COURT OF APPEAL FOR BRITISH COLUMBIA
Date: 20170427
Docket: CA43069
Between:
Dr. Lawrence Miller and Dr. Lawrence Miller
Professional Psychology Corporation
Appellants
(Plaintiffs)
And
Brian Ross Motorsports Corp. d.b.a.
Ferrari Maserati of Vancouver
Respondent
(Defendant)
Before:
The Honourable Madam Justice Newbury
The Honourable Madam Justice D. Smith
The Honourable Mr. Justice Willcock
On appeal from: An order of the Supreme Court of British Columbia, dated
August 7, 2015 (Miller v. Brian Ross Motorsports Corp., 2015 BCSC 1381,
Vancouver Registry S135397).
Counsel for the Appellants:
Counsel for the Respondent:
A.S. Dosanjh & A.L. Doolittle
C.J. Bakker
Place and Date of Hearing:
Vancouver, British Columbia
April 6, 2017
Place and Date of Judgment:
Vancouver, British Columbia
April 27, 2017
Written Reasons by:
The Honourable Mr. Justice Willcock
Concurred in by:
The Honourable Madam Justice Newbury
The Honourable Madam Justice D. Smith
2017 BCCA 166 (CanLII)
Citation: Miller v. Brian Ross Motorsports Corp.,
2017 BCCA 166
Miller v. Brian Ross Motorsports Corp.
Page 2
This is an appeal from a $15,000 award to the appellant as compensation for a ninemonth deprivation of his sports car, resulting from the respondent car dealership’s
negligence. The appellant argued the trial judge erred in awarding an amount much
lower than the amount the appellant would have been required to pay had he rented
a comparable vehicle over the relevant period. Held: appeal dismissed. The judge
properly considered how the car would have been used but for the wrongful
deprivation and arrived at an amount that was reasonable in the circumstances. The
appellant’s evidence with respect to the market rental rate was effectively challenged
on cross-examination and, in any event, the rental rate was not the only tool
available to the judge for the purpose of measuring the value of the loss-of-use
claim.
Reasons for Judgment of the Honourable Mr. Justice Willcock:
Introduction
[1]
The appellant purchased a 2005 Ferrari F430 in 2011 for $119,900. It was
negligently damaged by the respondent, a luxury automobile dealership, and then
wrongfully detained for nine months. The parties wisely settled the claim for repair
costs (at $35,664) and accelerated depreciation (at 30% of the value of the Ferrari:
$36,350.25). They could not agree on the value of the appellant’s loss-of-use claim.
[2]
The assessment of damages in negligence under that head was complicated
by the fact the appellant did not rent a replacement vehicle and therefore had not
incurred any cost arising from the wrongful detention of the vehicle. He advanced a
claim for general, rather than special, damages. The respondent did not dispute the
appellant’s entitlement to such damages but questioned how the loss of use should
be valued and challenged the sufficiency of the evidence led by the appellant at trial.
[3]
The appellant’s evidence was that he drove the vehicle for pleasure and to
attend car shows and only in good weather. In the first year he owned the Ferrari he
drove it 20 days in some months but less in the winter. He is typically away from
Vancouver for about five weeks per year. The evidence of use was no more specific
than that.
2017 BCCA 166 (CanLII)
Summary:
Miller v. Brian Ross Motorsports Corp.
[4]
Page 3
There was very little evidence with respect to the cost of rental of a
comparable vehicle. The appellant called Ward Stirrat, the owner of a fractional
vehicle ownership enterprise, Vancouver Car Club, to testify to rental rates
and more expensive car) was advertised for rental at a daily rate of $1,250 in 2013.
He was uncertain of the monthly rate. He initially thought it was in the range of
$18,000 to $19,000 but upon checking the website corrected that to $9,381. He
could not say that car had been rented for that rate or at all.
[5]
Mark Edmonds testified for the respondent at trial. It was his evidence that the
respondent does not rent but leases vehicles. The cost to lease a Ferrari or Maserati
with a price of $130,000 would be in the range of $2,010 to $2,232 per month over
36 months.
[6]
The trial judge noted at paras. 60-61 of her reasons for judgment, indexed at
2015 BCSC 1381, that the doctrinal underpinnings of a claim for general damages
are distinct from those underpinning special damages:
[60]
… Special damages are awarded to compensate a plaintiff for out-ofpocket expenses and generally are calculable monetary losses. In contrast,
an award of general or non-pecuniary damages is intended to compensate
the plaintiff for more intangible losses and is not a matter of precise
arithmetical calculation.
