Supreme Court of Canada
Kolodychuk v. Squire, [1973] S.C.R. 303
Date: 1972-12-22
Mildred Marie Kolodychuk, (Administratrix of the Estate of Jack Roger Kolodychuk) (Plaintiff) Appellant;
and
William Arthur Squire (Defendant) Respondent.
1972: November 23; 1972: December 22.
Present: Martland, Ritchie, Hall, Spence and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Negligence—Fatal accident—Negligence on part of both deceased and defendant—Percentages of fault varied by Court of Appeal—Judgment of Court of Appeal varied as to apportionment by Supreme Court.
In an action arising out of an accident which resulted in the death of the plaintiff’s husband, the trial judge found that both the deceased and the defendant had been negligent and that the negligence of the two of them caused the accident. The trial judge assessed the degrees of fault under the provisions of the Contributory Negligence Act, R.S.B.C. 1960, c. 74, at 40 per cent on behalf of the deceased and 60 per cent on behalf of the defendant. In the Court of Appeal by a majority judgment, the percentages of fault were varied to assess 75 per cent against the deceased and 25 per cent only against the defendant. Branca J.A., dissenting in part, would have fixed the deceased’s fault at 60 per cent and the defendant at 40 per cent.
Held (Spence J. dissenting): The appeal should be allowed, the judgment of the Court of Appeal varied and the cross-appeal dismissed.
Per Martland, Ritchie, Hall and Laskin JJ.: The conclusion reached by the Court of Appeal that the trial judge erred in apportioning the major blame for the accident upon the defendant was correct. At the same time, in a case involving the apportionment of liability, due regard should be given to the view expressed by the trial judge, and, for this reason, the apportionment fixed by Branca J.A. was adopted.
Per Spence J., dissenting: The appeal should be allowed and the judgment at trial restored. The trial judge noted all the factors in evidence which he believed bore on the question of the negligence of the deceased and the defendant. The Court of Appeal did
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not alter any finding of fact and did not disagree with his judgment on any question of law but was simply of the opinion that he had erred in assessing too large a share of the liability against the defendant. The Court of Appeal thereby took a course exactly contra to that recommended in many authorities. The Court of Appeal was not entitled to do so, nor was this Court entitled to either approve the course adopted by that Court or to vary it in order to reflect it’s own view as to the proper apportionment of the liability. Cook v. Tully, [1971] 5 W.W.R. 94, distinguished.
APPEAL and CROSS-APPEAL from a judgment of the Court of Appeal for British Columbia, allowing an appeal from a judgment of Dohm J. Appeal allowed and judgment of the Court of Appeal varied; cross-appeal dismissed; Spence J. dissenting.
W.A. Craig, Q.C., for the plaintiff, appellant.
A.D. McEachern, for the defendant, respondent.
The judgment of Martland, Ritchie, Hall and Laskin JJ. was delivered by
MARTLAND J.—I would not be prepared to disturb the concurrent findings of the Courts below that both the respondent and the deceased, Kolodychuk, were negligent. I am in agreement with the conclusion reached by the Court of Appeal that the learned trial judge was in error in apportioning the major blame for the accident upon the respondent. At the same time, in a case involving the apportionment of liability, due regard should be given to the view expressed by the trial judge, and, for this reason, I would adopt the apportionment fixed by Branca J.A., i.e., 40 per cent to the respondent and 60 per cent to the appellant, rather than that determined by the majority of the Court of Appeal. Accordingly, I would allow the appeal and would vary the judgment of the Court of Appeal by apportioning liability 60 per cent against the appellant and 40 per cent against the respondent, by determining the amounts recoverable by the appellant and the four infant children accordingly, and by awarding to the appel-
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lant the costs of the trial. The appellant should be entitled to the costs of the appeal to this Court. The cross-appeal should be dismissed without costs.
SPENCE J. (dissenting)—This is an appeal from the decision of the Court of Appeal for British Columbia which by its judgment delivered on February 23, 1972, allowed an appeal from the judgment of Dohm J. given on January 15, 1971.
The learned trial judge had found that both the deceased husband of the plaintiff and the defendant had been negligent and that the negligence of the two of them caused the accident which resulted in the late Jack Roger Kolodychuk’s death. The learned trial judge assessed the degrees of fault under the provisions of the Negligence Act at 40 per cent on behalf of the deceased Kolodychuk and 60 per cent on behalf of the defendant Squire.
In the Court of Appeal by a majority judgment, the percentages of fault were varied to assess 75 per cent against the deceased Kolodychuk and 25 per cent only against the defendant Squire. Mr. Justice Branca, dissenting in part, would have fixed the deceased Kolodychuk’s fault at 60 per cent and the defendant’s fault at 40 per cent.
