Horsley v. MacLaren, [1972] SCR 441

Supreme Court of Canada

Horsley v. MacLaren [1972] S.C.R. 441

Date: 1971-10-05

Astrid Horsley and Richard J. Horsley, Lawrence A. Horsley, Michael A. Horsley, all infants by their next friend

Thomas Robertson (Plaintiffs) Appellants;

and

Kenneth W. MacLaren and the ship "Ogopogo", and Richard J. Jones (Defendants) Respondents.

1971: May 5, 6; 1971: October 5.

Present: Judson, Ritchie, Hall, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Negligence-Invited guest on cabin cruiser acci­dentally falling overboard-Duty of owner-operator to attempt rescue-Another invited guest diving into water in attempt to effect rescue-Dying from shock sustained on contact with icy water-Whether own­er-operator negligent in rescue attempt-Whether liable for death of second passenger.

M, an invited guest on a cabin cruiser, which was owned and was being operated by the respondent K, accidentally fell overboard. In the course of rescue operations, another invited guest, H, dived into the water to help him. The effort was without avail. The rescuer was pulled from the water by others on board, could not be resuscitated and was later pro­nounced dead. The body of the rescuee was never recovered.

K was first alerted to M's fall when the body was only about a boat-length and half behind him. In-stead of following the recommended method of effecting a rescue, i.e., to circle and bring the boat bow on towards the body, he reversed, after putting the engines momentarily in neutral, and backed up to within four or five feet of the body, where he shut off the engines. M, who had been in the water for approximately two minutes, was apparently uncon­scious and attempts to rescue him with a pike pole and a life-belt were unsuccessful. The boat having begun to drift away, K restarted the engines and again backed towards M. Three or four minutes had now passed since the fall overboard, and it was then that H dived into the water from the stern, coming up about ten feet from M. The latter was seen to fall forward, face and head in the water, and

[Page 442]

another passenger, J, jumped in, one foot away, to hold up his head but M disappeared beneath the boat. J's husband grabbed the boat controls which K yielded, swung the boat around bow on, and ap­proached J on the starboard side where she was pulled in. K then resumed control and went forward towards H who was then also pulled in but in unconscious condition. Attempts at resuscitation failed. Medical evidence established that H died from shock sustained on contact with the icy water.

Two fatal accident actions were brought against K for the benefit of the widows and dependants of the two deceased. H's family succeeded at the trial but their claim was dismissed on appeal, and they then sought restoration by this Court of the favour-able trial judgment. The other claim failed at trial and was not pursued farther.

Held (Hall and Laskin H. dissenting) : The appeal should be dismissed.

Per Curiam: There was a duty on the part of the respondent K in his capacity as a host and as the owner and operator of the cabin cruiser to do the best he could to effect the rescue of M.

Per Judson, Ritchie and Spence JJ.: There was no suggestion that there was any negligence in the rescue of H and for K to be held liable to the appel­lants it was necessary that such liability stem from a finding that the situation of peril brought about by M falling into the water was thereafter, within the next three or four minutes, so aggravated by the negligence of K in attempting his rescue as to induce H to risk his life by diving in after him. Although the procedure followed by K was not the most highly recommended one, the evidence did not justify a finding that any fault of his induced H to risk his life by diving as he did. If K erred in backing in-stead of turning the cruiser and proceeding "bow on", the error was one of judgment and not negli­gence, and in the circumstances ought to be excused.

Per Hall and Laskin JJ., dissenting: The view that K had been merely guilty of an error of judgment was not accepted. This was not a case where K had failed to execute the required manoeuvre properly, but rather one where he had not followed the

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method of rescue which, on the uncontradictory evidence, was the proper one to employ in an emergency, and there was no external reason for his failure to do so. This breach of duty to M could properly be regarded as prompting H to attempt a rescue. He was not wanton or foolhardy and his action was not unforeseeable. In the concern of the occasion, and having regard to K's breach of duty, H could not be charged with contributory negli­gence in acting as he did.

[Vanvalkenburg v. Northern Navigation Co. (1913) , 30 O.L.R. 142, overruled; Videan v. British Transport Commission, [1963] 2 Q.B. 650, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from a judgment of Lacourciere J. Appeal dismissed, Hall and Laskin JJ. dissenting.

W. R. Maxwell and S. M. Malach, for the plaintiffs, appellants.

B. L. Eastman and J. A. B. Macdonald, for the defendants, respondents.

The judgment of Judson, Ritchie and Spence JJ. was delivered by

RITCHIE J.-I have had the opportunity of reading the reasons for judgment of my brother Laskin and I agree with him that the case of Vanvalkenburg v. Northern Navigation Co[2]. should no longer be considered as good law and that a duty rested upon the respondent MacLaren in his capacity as a host and as the owner and operator of the Ogopogo, to do the best he could to effect the rescue of one of his guests who had accidentally fallen overboard.

The learned trial judge recognized the existence of such a duty, but Mr. Justice Schroeder made no finding in this regard since he found that the duty owed by MacLaren in the present case was born of his having already embarked on the rescue of Matthews and being therefore bound to carry it through without negligence. I agree with the learned trial judge and Laskin J. that the duty

[Page 444]

was a pre-existing one arising out of Matthews' position as a guest and passenger.

Whatever the origins of this duty may be, the finding of the learned trial judge that no breach of such duty either caused or contributed to the death of Matthews has not been questioned.

The duty, if any, owing to the late Mr. Horsley stands on an entirely different footing. If, upon Matthews falling overboard, Horsley had imme­diately dived to his rescue and lost his life, as he ultimately did upon contact with the icy water, then I can see no conceivable basis on which the respondent could have been held responsible for his death.

There is, however, no suggestion that there was any negligence in the rescue of Horsley and if the respondent is to be held liable to the appellants, such liability must in my view stem from a finding that the situation of peril brought about by Mat-thews falling into the water was thereafter, within the next three or four minutes, so aggravated by the negligence of MacLaren in attempting his rescue as to induce Horsley to risk his life by diving in after him.

