Supreme Court of Canada
Littley v. Brooks and Canadian National Ry. Co.,
[1932] S.C.R. 462
Date: 1932-03-15
Laura Littley and
Stanley Littley, an infant, by his next friend, laura littley (Plaintiffs)
Appellants;
and
Mansford Brooks and
Canadian National Railway Company (Defendants) Respondents.
1931: November 16; 1932: March 15.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Negligence—Contributory negligence—Action
under Fatal Accidents Act, R.S.O., 1927, c. 183 (“Lord Campbell’s
Act”)—Application and effect of Contributory Negligence Act, R.S.O., 1927, c.
103—Excessive assessment of damages by jury—Insufficiency of findings—New
trial.
In an action under the Fatal Accidents
Act, R.S.O., 1927, c. 183 (“Lord Campbell’s Act”), where the deceased has
been guilty of contributory
[Page 463]
negligence, and though his degree of fault
has much exceeded that of defendant, the Contributory Negligence Act, R.S.O.,
1927, c. 103, is applicable to enable the action to be maintained; and it is
also applicable for the purpose of providing for apportionment of the
liability; for damages. (Lamont J., dissenting, contra).
Plaintiffs claimed damages for the deaths of
the occupants of a motor car through its collision with defendant company’s
electric train. The jury found negligence both in defendants and in the driver
of the motor car, assessed damages, and apportioned the fault, 25% to
defendants, and 75% to the driver of the motor car. This Court held that,
having regard to the evidence, the assessment of damages was unreasonably large
and such as must have been occasioned by a misunderstanding of the basis upon
which the amount ought to be determined; also that the jury should have been
asked who was actually driving the motor car, and whether any of the other
occupants stood in such a relation to the driver as to imply his responsibility
for the driver’s contributory fault or neglect; and that there should be a new
trial, but limited to the following issues: (1) the entire amount of damages
suffered by each plaintiff; (2) to whom and how should responsibility for the
contributory negligence found by the jury be imputed. (Lamont J. dissented,
holding, on his grounds next stated, that the action should be dismissed.)
Per Lamont J.,
dissenting: The requirement, to give a right of action under the Fatal
Accidents Act, that deceased’s death was caused by a wrongful act,
neglect or default of defendant, has not been affected by the Contributory
Negligence Act. To hold that the present action should succeed, with such
damages only as would be proportioned to defendants’ fault, would mean that the
Contributory Negligence Act, by inference, has amended the Fatal
Accidents Act in matters which are of its very essence, viz., (1) so as to
give a right of action to dependants where the death, though not caused, has
been contributed to, by defendant’s negligence; and (2), so as to restrict
dependants’ measure of damages as given by the Fatal Accidents Act, which
is based on a principle entirely different from that applicable were deceased
living and suing; and implication of such amendments is not justified by the
provisions of the Contributory Negligence Act. That Act applies only to
cases where the damages sought to be recovered in the action resulted partly
from the defendant’s fault and partly from the plaintiff’s fault.
APPEAL by the plaintiffs, and cross-appeal by
the defendants, from the judgment of the Appellate Division of the Supreme
Court of Ontario
ordering a new trial.
The action was brought under the Ontario Fatal
Accidents Act, for the benefit of the plaintiff Laura Littley and her son,
Stanley Littley, to recover damages for the deaths of the husband and three
children of the said Laura Littley, who were occupants of a motor car, the
deaths resulting from a collision between the motor car and an
[Page 464]
electric train of the defendant company, which
collision the plaintiffs alleged was caused by the negligence of the defendant
company, its servants or agents, and of the defendant Brooks, who was the
motorman of the train.
On a previous appeal to this Court in the same
case this Court ordered a new trial.
The second trial came on before Raney J., with a
jury. The following were the questions submitted to the jury, with their
answers:
1. Was there negligence on the part of the defendants
causing or contributing to the collision?
A. Yes.
2. If so, in what respect did such
negligence consist? Answer fully.
A. Speed of train was in excess of ten
miles per hour.
3. Was there negligence on the part of the
driver of the Littley car contributing to the collision?
A. Yes.
4. If so, in what did such negligence
consist? Answer fully.
A. Excessive speed and lack of caution.
5. At what amount do you assess the damages
suffered by the plaintiff, Laura Littley, arising from the death of her husband
and three children?
A. $20,000.
6. At what amount do you assess the damages
of the plaintiff, Stanley Littley, arising from the death of his father?
A. $2,000.
7. How do you apportion the fault as
between the defendants on the one hand and the driver of the Littley car on the
other?
A. Defendants, twenty-five per cent. Driver
of car, seventy-five per cent.
On these findings, counsel for the plaintiffs
moved for judgment for the full amount of the damages found to have been
suffered by them; but the learned trial judge gave judgment to the plaintiff
Laura Littley for $5,000 and to the plaintiff Stanley Littley for $500, these
amounts being, in each case, 25 per cent. of the amounts at which the jury
assessed the full damages of the plaintiffs.
Both defendants and plaintiffs appealed to the
Appellate Division, the defendants asking that the action be dismissed or, in
the alternative, that a new trial be had; and the plaintiffs asking that
judgment be entered for the full amount of the damages found to have been
suffered by them. The Appellate Division set aside the judgment and ordered a
new trial. The
plaintiffs appealed to the Supreme Court of Canada, asking that the judgment
[Page 465]
entered at the trial and the judgment of the
Appellate Division be set aside and that judgment be entered for the plaintiff
Laura Littley for $20,000 and for the plaintiff Stanley Littley for $2,000; or,
in the alternative, that a new trial be ordered as to the question of damages
only. The defendants cross-appealed, contending that the action should be
dismissed.
J.R. Robinson and J.L. Kemp for the
appellants.
W.N. Tilley, K.C., and R.E. Laidlaw for
the respondents.
ANGLIN C.J.C.—I understand the majority of the
court favours a new trial in this case on the two questions stated by
Mr. Justice Rinfret. Personally, I very much regret the necessity for
further litigation concerning the matters in question here.
At the first trial there was a non-suit. To get
rid of that it was necessary for the plaintiffs to come to this court. The case
went back and was tried before a jury, Mr. Justice Raney presiding. The
Appellate Division ordered a new trial generally, although the Chief Justice of
Ontario, in pronouncing the judgment of that court, dealt severally with all
the findings of the jury, expressly approving all of them, excepting for the
objection, taken as the fourteenth ground of appeal. He dealt with that ground
of appeal as follows:
The fourteenth ground of appeal:
“14. The jury did not properly understand
the basis upon which the amount of damages, if any, ought to be determined
between the parties.”