[61]
… [I]n assessing general damages, the court must, on a balanced
consideration of the evidence, endeavour to tailor an award that is
reasonable and fair as between the parties: Kates v. Hall, 53 B.C.L.R. (2d)
322 (C.A.) at 322; Nason v. Aubin (1958), 16 D.L.R. (2d) 309 (N.B.S.C.) at
314.
[7]
Having considered the evidence with respect to the limited use of the vehicle,
the availability to the appellant of an alternate, more pedestrian, vehicle for transport
and another (a motorcycle) for pleasure, and the fact there were times when the
appellant was away from Vancouver during the material period; and having
concluded that evidence of the advertised daily rental rate for comparable vehicles
was of limited assistance; the judge endeavoured to tailor an award that was
2017 BCCA 166 (CanLII)
advertised online. His evidence was that a 2007/08 Ferrari F430 Spyder (a newer
Miller v. Brian Ross Motorsports Corp.
Page 4
reasonable and fair. She awarded the appellant $15,000 in general, non-pecuniary
damages for loss of use.
[8]
The appellant acknowledges that an award of damages is a finding of fact
and the applicable standard of review is palpable and overriding error. However, he
argues the trial judge:
a) proceeded on an incorrect principle of law by failing to consider, as the
guiding principle of assessment, the rental rate for a comparable vehicle;
and
b) considered an irrelevant factor in assessing damages for loss of use: that
the appellant had an alternative vehicle available for transportation
purposes.
[9]
The appellant says guidance is required from this Court on how to assess
damages for the loss of use of a non-profit-making chattel. He says the judge
assessed damages “without the benefit of an established principle of assessment.”
Discussion
Assessment of General Damages for Loss of Use
[10]
The appellant, relying on the reasoning of Lord Scott (speaking for himself) in
Lagden v. O’Connor, [2003] UKHL 64, says the cost of renting a comparable vehicle
should be used as the measure of his loss and damages should be measured
without any consideration of “the degree of use to which he would, if his car had not
been damaged, have been likely to put it”: Lagden at para. 76.
[11]
In light of the rule described in The “Mediana”, [1900] A.C. 113, and a
precursor, The “Greta Holme”, [1897] A.C. 596, the appellant says the trial judge
erred in principle by discounting his claim to reflect the fact the vehicle would have
been used infrequently and that there were substitute vehicles available to him. In
2017 BCCA 166 (CanLII)
Grounds of Appeal
Miller v. Brian Ross Motorsports Corp.
Page 5
doing so, he says, she failed to recognize the unique features of a claim arising out
of the wrongful detention of goods.
There is no doubt the common law has recognized the need to take a flexible
approach to the assessment of damages in cases involving the wrongful detention of
goods. In Attorney General v. Blake, [2000] UKHL 45, [2000] 4 All E.R. 385, which is
a case in contract rather than negligence and must, therefore, be read in this context
with caution, Lord Nicholls addressed the issue as follows:
As with breaches of contract, so with tort, the general principle regarding
assessment of damages is that they are compensatory for loss or injury. The
general rule is that, in the oft quoted words of Lord Blackburn, the measure of
damages is to be, as far as possible, that amount of money which will put the
injured party in the same position he would have been in had he not
sustained the wrong: Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas.
25, 39. Damages are measured by the plaintiff’s loss, not the defendant’s
gain. But the common law, pragmatic as ever, has long recognised that there
are many commonplace situations where a strict application of this principle
would not do justice between the parties. Then compensation for the wrong
done to the plaintiff is measured by a different yardstick.1 A trespasser who
enters another’s land may cause the landowner no financial loss. In such a
case damages are measured by the benefit received by the trespasser,
namely, by his use of the land. The same principle is applied where the
wrong consists of use of another’s land for depositing waste, or by using a
path across the land or using passages in an underground mine. In this type
of case the damages recoverable will be, in short, the price a reasonable
person would pay for the right of user: see Whitwam v. Westminster Brymbo
Coal Co. [1892] 2 Ch. 538, and the ‘wayleave’ cases such as Martin v. Porter
(1839) 5 M. and W. 351 and Jegon v. Vivian (1871) L.R. 6 Ch. 742. A more
recent example was the non-removal of a floating dock, in Penarth Dock
Engineering Co. Ltd. v. Pounds [1963] 1 Lloyd’s Rep. 359.