I think that the best description of the cir­cumstances giving rise to the liability to a second rescuer such as Horsley is contained in the reasons for judgment of Lord Denning in Videan v. British Transport Commission[3], where he said, at p. 669:

It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton inter­ference, if the rescuer is killed or injured in the at-tempt, he can recover damages from the one whose fault has been the cause of it.

The italics are my own.

In the present case a situation of peril was created when Matthews fell overboard, but it was

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not created by any fault on the part of MacLaren, and before MacLaren can be found to have been in any way responsible for Horsley's death, it must be found that there was such negligence in his method of rescue as to place Matthews in an apparent position of increased danger subsequent to and distinct from the danger to which he had been initially exposed by his accidental fall. In other words, any duty owing to Horsley must stem from the fact that a new situation of peril was created by MacLaren's negligence which induced Horsley to act as he did.

In assessing MacLaren's conduct in attempting to rescue Matthews, I think it should be recog­nized that he was not under a duty to do more than take all reasonable steps which would have been likely to effect the rescue of a man who was alive and could take some action to assist himself. While there is no express finding that Matthews died upon contact with the icy water because his body was never found, there is never­theless unanimous agreement amongst all those who saw him that he was from the moment he entered the water, inert and rigid with his torso out of the water, his arms outstretched and his eyes staring, and the learned trial judge reached the conclusion on the balance of probabilities that it had not been shown that his life could have been saved. The added difficulties in rescuing an inert body from the water as opposed to the body of a man who was alive and could assist himself do not need to be stressed, but as will hereafter appear, the difficulties entailed in retrieving a dead body undoubtedly increase the time involved in effecting its rescue.

When the respondent's boat, the Ogopogo, left the dock at the Port Credit Yacht Club at about 6:30 p.m. on May 7, 1966, the only three passen­gers on deck were the late Mr. Matthews, who had been casting off the bow line and was seated on the port side of the foredeck, Richard Jones who was in the pilot's cockpit, and the respondent MacLaren who was at the helm. The weather was cool and a northwest wind was creating a light chop on Lake Ontario. As the boat proceeded away from the dock and after it had travelled

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about a mile into the broader waters of the lake, the wind increased and Matthews got up from his position in the bow and started to walk along the cat-walk on the port side of the vessel. As he did so he was holding onto a rail on the port side of the cabin top and in so doing he toppled over into the water. The clearest description of Matthews' fall is in my opinion that which was given by Jones who was called as a witness by the plaintiff and whose evidence appears to me

to constitute the fullest account of the whole in­cident. Upon seeing the fall, Jones at once raised the cry: "Roly is overboard" and in describing

the events which immediately followed he said:

Q. Yes. And where was his body when you next observed it?

A. It was on the starboard side possibly ten feet behind the stern, and‑

Q. Yes?

A. -he seemed to be, you know, feet down, or at least he seemed to be up in the water.

Q. And what if anything did MacLaren do with your words, 'Roly is overboard', or words to that effect; what did the boat do?

A. Well, I didn't of course watch MacLaren, I was watching Mr. Matthews in the water. But MacLaren did put it into reverse. Now by that time Mr. Matthews would have been considerably further astern than when I first saw him.

Q. How far astern?

A. Well, I would say fifty feet.

Q. Did Mr. MacLaren stop the engines at any time?

A. Turn the key off?

Q. Yes?

A. No, no, he certainly didn't do it then.

Q. No, I'm speaking to this particular point? A. No....

Q. At that particular point in location, did Mr. MacLaren turn the Ogopogo in any way, either to left or right, port or starboard?

A. Not to any appreciable degree that I noticed. He didn't like, try to turn around or anything.

[Page 447]

Q. Yes. What did he do?

A. Well, he reversed his motors and backed up on Mr. Matthews.

Q. Yes. And could you describe how the boat approached Matthews in the water?

A. Well, MacLaren was backing and reversing it on the two engines, which would be the nor­mal-it was a twin engine boat.

Q. Yes?

A. And he would be backing up on him, and he would be swerving the boat one way and another, I don't-it would be quite choppy to take it straight as a die. And I threw a life-ring to Mr. Matthews just as soon as I could.

On cross-examination Mr. Jones continued:

Q. And you said that you threw a life-ring at him, is that correct?

A. I threw the life-ring when we were about, oh, maybe thirty feet away from him, which landed in front. I think I couldn't throw it far enough.

Q. Had the boat stopped at that time?

A. No, no, no, but my‑

Q. Was Mr. MacLaren backing it up?

A. He was backing it up, and then when we got much closer, I threw one of the life-jackets and it was right in front of him.

Q. Right in front of him?

A. Yes, under his nose almost.

Q. Was it touching him?

A. Oh no, I didn't aim to hit him, I just wanted to put it close and very definitely it landed right in front of his face, right in front of his body.

Q. Well, how many inches or feet?

A. Well no more than six inches or a foot.

Q. Six inches or a foot away?

A. Yes.

Q. And is it your opinion that it was within his reach?

A. Yes, most assuredly, yes.

Q. And he didn't grab it?

A. No.

When Jones cried out "Roly is overboard" those in the cabin were immediatelyalerted. Mr. Marck, who was one of the guests, rushed to the stern and picked up a pike pole, Mrs. MacLaren started to pass up the life-jackets and

[Page 448]

Horsley and Mrs. Jones came up and were stand­ing by in the cockpit.

Reconstructing the events from the evidence of those who were actually at the scene, it ap­pears to me that MacLaren was first alerted to Matthews' fall when the body was only about a boat-length and a half behind him. He put the engines momentarily in neutral and as soon as he saw the body he reversed, almost immediately after which Jones threw a life-ring within ten feet of the man in the water. As the boat got closer to the body, the side of the transom astern obscured MacLaren's view and when he was with-in four or five feet of the body he says that he turned the engines off, although Jones' evidence is that he shifted to neutral. In any event, this action was obviously taken to obviate the pos­sibility of the propellers contacting the body and the effect was that the boat at first drifted closer to Matthews and was then carried away by the wind to a distance which is estimated at ten feet. Just before the gust of wind carried the boat to port, Marck had the pike pole within Matthews' reach if he had been able to grab it.

