R. v. Hendricks, [1970] SCR 237

Supreme Court of Canada

R. v. Hendricks, [1970] S.C.R. 237

Date: 1969-11-17

Egan Hendricks (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1969: May 28, 29; 1969: November 17.

Present: Cartwright C.J. and Abbott, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Crown—Torts—Negligence—Motor boat swept over water fall—Plaintiff’s wife drowned—Lack of proper attention—Failure of Crown servants to replace warning signs—Contributory negligence—Crown Liability Act, 1952-53 (Can.), c. 30—The Trustee Act, R.S.M. 1954, c. 273—The Fatal Accidents Act, R.S.M. 1954, c. 84.

On June 19, 1966, the plaintiff, his wife and a friend went on a cruise on the Red River in a 19-foot fibre glass boat powered by a 90-horse power outboard motor. The plaintiff navigated the boat until they stopped for lunch, after which his wife took over the controls. As they approached a dam with the intention to take their boat through the lock, it became apparent that the lock was not open for use. In fact, the river was not open for navigation. The wife turned the boat about and went back up-stream with the intention of returning home. The plaintiff looked down the river, saw that all the curtains of the dam were raised. The danger signs placed on a buoy and warning of a water fall ahead were no longer in place. These signs had been placed by the Crown servants, had apparently been dislodged by flood waters and had not yet been replaced. It then appeared to the plaintiff that the water was level on both sides of the dam and he could see no falls but did observe a number of small boats fishing and cruising on the far side of the dam, from all of which he concluded that it would be safe to pass under the bridge and directed his wife to do so. When the boat was about 50 feet from the dam, the drop in the water level became clearly visible and the fall of water very audible. The boat was carried broadside over the top of the dam, filled with water and capsized. The plaintiff’s wife was drowned. The plaintiff’s petition of right claiming damages was dismissed by the

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Exchequer Court. The plaintiff appealed to this Court.

Held (Abbott and Ritchie JJ. dissenting): The appeal should be allowed.

Per Cartwright C.J.: The failure on the part of the employees of the Crown to replace the warning signs was negligent and was an effective cause of the disaster. It was an effective cause of the plaintiff and his wife embarking on a dangerous course which they would not otherwise have entered. Their negligence in failing to realize and appreciate the existence of the danger a few moments sooner than they did does not warrant the placing of the whole blame upon them.

Per Hall and Spence JJ.: The facts of this case justify the equal division of the negligence between the plaintiff and the Crown. The lack of proper attention and failure to keep the boat under control during the progress forward from the point of turning to the moment when, all too late they appreciated the danger, was negligence on the part of the plaintiff and of his wife. The Crown was negligent in failing to replace the warning signs which caused the plaintiff to determine to carry out what turned out to a fatal manoeuvre and which led him to believe that his wife could drive the boat forward under the bridge safely. These acts of negligence on both sides were operating simultaneously.

Per Abbott and Ritchie JJ., dissenting: The failure of both the plaintiff and his wife to take any precautions for their own safety was the determining factor in producing the unhappy result which occurred. The absence of the warning signs on the buoy was not of itself a cause of the accident which was solely occasioned by the acts of the plaintiff and his wife. Their negligent conduct was severable from and subsequent to any negligence which might be attributed to the Crown, and in navigating their pleasure boat as they did, they ought to have anticipated the disaster which ensued.

APPEAL from a judgment of Cattanach J. of the Exchequer Court of Canada, dismissing

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the appellant’s petition of right. Appeal allowed, Abbott and Ritchie JJ. dissenting.

D’A. C.H. McCaffrey and J.F. O’Sullivan, for the plaintiff, appellant.

Derek H. Aylen and Robert W. Law, for the defendant, respondent.

THE CHIEF JUSTICE—The relevant facts are set out in the reasons of my brothers Ritchie and Spence which I have had the advantage of reading.

I agree with the judgment of my brother Spence and wish to add only a few words.

In my opinion, there was no adequate reason or excuse for the failure on the part of the employees of the respondent to replace the warning sign reading “Danger—Falls Ahead”, this failure was negligent and was an effective cause of the disaster that occurred. I base this conclusion on the reasons given by my brother Spence and do not find it necessary to add anything to what he has said.