With respect to the damages suffered by
Laura Littley, I think the learned trial judge erred in requiring the jury to
find one amount instead of separate amounts in respect of the respective deaths
of her husband and her three children, and therefore the finding as to the
amount of damages must be set aside and a new assessment had.
The learned trial judge had said to the jury
about the beginning of his charge,—after referring to the two claims—made, the
one on behalf of Laura Littley, the widow and mother, and the other on behalf
of her son Stanley, who was a minor, these two being the only survivors of the
family,—
The widow of the late Walter Littley comes
to Court representing herself and her son Stanley who was a boy of sixteen at
the time of the accident. She claims damages for the loss of her husband and
her children on her own account. The basis of her claim is the reasonable
expectancy of pecuniary benefits which she had a right to anticipate if her
[Page 466]
husband and children had survived,—the
reasonable expectation of pecuniary benefit. It is on a cash basis. She also
comes and asks as representative of her son Stanley, who cannot sue in his own
name, because he is in law an infant, she represents him, and she asks for
damages on his behalf, which, if they are recovered will be paid into Court and
will not be paid to her, subject to the Court’s Order, and her claim on his
behalf is based on his reasonable expectation of pecuniary benefits on the
survival of his father; if his father had survived, he would have had benefits
which it is suggested he has not got now. He and the mother are the sole
survivors of the family.
In my opinion, this sufficed to put before the
jury the essential fact that, in assessing damages, they must take into account
all the claims as preferred by Laura Littley, i.e., her claim for the loss of
her boy Leslie, then aged 19, and of her other two infant children, and also
her claim for the loss of her husband. The order for a new trial against Laura
Littley cannot, in my opinion, be supported on the sole ground for it assigned
by the learned Chief Justice, viz., that the learned trial judge erred in
requiring the jury to find one amount instead of separate amounts for damages
in respect of the respective deaths of the husband and the three infant
children. With the utmost respect for the Chief Justice, I find no difficulty
in the case on this point. Its only possible materiality would arise from the
fact that contributory negligence of the driver of the motor car found by the
jury, and evidently, in their opinion, imputable to the mother, could not well
be attributed to the two infant children (other than Leslie) on account of
whose deaths, as well as that of her husband, she brought action.
In ordering a new trial as against Laura Littley
on this ground even, as the learned Chief Justice appears to put it, limited to
a new assessment of damages, the Appellate Division seems to me to have been
clearly wrong, as it must be quite immaterial how much of the $20,000 pecuniary
loss, found to have been occasioned to the widow by the accident, was
attributable to the loss of her husband and how much of it to the loss of each
of her three children.
There is more to be said in favour of the order
for a new trial as against Stanley Littley, if likewise limited, since, in my
opinion, the learned Chief Justice is quite right when he says:
Having regard to all the circumstances, I
think it highly improper (improbable?) that Stanley sustained a pecuniary loss
of $2,000 by his father’s death.
[Page 467]
Considering the walk of life of the
parties, Stanley had about reached the age when he would have been required by
his father, to earn his own living. I therefore think that the amount awarded
to him is excessive, and that that finding should be set aside.
Here, the amount of damages alone is affected,
and the new trial should, with respect, have been limited to that point.
I agree that the assessment of damages at $20,000
in favour of the widow is considerably larger than I would have allowed and it
is quite possible that the jury made some mistake in that respect, or took into
account something which they should not have considered. With regard to
contributory negligence, what the jury evidently meant was this: Taking the
case in the by and large, they said to themselves: “We will allow $22,000
(apportioned, $20,000 to Laura Littley and $2,000 to Stanley Littley) as total
damages, of which 75 per cent. should be borne by the plaintiffs and 25 per
cent. by the company.” While the sums allowed as total damages may seem
unreasonable, bearing in mind that the question of the amount of damages is
usually exclusively for the jury, and having regard to their treatment of the case
as a whole, I would, personally, be satisfied to allow the award to stand. I
defer, however, to the views of my learned brothers who think it so grossly
excessive that they cannot but assume that there was some error in the minds of
the jury as to the proper basis of assessment.
On this ground alone, therefore, I would agree
to a new trial—not at large, however, since the Appellate Division has
expressly approved of the findings of the jury, excepting those as to the
amount of damages,—and that is the only matter which my colleagues find
unsatisfactory in the verdict already given.
As indicated above, one reason why I am not
entirely satisfied with its findings was the failure on the part of the jury to
determine how and to whom the contributory negligence of the driver of the
Littley car was to be imputed. I would, therefore, since there must be a
partial new trial, agree to the submission to the new jury of a question to
cover this point.
For these reasons, I agree in the result of the
judgment which I understand is to be delivered by my brother Rinfret.
[Page 468]
The judgment of Rinfret and Smith JJ. was
delivered by
RINFRET, J.—This action was brought under the
provisions of the Fatal Accidents Act (c. 183 of R.S.O., 1927). The
plaintiffs (appellants) are Laura Littley, widow of Walter Littley, and Stanley
Littley, son of the said Walter Littley, an infant suing by his next friend,
Laura Littley. They seek damages for the death of Walter Littley, their
respective husband and father. Laura Littley personally also claims damages for
the death of her two sons, Leslie and Edward, and her daughter, Ivy.
The present appeal brings this case before this
court for the second time. In a former appeal, wherein the parties were
identical, this court ordered a new trial and, in doing so, took occasion to
state the facts.
The second trial came on before Raney J., with a
jury, and the following were the questions submitted to the jury, with their
answers:
1. Was there negligence on the part of the
defendants causing or contributing to the collision?
A. Yes.
2. If so, in what respect did such
negligence consist? Answer fully.
A. Speed of train was in excess of 10 miles
per hour.
3. Was there negligence on the part of the
driver of the Littley car contributing to the collision?
A. Yes.
4. If so, in what did such negligence
consist? Answer fully.
A. Excessive speed and lack of caution.
5. At what amount do you assess the damages
suffered by the plaintiff, Laura Littley, arising from the death of her husband
and three children?
A. $20,000.
6. At what amount do you assess the damages
of the plaintiff, Stanley Littley, arising from the death of his father?
