Hellenius v. Lees, [1972] SCR 165

Supreme Court of Canada

Hellenius v. Lees, [1972] S.C.R. 165

Date: 1971-04-27

Frank Hellenius and Rock Leclerc (Plaintiffs) Appellants;

and

Thomas Lees (Defendant) Respondent.

1971: February 25, 26; 1971: April 27.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Motor vehicles—Negligence—Accident caused by blow-out of tire on defendants car—Injuries sustained by paying passengers—No negligence found on part of defendant—Burden of proof—Charge to jury—Whether misdirection.

The plaintiffs’ action for damages for personal injuries arising out of a motor vehicle accident was dismissed at trial. The cause of the accident was a blow-out of a tire on the defendant’s car and the jury found that the injuries sustained by the plaintiffs when travelling as passengers for hire in the said vehicle were not caused or contributed to by any act or omission on the part of the defendant. An appeal from the trial judgment having been dismissed by the Court of Appeal, the plaintiffs then appealed to this Court.

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Counsel for the plaintiffs submitted that the trial judge erred in failing to charge the jury that the onus of disproving negligence was on the defendant. It was contended that this was a case of res ipsa loquitur and that on this ground there was an initial burden upon the defendant to disprove negligence.

It was also contended that a new trial should be ordered because the defendant’s counsel, while addressing the jury, had made some statement to the effect that if the verdict was in favour of the plaintiffs, the defendant would have to bear that verdict for the rest of his life. This statement would serve to indicate to the jury that the defendant was uninsured and this was a factor which should be considered in assessing damages.

Held: The appeal should be dismissed.

The central question as to whether the condition of the tire and its subsequent blow-out were caused or contributed to by a failure of the defendant to exercise reasonable care to ensure that his vehicle and its equipment were in a safe condition for the contemplated journey was adequately stated by the trial judge.

A trial judge in instructing a jury, after all the evidence has been heard from both sides, is not required to enter into any discussion of the way in which the burden of proof shifted from one side to the other as the trial progressed. In this case all the facts were before the jury when the judge addressed them and it was for the jurors to decide on the evidence as a whole whether or not the defendant was guilty of negligence.

As to the alternative submission, there was no prejudicial error which could warrant a new trial.

Mann v. Balaban, [1970] S.C.R. 74, distinguished.

APPEAL from a judgment of the Court of Appeal for Ontario[1], affirming a judgment of Henderson J., by which the appellants’ action for damages for personal injuries was dismissed in accordance with the verdict of a jury. Appeal dismissed.

J. Sopinka, for the plaintiffs, appellants.

C.A. Keith, for the defendant, respondent.

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The judgment of the Court was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario, Laskin J.A. (as he then was) dissenting, which affirmed the judgment rendered at trial by Henderson J., in accordance with the verdict of a jury which had found that the serious injuries sustained by the plaintiffs when travelling as passengers for hire in the defendant’s motor vehicle, were not caused or contributed to by any act or omission on the part of the defendant.

The accident giving rise to this litigation occurred on August 21, 1964, when the plaintiffs were paying passengers in the defendant’s motor vehicle which was being driven in an easterly direction on the Macdonald-Cartier Freeway when the left rear tire blew out causing the vehicle to swerve and roll over on the highway with the result that the plaintiffs both sustained severe injuries. The appellants and the respondent were all Air Force students stationed at Camp Borden and on April 17, 1964, the respondent, whose home was at Stanstead in Quebec, had bought a 1959 Studebaker from a dealer in Magog so as to afford himself easy transportation from the Camp to his home.

At the time of buying the car the defendant inspected it and test drove it for three days before being satisfied that it was in suitable condition, whereafter he drove it to Borden and when he came home on his next trip he took it to a service station which he knew well and left it there for servicing. When he went back to get the car he was told that he needed two new tires and therefore bought and installed two first quality Atlas tires on the front wheels, putting the best of the remaining tires on the rear wheels.

Between the time of the purchasing of the car and the time of the accident, Lees made two round trips from the Camp to his home without experiencing any difficulties whatever, but some time during the early summer, one of the rear tires developed a slow leak and the respondent had it removed to be repaired and after replacing it with the spare, he kept it as a spare tire.

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On Thursday, August 20, 1964, the night before the accident, Lees took the car to a garage to be lubricated in preparation for his week-end trip home, and while the servicing was in progress his friend Mercier, who intended to join him on the trip, examined each of the tires. He did this because of an earlier accident in which he had been involved as a result of worn tires, and he satisfied himself as to the appearance of all the tires. On Friday, August 21st, Lees was accompanied by five fellow students, including the plaintiffs, who had arranged to pay for the trip to their homes and back, and at about 7 o’clock in the evening while the car was travelling east on the Macdonald-Cartier Freeway, at about 60 miles an hour in the passing lane, the tire on the left rear wheel blew out, causing the back of the car to swerve towards the north shoulder of the east-bound lane, as a result of which the vehicle overturned and came to rest in an upright position on a grass median separating the east and west bound lanes of the highway. At the time of the accident it was raining, visibility was limited and the road surface was slippery.