Neither my brother Ritchie nor the learned trial Judge has found it necessary to decide whether there was negligence imputable to the respondent as in their view, even if there was, the negligence of the appellant and his late wife was the sole proximate cause of the accident. I cannot accept this view. This appears to me to be a case in which the negligence for which the respondent is responsible was an effective cause of the appellant and his late wife embarking on a dangerous course which they would not otherwise have entered. I agree that they were negligent in failing to realize and appreciate the existence of the danger a few moments sooner than they did; but this does not, in my opinion, warrant the placing of the whole blame upon them. All the conduct with which they are reproached should be viewed in the light of the fact that they were acting in a situation of imminent danger into which the negligence imputed to the respondent had brought them.

I would dispose of the appeal as proposed by my brother Spence.

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The judgment of Abbott and Ritchie JJ. was delivered by

RITCHIE J. (dissenting)—This is an appeal from a judgment of Mr. Justice Cattanach of the Exchequer Court of Canada whereby he dismissed the suppliant’s claims made by Petition of Right purporting to be brought by virtue of the provisions of the Crown Liability Act, 1952-53 (Can.), c. 30 and of The Trustee Act of Manitoba, R.S.M. 1954, c. 273 and The Fatal Accidents Act of that Province, R.S.M. 1954, c. 84.

The Petition was filed by Egan Hendricks as the administrator of the estate of his late wife, Irene May Hendricks, claiming under The Trustee Act for his wife’s funeral expenses, the loss of his boat and general damages, and under The Fatal Accidents Act on behalf of himself and his daughter for general damages occasioned by the death of his wife as the result of an accident which occurred when Mr. Hendricks’ boat, then being operated by his wife, was swept over a waterfall adjacent to St. Andrew’s Lock at Lockport in the Province of Manitoba on June 19, 1966.

It is not denied that the Lockport Dam and the St. Andrew’s Lock are public works and that the Department of Public Works is responsible for their management, maintenance and control, and in this regard a Privy Council Order was issued on the 29th of December, 1949 (P.C. 6514) entitled “Regulations for the use and Operation of St. Andrew’s Lock, Red River, Man.” In cross-examination Hendricks finally admitted that he was familiar with this Order which provides, inter alia:

2. (g) ‘season of navigation’ means the period between the opening and closing of the lock for traffic;…

4. The lock will be open throughout each day and night during the season of navigation, unless at any particular time provision to the contrary be made by proper authority.

17. (1) Every master or person in charge of any vessel on approaching the lock or bridge shall ascertain whether the lock or bridge is prepared to allow them to enter or pass, and stop the speed of any

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such vessel in sufficient time to avoid a collision with the lock or its gates, or with the bridge or other works.

The italics are my own.

I think it must be accepted that the fixed weir adjacent to the lock to which reference will hereinafter be made, comes within the meaning of “other works” as employed in the section last quoted, and that when Mr. Hendricks’ boat was swept over the waterfall created by this weir, it must be taken to have come into collision with it. I think also that the evidence makes it clear that although they were familiar with the regulations last referred to, the Hendricks acted in direct contravention of them; although they knew that the lock was dry they failed to recognize that the season of navigation had not opened and they made no effort to stop the speed of their boat in sufficient time to avoid colliding with the weir.

Mr. Hendricks and his wife were enthusiastic members of the Redboyne Boating Club, an organization composed of persons who enjoyed boating on the Red River and which supplied its members, including the Hendricks, with full information as to safe navigation and the condition of that River, together with instructions as to safe operation of small boats. The Hendricks were familiar with the River, including the dam at Lockport and the five-foot drop in the River adjacent thereto which created the waterfall where the accident occurred.

Hendricks and his wife had owned small boats for seven years and in the autumn of 1965 Hendricks had purchased a 19-foot fibre glass boat having a 7-foot beam and powered by a 90 horsepower outboard motor, in which he and his wife and a friend by the name of John Atkinson embarked at the Redboyne Boating Club dock on June 19, 1966, taking their lunch and some beer with them with the object of enjoying a cruise on the River as far as Selkirk, which was north of the Lockport Dam. Mr. Hendricks navigated the boat until they stopped for lunch, but when they started again Mrs. Hendricks took over the controls and Hendricks

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and his friend Atkinson seated themselves in the rear of the boat facing the stern.