The same principle is applied to the wrongful detention of goods. An instance
is the much cited decision of the Court of Appeal in Strand Electric and
Engineering Co. Ltd. v. Brisford Entertainments Ltd. [1952] 2 Q.B. 246,
concerning portable switchboards. But the principle has a distinguished
ancestry. Earl of Halsbury L.C. famously asked in The Mediana [1900] A.C.
113,117, that if a person took away a chair from his room and kept it for
12 months, could anybody say you had a right to diminish the damages by
showing that I did not usually sit in that chair, or that there were plenty of
other chairs in the room? To the same effect was Lord Shaw’s telling
example in Watson, Laidlaw & Co. Ltd. v. Pott, Cassels, and Williamson
(1914) 31 R.P.C. 104, 119. It bears repetition:
1
This passage is approved in IBM Canada Limited v. Waterman, 2013 SCC 70, [2013] 3 S.C.R. 985
at para. 36.
2017 BCCA 166 (CanLII)
[12]
Miller v. Brian Ross Motorsports Corp.
Page 6
Lord Shaw prefaced this observation with a statement of general principle:
‘wherever an abstraction or invasion of property has occurred, then,
unless such abstraction or invasion were to be sanctioned by law, the
law ought to yield a recompense under the category or principle ...
either of price or of hire.’
[13]
The appellant says the only period that should properly be excluded from that
used as the basis of the assessment of the loss is the period when the thing wrongly
withheld would, in any event, have been unavailable for use. That concession is
apparently made in recognition of the fact that in a series of British Columbia
decisions courts have adjusted claims to ensure no award is made for the loss of
use of an article during a period when it would not have been available. The
question is whether the British Columbia cases should be read narrowly or broadly.
[14]
Curiously, there are two cases in this province where repairs stretching over
nine months have led owners to advance claims for the loss of use of their luxury
vehicles. Unfortunately, they are of limited assistance.
[15]
In Sharma v. Andrews, [1989] B.C.J. No. 2037 (S.C.), the plaintiff’s leased
vehicle was involved in a collision. His claim for special damages, the value of the
lease payments during the nine months it took to complete repairs, was allowed.
Selbie L.J.S.C. at page 3 of his reasons discussed the claim for loss of use:
The further claim of the plaintiff is for special damages for loss of use of the
vehicle. The measure of the damages, argues the plaintiff, is the amount put
out in lease payments during the time the vehicle was under repair –
$13,212.90. The defendant argues it was not the plaintiff’s primary car, it was
not replaced and the plaintiff suffered no inconvenience by reason of its loss.
…
This plaintiff was paying money for the use of this car on a lease basis. The
use of the vehicle was taken from him by the actions of the defendant. What
better measure of his loss is there than the monies he was forced to continue
paying without benefit of use and without gaining any advantage – an
advantage, I would suggest, that he would have got if he had been buying the
car and was simply continuing the payments. I do not think the car payments
2017 BCCA 166 (CanLII)
‘If A, being a liveryman, keeps his horse standing idle in the stable,
and B, against his wish or without his knowledge, rides or drives it out,
it is no answer to A for B to say: “Against what loss do you want to be
restored? I restore the horse. There is no loss. The horse is none the
worse; it is the better for the exercise.”’
Miller v. Brian Ross Motorsports Corp.
Page 7
would have been a measure of damages but in my view lease or rent
payments would be.
[16]
In Rana Enterprises Ltd. v. Wheeler, [1992] B.C.J. No. 497 (S.C.), the plaintiff
eventually cost $53,000) were done between June 1986 and May 1987. The delay,
as in the case at bar, was due to a dispute with respect to how and where the car
should be repaired. Lander J. found in the jurisprudence (including Vancouver Ice
and Cold Storage Company v. British Columbia Electric Railway Company, [1927] 1
W.W.R. 631 (B.C.C.A.); Exclusive Ambulance Ltd. v. Ball (1952), 7 W.W.R. (N.S.)
335 (B.C.C.A.); and Canadian Freightways Ltd. v. C.P.R. Co. and Ford (1961), 29
D.L.R. (2d) 771 (B.C.S.C.)) ample authority for the statement of Professor Waddams
in The Law of Damages (Toronto, Canada Law Book, 1983), at page 219, to the
effect that some evidence of loss due to a deprivation is required:
It has been argued elsewhere that an injured person should be entitled to
compensation for loss of earning capacity even though he in fact intended
never to work for monetary remuneration. However, as shown above,
assessment of damages for loss of use of property has usually required proof
that the plaintiff is actually worse off as a result of the wrong.