A. $2,000.
7. How do you apportion the fault as
between the defendants on the one hand and the driver of the Littley car on the
other?
A. Defendants, 25%. Driver of car, 75%.
On these findings, counsel for the appellants
moved for judgment for the full amount of the damages found to have been
suffered by them; but the learned trial judge gave judgment to the appellant
Laura Littley for $5,000, and to Stanley Littley for $500, these amounts being,
in each case, 25 per cent. of the amounts at which the jury assessed the full
damages of the appellants.
[Page 469]
From this judgment, both parties appealed to the
Appellate Division of the Supreme Court of Ontario; and, on the 15th day
of June, 1931, a new trial was again directed.
The appellants, thereupon, appealed to the Supreme Court of Canada, praying
that the order for a new trial be set aside, and again asking for the full amount
of damages found by the jury. The respondents cross-appealed and gave notice of
their intention to contend, on the hearing of the appeal, that the judgment of
the Appellate Division ought to be varied and that the action ought to be
dismissed with costs.
The judgment appealed from was unanimous. It was
delivered by the Right Honourable the Chief Justice of Ontario, who went into a
discussion of all the grounds of appeal and considered each of them very
carefully. He held that “there was ample evidence to support the findings of
the jury,” and expressed the “opinion that the charge of the learned (trial)
judge was fair and sufficient.” The new trial was ordered for the reason that
the jury was required “to find one amount instead of separate amounts in respect
of the respective deaths of (the) husband and (the) three children, and
therefore the finding as to the amount of damages must be set aside and a new
assessment had.”
As regards the award made to the appellant
Stanley Littley, he thought “the amount awarded to him is excessive, and that
that finding should be set aside.”
The learned Chief Justice, on behalf of the
Appellate Division, further expressed the view that, at the new trial, “the
jury should be directed to find who was actually driving the car or in control
of it at the time of the accident.”
We now have before us the appeal and the
cross-appeal from that judgment.
On the cross-appeal, subject to discussing the
measure of damages, we have only to say that the questions raised were properly
dealt with by the Appellate Division, and we do not think it should be
entertained by this court.
On the main appeal, there are two questions to
be considered: Whether the new trial was properly ordered for the
[Page 470]
reasons given by the Appellate Division; and, if
not, whether judgment should be entered in favour of the appellants for the
full amount of the damages assessed by the jury.
Walter Littley, the husband and father of the
respective appellants, was forty-two years old, and apparently in excellent
health. He was operator of an electric shovel in a gravel pit. He was being
paid sixty cents an hour for a ten-hour day and would average 5 days’ work, or
$30 a week throughout the year. The wife’s evidence is that he gave her his
wages.
Leslie Littley was nineteen years of age. He was
a teamster, receiving $85 every two weeks for himself and his team. He was just
commencing in business and was paying for his team; but, up to that time, he
had been a market gardener and had given his money to his mother.
Edward was a boy of thirteen, still going to
school, and Ivy was a girl of ten.
The appellant Laura Littley was thirty-eight in
November, 1928, five months after the accident, and the appellant Stanley
Littley was sixteen the following December. The evidence was that Laura Littley
was in good health, but that Stanley had a more delicate health than the other
children and had been kept away from school for some time before his father’s
death. They were left without resources and the mother has been going out to
work by the day for a living.
In assessing damages under the Fatal
Accidents Act, it is well settled law that the jury are confined to the
pecuniary loss sustained by the family and cannot take into consideration the
mental suffering of the survivors (Blake v. Midland Ry. Co.). It is the reasonable expectation of
pecuniary advantage by the relatives remaining alive that may be taken into
consideration (Mayne, On Damages, 10th ed., page 516). The action exists solely
“for the benefit of the wife, husband, parent and child of the person whose
death was caused” (Fatal Accidents Act, section 3). Under the Act,
there is no right of action for the benefit of the brother of the victim of the
accident. It follows that the appellant Stanley Littley was entitled to damages
only
[Page 471]
in respect of the death of his father. As for
Laura Littley, the pecuniary benefit which she might expect from the
continuation of the lives of Edward, aged thirteen, and Ivy, aged ten, are
almost negligible, particularly in view of the fact that until they reached the
age when they would be earning their own living, they would have to be
supported by their father and mother. Any pecuniary advantage which Laura
Littley might expect must come substantially from her husband, and to a limited
extent, from her son, Leslie. At the time of the accident, Leslie was using his
money “to pay for his team.” If we admit that he would later be able to look
after himself, it would mean that the earnings of the father would go to
maintain himself, his wife and the remaining three children. Assuming no
contingencies whatever, such as interruption in work, illness, etc., these
earnings would represent about $120 per month wherewith to provide for the
whole family. It will be seen at once that the share of that sum available each
month for both the mother and Stanley would fall far below $100.
Notwithstanding these facts, the jury assessed
the damages at an amount the interest of which would be sufficient to provide
an income of $100 a month for the mother alone. In addition to that, on the
assumption that the Contributory Negligence Act does not apply in
mitigation of the damages, she would become the owner of the capital sum
necessary to produce that income, and a further sum of $2,000 was assessed in
favour of the son, Stanley. For, let it be observed that this is not a verdict
for $20,000 only. The $2,000 going to Stanley must, of course, be taken into
account. Although the possible loss, remote as it is from the monetary
standpoint, arising out of the deaths of the three children, may not be
disregarded, the fact remains that, in this case, the damages which stand to be
assessed are, almost entirely in the case of the wife, and exclusively in the
case of Stanley Littley, damages resulting from the death of their respective
husband and father. So that the verdict of $22,000 must be held to represent
practically the pecuniary benefits which both appellants might have reasonably
expected from the continuation of the life of Walter Littley. The jury, as was
explained by the foreman at the trial, “based that amount on what (they) felt
the widow should get a month on the basis of six per cent.,
[Page 472]
which would give her one hundred dollars a
month, which would be approximately $20,000.” The explanation throws light on
what was in the minds of the jury. Having regard to the material circumstances
of all concerned, $100 a month to the widow alone would not, in any event, be
warranted by the evidence; but the jury disregarded altogether the fact that, in
addition to the income, they were giving the capital as well; and, besides
that, they were awarding $2,000 to Stanley Littley.
We cannot escape the conclusion that the
assessment of damages, both in favour of the wife and of the surviving child,
was excessive and out of proportion to the total pecuniary loss occasioned by
the deaths of the persons in respect of whom the damages were awarded.