Mr. Hastings, who is an affiliate of the Society of Automotive Engineers, gave evidence on behalf of the appellant, Hellenius, to the effect that the tire which blew out and caused the accident, was not in a fit condition to be driven at a rate of 60 miles an hour by reason of the fact that there was a patch inside the tire and one inside the tube which were adjacent to each other and that this would cause a bulge in the tire, and there might actually have been a tear in the rubber itself before the blow-out. This evidence must be read in light of the passage in Mr. Hastings’ cross-examination where he said of the external evidence of the tire’s weakness:

Q. You might not even see it by taking a close look at the tire.

A. It would depend on who looked at it.

Q. Yes.

A. It could depend on who looked at it.

Q. Somebody who had technical or advanced training such as yourself might be on the lookout for that, I put it to you the average ordinary motorist might never spot anything like that?

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A. I don’t suppose the average motorist would but a service station attendant should.

In any event, all the evidence was before the jury when considering the verdict and the only issue on this appeal is whether there was such misdirection in the charge of the learned trial judge as to justify the ordering of a new trial.

The case went to the jury under a ruling by the learned trial judge that the plaintiffs were not gratuitous passengers but rather that the defendant was at the time of the accident operating his vehicle “in the business of carrying passengers for compensation” within the meaning of s. 105(2) of The Highway Traffic Act, R.S.O. 1960, c. 172. I agree with the unanimous opinion of the Court of Appeal that this ruling should be affirmed, but under all the circumstances I consider it to be desirable to reproduce the provisions of ss. 105 and 106 of the said Highway Traffic Act which read as follows:

105. (1) The owner of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway unless the motor vehicle was without the owner’s consent in the possession of some person other than the owner or his chauffeur, and the driver of a motor vehicle not being the owner is liable to the same extent as the owner.

(2) Notwithstanding subsection 1, the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in, or upon, or entering, or getting on to, or alighting from the motor vehicle.

106. (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver.

(2) This section does not apply in case of a collision between motor vehicles or between motor vehicles and cars of electric or steam railways or

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other motor vehicles running only on stationary rails on the highway nor to an action brought by a passenger in a motor vehicle in respect of any injuries sustained by him while a passenger.

In the course of the factum filed on behalf of the appellants, these two sections are cited as authority for the proposition that, as the learned trial judge found that the motor vehicle owned by the respondent was in the business of carrying passengers for compensation, he erred in failing to charge the jury that the onus of disproving negligence was on the respondent. As to this submission, I adopt the paragraph in the reasons for judgment rendered by Chief Justice Gale on behalf of the Court of Appeal in which he says:

As to the second objection, it is my view, notwithstanding s. 106 of The Highway Traffic Act, R.S.O. 1960, c. 172, that where an action is brought by a non-gratuitous passenger against the owner and driver of a motor vehicle in which he is riding but which is not a common carrier, the ultimate onus is upon the plaintiff to prove that the injuries for which he seeks damages resulted from the negligence of the defendant or of someone for whom the defendant is responsible.

In the course of his dissenting opinion, however, Mr. Justice Laskin interpreted the submissions made by counsel for the appellants in this regard as follows:

It was his view that the onus for which he contended rested upon the defendant at common law, and it was in no way affected by s. 106(2). I understood his submission to be that s. 106(2) simply denied the statutory reverse onus effect of s. 106(1) in the case of a suit by a passenger, but it could not be taken further to abrogate an onus of disproof existing at common law.

Mr. Justice Laskin appears to have taken the view that although the mere happening of the accident did not raise any inference of negligence against the driver, the circumstances of the present case were such as to give rise to what the learned judge refers to as “a secondary burden of proof” which rested upon the respondent in this case because the plaintiffs’ evidence disclosed a failure

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on the part of Lees to exercise reasonable care to see that the car and its equipment were in a safe condition for the journey.