[17]
The plaintiff in Rana lived in Calgary but kept his car in Vancouver. The claim
for loss of use was dismissed on evidentiary grounds:
The plaintiff’s position, as I understand it, is that the Rolls Royce was in the
shop for a period of 11 months during which lease payments were made and
that, ipso facto, it is entitled to damages for loss of use. However, the law with
respect to damages for loss of use is clear and that a claim for such damages
requires some proof that a plaintiff has suffered in some way as a result of
being deprived of the use his or her property.
…
In the present case, no evidence has been filed to show that the use of the
Rolls Royce was taken away from the plaintiff. Not only did the plaintiff
decline to replace the car after it was damaged but there is no proof that
Mr. Rana, or anyone else representing the company, was even in Vancouver
and hoping to drive the car after January 1, 1986. In other words, there is
absolutely no evidence that any deprivation, or even inconvenience, occurred
as a result of the wrong on the part of the defendants in my opinion.
[18]
The cases to which Lander J. referred illustrate that The “Mediana” has not
generally been well-received in this province. In Vancouver Ice and Cold Storage
2017 BCCA 166 (CanLII)
sought damages arising from his deprivation of a Rolls Royce while repairs (which
Miller v. Brian Ross Motorsports Corp.
Page 8
Co., the respondent, relying upon The “Greta Holme” and The “Mediana”,
successfully claimed damages for the loss of use of a truck at trial. On appeal that
award was set aside because the evidence was that the truck would not have been
distinguished as a case where the plaintiff had actually suffered a loss. The plaintiff’s
work had continued but it was less efficient with only one of two dredges on hand.
The “Mediana” was said to have hinged upon evidence the plaintiff had incurred an
annual expense of £1,000 in order to have a substitute lightship on hand. Both were
said to be cases that turned on their particular facts. Macdonald C.J. held:
It may well be that if evidence was led to shew loss from useage or wear of
the substituted car while the other was under repair, it should be considered.
The claim however, was made for $20 a day for the whole 60 days, even
although the damaged car in any event would have been laid up for part of
that time for painting and overhauling.
[19]
Martin J.A. held:
As regards the damages awarded, the two well-known cases relied on do not
support the award when the facts upon which the decisions are based are
exactly comprehended.
[20]
Although there was some suggestion that no damages should have been
awarded for the loss of use during the period the truck would have been laid up in
any event, that was only part of the relevant period and no award at all was made
under this head.
[21]
In Exclusive Ambulance Ltd. v. Ball, the respondent had lost the use of an
ambulance due to the appellant’s negligence. With “commendable foresight” it had
kept a spare ambulance on hand for contingencies but that was not enough to meet
demand on some occasions and it was required to turn away business with a value
of $102. The trial judge, relying upon The “Mediana” awarded damages of $575, the
equivalent of $25 a day during the repair period. That award was set aside on
appeal. Sloan C.J.B.C. held, at p. 336: “The cases relied upon by the respondent are
in my view clearly distinguishable on the facts. It seems to me the decision of this
2017 BCCA 166 (CanLII)
used during the relevant period. The decision in The “Greta Holme” was
Miller v. Brian Ross Motorsports Corp.
Page 9
court in Vancouver Ice … is in point.” An award of $102, the actual loss of income,
was substituted for that made at trial.
The judgment is short, there is no consideration of the principle that a
particular approach is appropriate in cases arising out of the wrongful detention of
goods, but the case is not, on its face, of narrow or restricted application. The
judgment stands for at least the narrow proposition that a claim for damages for loss
of use of profit-making property hinges upon proof the property would have been
used.
[23]
In Canadian Freightways v. C.P.R. Co. and Ford, the Court considered a
claim made by the C.P.R. for the loss of use of diesel units while under repair.
Sullivan J. noted that with the same commendable foresight exercised by Exclusive
Ambulance Ltd., the railway had maintained extra equipment on hand. He refused to
follow The “Greta Holme” and The “Mediana”. In his view those cases had been
distinguished in Vancouver Ice & Cold Storage and Exclusive Ambulance Ltd. and
had also been distinguished by the Supreme Court of Canada in Gartland
Steamship Co. v. The Queen, [1960] S.C.R. 315, 22 D.L.R. (2d) 385. The “large
claim of C.P.R. for loss of use” was dismissed.
