Taylor v. Asody, [1975] 2 SCR 414

Supreme Court of Canada

Taylor v. Asody, [1975] 2 S.C.R. 414

Date: 1974-10-01

Robert Taylor (Plaintiff) Appelant;

and

Emerick Asody (Defendant) Respondent.

1974: May 8; 1974: October 1.

Present: Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Appeal—Variation of apportionment of negligence by Court of Appeal—The Negligence Act, R.S.O. 1970, c. 296 s. 5.

Negligence—Contributory negligence—Apportionment of fault.

Respondent was crossing a street between intersections and when three-quarters of the way across was struck by an automobile which was backing up at 3 to 4 m.p.h. It was daylight but respondent did not hear or see the vehicle which reversed some thirty five feet to the point of impact. The motorist did not see the respondent while reversing. The trial judge concluded that both parties could have avoided the accident by showing care and applied s. 5 of The Negligence Act, R.S.O. 1970, c. 296 the effect of which is to apportion blame on a 50-50 basis. The Court of Appeal varied the apportionment.

Held (Spence and Dickson JJ. dissenting): The appeal should be allowed with costs.

Per Pigeon, Beetz and de Grandpré JJ.: The only question to be determined is the apportionment of liability. The Plaintiff had the obligation when crossing a downtown street between intersections to keep his eyes on all traffic and failed to see what was plainly visible. To apportion the liability between the parties in unequal degrees was not practicable and the trial judge correctly applied s. 5 of The Negligence Act.

Per Beetz J.: The finding by the trial judge that it was not practicable to apportion liability between the parties in unequal degrees is a finding of fact which ought not to be interfered with on appeal except in a case of demonstrable error.

Spence J. dissenting: The case of Kolodychuk v. Squire, [1973] S.C.R. 303, should be distinguised particularly with reference to the dissenting judgment therein. In the present appeal the trial judge did not

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arrive at a conclusion as to apportionment of damages. The Court of Appeal was not therefore reversing the apportionment of the trial judge but was making such apportionment for the first time.

Per Spence and Dickson JJ. dissenting: The trial judge having admitted an inability to arrive at any fixed conclusion and having applied s. 5 of The Negligence Act (which is not intended to relieve a trial judge of the difficult duty of apportioning fault and negligence but rather for cases in which due to lack of evidence it is impossible to determine respective degrees of fault), the Court of Appeal is free to excercise its independent judgment. The fault attributed to the driver of the vehicle by the Court of Appeal was within an acceptable range.

[Lalonde v. Kahkonen, [1972] 1 O.R. 91; Kolodychuk v. Squire, [1973] S.C.R. 303 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario varying a judgment of Richardson J. at trial. Appeal allowed with costs, Spence and Dickson JJ. dissenting.

B. O’Brien, Q.C., for the appellant.

D.W. Goudie, Q.C., for the respondent.

SPENCE J. (dissenting)—I have had the opportunity of considering both the reasons for judgment which are being delivered by both my brother Dickson and my brother de Grandpré. After carefully considering them, I have come to the conclusion that I must concur with the opinion expressed by the former. However, in view of my brother de Grandpré’s reference to my dissenting judgment in Kolodychuk v. Squire[1], I feel I must delineate why I distinguish the opinion I expressed in that case from the present appeal.

In Kolodychuk v. Squire, the learned trial judge had assessed the negligence at 40 per cent against the deceased plaintiff and 60 per cent against the defendant. The majority of the Court of Appeal had altered that apportionment and assessed 75 per cent of the negligence against the deceased plaintiff and 25 per cent against

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the defendant. Branca J.A. in the Court of Appeal for British Columbia would have assessed the negligence of the deceased plaintiff at 60 per cent and that of the defendant at 40 per cent. The majority of this Court accepted the view of Branca J.A. and therefore again varied the apportionment. It appeared, under those circumstances, that the authorities which I cite in my dissenting judgment and which are again recited by my brother de Grandpré in the present appeal were strongly against such variation of the apportionment of damages by the appellate courts. At p. 310, I said:

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.