This latter incident is described by MacLaren where he says:

Q. When you shut the engines off, did you con­sider the weather at that time?

A. No, I thought I had enough way on that I would drift on to him.

Q. How far did you-you drifted away?

A. We drifted up somewhat until she ran out of way, and Don almost got a hook on him.

Q. Yes?

A. Had Roly been able to help himself, he cer­tainly-he could have grabbed it, it was so close to him.

Q. Yes?

A. Then the boat pivoted.

Having considered the evidence of Jones, Mac-Laren, Marck and Mrs. Jones, I am satisfied that Matthews' body had been in the water for a little less than two minutes when Marck first had the

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pike pole within his grasp and a life-jacket thrown by Jones was within six inches of him. After the boat started to drift away, the subse­quent efforts to rescue Matthews by reversing engines and coming stern on towards him had been in progress for another minute or two and the boat was within two or three feet when Hors-ley dove in surfacing about ten feet beyond the body. Horsley's dive was followed almost imme­diately by that of Mrs. Jones, but as she hit the water the body of Matthews disappeared. The medical evidence established that Horsley, after his body had been recovered had no sign of water in his lungs, and that he did not die by drowning but rather from shock sustained on contact with the icy water. Mrs. Jones was rescued after her husband had taken the helm and brought the boat bow on towards her.

The finding of the learned trial judge that Mac-Laren was negligent in the rescue of Matthews is really twofold. On the one hand he finds that there was a failure to comply with the "man overboard" rescue procedure recommended by two experts called for the plaintiff, and on the other hand he concludes that MacLaren "was unable to exercise proper judgment in the emer­gency created because of his excessive consump­tion of alcohol." In the course of his reasons for judgment in the Court of Appeal, Mr. Justice Schroeder expressly found that there was nothing in the evidence to support the view that Mac-Laren was incapable of proper management and control owing to the consumption of liquor, the question was not seriously argued in this Court, and like my brother Laskin, I do not think there is any ground for saying that intoxicants had anything to do with the fatal occurrences. Mr. Justice Lacourciere's finding as to failure to follow the procedure recommended by experts was phrased as follows4[4]

I can only conclude that the defendant's adoption of the wrong procedure in the circumstances was negligent, being a failure to exercise the reasonable

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care that the ordinary, prudent, reasonable opera-tor would have shown in effecting the "man over-board" rescue. The defendant in his evidence ad­mitted that he made what he described as an error of judgment and did not attempt to justify the rescue procedure adopted.

The procedure recommended by the experts in such circumstances was to bring the boat bow on towards the body and the witness Mumford, who had written a "boating course" for the Ca­nadian Boating Federation and had considerable experience in small boats, testified that "it would take about two minutes to turn the boat around and come back on him and have him alongside, and possibly another twenty-five, thirty seconds to get him on the boat." The other expert, Livingstone, took the view that by using the bow-on procedure it would take a maximum of two minutes to effect the rescue. Neither of these experts was present at the time of the accident nor, as far as the record speaks, had either of them been at the helm of a twin-engine motor-cruiser when a cry was raised that a man was overboard, and it was seen that his body was only a boat-length and a half astern. In fact it does not appear from the record that either ex-pert had ever had the experience of being faced with the sudden responsibility to which this cir­cumstance gave rise, and although they no doubt gave an accurate account of the most highly recommended method of effecting a rescue, their evidence appears to me to be unrelated to the critical position in which MacLaren found him-self. In this regard I am in complete agreement with the finding of Mr. Justice Schroeder where he says[5]:

In my respectful opinion the evidence of the two experts spells out a standard of text-book perfection given at a time when all the evidence had been sifted and all the facts ascertained in the calm and deliberate atmosphere of a judicial investigation. It is ever so easy to be wise after the event and to state ex post facto that the conduct of the appellant, who had to rely upon the co-operation of the other pas­sengers in effecting the rescue of Matthews, fell

[Page 451]

short of the standard of reasonableness. He is surely entitled to be judged in the light of the situation as it appeared to him at the time and in the context of immediate and pressing emergency, even if a duty of using reasonable care in effecting the rescue of Matthews was properly cast upon him. The learned trial Judge excused the conduct of Horsley in the light of the emergency but failed to apply the same test to the appellant whose problems and responsi­bilities were much greater and more complex. The excitement created by the cry "Roly's overboard", the fact that the appellant had to act immediately, the confusion attendant upon the suddenness of the tragic occurrence, the lack of time and opportunity for mature consideration, all these circumstances must be taken into account in approaching a deter­mination of whether the appellant was guilty of negligence in backing the vessel towards Matthews instead of proceeding towards him "bow on", assum­ing that the standard contended for is applicable.

It is true that on cross-examination Mr. Mac-Laren agreed that the first recommended method of rescue is to come around in a circle and put the man on your lee, but he also says that it is possible to come stern on towards the body with a twin-screw boat and that he had practised this method and thought it would be the best under the circumstances which faced him.

He says quite frankly: "... I felt the quickest way out of it-I had my eye on him-I felt the quickest way was straight back. This could have been an error in judgment, I don't know. But I thought this was the best way."

I am also in agreement with Mr. Justice Schroeder's comments on the procedure followed by MacLaren when he says, at p. 495:

Of even greater significance is the question as to whether it has been proven that the manoeuvre undertaken by MacLaren actually prolonged the time within which the point was reached where a successful attempt could have been made. The manoeuvre recommended by the experts would have taken two minutes or more, whereas the approxi­mate time from the moment that Matthews fell overboard

[Page 452]

until his body disappeared beneath the boat was three or four minutes. Whatever may be said in criticism of MacLaren's conduct, his efforts at rescue cannot be said to have worsened Matthews' condi­tion. Moreover, when the boat was first reversed and brought to a stop, a lifejacket was thrown to Matthews who could have grasped it had he not then lost consciousness.

As I have indicated, the evidence discloses that the boat was first brought to a stop in a maximum of two minutes after the body was sighted and at that time there was not only a life-jacket but a pike pole within Matthews' grasp had he been conscious.