Having regard to the evidence, we are clearly of
the opinion that the assessment was unreasonably large and such as must have
been occasioned by a misunderstanding of the basis upon which the amount ought
to be determined. On that ground alone, therefore, there would have to be a new
trial.
We may now deal with the question whether, in
view of the finding that there was “negligence on the part of the driver of the
Littley car contributing to the collision”, judgment should nevertheless, as
the appellants contend, be entered in their favour for the full amount of the
damages assessed by the jury.
By the Fatal Accidents Act of Ontario, it
is provided that:
2. Where the death of a person has been
caused by such wrongful act, neglect or default, as, if death had not ensued,
would have entitled the person injured to maintain an action and recover
damages in respect thereof, the person who would have been liable, if death had
not ensued, shall be liable to an action for damages, notwithstanding the death
of the person injured, and although the death was caused under circumstances
amounting in law to culpable homicide.
3. (1) Every such action shall be for the
benefit of the wife, husband, parent and child of the person whose death was so
caused, and except as hereinafter provided shall be brought by and in the name
of the executor or administrator of the deceased, and in every such action such
damages may be awarded as are proportioned to the injury resulting from such
death to the persons respectively for whom and for whose benefit such action is
brought; and the amount so recovered, after deducting the costs not recovered
from the defendant, shall be divided amongst the before-mentioned persons in
such shares as may be determined at the trial.
[Page 473]
The Contributory Negligence Act (c. 103
of R.S.O., 1927) provides as follows:
2. In any action or counterclaim for
damages, which is founded upon fault or negligence, if a plea of contributory
fault or negligence shall be found to have been established, the jury, or the
judge in an action tried without a jury, shall find:—
First: The entire amount of damages to
which the plaintiff would have been entitled had there been no such
contributory fault or neglect;
Secondly: The degree in which each party
was in fault and the manner in which the amount of damages found should be
apportioned so that the plaintiff shall have judgment only for so much thereof
as is proportionate to the degree of fault imputable to the defendant.
3. Where the judge or jury finds that it is
not, upon the evidence, practicable to determine the respective degrees of
fault the defendant shall be liable for one-half the damages sustained.
The appellants submit that by section 2 of
the Fatal Accidents Act a right of action in the deceased, had he
survived, is made a condition precedent to a right of action accruing to
certain of his dependents under the provisions of the Act. They further submit
that, if such condition precedent be fulfilled, the survivors of the class
named in section 3 of the same Act have a statutory right of action
untainted and unaffected by anything which the deceased may have done or agreed
to, so long as he, by such conduct or agreement, had not completely barred his
own right of action, had he survived. Therefore, while, before the Contributory
Negligence Act, contributory negligence was a good defence to an action
under the Fatal Accidents Act, this was the case because contributory
negligence would have deprived the deceased of his right of action had he
survived. By the Contributory Negligence Act, his right of action is no
longer barred, but his right to recover is limited proportionately to the
percentage of negligence attributed to the defendant. It is therefore submitted
that the condition precedent to a successful action under the Fatal
Accidents Act is satisfied and the persons entitled to sue under that Act
are given a new statutory right of action, which is unaffected by the conduct
of the deceased.
In a recent case, Price v. B.C. Motor
Transportation Ltd., the
Chief Justice of this Court had occasion to examine a similar question under
the British Columbia statutes. Those statutes, although not identical in terms,
are substantially the same as the Ontario Acts. The Chief Justice said:
[Page 474]
The presence of the condition of the right
of action, i.e., that it must be “such as would (if death had not ensued) have
entitled the party injured to maintain an action and recover damages in respect
thereof,” has been held to require that the deceased would have had an
enforceable cause or right of action for the injury had he survived. To this
cause of action, contributory negligence on his part would, of course, have
been a defence. That being so, he could not have successfully maintained an
action where contributory negligence was established, had he survived, and his
personal representative or widow, etc., could, accordingly, maintain no action
for damages caused by his death.
The ground now taken by the plaintiff is
that the defence of contributory negligence being done away with by the statute
of 1925 leaves the right of action under Lord Campbell’s Act absolute
and unqualified. In other words, the other provisions of the Contributory
Negligence Act would have no application to a case under Lord Campbell’s
Act.
I find nothing in the Contributory
Negligence Act to exclude its application as a whole to cases under Lord
Campbell’s Act, which are so common. On the contrary, everything in the
former statute indicates that such cases must have been present to the mind of
the Legislature which enacted it.
Contributory negligence is a defence which
the statute does away with, but only conditionally, the condition being that,
“where by the fault of two or more persons damage or loss is caused to one or
more of them, the liability to make good the damage or loss shall be in
proportion to the degree in which each person was at fault.” I cannot conceive
that the Legislature intended that this Act should apply for the purpose of
enabling the plaintiff to maintain an action under Lord Campbell’s Act, notwithstanding
the establishment of contributory negligence imputable to her, and yet should
not also apply for the purpose of providing for the apportionment of her
damages under section 2.
That this case comes within section 2
is perfectly clear, the term or condition of its application thereby provided
being that, where contributory negligence is shown, there shall be an
apportionment of damages in proportion to the degree in which each person was
at fault. Any person taking advantage of the Contributory Negligence Act must
do so on the terms and conditions laid down by the Legislature.”
In the British Columbia case7, the
view taken by the other members of the court made it unnecessary for them to
pass upon that point. In the present case, the point has to be decided and the
opinion thus enunciated by the Chief Justice may now be stated as being the
opinion of the court on the question raised by the appellants.
At the outset, it should be said that the whole
case proceeded on the basis that the Contributory Negligence Act applied.
Should we now come to the conclusion that it does not, the consequence would be
that the verdict is the result of misdirection throughout and a new trial is
inevitable, in any event. But, as there is to be a new trial any-
[Page 475]
how, we think we should, under the
circumstances, give a direction to the judge who shall preside at the trial.
At common law, contributory negligence of the
plaintiff is a complete defence to an action “founded upon fault or
negligence”. The result was that in any such case, “if a plea of contributory
fault or negligence (was) found to have been established”, the victim of the
accident could not successfully maintain an action and recover damages in
respect thereof. As a consequence, under the Fatal Accidents Act, and
under similar circumstances, if the death of the victim ensued, neither could
an action be successfully maintained “for the benefit of the wife, husband,
parent and child of the person whose death was so caused”. Contributory
negligence of the deceased or imputable to him continued under the Act to be a
complete defence against the action of the named relatives. The action could
not be maintained, not on account of the contributory fault or negligence of
the relatives who brought it, but on account of the contributory fault or
negligence of the victim of the accident.