The dam, so called, at Lockport, consists of a bridge which rests upon five substantial concrete pillars between each of which there is a metal frame with wooden slats affixed to it; the wooden slats operate more or less on the principle of a venetian blind and when the frame is lowered so as to rest upon the top of a concrete weir which is designed to receive it and when the wooden slats are closed, the flow of the River is interrupted and the dam becomes effective so as to raise the water level to allow boats to pass over the Lister Rapids and permit navigation between Lockport and Winnipeg which is a distance of approximately fifteen miles to the south. Whether the dam is lowered or not, the fixed weir has the effect by itself of causing a small waterfall of about five feet with which both the Hendricks were familiar.

When the flow of the Red River at Redwood Bridge in the City of Winnipeg is estimated at 10,300 cubic feet per second, which usually occurs sometime in the early part of June, the dam curtain is lowered at Lockport, the wooden slats are closed and the lock adjacent to and directly to the west of the dam is put in operation so that river traffic can get past the dam; when this occurs the River is declared open for navigation, but in the year 1966 this did not occur until the 20th of June, and on the day of the accident the metal frames were still in the raised position and the dam had no effect on the rate of flow of the River. At the same time the ship canal leading to the lock was dry and the lock was obviously not in operation.

It is to be remembered that Mr. and Mrs. Hendricks must both be taken to have been aware of the rules of the River and as they approached the dam and found the curtain to be raised and the lock to be dry, they ought to have known that the River was not open to navigation.

Notwithstanding the fact that the Hendricks had been through the lock on many occasions and had seen the falls at least six times, they appear to have concluded that the water in the River had risen to an extent which would make

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it safe for them to go under the open curtain of the bridge without encountering the five-foot drop in the level of the River.

It is necessary here to mention the fact that the employees of the Department of Public Works who were in charge of the management of the Lockport Dam had customarily placed a buoy a short distance to the south of the dam at a point in line with and slightly to the south of the eastern side of the ship canal which led into the lock. Normally there were affixed to this buoy two white wooden signs placed crosswise with the words “Danger Falls Ahead” painted thereon in red letters, but in the spring of the year 1966 the flood waters of the River washed over the buoy and dislodged the signs which had not been replaced on the 19th of June, 1966.

As they approached the dam, it was the intention of the Hendricks to take their boat through the lock, but as they got close it became apparent that the ship canal was impassable and that the lock was not open for use. The suppliant testified that at this point his wife turned the boat about and went back upstream from the dam about one-quarter of a mile with the intention of returning home, but Mr. Hendricks says that he then looked back down the River, saw that all the curtains of the dam were raised and observed that the danger signs were no longer placed on the buoy; it then appeared to him that the water was level on both sides of the dam and he could see no falls but did observe a number of small boats fishing and cruising on the far side of the dam, from all of which he concluded that it would be safe to pass under the bridge and directed his wife to do so, whereupon Mrs. Hendricks put the boat about and headed for the fourth span of the bridge, at a speed which Hendricks estimated to be between ten and twelve miles per hour. It was not until the boat was about fifty feet from the dam that the presence of the drop in the water level became clearly visible and the fall of water very audible; at this point Mrs. Hendricks turned the boat broadside to the dam and the flow of the River. The boat was then in a dangerous position and at the trial Hendricks testified that he shouted to his wife to “cut it” although he had previously given a statement to the effect that: “The wife tried to make a turn

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so I said put it in reverse. She put it in reverse and the motor kicked up”. His companion, Mr. Atkinson, made a statement to the same effect. In any event, it is established that the motor became locked in a position with the propellor out of the water so that the boat was out of control, whereupon Mr. Hendricks took over from his wife and tried to get the motor down. In the result the boat was carried broadside over the top of the dam and finally filled with water and capsized as a result of which Mrs. Hendricks was drowned.

The suppliant alleges that his wife’s death was caused by the “carelessness, recklessness and negligence of servants of Her Majesty in right of Canada” and pleads that such servants were negligent in failing to close the dam before June 19, 1966; in causing a dangerous drop in water level; in failing to warn the public of the existence of this danger by adequate visible or audible warning signs; by failing to replace the warning signs which had been floated on the buoy and lost in the flood; by failing to take adequate precautions to avoid damage to pleasure boat users; by failing to have emergency assistance available; and, lastly, by creating a trap on the Red River without any warning of the existence thereof to boat users.