I share the view expressed by my brother Laskin when he says, in the course of his reasons for judgment, that:

Encouragement by the common law of the rescue of persons in danger would, in my opinion, go be­yond reasonable bounds if it involved liability of one rescuer to a succeeding one where the former has not been guilty of any fault which could be said to have induced a second rescue attempt.

In the present case, however, although the procedure followed by MacLaren was not the most highly recommended one, I do not think that the evidence justifies the finding that any fault of his induced Horsley to risk his life by diving as he did. In this regard I adopt the con­clusion reached by Mr. Justice Schroeder in the penultimate paragraph of his reasons for judg­ment where he says :

...if the appellant erred in backing instead of turning the cruiser and proceeding towards Matthews "bow on", the error was one of judgment and not negligence, and in the existing circumstances of emergency ought fairly to be excused.

I think it should be made clear that in my opinion the duty to rescue a man who has fallen accidentally overboard is a common law duty the existence of which is in no way dependent upon the provisions of s. 526(1) of the Canada Ship-ping Act, R.S.C. 1952, c. 29.

I should also say that, unlike Mr. Justice Jessup, the failure of Horsley to heed MacLaren's

[Page 453]

warning to remain in the cockpit or cabin plays no part in my reasoning.

For all these reasons I would dismiss this appeal with costs.

The judgment of Hall and Laskin H. was delivered by

LASKIN J. (dissenting)-On a cool evening in early May, 1966, an invited guest on board a cabin cruiser, which was on its way to its home port, Oakville, from Port Credit, accidentally fell into the lake. In the course of rescue operations, another invited guest dived into the water to help him. The effort was without avail. The rescuer was pulled from the water by others on board, could not be resuscitated and was later pro­nounced dead. The body of the rescuee was never recovered. These are the bare bones of two fatal accident actions brought against the boat owner, who was in charge of his craft at the time, for the benefit of the widows and de-pendants of the two deceased. The rescuer's family succeeded at the trial but their claim was dismissed on appeal, and they now seek restora­tion by this Court of the favourable trial judg­ment. The other claim failed at trial and was not pursued farther.

Various theories of the liability of the boat owner MacLaren were explored at trial and on appeal. Lacourciere J. founded himself on the following conclusions : (1) MacLaren was under a duty to aid the passenger Matthews who had accidentally fallen overboard and, in any event, he had affirmatively undertaken to effect a rescue; (2) he was negligent in the way in which he attempted the rescue; (3) he thus induced the rescuer Horsley to court the danger of effecting a rescue and was, accordingly, liable for the resulting injury and damage; (4) there was no contributory negligence on Horsley's part, nor any voluntary assumption of the risk created by MacLaren's negligence.

[Page 454]

In the Ontario Court of Appeal, Schroeder J.A., with whom McGillivray J.A. agreed, took as his starting point that whether or not there was a legal duty on MacLaren to come to the aid of Matthews, he did take steps to effect a rescue. The learned justice went on to say that even if, in these circumstances, a duty of using reasonable care rested on MacLaren the stand­ard must be fixed in the light of the "immediate and pressing emergency"; and, moreover, the ap­plicable principle was that liability would not be visited upon MacLaren if his efforts at rescue, although falling short of the required standard of care, did not worsen Matthews condition so as to induce Horsley to attempt a rescue. Schroe­der J.A. concluded that MacLaren's efforts at rescue did not worsen Matthews' condition. He rejected the contention that there could be any liability upon MacLaren in respect of Horsley, arising out of the failure to carry out with due care a supposed duty to rescue Matthews, when he did not originally imperil Matthews. To charge MacLaren with foreseeability of Horsley's inter­vention in such circumstances would be, accord­ing to Schroeder J.A., an unwarranted extension of the principles found in the rescue cases. Re-turning to his starting point, the learned justice concluded that the evidence did not support a finding that anything done or left undone by MacLaren caused his rescue efforts to fail; and if he erred in the procedures he followed, the error was an excusable error of judgment and did not amount to negligence.

Jessup J.A. came to the same exonerating re­sult but on quite a narrow ground. He endorsed the view of the trial judge that there was a legal duty upon the master of a ship to aid a passenger who had fallen overboard, as being a duty of aid against perils of the sea. Again, there was a legal duty to avoid frustrating rescue by negli­gence in rendering assistance. MacLaren should have foreseen that by reason of his negligence in prolonging Matthews exposure to drowning, a rescue would be attempted by one of those on board. However, MacLaren had earlier warned Horsley to stay in the cockpit or cabin, and

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hence, in the opinion of Jessup J.A., he could not reasonably contemplate that Horsley would be a rescuer. Consequently, MacLaren was not under any liability for the death of Horsley.

It is evident that the trial judge and Jessup J.A. see the law, as it is reflected in the rescue cases, differently from Schroeder and McGillivray M.A. But it is also apparent that, on the law as pro-pounded both by the trial judge and by Jessup J.A., Schroeder J.A. (McGillivray J.A. agreeing) could find no breach of legal duty to inculpate MacLaren. I do not read the learned Justice of Appeal as saying that if there was a breach of legal duty, the ensuing death of Horsley did not result from that breach.

The facts, as found by the trial judge and as repeated with some variations by the Court of Appeal, are, with some additions from the record, as follows. MacLaren was the owner of a 30-foot six inch cabin cruiser, powered by two inboard 100 h.p. engines driving two propellers. On May 7, the day of the double tragedy, he had his wife on board and five guests, including Matthews and Horsley, one Donald Marck and Mr. and Mrs. Richard Jones. The party had left Oakville in the afternoon and the boat was apparently the first to dock at the Port Credit Yacht Club that season. There was beer aboard the boat and some champagne was drunk at the Port Credit Yacht Club but there is no ground for saying that in-toxicants had anything to do with the fatal occur­rences. The boat left Port Credit at about 6.30 p.m. to return to Oakville and the defendant was at the helm, proceeding at a speed of 10 to 12 knots in cool weather and with a northwest wind which created a light chop on Lake Ontario.