[24]
In Kerbel v. Fisher, [1981] B.C.J. No. 1514 (S.C.), the Court considered a
claim for the loss of use of a 1976 Mercedes Benz 450 SLC from October 25, 1980
to January 9, 1981. No evidence was adduced of any pecuniary loss and the
evidence was that the plaintiff did not use his vehicle in the winter. Following
Vancouver Ice & Cold Storage, Hinds J. declined to make an award of damages for
loss of use. No distinction was made on the basis the car was owned and used for
pleasure, rather than profit.
[25]
In Duckworth v. Armstrong (1996), 29 C.C.L.T. (2d) 239 (B.C.S.C.), similarly,
the plaintiff’s claim for the loss of use of his pristine, vintage Camaro was discounted
to reflect the fact the vehicle was on blocks when it was stolen in the winter.
Wilson J. at para. 40 held:
2017 BCCA 166 (CanLII)
[22]
Miller v. Brian Ross Motorsports Corp.
Page 10
[26]
In Signorello v. Khan, 2010 BCSC 1448, Grauer J. considered a claim,
including a claim for damages, for the loss of use of a Mercedes-Benz SL65 AMG,
which he knowingly referred to as “the stuff of a young man’s fantasy, and an older
man’s crisis”. The plaintiff claimed approximately $6,000 under this head, the
equivalent of two months’ lease payments, as damages for the loss of use and
inconvenience during the repair period. The Court held:
[31]
In presenting this claim, the plaintiff relies on the judgment of
Selbie L.J.S.C., as he then was, in Sharma v. Andrews…..
[32]
In the present case, there are some factors which distinguish it from
the Sharma case. First, on the evidence, a portion of the monthly lease
payment did go to pay down the residual value of the Mercedes, giving the
plaintiff an advantage. Second, the plaintiff was out of town for close to half
the time in question, during which period he suffered minimal loss. Third, he
did enjoy the use of a Mercedes-Benz vehicle, albeit lower on the prestige
scale, for a significant portion of the time.
[33]
Taking all these factors into account, I nevertheless accept that the
plaintiff incurred a loss in this regard, including loss of use and the
inconvenience of having to return the vehicle on several occasions. I award
$3,000.
[27]
Although the award in Signorello was more in the nature of an award for
special damages – lease expense thrown away – the approach taken to the
assessment of damages was to discount the claim to reflect only the value of the
actual loss of use.
[28]
The appellant, in the case at bar says, notwithstanding the British Columbia
authorities, the trial judge should not have considered the use to which the Ferrari
would have been put, if it had been available, for two reasons:
First, the preferred approach, as discussed by Lord Scott in Lagden, does not
take into account the degree of use of a chattel if that chattel is available to
the plaintiff to use when the plaintiff desires during the period of deprivation.
2017 BCCA 166 (CanLII)
… [T]he case law does establish that where, as a result of negligence of the
defendant, the plaintiff loses the use of a chattel, the plaintiff is entitled to
recover general damages: The “Greta Holme” [1897] A.C. 596 (H.L.); Basted
v. Grafton and Wilde [1948] 1 W.W.R. 614 (B.C. County Court). There is no
doubt the plaintiff sustained a loss of enjoyment of the vehicle, which was his
pride and joy. I thus award $1,000 general damages for loss of use.
Miller v. Brian Ross Motorsports Corp.
Page 11
[29]
The first argument hinges upon acceptance of the opinion of Lord Scott as the
“preferred approach”. That approach was clearly rejected by the trial judge, who
followed The “Mediana” only to the extent that it stands as authority for the
proposition that a person wrongfully deprived of the use of a chattel “will, in
appropriate circumstances, be entitled to damages, even where they suffered no
tangible pecuniary loss”. She held that “the weight of the authorities in British
Columbia endorses a cautious approach to the assessment of damages for loss of
use” and, after summarizing most of the cases I have referred, concluded:
[47]
In summary, the determination of appropriate quantum of damages for
loss of use is primarily a fact-driven analysis. While the authorities are
instructive they provide general guidance only. The legal principles that
animate the assessment of damages for loss of use have not been welldeveloped and the jurisprudence is difficult to reconcile. The authorities
demonstrate divergence in the range of factors considered by the court and
the methodology for calculating damages.