The Contributory Negligence Act, of
Ontario, has not created a new right of action and it has not taken away the
defence of contributory negligence. It has only modified the effect of that
defence. Where contributory negligence used to be an absolute answer to the
action, the Act says that henceforth it shall not be so and it shall only
mitigate the liability of the negligent party owing to the contributory fault
of the victim. (Compare The Napierville Junction Railway Company v. Dubois
). What the jury is to find is “the degree in
which each party was in fault”. “Party” here means “party to the accident”.
Under the Act, the primary concern is to establish the degree of liability of
each party to the accident. The apportionment of the amount of damages follows
only as a matter of consequence. When, therefore, we have a verdict such as we
have here, and the jury finds that the fault of each party contributing to the
accident should be apportioned in the ratio of twenty-five per cent. for the
defendants and seventy-five per cent. for the other party, the meaning of the
Act and the intention of the legislature is
[Page 476]
that, the defendants having been found guilty of
fault or negligence contributing to the accident only in the proportion of
twenty-five per cent., their liability for the consequences of that accident is
limited to twenty-five per cent., and they are answerable only to that extent
towards the person claiming damages resulting from the accident. In such a
case, says the Act, “the plaintiff shall have judgment only for so much thereof
as is proportionate to the degree of fault imputable to the defendant”. The
injurious participation by the defendants in the wrongful acts which caused the
accident having been in the proportion found by the jury, they are to
contribute towards the compensation for the damages in that proportion. They
are to pay only that proportion of the damages which they have caused,—and they
are not responsible for more. The Act applies to “any action or counterclaim”
(section 2) and, by definition (section 1), the plaintiff in any such
action or the defendant in any counter-claim “shall have judgment only
for so much (of the entire amount of damages) as is proportionate to the degree
of fault imputable to the defendant”.
The cases cited by the appellants are not in
point. In Mills v. Armstrong, commonly known as the Bernina case, three claims were made by the
representatives of three of the victims for whose death action was brought. The
accident consisted in a collision between two ships. Two of the victims were
held to have had nothing to do with the negligent navigation, while the other
(Owen) was found to have been connected with the wrongful acts contributing to
the collision. Before the Court of Appeal, the claim on behalf of the latter’s
representative was given up. The two other claims were maintained in full, on
the ground that, in each case, the victims for whose deaths the actions were
brought were not parties to the negligence and could in no way be connected
therewith, and therefore the Admiralty rule as to half damages did not apply.
In the House of Lords, the question upon that rule was mentioned, but not
argued. Lord Herschell expressed thus the ground of the decision:
They (the defendants) do not allege that
those whom the respondents represent were personally guilty of negligence which
contributed to the
[Page 477]
accident; nor * * *
that there was contributory negligence on the part of any third person standing
in such a legal relation towards the deceased men as to cause the acts of that
third person, on principles well settled in our law, to be regarded as their
acts.
In the case of British Electric Railway
Company v. Gentile, the
question was one of prescription and turned upon the construction of the
Special Act of the electric railway company. It was decided that the particular
enactment (whereby certain actions against the company had to be brought within
six months of the event giving rise thereto) did not cover an action under the Families
Compensation Act in British Columbia.
In Union Steamship Company of New Zealand v.
Robin, the
particular statutes therein involved and which had to be construed were quite
different. The Workers’ Compensation Act (1908) of New Zealand,
sec. 62, gave to a servant who was injured by the negligence of a
fellow-servant a right of action against his employer, it being provided by
subs. 3 that
no servant shall
be entitled to recover from his employer in an action brought under this Act
in respect of the negligence of a fellow-servant a larger sum by way of
damages for any one cause of action than five hundred pounds.
As will have been noticed, the limitation as to
damages expressly applied to “an action brought under this Act” by the servant
himself and there was “nothing to restrict the right” (covered by sec. 5
of the Deaths by Accident Compensation Act (1908) of New Zealand)
“enabling the jury to give damages as they think proportioned to the injury
resulting from the death.”
Under the Ontario Contributory Negligence
Act, the limitation as to damages is only consequential. The true purport
of the Act is a limitation as to responsibility. The limitation applies “in any
action or counterclaim for damages which is founded upon fault or negligence”
and not, as in the New Zealand case, to “an action brought under this Act.”
Moreover, the right of the jury to award damages
is expressly limited to an amount “proportionate to the degree of fault
imputable to the defendant.”
In fact, the New Zealand statute appeared to be
clear enough, and the discussion in the case centred not on the
[Page 478]
construction to be put upon the statute, but
upon the effect of an amendment made in 1911. The Act of 1908 contained the
following provision:
Nothing in this subsection shall
affect the measure of damages in an action brought against an employer in
respect of the death of a servant.
In the amending statute, that provision was not
repeated. The argument was that the removal of the provision must be assumed to
have had some definite purpose; and it must follow that the limitation it was
designed to avoid no longer applied. The
decision was that
The mere omission in a later statute of a
negative provision contained in an earlier one cannot by itself have the result
of effecting a substantive affirmation. It is necessary to see how the law
would have stood without the original proviso, and the terms in which the
repealed sections are subsequently re-enacted.
The decision in that case cannot affect the
present case.
We hold, therefore, that the provisions of the Contributory
Negligence Act (c. 103 of R.S.O., 1927) are applicable to an action brought
under the Fatal Accidents Act (c. 183 of R.S.O., 1927).
It may not be without interest to point out that
such is also the solution invariably given to similar cases in the province of
Quebec, where the rule has always formed part of the law of the province.
This, however, does not end the matter. In order
to affect the amount of damages recoverable by the appellants, it must be
shown, in the words of Lord Herschell,
that those whom (they) represent were
personally guilty of negligence which contributed to the accident, (or) that
there was contributory negligence on the part of any third person standing in
such a legal relation towards the deceased * * * as to cause
the acts of that third person * * * to be regarded as
their acts.
