Dumesnil v. Sheehy, [1976] 1 SCR 152

Supreme Court of Canada

Dumesnil v. Sheehy, [1976] 1 S.C.R. 152

Date: 1974-06-28

Paul Dumesnil (Defendant) Appellant;

and

Dame Antoinette Sheehy (Plaintiff) Respondent.

1974: March 25; 1974: June 28.

Present: Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Motor vehicle—Accident—Negligence—Vehicles not in contact—Motorist stopping at intersection rather than stop sign—Negligence not established—Highway Victims Indemnity Act, R.S.Q. 1964, c. 232, s. 3—Highway Code, R.S.Q. 1964, c. 231, ss. 40, 45.

Jacques Prévost, the husband of respondent, died after overturning at the intersection of a highway and a secondary road in attempting to avoid a collision with the appellant’s car. His car did not come into contact with that of appellant. The trial judge concluded that appellant had to rebut the presumption of s. 3 of the Highway Victims Indemnity Act, and found him solely responsible for this accident, because he should have stopped at the stop sign and not at the intersection itself, and because he was occupying more than half of the road. The Court of Appeal rejected these propositions of law but concluded that both drivers were jointly liable because they failed to keep to the right, with the result that they were obliged to swerve at the last minute to avoid a collision. Appellant seeks to establish that he committed no fault, and respondent to have the trial judgment reinstated.

Held: The appeal should be allowed.

Before s. 3 of the Highway Victims Indemnity Act can be relied on, the plaintiff must show that the effective cause of the damage was the automobile owned by the defendant. It follows that s. 3 does not operate in favour of the plaintiff since the proof of effective causation requires proof of all the circumstances. By placing a burden of proof on the defendant, appellant, the trial judge proceeded to analyse the facts on the basis of an erroneous principle.

The provisions to be applied here are those of s. 40 of the Highway Code. The stop sign affords a right of way to vehicles travelling on the main highway, not to those

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on the secondary road who encounter a car on that road. Reading ss. 40 and 45 of the Highway Code indicates that appellant’s obligation was to stop, not at the stop sign itself, but before entering the intersection. Furthermore, whatever the obligation of appellant as to his stopping point, Jacques Prévost was not entitled to the entire width of the road, whether the encounter occurred at the stop sign or halfway between the latter and the intersection.

In the face of these errors of law and of fact by the trial judge, and in the absence of any opinion on the credibility of the testimony, it goes without saying that this Court is in the same position as the Court of Appeal. It should re-examine the record to determine whether the evidence as a whole suggests that appellant committed a fault giving rise to liability. It is therefore impossible to conclude that respondent has established by a preponderance of the evidence that the accident was caused through the fault of appellant.

Nadeau v. Gareau, [1967] S.C.R. 209, referred to.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, modifying a judgment of the Superior Court. Appeal allowed.

Gilles Y. Renaud, for the defendant, appellant.

Paul Leduc, for the plaintiff, respondent.

The judgment of the Court was delivered by

DE GRANDPRE J.—Following a highway accident which resulted in the death of Jacques Prévost, on August 6, 1965, respondent claimed compensation from appellant on her own behalf and that of her minor children. The Superior Court found appellant solely responsible for the accident, and the Court of Appeal concluded that both drivers were jointly liable. Both parties are now seeking action by this Court, appellant to establish that he committed no fault and respondent to have the trial judgment reinstated.

It may be noted at once that the quantum of damages determined by the trial judge is accepted by both parties.

The car driven by the deceased Jacques Prévost did not come into contact with that of appellant.

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Respondent argues, however, that her husband had to swerve to the right, and overturned at a point off the highway, due to the fault of appellant, who was coming in the opposite direction.