By way of defence, the Crown submits that the accident was caused solely by the negligence or alternatively, the contributory or ultimate and effective negligence of the suppliant and his deceased wife.

It appears to me that if there was any negligence on the respondent’s part it was in failing to replace the warning signs on the buoy so as to alert persons unfamiliar with that portion of the River to the fact that there were “Falls Ahead”. This created a static situation which was potentially dangerous to those who did not know about the dam and the falls, but these were conditions with which both the suppliant and his wife were thoroughly familiar and the danger was not only one which they had every

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opportunity to avoid, but one to which they deliberately exposed themselves.

Although Mr. Hendricks testified that he thought that the River had levelled out so as to make it safe for him to pass under the bridge, I do not think that this was a reasonable conclusion for any man to make who had seen the waterfalls six times before and passed through the lock on more than one occasion and whose observation of the condition of the ship canal and lock on the day of the accident should have alerted him to the fact that the River was not yet open for navigation at that point. In my opinion, the failure of both Mr. and Mrs. Hendricks to take any precautions for their own safety was the determining factor in producing the unhappy result which occurred. The absence of the warning signs on the buoy was not of itself a cause of the accident which was solely occasioned by the acts of the suppliant and his unfortunate wife. The negligent conduct of the suppliant and his wife was severable from and subsequent to any negligence which might be attributed to the respondent, and in navigating their pleasure boat as that did, it appears to me that they ought to have anticipated the disaster which ensued. This is not a case to which the provisions of the Tortfeasors and Contributory Negligence Act, R.S.M. 1954, c. 266, can have any application.

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

The judgment of Hall and Spence JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of Cattanach J. in the Exchequer Court of Canada pronounced on May 31, 1968, whereby that learned trial judge dismissed the petition of right filed by the claimant.

I have had the privilege of reading the reasons of Ritchie J. but with regret I must differ from his conclusion.

In order to avoid repetition I do not outline the facts as completely as did Ritchie J. and shall only make reference thereto where it is necessary for the purpose of these reasons.

Prior to the year 1903, the Red River, subject to certain portages, was navigable from the City of Winnipeg to Lake Winnipeg. In that year, in

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order to permit navigation over the Lister Rapids, which extend from a point some five miles upstream from the St. Andrew’s Dam and Locks for a distance of eight miles, by increasing the water over the rapids the federal government installed this series of works which may briefly be described as follows:

On the base of the river there was laid a concrete weir some 37 feet in width which at places was 20 feet above the bed of the stream, then a bridge for the use of vehicular traffic which was supported by six large concrete piers was erected immediately above the weir. There were hanging from the lower side of the platform of the bridge a series of gates. These gates were so attached that they were hinged at their top end to the underside of the bridge so that they might either be retained in a position parallel to the floor of the bridge and immediately below it or dropped to a vertical position their lower ends resting in slots along the top of the weir. The curtain which has been perhaps aptly described as a Japanese blind could be lowered so that the space between the floor of the bridge and the top of the weir was reduced. When these curtains were down the water level over the weir was raised, according to the finding made by the learned trial judge, by some fourteen feet. On the other hand, when the curtains and the gates in which they sat were raised the whole space between each of the concrete piers was opened and on the 19th of June, 1966, the day of the accident, 2.4 feet of water flowed over the top of the weir. It is, therefore, apparent that whether the gates on this dam were raised or lowered, there was beneath the water and always hidden from view a very substantial concrete barrier constituting, what Duff C.J. described in The King v. Hochelaga Shipping & Towing Company Ltd.[1], “a dangerous menace to navigation.” When the gates and curtains were lowered, the peril to navigation, of course, was obvious on even a casual observation as, in fact, there was a complete wall across the river. When those gates and curtains were raised the appearance was that shown in the third opening from the left on the photograph produced at trial as ex. 5, that is, it bore much the appearance of an ordinary bridge across a river.

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To provide for navigation past this dam, the federal government had installed on the west side of the Red River a canal channel and lock. The canal channel had been dredged and the earth from it thrown up to the east of the canal between it and the river to form an artificial island of some very considerable extent. Immediately beneath the bridge portion of the works a lock was installed. Boats coming downstream from Winnipeg passed this set of works by entering the boat channel along the west limit of the river and to the west of this artificial island, progressing down that channel to the lock and then through the lock to the uninterrupted portion of the river to the north of the set of works. This set of works was by the provisions of the Public Works Act, R.S.C. 1952, c. 228, under the management, charge and direction of the Minister of Public Works, and at all material times the employees of that department were servants of the Crown acting in the course of their duties as such. This admission was made for the purpose of the trial.