It follows that, in this case, the jury ought to
have been asked who was actually driving the car and, further, whether any of
the other occupants of the car stood in such a relation to the driver (the actual
wrongdoer) as to imply his responsibility for the contributory fault or neglect
of the driver. The appellants urge that the onus was upon the respondents, in
order to establish their plea of contributory negligence. But there was
evidence from which the facts might at least be inferred and the point is that
the jury made no finding upon those facts. We know that the car belonged to the
son, Leslie Littley. If he was not the
[Page 479]
actual driver, he may be responsible as owner.
We know that the trip was on the father’s mission. We know also that the owner
of the car, Leslie, was not of age, and even if the father was not driving, he
might yet be found to have been in control or to have been in a position to
give orders or to interfere with the conduct of the driver. At the new trial,
further evidence may be called. Mrs. Littley saw the car start and
presumably could say who was driving it at that time. Other evidence may be
adduced of a similar character.
Another consequence of the application of the Contributory
Negligence Act is that it is necessary to have a separate finding of the
damages suffered through the death of each of the four victims of the accident,
for it might well be that all may not be held responsible for the driver’s
contributory negligence.
For all these reasons, we agree with the
Appellate Division that there must be a new trial, but we think the order ought
to be varied so as to limit it to the issues wherein the present trial is found
to have been defective. The case having already been tried twice, the issue of
negligence on both sides and the degree of fault imputable to the defendant
respondents ought now to be taken as concluded.
Leaving those findings to stand, the new trial
should be ordered only as to the following questions and matters:
1. The entire amount of damages suffered by each
plaintiff.
2. To whom and how should responsibility for the
contributory negligence found by the jury be imputed?
The order as to costs in the Appellate Division
should not be disturbed. In this Court, in view of the divided success, there
should be no costs.
LAMONT J. (dissenting).—The first question we
have to determine in this appeal is: Can the plaintiff, who is the widow of the
deceased, maintain an action under the Fatal Accidents Act where the
deceased has been found guilty of negligence contributing to his death? For the
plaintiff it is contended that she can by reason of the provisions of the Contributory
Negligence Act, R.S.O., 1927, ch. 103. That Act is as follows:—
[Page 480]
1. In this Act “plaintiff” shall include a
defendant counter-claiming, and “defendant” shall include a plaintiff against
whom a counter-claim is brought.
2. In any action or counterclaim for
damages, which is founded upon fault or negligence, if a plea of contributory
fault or negligence shall be found to have been established, the jury, or the
judge in an action tried without a jury, shall find:—
First: The entire amount of damages to
which the plaintiff would have been entitled had there been no such
contributory fault or neglect;
Secondly: The degree in which each party
was in fault and the manner in which the amount of damages found should be
apportioned so that the plaintiff shall have judgment only for so much thereof
as is proportionate to the degree of fault imputable to the defendant.
3. Where the judge or jury finds that it is
not, upon the evidence, practicable to determine the respective degrees of
fault the defendant shall be liable for one-half the damages sustained.
Section 2 shews that the application of
this Act is limited to an action or counter-claim for damages which is founded
upon fault or negligence. By that language, the Legislature, in my opinion,
meant that the Act applies only where the claim is for damages for loss or
injury occasioned by the fault or negligence of the other party to the action
or counter-claim. It applies where the purpose of the action is to determine as
between the parties thereto the amount of damage which should be attributed to
their respective faults. The section directs the judge or jury to find the
degree in which “each party was in fault”. “Each party” here must mean each
party to the action, for they are the only persons who could be before the
court. The total damage suffered by the plaintiff is to be so apportioned that
he will receive from the defendant only that portion of his loss which is
proportionate to the degree of fault imputable to the defendant. If the
defendant has also suffered loss and counter-claims for damages for the loss he
has suffered, his claim is dealt with in exactly the same way and he is
entitled to damage against the plaintiff in proportion to the degree of fault
imputable to the plaintiff. The Act, therefore, applies only to cases where the
damages sought to be recovered in the action resulted partly from the fault of
the defendant and partly from the plaintiff’s own fault.
Turning now to the Fatal Accidents Act, R.S.O.,
1927, ch. 183, we find that sections 2 and 3 (1) thereof read as follows:
2. Where the death of a person has been
caused by such wrongful act, neglect or default, as, if death had not ensued,
would have entitled
[Page 481]
the person injured to maintain an action
and recover damages in respect thereof, the person who would have been liable,
if death had not ensued, shall be liable to an action for damages,
notwithstanding the death of the person injured, and although the death was
caused under circumstances amounting in law to culpable homicide.
3. (1) Every such action shall be for the
benefit of the wife, husband, parent and child of the person whose death was so
caused, and except as hereinafter provided shall be brought by and in the name
of the executor. or administrator of the deceased, and in every such action
such damages may be awarded as are proportioned to the injury resulting from
such death to the persons respectively for whom and for whose benefit such
action is brought; and the amount so recovered, after deducting the costs not
recovered from the defendant, shall be divided amongst the before-mentioned
persons in such shares as may be determined at the trial.
This Act, with certain immaterial exceptions, is
identical with the English Act, known as Lord Campbell’s Act. Apart,
therefore, from the Contributory Negligence Act, which does not exist in
England, the English decisions as to the meaning and effect of Lord
Campbell’s Act are applicable to the case before us.
At common law no civil action could be
maintained for an injury to a human being which resulted in death. It was not
until a right of action was given by statute that a wrongful act causing death
subjected the wrongdoer to liability for loss occasioned by the death, and then
only to such persons and on such conditions as the statute prescribed.
Section 2, above quoted, prescribes two conditions precedent which must be
fulfilled before an action can be maintained:
(1) The death must be caused by a
wrongful act, negligence or default, of the defendant, and
(2) The act, negligence or default must be of
such a kind that if death had not ensued the person injured would have been
entitled to maintain an action and recover damages in respect thereof. That
both these conditions must be fulfilled before the right of action exists is
established by the judgment of the Privy Council in British Electric Ry. Co.
v. Gentile,
where, at page 1041, their Lordships say:—
Although the action under Lord Campbell’s
Act or the Families Compensation Act (British Columbia) is not an action of
indemnity for negligence, yet nevertheless it is an action which can only exist
if certain conditions precedent are fulfilled. The first is that the death
shall have been caused by wrongful act, neglect, or default of the defendants.
That has in this case been affirmed by the verdict of the jury. The second is
that the default is such “as would if death had not ensued have entitled the
[Page 482]
party injured to maintain’ an action and
recover damages in respect thereof.”
