SUPREME COURT OF NOVA SCOTIA
Citation: Pitchuck v. Tricon, 2004 NSSC 224
Date: 20041108
Docket: S.H. 147423
Registry: Halifax
Between:
Joseph Pitchuck, a minor, by his Litigations Guardian,
Richard Pitchuck and Wendy Pitchuck
Plaintiffs
vs.
Tricon Global Restaurants (Canada) Inc., a body
corporate, KFCC/Pepsico Holding Ltd., a body corporate
Defendants
LIBRARY HEADING
Judge: The Honourable Justice Walter R. E. Goodfellow
Heard: November 2, 2004 (Chambers), in Halifax, Nova Scotia
Subject: APPROVAL OF SETTLEMENT - CPR 6.08
Summary: Joseph Pitchuck, now 20, was declared incompetent by order October 24, 2003 arising out of injuries he received when on or about October 14, 1997, while playing with several other children in the loading dock area at the back of the Kentucky Fried Chicken restaurant on Herring Cove Road, fell through the loading dock roof to the concrete surface below sustaining serious injuries and frontal lobe brain damage. Action subject to numerous contingencies and uncertainties. Damages set at mediation - $4,055,153.00. Several settlement proposals advanced and Defendants maintained complete denial of liability and presented no counter offers, but finally agreed to all inclusive $1,200,000.00. Settlement structured and approved as it was in the best interest of the incompetent.
Issue: Calculation of fees pursuant to the contingency fee agreement.
Result: Initial calculations presented were based on percentage of gross settlement and contingency fee agreement set out percentage to be on net recovery. Necessary to deduct from gross settlement of $1,200,000.00 all disbursements and an amount designated for party and party costs - here $27,000.00 in accordance with Schedule “F” of Costs and Fees Act. In addition, initial calculations included charging commission on portion of recovery by parents, which was included in the gross settlement. Court followed Harnish v. Perry Rand Ltd. et al (1994), 134 N.S.R. (2d) 145 and expressed the further view that even if the contingency fee agreement provided for a commission on disbursements and party and party costs, such would not likely be appropriate.
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