Matthews had looked after the bow line when the boat left Port Credit, and was sitting on the port side of the foredeck. Jones was in the pilot's

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cockpit, and the other four passengers were in the cabin below. Jones saw Matthews rise and proceed toward the stern along a narrow cat-walk on the port side, holding on to the rail with his back to the water. On reaching the windscreen in front of the cockpit he toppled over backwards into the water. Jones immediately shouted "Roly's overboard".

MacLaren, who was then going about 11 knots per hour, put the controls into neutral, and, lean­ing back, he could see Matthews about 40 to 50 feet astern to starboard, floating with head and shoulders out of the water. He put the boat in reverse, backing towards Matthews after pinning the control wheel with his stomach. He lost sight of Matthews because of the height and angle of the transom, and shut off the engines. He believed he had drifted to four or five feet of Matthews and wished to manoeuvre to get him at the rear gate on the starboard side. Jones had, in the mean-time, thrown a life-ring from the stern which landed about ten feet in front of Matthews, and Marck who was also at the stern tried to hook Matthews with a six-foot pike pole. He could not succeed because, with the engines shut down, the boat drifted away to a distance of ten to twenty feet. Matthews was seen at the time still floating, but with eyes open and staring and apparently unconscious. Jones threw a second life-jacket which fell on top of Matthews or near him but he made no effort to seize it. The water that day was extremely cold, with a surface temperature of about 44 degrees or less.

MacLaren restarted his engines and again backed his boat towards Matthews. Three or four minutes had passed since the fall overboard, and it was then, with the boat moving, that Horsley, after taking off his shoes and trousers, dived into the water from the stern, coming up about ten feet from Matthews. According to Jones, the boat was drifting on to Matthews or Matthews was drifting towards the boat, and they were about three feet from each other when Horsley began to take off his shoes and trousers and then dived

[Page 457]

in to effect a rescue. Matthews was seen to fall forward, face and head in the water, and Mrs. Jones jumped in, one foot away, to hold up his head but Matthews disappeared under the star-board side of the boat. Jones, having seen his wife in the water, grabbed the boat controls which MacLaren yielded, swung the boat around bow on, and approached his wife on the star-board side where MacLaren and Marck, with Jones assisting, pulled her in. MacLaren then re­sumed control and went forward towards Horsley who was then also pulled in but in unconscious condition. Attempts at resuscitation failed. Medi­cal opinion ascribed his death to sudden shock as a result of the immersion.

The passengers who were in the cabin came up when MacLaren began to back up after the shout of "Roly's overboard". Jones went to the stern where he was joined by Marck and Horsley. In answer to a question whether he was in a panic, MacLaren said he thought he was in con­trol of the situation. He had cut his engines after backing up towards Matthews because he knew of the danger to Matthews from the propellers. How-ever, in allowing the boat to drift, there was the effect of the wind to contend with.

MacLaren testified that he had had a lifelong interest in boats. He was 48 years of age when the accident happened, had built a sail boat when he was aged 16, had bought a small outboard cruiser in the late fifties, and later bought a larger 42-foot twin-engined cruiser which he traded in 1964 for the boat on which the fatal cruise was taken. It was an easily manoeuvrable boat which could be turned almost in its own length. Mac-Laren said he operated it "quite a bit-it's my hobby". He had practised rescue operations and was aware that the first recommended method was to come bow on in a circle and approach the person in the water on the lee. In the present case, although he knew that he could not back up very fast if he was to control his boat, he felt that backing up would be the quickest way to

[Page 458]

reach Matthews. However, it took him about two minutes to get near to Matthews on his first try.

Evidence on proper rescue procedures to reach a person overboard was given by one Captain Livingstone, a qualified sea captain who was in charge of a marine school which trained persons in seamanship, and by a Captain Mumford, also so qualified, who was with the Toronto Harbour Commission as its communications officer. Their testimony was that the quickest and safest way to effect a rescue was to circle if necessary and come bow on to the person in the water. There was more control over the boat in this way, both in respect of manoeuvrability and speed, and danger from propellers was avoided. The wit­nesses agreed that there could be circumstances, such as being obliged to manoeuvre in a crowded area, when backing up would be appropriate. It was their opinion, however, that coming bow on was standard procedure for boat operators. There was no evidence to contradict this testi­mony, and, indeed, MacLaren himself confirmed that "bow on" was the preferred rescue proce­dure.

Jones, who had boating experience, testified on this point in relation to the rescue of his wife. It was his evidence that he took the con­trols from MacLaren because he felt that the backing-up procedure would not be effective; hence he came towards his wife bow on.

In this Court, counsel for the appellants relied on three alternative bases of liability. There was, first, the submission that in going to the aid of Matthews, as he did, MacLaren came under a duty to carry out the rescue with due care in the circumstances, and his failure to employ standard rescue procedures foreseeably brought Horsley into the picture with the ensuing fatal result. The second basis of liability was doubly founded as resting (a) on a common law duty of care of a private carrier to his passengers, in­volving a duty to come to the aid of a passenger

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who has accidentally fallen overboard, or (b) on a statutory duty under s. 526(1) of the Can­ada Shipping Act, R.S.C. 1952, c. 29, to come to the aid of a passenger who has fallen over-board. There was failure, so the allegation was, to act reasonably in carrying out these duties or either of them, with the foreseeable consequence of Horsley's encounter of danger. The third con­tention was the broadest, to the effect that where a situation of peril, albeit not brought about originally by the defendant's negligence, arises by reason of the defendant's attempt at rescue, he is liable to a second rescuer for ensuing dam-age on the ground that the latter's intervention is reasonably foreseeable.

None of the bases of liability advanced by the appellants is strictly within the original principle on which the "rescue" cases were founded. That was the recognition of a duty by a negligent defendant to a rescuer coming to the aid of the person imperilled by the defendant's negligence. The evolution of the law on this subject, origi­nating in the moral approbation of assistance to a person in peril, involved a break with the "mind your own business" philosophy. Legal protection is now afforded to one who risks in-jury to himself in going to the rescue of another who has been foreseeably exposed to danger by the unreasonable conduct of a third person. The latter is now subject to liability at the suit of the rescuer as well as at the suit of the emperilled person, provided, in the case of the rescuer, that his intervention was not so utterly foolhardy as to be outside of any accountable risk and thus beyond even contributory negligence.

