Supreme Court of Canada
The King v. Sincennes-McNaughton Line, Ltd., [1928]
S.C.R. 84
Date: 1927-10-04
His Majesty The
King (Defendant) .Appellant;
and
Sincennes-McMaughton
Line, Ltd. (Suppliant) Respondent.
1927: June 9, 10; 1927: October 4.
Present: Anglin C.J.C. and Duff, Mignault,
Newcombe and Rinfret JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Crown—Negligence—Collision—Canal—Probable
cause of accident—Exchequer court Act, s. 20.
The J.B.K. was proceeding down the Lachine
Canal to Montreal and she had passed through basin no. 1 into lock no. 1 where
she was duly moored to the side. While the water in the lock was being lowered
to enable her to pass out, the gates between the basin and the lock, being
closed, were subjected to increasing pressure as the water below receded and
they gave way releasing the water in the basin and causing the steamer to part
her moorings and to break through the lower gates. While the J.B.K. was thus
out of control, she came into contact with the respondent’s tug V., causing
damages for the recovery of which action was taken against the Crown. The trial
judge held that, as it appeared upon the evidence that the breaking of the
gates could only have occurred if they were not properly mitred by the servants
of the Crown in charge thereof, the court should draw that inference of fact
and find liability of the Crown for negligence under s. 20, subs, c of
the Exchequer Court Act.
Held that,
upon the evidence, there was a preponderance of probability which constituted
sufficient ground for the finding of the trial judge: there was ample evidence
that a faulty bevel- or mitre-joint would be a not improbable cause of the
accident and there was no proof of any competing cause.
Judgment of the Exchequer Court ([1926] Ex.
C.R. 150) aff.
APPEAL from the judgment of the Exchequer
Court of Canada, Maclean J.,
maintaining the respondent’s petition of right to recover damages for injuries
caused to the tug boat Virginia by reason of the alleged fault of the
servants of the Crown.
The material facts of the case are stated in
the above head-note and in the judgment now reported.
A. Geoffrion K.C. for the appellant.
A. R. Holden K.C. and Lucien Beauregard for the respondent.
[Page 85]
The judgment of the court was delivered by
Newcombe J.—The respondent, suppliant by petition of right, seeks to recover
damages for injury caused to its tug boat Virginia, with which, on 29th
August, 1922, the SS. John B. Ketchum collided in the harbour of
Montreal at the foot of the locks of the Lachine canal. While the Ketchum was
lying in lock no. 1, moored to the side, and the water was being lowered to
enable her to pass out, the gates of the basin above, being closed, were of
course subjected to increasing pressure as the water below receded, and
unfortunately they gave way, causing a great fall and surge of water, which
carried the Ketchum from her moorings, through the lower gate, and out
into the harbour. It was while the Ketchum was thus out of control,
being swept along by the flood, that she came into contact with the Virginia,
and it is admitted that the ensuing damage to the Virginia was
caused by the breaking of the gates, which were intended on such occasions to
hold back the water in the basin.
The canal was a public work of Canada, operated
by the officers and servants of the Crown, and the question is whether the
action was attributable to their negligence within the meaning of s. 20, clause
(c) of the Exchequer Court Act, upon which the liability of the
Government depends.
The evidence is found to exclude the suggestion
of any defect in the construction of the gates, but it is found that they were
not well closed, or, as said by the learned trial judge, that “they broke owing
to improper mitring.” His view was that when, in the process of closing, the
gates were swung together by the lockmen under the direction of the lockmaster,
they did not meet evenly, and that in consequence the bearing surfaces did not
properly articulate. The witnesses who were charged with the work maintained
that the gates were safely closed. But the circumstances of the case, the
appearance of the gates after the accident, and the injuries which they had
received, were consistent with and suggestive of the view that the damage was
produced by pressure of the gates upon each other when in contact, but not
truly joined; and there was ample evidence that the closing ought to have been
effected
[Page 86]
with care in order to avoid such a result, and
that a faulty bevel- or mitre-joint would be a potential and not improbable cause
of their failure to withstand the great pressure to which they became subject
when the level of the water in the lower lock was reduced.
It must be remembered that it was the duty of
the lock-master and his men to see that an accident did not happen through lack
of reasonable and proper care in the working of the gates, and the fact that
such an extraordinary occurrence took place from a cause which, upon the
evidence, may probably have consisted in their neglect, affords the basis of a
finding, especially when, as in this case, there is no proof of any competing
cause. I think there is here a preponderance of probability which constitutes
sufficient ground for the finding of the learned trial judge.
In Cooper v. Slade (1), Willes J.,
refers to the proposition as elementary that in civil cases the preponderance
of probability may constitute sufficient ground for a verdict, and he says
that, so long since as the 14th of Elizabeth, Chief Justice Dyer and a majority
of the other Justices of the Common Pleas laid it down that, when the parties
are at issue the Justices may, if the matter be doubtful,
found their verdict upon that which appears
the most probable, and by the same reason that which is most probable shall be
good evidence.
Newis v. Lark (2).
I see no reason to doubt that the present case should be governed by that rule,
and the appeal therefore fails.
Appeal dismissed with costs.
Solicitor for the appellant: Aimé Geoffrion.
Solicitors for the respondent: Atwater, Bond & Beauregard.
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