On this phase of the matter, the learned dissenting judge made the following finding which was relied upon by the appellants before this Court:

In his charge to the jury, the trial judge recounted the evidence of the expert as to the condition of the tire. He then proceeded to deal with the burden of proof, and dealt with it in terms of the ultimate burden only which, quite properly, he placed upon the plaintiffs. Nowhere in his charge did he tell the jury that there were facts adduced in evidence by the plaintiffs which, if believed, were sufficient to raise an inference of negligence. The closest he came to this was in a passage which, as repeated (at the request of counsel for the defendant) by recalling the jury, was in these words:

Now, this action involves allegations of negligence, as I said before, made by the plaintiffs against the defendant. Now, gentlemen of the jury, let me tell you this that the law of negligence is that outcome of growth of law in the last analysis from the common sense of common people. Negligence is the omission to do something which a reasonable man would do and I would take it that applying to this case did Lees, in this case, apply the above rule. Was he required to make any more extensive inspection of his tires having in mind the length of the trip, the load in his car, the speed he would travel under, the road conditions which were present. Did he fail to drive at a reasonable speed under the circumstances and was there anything he could have done which he did not do when the tire blew out to keep his car under control.

I do not think this would meet the situation if indeed a direction respecting an inference of negligence was required. In my opinion it was, and the failure to give it means that there must be a new trial.

It was contended on behalf of the appellants that this was a case of res ipsa loquitur and that on this ground there was an initial burden upon the respondent to disprove negligence. I should say at the outset that in my opinion this submission cannot be sustained on the facts of the present case. The so‑called rule embodied in the Latin phrase res ipsa loquitur is nothing more than

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a rule of evidence and states no principle of law. The rule is conveniently and authoritatively stated in the judgment of Erle C.J., in Scott v. London & St. Katherine Docks Co.[2], where it is said:

There must be reasonable evidence of negligence.

But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

I find that the limitations of the doctrine so stated are accurately described in Clerk & Lindsell on Torts, 13th ed., para. 967, at p. 968, where it is said:

The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.

In the present case the cause of the accident was known and was indeed apparent. It was caused by the blow-out in the left rear tire of the car and the central question for determination by the jury was whether the condition of the tire and its subsequent blow-out were caused or contributed to by a failure of the respondent to exercise reasonable care to ensure that his vehicle and its equipment were in a safe condition to undertake the contemplated drive from Borden to the destinations of his various passengers. In my opinion this central question was adequately stated

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when the learned trial judge defined negligence as “the omission to do something which a reasonable man would do” and went on to say of the respondent:

Was he required to make any more extensive inspection of his tires having in mind the length of the trip, the load in his car, the speed he would travel under, the road conditions which were present. Did he fail to drive at a reasonable speed under the circumstances and was there anything he could have done which he did not do when the tire blew out to keep his car under control.

I do not think that a trial judge in instructing a jury, after all the evidence has been heard from both sides, is required to enter into any discussion of the way in which the burden of proof shifted from one side to the other as the trial progressed. In this case all the facts were before the jury when the judge addressed them and it was for the jurors to decide on the evidence as a whole whether or not the defendant was guilty of negligence.

In the course of the argument before this Court, reference was made to Mann v. Balaban[3], which was a case involving the allegation of unlawful assault by the defendant and in which Mr. Justice Spence, speaking on behalf of the majority of the Court, held that the trial judge’s charge was open to the construction that the burden lay upon the plaintiff not only to prove the assault, but also to prove that the assault was committed without lawful excuse. In holding that upon the plaintiff proving the assault the burden of proof shifted to the defendant to prove that it was not unlawful, Mr. Justice Spence concluded that the jury had been misdirected and a new trial was ordered accordingly. This case is, in my opinion, quite different from the present one because in the Mann case it was found that the judge’s charge might have left the jury with an entirely erroneous conception of the case which the plaintiff was required to make out. In the present case, as I have indicated, there was no such misdirection and the issue of negligence or no negligence was left to the jury, uncoloured by any misconception as to

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where the burden of proof lay. I do not think that there was any misdirection in the charge of the learned trial judge.

The appellants also contended that a new trial should be ordered because respondent’s counsel, while addressing the jury, had made some statement to the effect that if the verdict was in favour of the plaintiffs, the defendant would have to bear that verdict for the rest of his life. It was contended that this statement would serve to indicate to the jury that the defendant was uninsured and that this was a factor which should be considered in assessing damages. In this regard the learned trial judge observed at the conclusion of his charge:

Now, gentlemen, let me conclude by telling you that you are not to be swayed by sympathy, passion or emotion and the results flowing from your decision are of no concern to you once you have made your determination of the case. You are deciding this case as any judge might do, any judge you might know might do in the manner you would expect him to act. Sometimes it is not a very easy duty to erase from your minds sympathy, emotion and passion, but as I must do sometimes you must do that now.

I agree with the unanimous opinion of the Court of Appeal, for the reasons so fully stated in the reasons for judgment of Laskin J.A., that the trial judge dealt adequately with the matter and that there was no prejudicial error in this regard which could warrant a new trial.

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

Appeal dismissed with costs.

Solicitors for the plaintiffs, appellants: Fasken & Calvin, Toronto.

Solicitors for the defendant, respondent: Keith, Ganong & Roberts, Toronto.