The meeting between the two cars took place on a secondary highway known as “Golf Road”, about thirty feet south of highway 46, a short distance outside Ville-Marie. Before proceeding further the location should be described:

(1) at the site of the encounter Golf Road is paved to a width of 17 feet;

(2) this secondary road slopes down from highway 46, with a considerable difference in level, established at 28 feet for a distance of 217 feet;

(3) the pavement on highway 46 is 22 feet wide;

(4) the fork between highway 46 and Golf Road is of a particular shape which might be described as an incomplete Y;

(5) a driver travelling from north to south along highway 46 moves along the trunk and left branch of the incomplete Y, the left branch making a long turn to the east;

(6) if the driver travelling from north to south in this way wants to get onto Golf Road, he must take the right branch of the Y, which makes an eight-degree angle with the trunk;

(7) at the intersection of highway 46 with Golf Road, that is at the point where the two branches of the Y meet, the pavement of highway 46 slopes from west to east, at an incline of about four in one hundred.

The deceased Jacques Prévost was travelling from north to south along highway 46, and wanted to turn onto Golf Road. As indicated by the description of the location, it was thus necessary for him to swerve to the right slightly, and begin a descent. At the same time appellant was travelling from south to north along Golf Road and, when the cars met, was preparing to stop, at the intersection itself and not at the signal situated 51 feet away from the junction of the two roads.

As noted by Gagnon J.A. in the Court of Appeal, we have only two eyewitnesses to aid us in

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establishing the position of the cars in the moments preceding the accident: Alfred Prévost (father of the deceased) and appellant. Both stated that the other car was encroaching on the wrong side of the road. Before considering the effect of this testimony in light of all the evidence, we must examine whether the trial judge was correct in asserting that s. 3 of the Highway Victims Indemnity Act (c. 232) applies in the circumstances, and that appellant should be held responsible if the evidence does not show that the damage occurred without any fault on his part. That section, it will be recalled, states:

3. The owner of an automobile is responsible for all damage caused by such automobile or by the use thereof, unless he proves

(a) that the damage is not imputable to any fault on his part or on the part of a person in the automobile or of the driver thereof…

This section replaced s. 53 of the former Motor Vehicles Act, R.S.Q. 1941, c. 142, a section which the courts have consistently held did not create a presumption in cases such as the one at bar. In both Acts the provision refers to the “cause” of damage, and I would refer here to the opinion of Fauteux J., as he then was, delivering the Court’s opinion on this point in Nadeau v. Gareau[1] at p. 218:

[TRANSLATION] A legislature is not presumed to have the intention of making fundamental changes in the law beyond what it has explicitly indicated, whether expressly or by necessary implication, or, in other words, beyond the immediate scope and object of the new law.

It is true that in that case the question was whether s. 3 of the Highway Victims Indemnity Act still allows a driver to plead the fault of his victim. The fact remains that the general interpretation to be given to this Act must take into account the principle stated in that case.

Moreover, analysis of the words used leads inevitably to the conclusion that before s. 3 of the Highway Victims Indemnity Act can be relied on the plaintiff must show that the effective cause of the damage was the automobile owned by the

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defendant. So long as this has not been established the section does not apply. It follows that in all cases where damage is suffered in circumstances like those before the Court, s. 3 does not operate in favour of the plaintiff since the proof of effective causation requires proof of all the circumstances.

By placing a burden of proof on appellant as he did, therefore, the trial judge proceeded to analyse the facts on the basis of an erroneous principle. But that is not all.

It was admitted in argument that, in approaching the intersection, appellant did not stop at the stop sign situated 51 feet from the junction of the two roads. He explained that if he had stopped at the sign, he would not actually have been able to see traffic in both directions on highway 46. He therefore continued moving at a decreasing speed, and was preparing to stop at the intersection itself, when about thirty feet away from it he was met by the car of Jacques Prévost. The trial judge held that appellant was at fault for not stopping at the stop sign.