Moreover, the liability to the rescuer, although founded on the concept of duty, is now seen as stemming from an independent and not a deriva­tive duty of the negligent person. As Fleming on Torts, 3rd ed., 1965, has put it (at p. 166), the cause of action of the rescuer in arising out of

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the defendant's negligence, is based "not in its tendency to imperil the person rescued, but in its tendency to induce the rescuer to encounter the danger. Thus viewed, the duty to the rescuer is clearly independent ...". This explanation of principle was put forward as early as 1924 by Professor Bohlen (see his Studies in the Law of Torts, at p. 569) in recognition of the difficulty of straining the notion of foreseeability to em-brace a rescuer of a person imperilled by an-other's negligence. Under this explanation of the basis of liability, it is immaterial that the imperilled person does not in fact suffer any injury or that, as it turns out, the negligent per-son was under no liability to him either because the injury was not caused by the negligence or the damage was outside the foreseeable risk of harm to him: cf. Videan v. British Transport Commission[6]. It is a further consequence of the recognition of an independent duty that a person who imperils himself by his carelessness may be as fully liable to a rescuer as a third person would be who imperils another. In my opinion, therefore, Dupuis v. New Regina Trading Co. Ltd.[7], ought no longer to be taken as a statement of the common law in Canada in so far as it denies recovery because the rescuer was injured in going to the aid of a person who imperilled himself. The doctrinal issues are sufficiently can­vassed by the late Dean Wright in (1943), 21 Can. Bar Rev. 758; and see also Ward v. T. E. Hopkins & Son, Ltd.; Baker v. T. E. Hopkins & Son, Ltd.[8]

I realize that this statement of the law invites the conclusion that Horsley's estate might suc­ceed against that of Matthews if it was proved that Matthews acted without proper care for his own safety so that Horsley was prompted to come to his rescue. This issue does not, how-ever, have to be canvassed in these proceedings

[Page 461]

°. " since the estate of Matthews was not joined as a co-defendant.

The thinking behind the rescue cases, in so far as they have translated a moral impulse into a legally protectible interest, suggests that liability to a rescuer should not depend on whether there was original negligence which created the peril and which, therefore, prompted the rescue effort. It would appear that the principle should be equally applicable if, at any stage of the perilous situation, there was negligence on the defendant's part which induced the rescuer to attempt the rescue or which operated against him after he had made the attempt. If this be so, it indicates the possibility of an action by a second rescuer against a first. On one view of the present case, this is what we have here. It is not, however, a view upon which, under the facts herein, the present case falls to be decided.

The reason is obvious. MacLaren was not a random rescuer. As owner and operator of a boat on which he was carrying invited guests, he was under a legal duty to take reasonable care for their safety. This was a duty which did not depend on the existence of a contract of carriage, nor on whether he was a common carrier or a private carrier of passengers. Having brought his guests into a relationship with him as passengers on his boat, albeit as social or gratuitous pas­sengers, he was obliged to exercise reasonable care for their safety. That obligation extends, in my opinion, to rescue from perils of the sea where this is consistent with his duty to see to the safety of his other passengers and with con­cern for his own safety. The duty exists whether the passenger falls overboard accidentally or by reason of his own carelessness.

I would hold that Vanvalkenburg v. Northern Navigation Co.[9] should no longer be considered as good law in so far as it declared that operators

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of a ship were not under any legal duty to a seaman in their employ to go to his rescue when he fell overboard through his own carelessness. The Ontario Appellate Division in that case saw the facts through the classification of nonfeasance and misfeasance, and was not prepared to read the contract of hiring as imposing an affirmative obligation to protect the drowning seaman from the consequences of his own carelessness. Since the ship operators did not create any unreason-able risk of harm, the Appellate Division could not find any ground for holding them liable.

I do not accept this reasoning, based as it was on the state of the law of torts that did not yet know even M'Alister (or Donoghue) v. Steven­son[10]. Affirmative duties of care arise out of the relationship of employer and employee and out of the relationship of carrier and passenger, to take two examples. Where these relationships occur on board a ship at sea, the employee or passenger, who falls overboard from whatever cause, should be entitled to look for succour to the operators of the ship because of necessary dependency on them for return to shore. Such a duty of rescue was recognized in Harris v. Pennsylvania Railroad Co.[11] and in Hutchinson v. Dickie[12], a case to which I will return because it is so strikingly similar on its facts to the present case.

I do not rest the duty to which I would hold MacLaren in this case on s. 526(1) of the Canada Shipping Act, even assuming that its terms are broad enough to embrace the facts herein. That provision, a penal one, is as follows:

The master or person in charge of a vessel shall, so far as he can do so without serious danger to his own vessel, her crew and passengers, if any, render assistance to every person, even if that per-son be a subject of a foreign state at war with Her Majesty, who is found at sea and in danger of being

[Page 463]

lost, and if he fails to do so he is liable to a fine not exceeding one thousand dollars.

I do not find it necessary in this case to consider whether s. 526(1), taken alone, entails civil con-sequences for failure to perform a statutory duty; or, even, whether it fixes a standard of conduct upon which the common law may operate to found liability. There is an independent basis for a common law duty of care in the relationship of carrier to passenger, but the legislative declara­tion of policy in s. 526(1) is a fortifying element in the recognition of that duty, being in harmony with it in a comparable situation.