It was the practice in the operation of the lock and dam to raise the gates and curtains in the month of November and at that time to cease the operation of the lock. In the spring, at a date which varied according to the flow in the river, the gates were lowered and the curtains closed so that the depth of water to the south, i.e., upstream of the dam, rapidly increased. The canal channel which had been dry during the low water filled up and the lock went into operation. In order to indicate the turn from the main channel course for boats coming downstream into the canal, the Crown servants had placed in the river, a little south of the south end of the artificial island and some distance into the stream, a buoy which was described as a 6-foot floating buoy. This buoy consisted of an anchor of 400-pound weight holding a floating platform from which protruded a circular pipe-like projection painted black.

In 1964, the canal superintendent testified, that noticing that the occupants of small boats were subjecting themselves to a very considerable hazard by operating their boats back and forth in the fore bay just above the dam, he caused

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to be placed on the top of this buoy a mast and by wood screws attached to the mast two signs. These signs were at right angles; both were about 3 feet long by a foot high and both bore the same inscription “Danger—Falls Ahead”.

In the year 1966, that buoy with the signs so affixed and painted was placed in the river on the 13th of May. On such date, the lock had not yet been put into operation. The gates with their shutters had not been lowered, as the river had not yet come to flood. Through long experience it had been discovered that it was not appropriate or efficient to close those gates and shutters until the flow of water past Redwood Bridge in the City of Winnipeg, some 15 to 18 miles upstream from this St. Andrew’s Lock, had decreased to 10,300 cu. ft. per second. When the river was in flood following the 13th of May, the height of the water rose so considerably that the buoy platform, being attached to its 400 pound anchor by a chain, was submerged and with the platform the buoy itself and its attached mast and signs also went under.

In all probability, it was this rush of water which detached the signs. The first sign was detached during the month of May and early in the week of the 6th of June 1966, the superintendent noted that the second sign had disappeared from the mast above the buoy. The buoy had been put in place by using a work boat some 19 feet in length, and that work boat was then returned to the lock and left inside the lock for security. Following the time when the first sign disappeared, the superintendent was unwilling to take the work boat out of the lock and venture into the stream for the purpose of replacing the first missing sign because the current at flood time was so strong that it would have endangered the lives of his staff. After he had noticed during the few days immediately following the 6th of June that the second sign was missing, it would have been possible, by the use of that work boat, to have replaced the signs, but the lowered water had caused the canal channel to dry out and the work boat was blocked in the lock so that it was not available. In addition, it was expected by the Crown servants that the flow in the river would decrease

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to the point where it would become appropriate to lower the gates and curtains. That action would, of course, have increased the depth of the water above the dam, and would therefore have flooded the canal channel so that the work boat could have been used.

The date for the lowering of the gates and curtains was successively postponed on several occasions because of surges in the flood tide and, in fact, they were not lowered until the 20th of June, the day immediately following the fatal accident with which this petition is concerned.

I shall hereafter deal with the conduct of the suppliant Egan Hendricks but it is my intention to first deal with the allegation that the Crown was liable because of the negligence of Crown servants. There is no doubt that this concrete weir across the navigable channel did create a dangerous menace to navigation. The Crown servants realized that danger and had placed on the buoy which indicated the turn into the canal channel the signs warning of the falls ahead. The Crown servants in doing so were, in my opinion, carrying out their proper duty to warn against the danger to navigation which the Crown itself had created. The Crown servants noticing the disappearance of those signs had failed to replace them. So long as the river was in heavy flood, I am of the opinion that that failure may be excused for two reasons, firstly, that advanced by the superintendent that to attempt to launch a boat into the river would have endangered the lives of the Crown workmen who would be the crew of that boat and, secondly, that the river in such flood there could be no boat traffic to warn. But the situation after the 6th of June 1966, in my opinion, differed materially. At that time, the superintendent admitted that it would have been quite feasible to have replaced the warning signs had he a boat available; and he admitted further that the boat need not have been a very large boat but one of the size of their own work boat or of the size of that of the suppliant Egan Hendricks which went over the dam would have been sufficient. Surely the use of such a boat could have been arranged with a minimum of effort. The Crown servants’ own work boat sat in the lock. It was only of the size of the suppliant’s boat and, although the