In the present case, the learned trial judge, after an analysis of the evidence and reference to certain authorities, said:

As I have said earlier, I have not had too much trouble in arriving at decisions in motor vehicle cases. In this particular instance I have given a great deal of thought to the question of the division of liability or contributory negligence on the part of the plaintiff. I have been unable to arrive at any fixed conclusion and accordingly I apply Section 5 of The Negligence Act in that I find it is not practicable to determine the respective degrees of fault as between the parties and, accordingly, find the parties equally at fault. In the result there will be judgment for the plaintiff for half the sum of the damages, which were agreed on at the sum of $65,000.00, namely $32,500.00, and his costs of the action.

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He, therefore, did not arrive at a conclusion as to the apportionment of damages and simply used the technical provisions of s. 5 of The Negligence Act. That section provides:

5. If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent.

The learned trial judge therefore found it was not practicable to determine the respective degrees of fault.

The Court of Appeal for Ontario, by its unanimous judgment, found it was practicable to determine the respective degrees of fault and I am of the opinion it was correct in so finding and in so doing did not have to leave the findings made by the learned trial judge.

I am, therefore, of the opinion that this was a case in which the Court of Appeal was not reversing an apportionment made by the learned trial judge but was rather, for the first time, making such apportionment, the learned trial judge finding that it was not practicable to do so.

For these reasons, I would dispose of the appeal and cross-appeal as does my brother Dickson.

The judgment of Pigeon and de Grandpré JJ in which Beetz J. concurred was delivered by

DE GRANDPRE J.—I have no hesitation to accept the concurrent findings of the Courts below that the plaintiff respondent was negligent. The defendant appellant having already admitted the fact that he was partly at fault for the accident, the only question to be determined is the apportionment of the liability.

The trial judge applied s. 5 of The Negligence Act and found the parties equally at fault. The Court of Appeal, on an appeal by plaintiff,

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modified this apportionment and found the motorist 90 per cent to blame.

With all due respect, I cannot accept the conclusion reached by the Court of Appeal and I would restore the judgment at trial.

The facts are simple. The respondent, a pedestrian, in plain daylight, was crossing from west to east a 30 foot wide street in downtown Toronto between intersections. He was three‑quarters across when he was struck by an automobile which was then backing up from north to south, at three to four miles per hour, and which he had neither heard nor seen since it was put in reverse gear some thirty-five feet north of the point of impact. On his part, the motorist did not see the pedestrian when thus moving backwards.

Only the parties to the proceedings were heard as witnesses. The trial judge had, of course, the advantage of seeing their demeanor in the box and he emphasizes in his judgment that he had been “impressed with the manner in which the defendant gave his evidence” whereas he had this to say about the plaintiff:

The evidence of the plaintiff has caused me to review the evidence time and time again as to its accuracy. The plaintiff said when he was about 45 yards up the street he noticed a fellow employee walking up the east side of John Street. In one instance he said he knew the man and at another point said he only knew him through the fact of working with him at the same plant but not by name. This may not in itself be an important contradiction but it is one of those small things that sometimes help, along with others, to arrive at a proper conclusion.

After “having read and re-read the evidence”, the trial judge concluded that he could not accept the testimony of the plaintiff that he was practically in the middle of the street when the appellant’s motor car passed him, proceeding north. On the contrary, the trial judge found that plaintiff was still at the west curb at that time and this finding was accepted by the Court of Appeal in the following words:

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In those circumstances when the plaintiff moved from the west curb, as found by the trial judge, the motor vehicle was stopped and we think that it was not completely unreasonable for the plaintiff to keep his eye on that vehicle anticipating some unknown manœuvre from it.

In my view, the plaintiff had the obligation to keep his eyes on all traffic when crossing a downtown street between intersections. I share the opinion expressed by Schroeder J. in the Court of Appeal of Ontario in Lalonde v. Kahkonen[2], at p. 92:

Pedestrians in making a crossing at a regular street crossing, while they must exercise care, have higher rights than if they attempted to cross elsewhere. Equally, motorists are under a greater obligation to maintain a sharp look-out at such points, knowing it is the place where pedestrians cross from curb to curb. The pedestrian has an undoubted right to cross a highway not at a regular crossing for foot pedestrians, but in such a case a duty is cast upon him to take special care and to use greater vigilance—and for a very good reason—because drivers are given the knowledge that there are safety zones for the use of pedestrians and which they are ordinarily expected to use.

