduction of the wife, and 'unintentional', where a claim is based on negligence. This distinction is recognized in s. 35(1) but, historically, in neither case did the wife have a right of action. The remedy belonged solely to the husband. The claim before us is, of course, based on negligence.

The common law position, as it had developed in modern times, was set out clearly in Best v. Samuel Fox & Co. Ld.[^7], where it was laid down that a married woman, whose husband had been injured by the negligence of another, had no cause of action against the negligent person for loss or impairment of consortium resulting from such negligence. The law lords were unanimous on this point; all were of the view that the action was anomalous and should not be extended. There was

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uncertainty as to whether a total loss of consortium would be required for the husband's action or whether an impairment would suffice, but Lord Reid was of the opinion that, where the action lay, an impairment was sufficient. Courts in Canada, and Australia, have considered the Best case, and Canadian courts have generally tended to follow it. There are, however, authorities which have differed on the question of quantum of damage and the question of whether or not a total destruction of the consortium is required to found the action. Many of these cases are conveniently collected and discussed in Finney et al. v. Callender et al.[^8], by Taggart J.A. in the British Columbia Court of Appeal. It is fair, however, to say that a review of the authorities on the common law action leads to the conclusion that judicial opinion in this country has been, on balance, that the remedy is open to husbands only (though there are cases to the contrary); that the remedy is anomalous in today's world and should not be extended; when applied, damage awards, except in exceptional cases, should be modest; and that an impairment, as distinct from a destruction of the consortium, should suffice to found the action.

A detailed consideration of the authorities, concerning the right of a wife to maintain an action, the assessment of damages, and the judicial attitude to the continued existence of the remedy in modern times, is not necessary here, because the action has been given statutory form in s. 35(1) of The Domestic Relations Act, of the Province of Alberta, set out hereunder:

35. (1) Where a person has, either intentionally or by neglect of some duty existing independently of contract, inflicted physical harm upon a married person and thereby deprived the spouse of that married person of the society and comfort of that married person, the person who inflicted the physical harm is liable to an action for damages by the married person in respect of the deprivation.

(2) The right of a married person to bring the action referred to in subsection (1) is in addition to, and independent of, any right of action that the spouse has, or any action that the married person in the name of the spouse has, for injury inflicted upon the spouse.

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It is of interest to note that this section, introduced into the Act in 1973, replaced an earlier version which limited the right to the husband in respect of an injury to a wife. It is now clear that, in Alberta, the enactment of s. 35 has extended the right of action for a loss of consortium to wives and, by its statutory pronouncement, has created a new cause of action which must be approached, freed from the limitations imposed by the earlier decisions in the common law. In my opinion, it is not open to the Court of treat the new cause of action as trivial and deserving of only token awards. It is not open to the courts to consider that the Legislature of Alberta, in passing s. 35, intended to preserve the old jurisprudence, which had gone far to eliminate the right and render damage awards insignificant. I am not prepared to accept such an approach. It is my view that, the Legislature having created the right of the wife to damage and having omitted any restriction on damage awards, the courts must endeavour to assess the damage realistically, according to the evidence in each case. The Legislature did not intend, in my view, to perpetuate an action leading only to insignificant recovery, nor can it be said that it regarded the remedy as anomalous.

I will not review the evidence again. From what has been said it is clear, however, that the society and comfort the wife once had from her husband have been destroyed or, at least, greatly reduced. Section 35 uses the word 'deprive' and that word, in its general meaning, would mean the total removal. I do not, however, accept that the husband must be rendered virtually unconscious before the wife can be said to have been deprived of his society and comfort. There has been here a substantial deprivation and, to the extent that the husband has withdrawn from the society of his wife and to the extent that she has been deprived of his comfort, her loss has been serious. I find no basis on which I could reject the trial judge's findings on this point. While I am in no sense bound by the earlier cases in dealing with this statutory action, I prefer and I adopt the approach of Lord Reid in this respect, from the Best case, and I note that American and Australian cases

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also support this view. Lord Reid said in the Best case, at p. 736, in reference to the common law action on the part of the husband:

I do not think that it is open to doubt that an impairment of a wife's capacity to render assistance to her husband was enough to found an action. Certainly an injury which temporarily incapacitated her was sufficient, and I cannot find any ground for the view that an injury which did not produce complete incapacity at any time was insufficient even if it resulted in serious and permanent impairment of her capacity to render services. Any such injury might well deprive the husband to a large extent of his wife's comfort and society but at no time deprive him wholly of it, and I have seen nothing to lead me to think that in such a case that impairment of the consortium must be left out of account, and, if impairment of the consortium is enough, 1 have seen nothing to lead me to think that the destruction of a wife's capacity for sexual intercourse should not be regarded as such an impairment.

In my view, a partial loss of the comfort and society of the spouse is sufficient to base the action. The extent or degree of loss will be reflected in the amount of the damage award.

In considering the amount of the award, again I can find no basis for interference with the trial judge's estimate. A woman in the situation now confronting the wife has suffered a serious loss. She remains responsible for the maintenance of a home and for the protection, upbringing and welfare of two children, and she must discharge this responsibility without the assistance, society and comfort, which normally would be accorded to her by a healthy husband.

The Court of Appeal, in addition to dealing with the issues already considered, reduced the amount allowed to the appellants for a witness fee paid to one Dr. Miyauchi, called as an expert witness. No appeal was made against this disposition. In the result, I would allow the appeals and restore the awards made at trial, with the exception of the allowance of the witness fee paid to Dr. Miyauchi, in respect of which the Court of Appeal's disposition would remain undisturbed. I would allow the appellants their costs throughout.

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Appeal allowed with costs.

Solicitors for the appellants: Code Hunter, Calgary.

Solicitors for the respondent: Kelly & Kelly, Calgary.

[^1]: (1980), 1979 ABCA 333, 106 D.L.R. (3d) 726, [1980] 1 W.W.R. 609, 18 A.R. 580. [^2]: [1951] A.C. 601. [^3]: [1978] 2 S.C.R. 229. [^4]: [1937] S.C.R. 341. [^5]: [1964] S.C.R. 376. [^6]: [1966] S.C.R. 13. [^7]: [1952] A.C. 716. [^8]: (1971), 20 D.L.R. (3d) 301.