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lock channel was dry, it could easily have been hauled over the berm and launched into the stream. There were in the immediate area other boats with outboard motors of up to 20 mph. and the use of one of those could have been obtained, or the department could have obtained a boat any place between St. Andrew’s Lock and Winnipeg, head out down the stream as did the suppliant and go alongside the buoy to affix the signs. The circumstances to which I shall refer hereafter, and which resulted in the fatal accident to the late Mrs. Hendricks, illustrated the importance of replacing those warning signs on the buoy as soon as it was practicable to do so. I am of the opinion that there was negligence on the part of the servants of the Crown to fail to replace those signs immediately after the second sign was missing. That would have been about the 7th or 8th of June more than ten days before the date of the accident giving rise to this petition.

A similar failure to warn as to the dangerous menace to navigation was held in The King v. Hochelaga, supra, to be within the provisions of what was then s. 19(c) of the Exchequer Court Act. The liability of the Crown is now founded on the provisions of s. 3(1) of the Crown Liability Act, 1952-53 Statutes of Canada, c. 30, and which provides:

3. (1) The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable

(a) in respect of a tort committed by a servant of the Crown, or

(b) in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.

In my view, the liability of the Crown arises under both paras. (a) and (b) of that section.

Counsel for the Crown has submitted a series of authorities which I have examined but in none of those authorities has it been held that the Crown is not liable when it has placed in a navigable water a menace to navigation and has failed to adequately warn of such menace.

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In Cleveland-Cliffs SS. Co. v. The Queen[2], the claim was based upon a grounding and the question arose whether the grounding was within or outside a marked channel. That was a grounding on the bottom not a mishap caused by the placing of an artificial obstruction under the water level.

Iron Ore Transport Co. Ltd. v. The Queen[3], was another case of the striking of a submerged and unidentified object which was not alleged by the suppliants to be any obstruction placed by the Crown.

In The Queen v. Moss[4], Sir Henry Strong C.J.C. said at p. 331:

I quite concede, however, that assuming this northerly channel to be navigable water the erection in the river of a dam, by means of which the bridge was formed, would have been a public nuisance, unless it was in some way legalized by the action or acquiescence of the Crown. It is not sufficient to justify the placing of an obstruction in a public river or harbour that upon a balance of convenience the structure causing an obstruction to navigation should be of great public utility, far outweighing any inconvenience caused by it as a hindrance to navigation.

As I have pointed out, in The King v. Hochelaga, supra, the Crown was held liable for the dangerous menace to navigation which, in its result, had considerable resemblance to the case presently considered. There, a jetty had been constructed projecting at right angles from a breakwater. Before the jetty had been completed, about 50 feet of the upper portion of the outward end broke away leaving the lower portion of the cribwork and the rock ballast in position but entirely submerged. That submerged crib-work being invisible from the surface resembled the submerged weir in the present case which, on the 19th of June 1966, had some 28 inches of water flowing over the top of it. Therefore, I am of the opinion that the suppliants have established conduct of the Crown and its servants which would render the Crown subject to the liability claimed under s. 3(1) of the Crown Liability Act.

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The question to which I turn next is whether the conduct of the suppliant Egan Hendricks and the late Mrs. Hendricks disentitled them to recover. Egan Hendricks had been a resident of Winnipeg all of his life and, during the 7 or 8 years preceding the accident, had engaged actively in the operation of a boat for pleasure on the Red River as well as on many other waters in the province. He had owned a somewhat smaller boat and, during the course of the previous years had travelled in that boat about 6 or 7 times from Winnipeg downstream to the St. Andrew’s Dam and Lock. On at least three of those occasions, he had proceeded through the St. Andrew’s Lock to some destination downstream north of the dam. He had, on other occasions, driven by automobile from Winnipeg to the area. On all of those occasions, he had seen the two signs on the buoy to which I have already referred. Although Egan Hendricks was a boatman of some experience and although he had, as a member of the Redboyne Boat Club, received instructions as to the safe operation of small boats and had been provided with a pamphlet “Safety Afloat” which contained an outline of the Canadian Buoyage system, it was quite evident from his testimony that he had no understanding whatsoever of that system and, in short, he understood buoys as being only for the purpose of warning of an obstruction below the surface of the water and did not understand their prime purpose, the marking of the limits of the navigable channel. There were some 13 buoys between Winnipeg and the St. Andrew’s Lock which on these 6 or 7 occasions Egan Hendricks had passed as he progressed along the course of the river, but he did not remember any of them as having been red, although, of course, all the buoys marking the one side of the channel would be red in colour while others marking the opposite side of the channel would be black in colour.