Mr. Justice Martland is delivering reasons for judgment of the majority of this Court adopting the view of Branca J.A. and allowing the appeal to that extent: 60 per cent fault upon the late Jack Kolodychuk and 40 per cent upon the respondent Squire.
Had I been assessing the degrees of fault as a trail judge, I would have been of the same view as the majority of this Court. I must, however, have in mind that I am not sitting as a trial judge nor were the members of the Court of Appeal in British Columbia. The question as to the variation of assessment of degrees of fault made by a trial judge has been discussed in many cases in the United Kingdom and in this Court. Although perhaps a majority of those cases deal with collisions between vessels, in my view, the prin-
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ciples are equally applicable to accidents of other types.
In The Karamea, the Court of Appeal considered an appeal from the judgment of Hill J. given after trial of an action in reference to a marine collision. It was stressed to the Court of Appeal that it should vary the degrees of fault found by the trial judge. Scrutton L.J. said at p. 88:
The only other point that I desire to mention is that I entirely agree with my brethren in this, that if you agree with the findings of fact and law of the learned Judge below, and the only difference is that the Court of Appeal attaches more importance to a particular fact than he did, it would require an extremely strong case to alter the proportions of blame which the learned Judge below has attributed to the ships.
The Court refused to vary the percentages and its judgment was upheld in the House of Lords in S.S. Haugland v. S.S. Karamea.
In S.S. Hontestroom v. S.S. Sagaporack, the problem came again before the House of Lords. At trial, the President of the Probate and Admiralty Division had found that the Sagaporack was solely to blame for the collision. In the Court of Appeal, the Hontestroom was found solely to blame. In the House of Lords, the decision of the Court of Appeal was reversed and the decision of the President was restored. Lord Sumner said at p. 47:
Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII., r.1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the
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trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.
In S.S. Kitano Maru v. S.S. Otranto, the House of Lords again considered a judgment of the Court of Appeal which had varied a judgment of Hill J. in an action arising out of a collision between two ships. Lord Buckmaster said at the close of his reasons:
Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or fact in his judgment it ought not to be disturbed.
(The italics are my own.)
Finally, in The Umtali, the House of Lords again considered an appeal from the Court of Appeal which had held the Umtali alone to blame reversing Bucknill J. who had held both vessels equally to blame. Lord Wright, giving the main reasons for the House of Lords, said at p. 117:
I am of opinion that both vessels were seriously to blame. It was contended by the appellants that in that event this House should vary the apportionment of liability which the judge has found, because it was said the misconduct of the Umtali in porting was very gross and that of the Corrientes was slight in comparison. But I agree with the judge’s apportionment. I think with him that both vessels were seriously to blame and that there is no satisfactory reason for saying that one is to blame more than the other. The assessors sitting with your Lordships also take that
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view, as did those sitting with the judge. I ought to add that it would require a very strong and exceptional case to induce an Appellate Court to vary the apportionment of the different degrees of blame which the judge has made when the Appellate Court accepts the findings of the judge. I doubt that there ever could be a case where the Appellate Court would take that course, but certainly this is not such a case.
In this Court, in The S.S. Benmaple v. S.S. Lafayette, the Court considered an appeal from the judgment of Angers J. of the Exchequer Court in which he had varied the judgment of Demers D.J.A. The latter had held that the Benmaple was three-quarters at fault and the Lafayette one-quarter. Angers J. held that the fault was wholly that of the Benmaple. Davis J., at p. 75, after referring, inter alia, to the Karamea, supra, said:
We have come to the conclusion that the learned trial judge was justified in his view that there were different degrees of fault of the two vessels in collision and we are not satisfied that in making the apportionment he did he was in any degree acting either on any wrong ground of law or conclusion of fact.
(The italics are my own.)
In Bell & MacLaren v. Robinson, this Court was considering an action which arose out of an automobile accident. The trial judge had found that the negligence of the driver of the defendant’s vehicle was the sole cause of the accident. The Court of Appeal of New Brunswick had varied that judgment awarding 50 per cent of the negligence to each party Ritchie J., at p. 615, said:
This seems to me to be a case to which the observations of Lord Sumner in S.S. Hontestroom v. S.S. Sagaporack, [1927] A.C. 37, recently approved by this Court in Prudential Trust Company v. Forseth, (1960) 21 D.L.R. (2d) 587 at 593, and Semanczuk v. Semanczuk, [1955] S.C.R. 658 at 677, [1955] 4
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D.L.R. 6, have particular application. Lord Sumner there said at pp. 47-8:
“…Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial Judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”
It is not suggested that the learned trial judge acted on any wrong principle in attributing the cause of the collision entirely to the negligence of Giddens, and I can see no indication of his having either failed to use or having misused the advantage afforded to him by seeing and hearing the witnesses, nor has the Appeal Division cast any reflection on the honesty of any of the witnesses upon whose testimony his findings are based.