[30]
That conclusion was consistent with the authorities. As the respondent points
out, not only is the approach taken by Lord Scott in Lagden at odds with received
wisdom here, it was expressed in a dissent, and cannot be said to represent the
majority view, even in that case. Lord Hope, with the majority, wrote:
27.
Mr. Lagden’s claim was, in essence, a claim for the loss of use of his
car while it was in the garage undergoing the repairs which needed to be
done as result of the accident. There was no evidence that he would have
suffered financial loss as a result of being unable to use his car during this
period. But inconvenience is another form of loss for which, in principle,
damages are recoverable. So it was open to him, as it is to any other
motorist, to avoid or mitigate that loss by hiring another vehicle while his own
car was unavailable to him. The expense of doing so will then become the
measure of the loss which he has sustained under this head of his claim. It
will be substituted for his claim for loss of use by way of general damages.
But the principle is that he must take reasonable steps to mitigate his loss.
The injured party cannot claim reimbursement for expenditure by way of
mitigation that is unreasonable. So the motorist cannot claim for the cost of
hiring another vehicle if he had no reason to use a car while his own car was
2017 BCCA 166 (CanLII)
Second, rental rates decrease with increased rental terms, building in a
discount for less frequent usage with those longer rental terms. For example,
the monthly rate for the advertised comparable Ferrari equates to 8 days of
rental at the daily rate, meaning that a renter only needs to drive it 8 days or
more per month to make the monthly rate preferable over the daily rate.
Miller v. Brian Ross Motorsports Corp.
Page 12
being repaired - if, for example, he was in hospital during the relevant period
or out of the country on a package holiday.
[31]
The appellant correctly says the trial judge did not squarely address the
made with respect to the weight to be afforded to evidence of the use he would likely
have made of the car. In my view, a principled approach to the assessment of
damages may be discerned in the jurisprudence and the authorities may be
reconciled. But that reconciliation does not assist the plaintiff in this case.
[32]
It is well settled that damages are compensatory; in the words of Lord
Blackburn cited by Lord Nicholls in Attorney General v. Blake, the measure of
damages is to be, “as far as possible, that amount of money which will put the
injured party in the same position he would have been in had he not sustained the
wrong”. So, claims for general damages said to arise out of the misappropriation of
profit-generating property (a truck or an ambulance, for example) call upon the court
to estimate the actual loss of use, as in Vancouver Ice & Cold Storage and Exclusive
Ambulance Ltd., in order to arrive at a compensatory award.
[33]
Money damages may also afford some measure of compensation for being
deprived of property that does not generate revenue. An award of general damages
may be made, for example, to one who has suffered the temporary loss of the
enjoyment associated with ownership of a piece of art, even where no measurable
pecuniary loss has been suffered. Even in such cases, damages are intended to be
a measure of the plaintiff’s loss, not the defendant’s gain. While the use that might
have been made of the item by the plaintiff is a factor that should be considered in
the assessment of damages, use may amount to no more than having the object
present. The result may seem to be anomalous but is justifiable in principle. As
Waddams notes in The Law of Damages, loose-leaf (Toronto: Thomson Reuters,
2016), at 1.1970:
This conclusion [that the owner of profit-making property is only compensated
for actual loss of use] seems anomalous at first sight in comparison with the
cases where the plaintiff recovers for loss of use of non-profit-making
property. If the plaintiff owns goods for a non-profit-making purpose, the
2017 BCCA 166 (CanLII)
argument advanced: that the cases must be reconciled and a principled decision
Page 13
plaintiff recovers for loss of use, but if the goods are owned for a profitmaking purpose, loss must be proven. It seems odd that the plaintiff should
be better off if there is no profit than if there is a small profit. But the
distinction does not rest on what profit the plaintiff in fact makes but on the
purpose in owning the property. If the plaintiff owns the property to make a
profit but in fact makes none she has not lost anything by being deprived of
the use; indeed, if she operates at a loss, she may have gained. But where
the plaintiff’s purpose in owning the property is to fulfil a public duty or to give
pleasure to himself or to confer a benefit on a manner of his family, he does
suffer a real loss by being deprived of the use of the property. As a practical
matter this loss can only be measured by some rough rule such as the rental
value or the cost of ownership.
[34]
However, taking no account of the extent to which the property would actually
have been enjoyed would exaggerate the anomalous effect Waddams discusses
and would depart from the compensatory objective.