Gagnon J.A., in the Court of Appeal, rejected this finding:

[TRANSLATION] In my view, the, provisions to be applied are those of subs. 14 and 15 of s. 40 of the Highway Code. The stop sign affords a right of way to vehicles travelling on the main highway, not to those on the secondary road who encounter a car on that road. Section 45 of the Highway Code, which requires drivers to obey traffic signals and the orders and signals of a peace officer, and imposes on every driver an obligation to come to a full stop at a stop sign, only affirms and clarifies the rule laid down in s. 40, at least so far as cases of this kind are concerned. Appellant was required to come to a full stop before entering highway 46, and was also required to yield the right of way to any traffic on that highway. Nor was he obliged to stop at the sign because the road was a foot narrower between the sign and the intersection, though he should have used extra caution. He was required to make one stop, not two. On the other hand, he could not have used a stop made 51 feet from the intersection as an argument for having fulfilled his obligations towards those having a right of way.

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I concur in that view. Reading ss. 40 and 45 of the Highway Code convinces me that appellant’s obligation was to stop, not at the stop sign itself, but before entering the intersection.

After concluding that appellant had an obligation to come to a full stop at the stop sign, the trial judge pursued his analysis of the respective rights of the parties, and concluded that the deceased Jacques Prévost was entitled to make use of the entire width of the secondary highway, over the whole distance between highway 46 and the stop sign. He blamed appellant for having reduced this space by almost half by not stopping at the sign, and observed:

[TRANSLATION] Indeed, defendant actually proceeded at 25 or 30 m.p.h., passing the stop sign and reducing to a distance of 25 or 30 feet the narrow road where Mr. Prévost had to prepare to meet; instead of having a rectangle 17 by 50 feet, he had only an area of 17 by 30 feet, which is less than the length of two automobiles.

That proposition is clearly unacceptable. Whatever the obligation of appellant as to his stopping point, the deceased Jacques Prévost was not entitled to the entire width of the road, whether the encounter occurred at the stop sign or halfway between the latter and the intersection. This proposition put forward by the trial judge leads me to conclude that the accident could very probably have occurred just as easily if appellant had made his stop at the sign.

I now turn from the law to the facts. In its examination of the record the Court of Appeal, through Gagnon J.A., notes “manifest errors of the trial judge in his assessment of the evidence”. I shall not reiterate the detailed study of those errors, but reference should be made to certain of them, as I feel the conclusion of the Court of Appeal on the point is unassailable.

(1) It was physically impossible for Jacques Prévost, in view of the nature of the accident site, to travel in a straight line, and his two passengers, namely his father Alfred and his uncle Emilio, were mistaken in asserting that he could;

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(2) the route that the deceased Jacques Prévost had to take in order to enter Golf Road could not be a wide curve;

(3) the evidence does not indicate any change of direction by the Prévost automobile before its driver made a sharp swing to the right, which propelled Emilio Prévost, sitting in the middle of the front seat, against the driver, and which terminated off the side of the road, where the Prévost car came to a stop on its left side, its front facing north, about twelve feet west of Golf Road;

(4) “There is no proof that at the time the two cars met the Prévost car was on the shoulder”.

In the face of these errors of law and of fact by the trial judge, and in the absence of any opinion on the credibility of the testimony, it goes without saying that this Court is in the same position as the Court of Appeal. It may and it should re-examine the record to determine whether the evidence as a whole suggests that appellant committed a fault giving rise to liability.

All that respondent alleges against appellant is that he did not keep to the right, and created a dangerous situation, thereby forcing her husband, who feared a collision, to swing the wheel to the right. This was the proposition accepted by the Court of Appeal, as indicated by Gagnon J.A.,

[TRANSLATION] There was only one occupant of each car who saw the other car a few moments before the encounter: Alfred Prévost and appellant. The former contended the latter was driving in the middle of the road. I see no reason to discount his testimony, especially as appellant admitted he might have been driving two feet from the eastern edge of the pavement until he swerved to the right at the last minute. That puts him quite near the centre, and it should be noted, as the trial judge pointed out, that his depositions reflect uncertainty and contain several contradictions as to his speed and certain distances.