Unless, therefore, these two conditions
precedent were found to exist in the present case, or their requirement
annulled, the plaintiff has no right of action.
Was the death of the deceased occasioned by the
wrongful act, negligence or default of the defendants? The jury have found that
it was not. They have found that the death was occasioned by the joint
negligence of the defendants and the deceased, of which only 25 per cent. could
be imputed to the defendants. The first condition precedent, therefore, is not
fulfilled.
It is, however, argued that the fulfilment of
this condition is rendered unnecessary by the Contributory Negligence Act, and
that, since the passing of that Act, it is no longer necessary to prove that
the death of the deceased was occasioned by the wrongful act or negligence of
the defendant, but that a cause of action is established if it is shewn that
the wrongful act contributed, whether much or little, to the death of the
deceased.
Let us consider this contention: Prior to the
passing of the Contributory Negligence Act, contributory negligence on
the part of a deceased person was a complete defence to an action under the Fatal
Accidents Act. It was an answer to the first condition because, where the
death was due to the fault of the deceased and the defendant jointly, it could
not be said to have been caused by the defendant. It was also an answer to the
second condition because, being guilty of negligence himself, the deceased, if
he had remained alive, could not, at law, have maintained an action for damages
against the defendant. Since the passing of the Act the person killed, had he
survived, could have maintained an action against the defendant for injuries
caused by the defendant’s fault even although himself guilty of contributory
negligence. The Act does give the right of action required by the second
condition precedent of the Fatal Accidents Act, but I fail to see that
it in any way affects the first. The language setting forth the first
requirement of section 2 is clear and explicit, and I can find nothing in
the Contributory Negligence Act which, by express language or necessary
implication, indicates in any way an intention on the part of the Legislature
to modify or alter the first condition required by the section.
[Page 483]
Let us test the application of the Act in
another way: Let us assume that the above conclusion is wrong and that the Contributory
Negligence Act is an answer to both conditions required by section 2.
What is the result? The right of action given to the statutory beneficiaries by
the Fatal Accidents Act is an entirely different right from that which
the deceased, if living, would have had. As early as 1852, Coleridge J., in
giving the judgment of the court in Blake v. Midland Ry. Co., said:—
But it will be evident that this Act does
not transfer this right of action (of the deceased) to his representative, but
gives to the representative a totally new right of action, on different
principles.
And in Seward v. “Vera Cruz” (Owners
of), Lord
Blackburn said:—
I think that when that Act (Lord
Campbell’s Act) is looked at it is plain enough that if a person
dies under the circumstances mentioned, when he might have maintained an action
if it had been for an injury to himself which he had survived, a totally new
action is given against the person who would have been responsible to the
deceased if the deceased had lived; an action which, as is pointed out in Pym
v. Great Northern Ry. Co., is
new in its species, new in its quality, new in its principle, in every way new.
Not only does the Act give the deceased’s
dependants a new cause of action but the measure of their damages is based on a
principle entirely different from that which would apply if the deceased were
living and suing. The damages which may be recovered under the Act are such “as
are proportioned to the injury resulting from such death to the persons
respectively for whom and for whose benefit such action is brought”. The basis
of the claim is compensation for the loss of the actual pecuniary benefit which
the beneficiaries might reasonably have expected to enjoy had the deceased not
been killed. This loss would be exactly the same whether the defendants’
wrongful act or negligence was the sole cause of the death or whether it
contributed thereto only to a very small extent. It was, however, argued that
the contributory negligence of the deceased must be imputed to the plaintiff
and the measure of her damages determined by the degree of fault imputable to
the defendants. In my opinion, it is impossible to give effect to this argument
in view of the express provision of
[Page 484]
the statute that the damages are to be such as
are proportioned to the injury resulting to each dependant from such death. To
do so would be to amend the statute, which is the function of the legislature
and not of the court. That any limitation affecting the measure of damages
which the deceased, if living, could recover does not apply to the plaintiff
is, I think, established by the authorities.
In Union Steamship Company of New Zealand v.
Robin, the
death of the deceased was caused by the negligent act of a fellow servant and
an action for damages was brought against the employer, the steamship company,
under the Deaths by Accident Compensation Act, 1908, of New Zealand,
which was, in all material particulars, identical with Lord Campbell’s Act. The
contention of the company was that prior to the enactment of the Workers’
Compensation Act, 1908, a servant had no right of action for damages
against his employer where his injuries were caused by the negligence of a
fellow servant, as the doctrine of common employment was an absolute defence;
that the Workers’ Compensation Act took away from an employer this
defence and gave a right of action to a servant injured by the negligence of a
fellow servant, but it provided that the damages recoverable, in an action
under the Act, should not exceed 500 pounds, and that, as the plaintiff must
depend on the Workers’ Compensation Act for her right of action, the
limitation imposed by that Act was binding on her. The Privy Council, however,
held that the measure of damages was not limited to 500 pounds, as the cause of
action and the measure of damages were different from those which the deceased
person would have had if he had survived. In his judgment Lord Buckmaster, at
page 660, said:
The argument in support of the appellants’
case is best put in the assertion that as, without an express statutory relief
from the doctrine of common employment, no suit could be maintained, and such
relief being conferred by a section which limits the remedy, the whole of
these conditions must be imported into every action to which the doctrine of
common employment would have afforded a defence. Their Lordships cannot accept
this view. The only operation of the doctrine of common employment in a suit by
the dependants of a dead man would be that the conditions precedent were not satisfied.
The dead man could not have brought an action in respect of damage or injury.
This he can now do. But although in the action that he might have brought there
would
[Page 485]
have been a limitation as to damage, there
is nothing to restrict the right expressly conferred by s. 5 of the Deaths by
Accident Compensation Act enabling the jury to give damages as they think
proportioned to the injury resulting from the death.
and at page 661, he said:
The damages which the dependants are
entitled to recover are such damages as the jury think proportional to the
injury, and on this right no statutory limitations have been imposed.