[35]
There are cases where the absence of the misappropriated chattel might go
unnoticed and where no expense is incurred, but damages are nevertheless payable
by the tortfeasor. As noted above, the Supreme Court of Canada has approved the
passage in the judgment in Blake where Lord Nichols noted that the common law,
pragmatic as ever, has long recognized that there are many situations where a strict
application of the principle that damages are intended to be compensatory would not
do justice between the parties and where fairness demands a different measure. In
general, such cases are rare, because legal certainty demands that exceptions to
the rule of general application be few and clearly justified. A restitutionary approach
to damages in tort may be appropriate where “the commission of a wrong results in
a benefit to the wrongdoer which exceeds and outstrips the loss to the person
wronged”2 or where the tortfeasor has used the plaintiff’s property and thereby
benefited (as, for example, in Strand Electric and Engineering Co. v. Brisford
Entertainments Ltd., [1952] 2 Q.B. 246 (C.A.)). In my view, in the case at bar there
was no reason to depart from the compensatory rule. The claim was in negligence,
the tortfeasor did not use the vehicle and derived no benefit from its possession.
2
McGregor on Damages, 19th ed. (London, UK: Sweet and Maxwell, 2014) at 14-002.
2017 BCCA 166 (CanLII)
Miller v. Brian Ross Motorsports Corp.
Miller v. Brian Ross Motorsports Corp.
Page 14
Weighing the Evidence of Damages
[36]
The trial judge, in Waddams’ words, was obliged to make an award
However, as Waddams notes (loose-leaf, at 1.2130):
If the basis used [as a measure of damages] is loss of opportunity to rent,
care must be taken not to over-compensate, and, as McCormick points out “if
the plaintiff is not in the rental business, deductions from the rentals
customarily charged should be made for the fact that such charges include
overhead expense, and, in any event, a similar deduction must be made
because rentals include depreciation and wear and tear.” … In the absence
of proof of factors necessary to calculate the lost rental value, therefore, the
“interest on capital” method seems acceptable as the best available measure
of the loss of use.
[37]
As noted above, the evidence with respect to rental value was limited. The
appellant challenges the judge’s finding that the evidence of advertised daily rates
on a website was not reliable evidence of actual daily rental rates. The appellant
argues that Mr. Stirrat’s testimony was the best evidence available regarding market
rental rates. But that argument relies on an inference the trial judge declined to draw:
that renters actually paid the rate advertised on the Vancouver Car Club’s website.
Mr. Stirrat was not a party to any rental agreements; he did not know whether the
rental rate for a Ferrari advertised on the website had ever been realized. The
appellant cannot claim Mr. Stirrat’s evidence was unchallenged simply because no
evidence was adduced by either party of any amounts actually paid to rent a
comparable Ferrari. It was challenged effectively by cross-examination.
[38]
In any event, as we have seen, rental value is intended as a benchmark and
only one means of formulating an appropriate compensatory award for the loss of
enjoyment of property held for pleasure.
[39]
A rough estimate of the cost of ownership was before the judge: the lease
cost of a $130,000 vehicle was $2,010 to $2,232 per month. That cost must be taken
to incorporate some allowance for depreciation and wear and tear. The appellant
had purchased the vehicle in 2011 for $119,900. Having been compensated for
accelerated depreciation of $36,350.25, he should be considered to have been
2017 BCCA 166 (CanLII)
“measured by some rough rule such as the rental value or the cost of ownership”.
Miller v. Brian Ross Motorsports Corp.
Page 15
deprived of an asset (after repair) with a capital value in the range of $85,000. The
loss-of-use award amounted to about $1,700 per month (76% of the higher of two
estimates of the cost to lease a $130,000 vehicle). The total award for loss of use
evidence and the very limited and unreliable evidence with respect to rental rates, I
cannot say the award in this case reflects an error in principle or that it was not
reasonable and fair as between the parties.
[40]
The availability of other vehicles to serve the appellant’s transportation needs
ought not to have been taken into account in measuring the damages occasioned by
the loss of the use of a vehicle purely for pleasure. However, that factor evidently
cannot have played any significant role in the assessment of damages appropriately
measured by the rough rule.
Conclusion
[41]
I would dismiss the appeal.
“The Honourable Mr. Justice Willcock”
I agree:
“The Honourable Madam Justice Newbury”
I agree:
“The Honourable Madam Justice D. Smith”
2017 BCCA 166 (CanLII)
amounted to 18% of the depreciated (post-accident) value of the car. In light of that