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On the other hand, appellant stated that Prévost was taking the curve on the wrong side, and this was not contradicted by either of the passengers in Prevost’s car. Both of them maintained that their driver was proceeding in a straight line. Emilio Prévost stated that it was quite close to the intersection that he was pushed onto the driver by the latter’s sudden swerve to the right. If the car had been on its own side when this sudden swerve took place, it would have gone into the ditch very close to the intersection. Appellant estimated Prevost’s speed at a minimum of 40 m.p.h., while the Prévosts placed it at about 35 m.p.h. Such a speed at this location, on the wet surface, explains why Prévost had to swerve suddenly, and may have had something to do with the fact that he did not have better control of his car.

I therefore conclude that, in a location where visibility was reduced for each driver, and where the physical conformation, in particular the sharp incline and the narrowness of the pavement, called for great caution, both drivers failed to keep to the right, with the result that they were obliged to swerve at the last minute to avoid a head-on collision, and this twofold negligence was the cause of the accident. In my opinion the liability should be shared equally.

With respect, I cannot subscribe to that conclusion. It is true that the testimony of appellant contained uncertainty and some contradiction. However, nowhere does he admit anything suggesting he was not on his own side of the road. Indeed, as his car measured 6½ feet, and the space on his right before his swerve towards the shoulder was at most two feet, he thus took up a maximum of 8½ feet on a highway which was 17 feet wide. It must be recalled that at this point his speed was decreasing, as he had to stop a few feet further on.

Furthermore, the testimony of Alfred Prévost is subject to reservation. As Gagnon J.A. himself notes in another part of his reasons, he was certainly mistaken when he alleged that his son Jacques did not have to pull to the right to enter Golf Road. I am satisfied by the body of the evidence that at the time Alfred Prévost saw appellant’s car, the car in which Prévost was riding was not on its own side of the road, but was trying to regain the right hand side while proceeding at 30-35 m.p.h. down a steep incline, after leaving a

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main highway where the pavement sloped from west to east, which so far as the deceased Jacques Prévost was concerned was from right to left. In other words, Alfred Prévost was not really very well placed to determine the exact position of appellant’s car at that moment.

Judging merely from the testimony of the only two witnesses, I do not see, and I say so with all due respect, how it can be concluded that respondent has established fault by appellant. On the basis of the only oral accounts, appellant’s actions do not appear to have been at fault.

This conclusion is reinforced, if need be, by the braking and skid marks (to use the witness’s own term) found by Officer Lortie within an hour after the accident. In his testimony Lortie stated, and re-affirmed, that from what he could see the marks were left by the car of the deceased Jacques Prévost. Though admitting that this was a “quite clever and logical” theory, the trial judge declined to admit that the marks were really made by the Prévost car. In reaching such a conclusion, the trial judge did not impugn the veracity of Lortie as a witness, but he gave seven reasons which he said convinced him that “Mr. Lortie’s sketches and statements are incorrect and inaccurate”.

This view was not shared by the Court of Appeal, though it did not lay any real stress on the point in the remarks of Gagnon J.A.:

[TRANSLATION] When Lortie arrived on the scene he saw a long continuous mark, which he followed from a point thirty feet from the south-west corner of the intersection, on the pavement and then on the shoulder, and into the ditch, to the spot where he found the Prévost car. There was another mark alongside the first, but it was not continuous. The lack of accuracy in his testimony related to such facts as the position of the stop sign, which he did not check himself.

The Court of Appeal raised a question as to the “evidentiary value of this mark”. For my part, I see it as testimony far superior to that of the two eyewitnesses, and as a complete answer to all questions raised by the record. In view of this mark, the statement made by Alfred Prévost that

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appellant was in the middle of the road cannot be regarded as the determining cause of the accident. The mark established that eight feet south of the intersection the left wheels of the Prévost car occupied 13.5 feet of a pavement which was 17 feet wide. It is therefore impossible to conclude that respondent has established by a preponderance of the evidence that the accident was caused through the fault of appellant.

I would therefore allow the appeal and dismiss the action with costs in all Courts.

Appeal allowed with costs.

Solicitors for the defendant, appellant: Page, Beauregard, Duchesne, Renaud & Desmarais, Montreal.

Solicitors for the plaintiff, respondent: Bisaillon, Leduc & Vallée, Montreal.