Here the pedestrian, notwithstanding the duty cast upon him, failed to see what was plainly visible. This failure is still more difficult to explain in the light of the evidence that he was crossing at a slight angle towards the north east.

On the whole, it is my view that the trial judge was right. Obviously, he came to the conclusion that both parties could have avoided the accident by showing greater prudence and I agree with his reading of the evidence. To apportion the liability between the parties in unequal degrees was not practicable and the trial judge correctly applied the rule of s. 5 of The Negligence Act.

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I do not see that the trial judge misconstrued the facts or misdirected himself as to the law. The Court of Appeal should not have modified the apportionment of liability.

In addition to the authorities referred to by my brother Dickson, with whom I find myself unable to agree, I wish to refer to Kolodychuk v. Squire[3].

I would therefore allow the appeal and restore the judgment at trial with costs throughout.

DICKSON J. (dissenting)—This is an appeal from a judgment of the Court of Appeal of Ontario which varied the apportionment of liability in a motor vehicle case. The trial judge, Richardson J., concluded his judgment in these words:

As I have said earlier, I have not had too much trouble in arriving at decisions in motor vehicle cases. In this particular instance I have given a great deal of thought to the question of the division of liability or contributory negligence on the part of the plaintiff. I have been unable to arrive at any fixed conclusion and accordingly I apply Section 5 of The Negligence Act in that I find it is not practicable to determine the respective degrees of fault as between the parties and, accordingly, find the parties equally at fault. In the result there will be judgment for the plaintiff for half the sum of the damages, which were agreed on at the sum of $65,000.00, namely $32,500.00, and his costs of the action.

The Court of Appeal allowed an appeal brought on behalf of the plaintiff pedestrian. Jessup J. A. for the Court said:

In the result, we agree with the learned trial Judge that there was some negligence on the part of the plaintiff. However, unlike him we do find it practicable to apportion the negligence between the plaintiff and the defendant; and having regard to the

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respective duties and responsibilities of the parties, we are of the opinion that an appropriate apportionment of liability would be to find negligence of 90% against the operator of the motor vehicle, the defendant, and 10% against the plaintiff.

The accident giving rise to the action occurred on December 23, 1969, at about 4:05 p.m., on John Street between Richmond and Queen Streets in the City of Toronto. John Street runs north and south. In the area in question the street was about thirty to thirty-two feet in width. Parking was not permitted. The plaintiff, a man about 40 years of age, employed at the Turnbull Elevator Company on the west side of John Street south of Richmond, left his place of employment with the intention of Christmas shopping at Simpson’s store on Queen Street, east of John. He walked north on John Street to Richmond, crossed with the traffic lights there, and continued north on the west side of John Street a distance of forty to forty-five yards. He then decided to cross John Street from west to east to join a fellow employee whom he observed on the opposite side of the street.

Meanwhile the defendant, driving westerly on Richmond Street in a 1968 Jaguar XKE coupe, detected that his car was overheating. Looking for a place to stop he made a right turn on to John Street and was slowly proceeding north when he noticed an alley on the west side of John Street into which he decided to turn, but by this time he had overshot the alley by twenty feet or so. He therefore came to a stop, shifted gears, backed up about twenty-five or thirty feet at a speed of three to four miles per hour. He looked back over his left shoulder as he reversed the car but failed to see the plaintiff and struck him. The plaintiff’s evidence was that he had walked to within two feet of the centre line of John Street where he paused to let a northbound car, which he thought to be that of the defendant, go by. He then continued his passage, angling slightly to the north, and was very near the east curb when he was struck. He

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failed to see or to hear the car until the moment of impact. The trial judge did not accept the plaintiff’s evidence that he had moved to within two feet of the centre line of John Street before the defendant’s car passed. The judge said:

From my examination of the evidence and some years of experience with motor vehicle cases, it is inconceivable to me that the plaintiff could stand 2 feet from a line, see a car coming to a gradual stop at a no parking location and yet he would not watch what that car was going to do. It is my opinion that he was not standing there at all. I have come to that conclusion from my review of the evidence.