The same principle is enunciated in the later
case of Nunan v. Southern Ry. Co. There the deceased, a passenger by
railway, had agreed with the railway company that its liability for personal
injuries should not exceed 100 pounds. He was killed by the negligence of the
company’s servants. In an action under Lord Campbell’s Act, by his
dependants, it was held that the damages recoverable were not limited to such
sum. In his judgment Scrutten L.J., at page 228, said:
Then it is argued that if that is so his
dependants must equally be bound if he has made an agreement which, while
leaving him a cause of action, limits the amount which he can recover. I agree
that it looks odd that he should be able to bar his dependants entirely, and
yet should not be able to bar them in part, but one must be guided by the words
of the statute.
and further on he says:
Under these circumstances we must follow
the language of the statute, and that language compels us to say that as the
dead man could at the time of his death have brought an action for some damages
his dependants can bring an action for their own and quite different damages.
and Atkin, L.J., at page 230, said:
The deceased person could, if he were
alive, only bring an action to recover compensation for his personal injuries,
which ex hypothesi fall short of the consequences of his death; and it may well
be that the sum of 100 pounds might more than cover the damages to which he
would be entitled. On the other hand, the dependants bring their action
substantially for the loss of the breadwinner of the family; and that is a very
different matter.
Another illuminative case is that of McColl
v. Canadian Pacific Ry. Co.,
where, at page 133, my brother Duff, in giving the judgment of the Privy
Council, summed up what Lord Dunedin had said in the Gentile case, as follows:
In other words, an action under Lord
Campbell’s Act is not an action for “damage sustained by the plaintiff by
reason of the wrongful act which caused the death in respect of which the claim
is made.”
If the plaintiff’s claim is not for damages for
loss sustained by the defendant’s wrongful act, I fail to see how
[Page 486]
the degree of fault attributable to the
defendant can be made the yardstick by which to measure her damages.
In view of the above authorities the result, in
my opinion, is that, on the assumption that the Contributory Negligence Act enables
the plaintiff to maintain the action, the measure of damages which she is
entitled to recover for herself and her infant son is not in any way limited by
the fact that the damages which her deceased husband if living could have
recovered would be only such as were proportioned to the degree of negligence
imputable to the defendants. The measure of her damage is that fixed by the
statute and, in my opinion, that measure has not been in any way limited or
altered by the Contributory Negligence Act. If the damages recoverable
by the beneficiaries under the statute are the same both when the fault of the
defendant is the sole cause of the death and when it merely contributes thereto
in a small degree, we have to ask ourselves this question: Can the Legislature
have intended to impose upon the defendant liability for the whole loss
occasioned by the death, irrespective of the degree of fault imputable to him?
I cannot conceive of the Legislature doing so, as the imposition of such a
liability would be unfair and unjust. The fact, however, that the imposition
would be unfair does not, in my opinion, justify the inference of a legislative
intention to alter the measure of damages awarded to the dependants by the
statute, but rather that the Legislature had no intention of making the provisions
of the Contributory Negligence Act apply to the Fatal Accidents Act, beyond
this, that the right of action given by the former Act to a plaintiff guilty of
contributory negligence was sufficient in an action brought by his dependants,
in a case where he was killed, to satisfy the second condition precedent
required by the latter Act. In order that the plaintiff should succeed in this
action with only such damages as would be proportioned to the defendants’ fault
we must, in my opinion, hold that the Contributory Negligence Act, by
inference, has amended the Fatal Accidents Act in two very important
particulars, namely, (1) so as to give a right of action to the dependants
where the death is caused or contributed to by the wrongful act, neglect
or default of the defendant, and (2) so as to restrict the dependants’ measure
of damages to an amount proportioned to the
[Page 487]
degree of fault attributable to the defendant.
The first would give a right of action where none existed before, and the
second would deprive the dependants of full compensation for the loss they had
sustained by the death. But the statutory provisions which would be thus
amended are of the very essence of the Fatal Accidents Act. The
amendments would alter not only the purpose of the Act but also the extent of
its application, and that without the slightest reference thereto in the Contributory
Negligence Act. Amendments so important and far reaching in their
operation, cannot, in my opinion, be implied simply from a statutory provision
giving a right of action to a person injured, where he himself has been guilty
of contributory negligence. In In re Cuno; Mansfield v. Mansfield, Bowen L.J. said:—
In the construction of statutes, you must
not construe the words so as to take away rights which already existed before
the statute was passed, unless you have plain words which indicate that such
was the intention of the legislature.
and in Craies on Statute Law (3rd ed.), the same
principle is enunciated. At page 105 the author says:—
Express and unambiguous language appears to
be absolutely indispensable in statutes passed for the following purposes:— * *
* (2) Conferring or taking away legal rights, whether public or private; * * *
and at page 109 he uses this language:—
Therefore rights, whether public or
private, are not to be taken away, or even hampered, by mere implication from
the language used in a statute, unless, as Fry J., said in Mayor, etc., of
Yarmouth v. Simmons “the
Legislature clearly and distinctly authorize the doing of something which is
physically inconsistent with the continuance of an existing right.
In enacting the Contributory Negligence Act the
Legislature gave a right of action to a plaintiff guilty of contributory
negligence, but gave it in express and unambiguous language. It does not
expressly give any other right; nor does it take away any right except the
right of a defendant to set up the contributory negligence of the plaintiff as
a defence which results from the right given. I can see nothing in the exercise
of the right given which is inconsistent with the continuance of the right of
the dependants of a deceased person, killed by the fault of another, to recover
the damages awarded to them by the Fatal Accidents Act. Nor can I see
how the granting of that right can, by any implication, take away the immunity
from liability which the defendant theretofore enjoyed unless his wrong-
[Page 488]
ful act or negligence caused (not simply
contributed to) the death of the deceased. Full effect can be given to the language
of the Contributory Negligence Act without interfering with the rights
or immunities enjoyed under the Fatal Accidents Act beyond what is
necessary to give effect to the cause of action expressly given by the former
Act. Had the Legislature intended to amend the latter Act in these respects, it
would, I feel sure, have done so in express language. For this court to amend
it would, in my opinion, be legislation and not interpretation.
If the Legislature thinks the cause of action
given to the dependants by the Fatal Accidents Act should be available
to them but with reduced damages where the death has been caused by the joint
negligence of the defendant and the deceased, it has only to say so. It not
having said so, the plaintiff in this case, in my opinion, has been unable to
establish the conditions upon which her right to sue depends. Her action
should, therefore, be dismissed.
Order of the Appellate Division
varied, and the new trial to be limited to certain questions and matters.
Solicitors for the appellants: Robinson
& Haines.
Solicitor for the respondents: R.E.
Laidlaw.
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