It follows from this assessment that MacLaren cannot be regarded as simply a good samaritan. Rather it is Horsley who was in that role, ex-posing himself to danger upon the alleged failure of MacLaren properly to carry out his duty to effect Matthews' rescue. The present case is, therefore, not one to which the principles pro-pounded in East Suffolk Rivers Catchment Board v. Kent[13] are applicable. In the Court of Appeal, both Schroeder J.A. and Jessup J.A. referred to this case with approval. The former relied on it to support his rejection of the trial judge's hold­ing that MacLaren was liable when, having undertaken to rescue Matthews, he failed to use reasonable care in the rescue operation. In the opinion of Schroeder J.A., as noted earlier in these reasons, there was no basis for holding that MacLaren's rescue efforts, even if improperly carried out, worsened Matthews' condition and thus induced Horsley to come to his rescue. Jessup J.A. would have applied this test of lia­bility if the case, for him, had turned on the voluntary undertaking by MacLaren of rescue operations. Since, on the view taken by Jessup TA., MacLaren had an antecedent or original duty to render assistance, the East Suffolk Rivers Catchment Board case did not apply.

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Whether a case involving the exercise of statutory powers (but not duties) by a public author­ity should govern the issue of liability or non-liability to an injured rescuer is a question that need not be answered here. It has been widely noted that there is some incongruity in imposing liability upon a good samaritan when he who passes by does not attract it. Legislation has been called in aid in some jurisdictions: see Note, (1964), 64 Col. L. Rev. 1301. However, the problem raised by the rescue cases with respect to the East Suffolk Rivers Catchment Board principles is the more ramified if the issue there-under is one of liability to a rescuer as well as to a rescuee, and if it turns on an independent rather than on a derivative duty to the rescuer by the volunteer defendant. There is, hence, all the more reason to leave the problem to be considered on facts which raise it squarely.

On the view that I take of the issues in this case and, having regard to the facts, the appel­lants cannot succeed on the first of their alterna­tive submissions on liability if they cannot suc­ceed on the second ground of an existing common law duty of care. Their third contention was not clearly anchored in any original or supervening duty of care and breach of that duty; and, if that be so, I do not see how their counsel's submission on the foreseeability of a second rescuer, even if accepted, can saddle a non-negligent first rescuer with liability either to the rescuee or to a second rescuer. Encouragement by the common law of the rescue of persons in danger would, in my opinion, go beyond reasonable bounds if it in­volved liability of one rescuer to a succeeding one where the former has not been guilty of any fault which could be said to have induced a second rescue attempt.

If the appellants' third contention was based on any element of fault, it could only be fault in carrying out the attempt at rescue; and, more-over, it would have to be founded on a wide

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view of Lord Denning's statement in the Videan case, supra, at p. 669 where he said that "if a per-son by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger". There is no factual basis upon which to consider the exten­sion of Lord Denning's proposition which under-lies the appellants' third submission in the al­ternative view of it that I have taken. In so far as it rests on an allegation that fault arose only in the bungling of the rescue attempt (there being no anterior duty), no such finding is war-ranted. Beyond this, it invites a return to the principles of the East Suffolk Rivers Catchment Board case, and I do not wish to repeat what I have already said with respect to them.

The present case is thus reduced to the ques­tion of liability on the basis of (1) an alleged breach of a duty of care originating in the rela­tionship of carrier and passenger; (2) whether the breach, if there was one, could be said to have prompted Horsley to go to Matthews' rescue; and (3) whether Horsley's conduct, if not so rash in the circumstances as to be unforeseeable, none the less exhibited want of care so as to make him guilty of contributory negligence.

Whether MacLaren was in breach of his duty of care to Matthews was a question of fact on which the trial judge's affirmative finding is en-titled to considerable weight. That finding was, of course, essential to the further question of a con-sequential duty to Horsley. Lacourcière J. came to his conclusion of fact on the evidence, after putting to himself the following question: "What would the reasonable boat operator do in the cir­cumstances, attributing to such person the reason-able skill and experience required of the master of a cabin cruiser who is responsible for the safety and rescue of his passengers?" (see [1969] 2 O.R. 137 at p. 144). It was the trial judge's finding that MacLaren, as he himself admitted, had adopted the wrong procedure for rescuing a passenger

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who had fallen overboard. He knew the proper procedure, and had practised it. Coming bow on to effect a rescue was the standard pro­cedure and was taught as such.

MacLaren's answer to the allegation of a breach of duty was that he had been guilty merely of an error of judgment. This was the view taken by the majority in the Ontario Court of Appeal who were moved by the element of emergency. What makes this view vulnerable is that this was not a case where MacLaren had failed to execute the required manoeuvre properly, but rather one where he had not followed the method of rescue which, on the uncontradicted evidence, was the proper one to employ in an emergency. There was no external reason for his failure to do so. Jones demonstrated that in the rescue of his wife. Further, after MacLaren's first abortive attempt at rescue, over a period of time which the evidence indicated would have been sufficient to effect a bow on rescue, he made a second attempt with the wrong procedure. It was only then, with the lapse of three or four minutes after Matthews had fallen overboard, that Horsley went to his rescue. I note also that after MacLaren resumed control of his boat from Jones he went bow on to rescue Horsley.

I do not see how it can be said that the trial judge's finding against MacLaren on the issue of breach of duty is untenable. In relation to Horsley's intervention, the finding stands unem­barrassed by any question of causation in rela­tion to Matthews. This, at least, distinguishes the present case from Hutchinson v. Dickie, supra.

There, as here, an invited guest on a cabin cruiser fell overboard and drowned during a lake cruise. The owner and operator of the boat was blameless in respect of the fall overboard, but the trial judge founded liability for wrongful death on breach of duty to act reasonably to effect a

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rescue. There, as here, the owner-operator, on hearing the cry "man overboard", reversed and backed astern towards the drowning man. He was then about 75 feet away from the boat. Two life-rings were thrown to Dickie, the drowning man, one falling within 20 feet and the other within 6 feet of him, but he paid no attention to them. A boat hook was then made ready for use, but Dickie disappeared when the boat was 20 to 25 feet away. The trial judge found negligence, inter cilia, in the failure to turn the boat and come bow on. On appeal the action was dismissed on several grounds. The appellate Court held that there was "an entire lack of evidence that anything appel­lant did or left undone caused his efforts at rescue to fail". This was enough to dispose of the case, as it was enough to dispose of the Matthews' action. On a question more germane to the pres­ent case, the Court agreed that there was a duty of rescue owed to Dickie, but held that a breach was not established by the backing-up procedure that was employed; and, if there was an error, it was one of judgment only in dealing with an emergency. The Court noted that there was a conflict of evidence on the issue of coming bow on or backing up, and this too distinguishes Hutchinson v. Dickie (which, moreover, was not an action by a rescuer's estate) from the present case which was decided more than twenty years later.