Finally, in The Ship Pacific Wind v. Johnson et al., Ritchie J. at pp. 58-9, said:
The difficult problem of measuring the degrees of fault in the navigation of two ships is one which, as Lord Buckmaster said in the House of Lords in SS. Kitano Maru v. SS. Otranto, [1931] A.C. 194 at 204:
“…is primarily a matter for the judge at the trial, and unless there is some error in law or fact in his judgment it ought not to be disturbed.”
The matter was put with perhaps greater force by Lord Justice Scrutton in The Luso (1934), 49 L1.L.R. 163, where he said at page 165 with respect to a finding at trial which had established different degrees of fault between two vessels:
“…before the Court of Appeal ought to interfere with that finding they must be able to put their finger on something and say that the learned Judge has been wrong on some particular point and that
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that particular point is so substantial that if he had taken what we say is the right view of it he must have altered the proportion of damage.”
Both these last quoted cases are referred to with approval in this Court by Davis J. in S.S. Benmaple v. Ship Lafayette, [1941] S.C.R. 66 at 75, 1 D.L.R. 161, where he applied the same principle; saying of the trial judge in that case:
“…we are not satisfied that in making the apportionment he did he was in any degree acting either on any wrong ground of law or conclusion of fact.”
The decision of Lord Sumner in S.S. Hontestroom v. S.S. Sagaporack, [1927] A.C. 37 at 47, which was cited with approval by Martland J. in Prudential Trust Co. Ltd. v. Forseth, [1960] S.C.R. 210 at 216, 30 W.W.R. 241, 21 D.L.R. (2d) 587, is to the same effect.
In the present case, the learned trial judge noted all the factors in evidence which he believed bore on the question of the negligence of the late Roger Kolodychuk and the respondent Squire. The Court of Appeal did not alter any finding of fact and did not disagree with his judgment on any matter of law but was simply of the opinion that he had erred in assessing too large a share of the liability against the respondent Squire. In other words, in my view, the Court of Appeal took a course exactly contra to that recommended in the many authorities which I have cited. I do not think the Court of Appeal was entitled to do so and I feel that we are not entitled to either approve the course adopted by that Court or to vary it in order to reflect our own view as to the proper apportionment of the liability.
It was argued before us that a late decision in this Court, Cook v. Tully, would justify our doing so. In that case, the learned trial judge had assessed the apportionment of liability in an accident involving a collision between a pedestrain and a vehicle at 66 2/3 per cent against the pedestrian. His judgment was affirmed on
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appeal. On further appeal to this Court, the percentages were reversed and the defendant driver was found to be two-thirds at fault. The judgment was given orally and I quote it verbatim:
Martland J. (orally): With great respect to the judgment of the Court of Appeal in this case, and realizing that the same division of responsibility has been assessed by both Courts below, we do not think that the division made pays sufficient regard to the fact that this is a case in which the plaintiff was a pedestrian in a marked crosswalk, who had the right of way, and who had proceeded 21 feet into that walk before she was struck. Both Courts below have found the defendant to be negligent. This being so, it is our view that the respondent should be found to be responsible for the accident in the degree of 66 2/3 per cent. The appeal should be allowed and the judgment at trial amended accordingly. The appellant should have costs in this Court and in the Court below.
I was a member of this Court and this Court was much moved by a consideration of the fact that the evidence upon which the learned trial judge came to his conclusion was that of the driver of another vehicle at the intersection and an examination of that evidence showed that such driver of the other vehicle could not make the observations to which he deposed and that therefore his evidence was a mere conjecture leaving the plaintiff in the position of a person who is struck by a vehicle when she was in a pedestrian crosswalk. In my view, the case is not an authority for any variation of the percentages as found by a trial judge unless there is found an error in law or a misapprehension of the facts by the trial judge.
I therefore would allow the appeal and restore the judgment at trial. The appellant is entitled to her costs throughout.
Appeal allowed, judgment varied, with costs; cross-appeal dismissed without costs; SPENCE J. dissenting.
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Solicitors for the plaintiff, appellant: Boughton, Street & Co., Vancouver.
Solicitors for the defendant, respondent: Russell, DuMoulin & Co., Vancouver.
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