I feel that what did happen was that the plaintiff saw this car coming to a stop. He thought it was coming to a stop to park, and he went in a fast walk across the road, and the reason he was not seen by the defendant as he was backing up was because he was in that blind spot that we know exists at the left rear corner of any vehcile. That no doubt is the reason for the admission of the failure to satisfy the statutory onus by the defendant. I am unable to arrive at any other conclusion but that this plaintiff did not exercise that degree of care which the law requires.

So far as the record discloses, neither the plaintiff, crossing the street at a place other than an intersection, nor the defendant, backing up his car on a city street, was in contravention of any law in so doing. The defendant driver, however, had the statutory onus to discharge and he owed the plaintiff a duty of care. He admitted in his statement of defence there was negligence on his part which contributed to the plaintiff’s loss but he alleged the plaintiff also was guilty of negligence which caused or contributed to the plaintiff’s loss. As for the plaintiff, he had a duty at common law to look out for his own safety. Both of the courts which have considered the case have considered the plaintiff was negligent and I would not disturb the concurrent findings.

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The issue is one of apportionment. The questions which arise are whether the Court of Appeal had the right to vary the finding of the trial judge that the parties were equally at fault, and, if so, whether the apportionment of liability by the Court of Appeal of 90 per cent against the operator of the motor vehicle and 10 per cent against the pedestrian was appropriate in all the circumstances?

Apportionment of fault is primarily and properly a matter within the discretion of the trial judge who has, as has so often been pointed out, the great advantage of seeing and hearing the witnesses, of observing demeanour, noting nuances of expression, detecting dissimulation. These are aids to judgment which cannot be reflected in the written record of a case and are, therefore, aids denied to an appellate court. We find, therefore, a consistent line of authority, exemplified by such English cases as The Karamea[4]; The Umtali[5]; British Fame v. MacGregor[6]; Brown v. Thompson[7] and by cases in this Court such as S.S. Benmaple v. Forseth[8] and Sparks and Fairfax v. Thompson[9] which establish the principle that except in a strong and exceptional case, an appellate court will not feel free to substitute its apportionment of fault for that made by the trial judge unless there has been palpable and demonstrable error in appreciation of the legal principles to be applied or misapprehension of the facts by the trial judge.

Is this a case in which the Court of Appeal was under such an inhibiting influence? I do not believe so, for the judge at trial did not explicitly apportion the respective degrees of fault. He admitted an inability to arrive at any fixed conclusion and applied s. 5 of the Negligence Act.

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The section in my view is not intended to relieve the trial judge of the difficult, often agonizing, duty of apportioning fault and negligence. The section is intended, I think, for those cases in which, due to an absence of witnesses or dearth of reliable evidence, it is impossible to reconstruct with any degree of assurance what occurred and therefore a determination of respective degrees of fault is not, as a purely practical matter, either feasible or indeed capable of attainment. That is not this case. The Court of Appeal in the instant case was free to perform the function of apportionment, not performed by the trial judge, without any of the usual constraints and enabled to exercise an independent judgment. When we consider then the degrees of fault which the Court in fact apportioned respectively to the driver of the vehicle and to the pedestrian, in my opinion the fault attributed to the driver of the vehicle was within, though at the upper limit of, an acceptable range. Backing up on a city street is a dangerous manoeuvre because of the poor backward visibility of the driver of the vehicle and because, although not uncommon, it is difficult for others to foresee that such a manoeuvre will be made. The potential danger to persons and property demands a high degree of care on the part of the motorist. The plaintiff, preoccupied, did not take reasonable care for his own safety but he had no reason to believe that the defendant’s vehicle would stop and almost immediately commence to back up.

I would dismiss the appeal and the cross-appeal with costs.

BEETZ J.—I have had the advantage of reading the opinions of Mr. Justice Dickson and of Mr. Justice de Grandpré.

I agree with Mr. Justice de Grandpré.

I wish to add that, in my view, the finding by a trial judge that it was not practicable to apportion liability between the parties in unequal

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degrees (s. 5 of The Negligence Act) is a finding of fact which ought not to be interfered with in appeal except in a case of demonstrable error.

Appeal allowed with costs.

Solicitors for the appellant: Smith, Lyons, Torrance, Stevenson & Mayer, Toronto.

Solicitors for the respondent: Thomson, Rogers, Toronto.