I turn to the question whether the breach of duty to Matthews could properly be regarded in this case as prompting Horsley to attempt a rescue. Like the trial judge, I am content to adopt and apply analogically on this point the reasoning of Cardozo J., as he then was, in Wagner v. International Railway Co.14,

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and of Lord Denning M.R. in Videan v. British Transport Commission, supra. To use Judge Cardozo's phrase, Horsley's conduct in the circumstances was "within the range of the natural and probable". The fact, moreover, that Horsley's sacrifice was futile is no more a disabling ground here than it was in the Wagner case, where the passenger thrown off the train was dead when the plaintiff went to help him, unless it be the case that the rescuer acted wantonly.

In the Ontario Court of Appeal, Schroeder J.A., as previously noted, took the view that Horsley was not justified in going to the rescue of Matthews unless MacLaren worsened Matthews' situation through want of reasonable care. I need say no more on this view than that it proceeds on the basis of the East Suffolk Rivers Catchment Board principles which are not applicable to the facts of the present case.

Of more concern here is the position taken by Jessup J.A. which, to put it again and briefly, was that whoever MacLaren should have fore-seen as a rescuer, it could not be Horsley. I can-not agree with this ground of exoneration of Mac-Laren when it is founded merely on his having told Horsley to confine himself to the cabin and cockpit. MacLaren's evidence on this matter was that he had not previously met Horsley, he did not know his experience with boating and with water, and hence he did not want him on deck. In my opinion, this evidence is no more telling against Horsley as a rescuer than it would be against Horsley as a rescuee if he had come on deck and had then fallen overboard. Moreover, the considerations which underlie a duty to a rescuer do not justify ruling out a particular rescuer if it be not wanton of him to intervene. The implication of Jessup J.A.'s position is that Horsley required MacLaren's consent to go to Matthews' rescue. This is not, in my view, a sufficient answer in the circumstances which existed by reason of MacLaren's breach of duty.

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14 (1921), 133 N.E. 437.

To quote again Judge Cardozo in the Wagner case, "the law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act whether im­pulsive or deliberate is the child of the occasion" (133 N.E. 437 at p. 438).

In responding as he did, and in circumstances where only hindsight made it doubtful that Matthews could be saved, Horsley was not wan-ton or foolhardy. Like the trial judge, I do not think that his action passed the point of brave acceptance of a serious risk and became a futile exhibition of recklessness for which there can be no recourse. There is, however, the question whether Horsley was guilty of contributory negligence. This was an alternative plea of the respondent based, inter alia, on Horsley's failure to put on a life-jacket or secure himself to the boat by a rope or call on the other passengers to stand by, especially in the light of the difficulties of Matthews in the cold water. The trial judge re­jected the contentions of contributory negligence, holding that although "wearing a life-jacket or securing himself to a lifeline would have been more prudent ... Horsley's impulsive act without such precautions was the result of the excitement, haste and confusion of the moment, and cannot be said to constitute contributory negligence" (see [1969] 2 O.R. at p. 149). In view of its con­clusions on the main issue of MacLaren's liability, the Ontario Court of Appeal did not canvass the question of contributory negligence.

The matter is not free from difficulty. About two minutes passed after Matthews had fallen overboard and MacLaren made his first abortive attempt at rescue by proceeding astern. Two life-jackets had been successively thrown towards Matthews without any visible effort on his part

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to seize them. Then came the second attempt at rescue by backing the boat, and it was in progress when Horsley dived in. Horsley had come on deck at the shout of "Roly's overboard" and was at the stern during MacLaren's first at-tempt at rescue, and must have been there when the life-jackets were thrown towards Matthews. However, in the concern of the occasion, and having regard to MacLaren's breach of duty, I do not think that Horsley can be charged with contributory negligence in diving to the rescue of Matthews as he did. I point out as well that the evidence does not indicate that the failure to put on a life-jacket or secure himself to a life-line played any part in Horsley's death.

The trial judge assessed damages of $70,300 for Horsley's widow and three children. Counsel for MacLaren argued for a limitation of liability to $66,318.42, pursuant to ss. 657, 659 and 661 of the Canada Shipping Act, R.S.C. 1952, c. 29, as enacted by 1960-61, c. 32, ss. 32 and 34; 1964-65, c. 39, s. 36, if it should be found that MacLaren was liable in respect of Horsley's death. The statutory limitation of liability of a shipowner applies if, inter alia, the loss or injury is without his actual fault or privity. That is not this case, and the trial judge rejected the claim of limitation accordingly. It was contended, how-ever, that MacLaren was sued as master rather than as owner, and was hence entitled to limit his liability in accordance with s. 659 aforemen­tioned, which so provides whether the specified loss or injury occurs with or without his actual fault or privity. Counsel for the appellants con-ceded that the statutory limitation applies in this case if MacLaren is liable, and I need not there-fore pursue this question further. However, the quantum of the limited amount may be spoken to if the sum of $66,318.42, which was chal­lenged by the appellants, is not correct.

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Subject to this, I would allow the appeal, set aside the judgment of the Ontario Court of Ap­peal and restore the judgment of the trial judge but vary the damages to take account of the limi­tation of liability. On this basis, the appellants are entitled to judgment for $66,318.42, which should be appropriated to the widow and chil­dren on the proportions fixed by the trial judge. The appellants are entitled to costs here and in the Court of Appeal as well as to costs of the trial.

Appeal dismissed with costs, HALL and LAS-KIN H. dissenting.

Solicitors for the plaintiffs, appellants: Levinter, Dryden, Bliss, Maxwell, Levitt & Hart, Toronto.

Solicitors for the defendant, respondent, Ken­neth W. MacLaren: Du Vernet, Carruthers, Beard & Eastman, Toronto.

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