Late in the year 1965, Egan Hendricks and the late Mrs. Hendricks, by the joint expenditure of their funds, purchased a new boat. This boat was 19 feet in length, had a beam of 7 feet and a depth of about 4 feet. This boat was propelled by a 90 h.p. Johnson outboard motor and its guidance was by a steering wheel on the starboard side toward the bow. The motor was

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operated by a unit control, one lever installed on the starboard bulwark which when pressed forward first engaged the forward gear and then when the pressure forward continued increased the speed of the motor and, similarly, when pressed backward first engaged the reverse gear and then on further pressure increased the speed of the motor in reverse. This boat was one month old when it was purchased by the Hendricks. It had been used very slightly, if at all, in the year 1965, and most infrequently in the year 1966. On June 19, 1966, the suppliant Egan Hendricks, his late wife, and a friend, Mr. John Atkinson, left the Redboyne Boat Club about 1:00 p.m. intending to go downstream and probably to Selkirk, which is some very considerable distance north, i.e., downstream, from the St. Andrew’s Dam and Lock. The suppliant Egan Hendricks operated the boat at first with the late Mrs. Hendricks and Mr. Atkinson as passengers. To operate the boat, Mr. Hendricks sat on the starboard side facing forward, i.e., immediately behind the steering wheel. There was a like seat on the port side facing forward and then two seats faced the stern one behind each of the forward seats. When the party left after having lunch, the late Mrs. Hendricks took over the operation of the boat and Egan Hendricks and Mr. Atkinson sat in the seats facing the stern and conversed. The party was proceeding up to the St. Andrew’s Dam and Lock and Mrs. Hendricks steered the boat toward the channel going down the west side of the artificial island toward the lock. It became apparent at once to Mr. Hendricks and it must have been as apparent to the late Mrs. Hendricks that the lock was not in operation as the berm of dry land across the channel was quite visible. In my view, the Hendricks’ ignorance as to the Canadian Buoyage System is irrelevant as Mrs. Hendricks when operating the boat did keep the black buoy to her starboard side when she was proceeding downstream and, therefore, considering that the buoy marked the starboard side of the channel for downstream navigation, she left it on her starboard side. When it was apparent that the channel was blocked then, on Mr. Hendricks’ evidence, Mrs. Hendricks turned back into the channel with the intention of starting back upstream toward Winnipeg. This

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left Mr. Hendricks and Mr. Atkinson, sitting as they were facing the stern, looking downstream toward the dam. Mr. Hendricks swore that he then perceived that the river flowed past the six piers with no kind of obstruction whatsoever and without any apparent break in the level of the water. In fact, looking under the bridge and between the piers, he saw several small boats to the north side of the bridge where the occupants were apparently engaged in fishing. At this time, the Hendricks boat was about one-quarter of a mile upstream, i.e., south of the bridge, and Mr. Hendricks was unshaken in his evidence that from that point there was no evidence whatsoever of any fall in the level of the water passing beneath the bridge. As I have said, Mr. Hendricks had, on 6 or 7 occasions before when at this area perceived a considerable waterfall on the north side of the bridge. Mr. Hendricks was equally certain in his evidence that on each of those occasions the gates and curtains were down and the slats were closed. Of course, at that time, Mr. Hendricks would have expected to see a waterfall on the downstream side of the dam. The purpose of the dam was to lift the level of the water and on the north side of the dam there would have had to be a waterfall. On this occasion, there was no dam whatsoever. The gates and curtains were all up beneath the floor of the bridge. The concrete weir part of the dam was hidden by 28″ of water flowing over it. Of course, if one had been on the north side of the dam, one could most easily have perceived a waterfall of some 4 to 5 feet but from one-quarter of a mile south, i.e., upstream of the dam, that waterfall would be quite imperceptible.

 Mr. Hendricks had seen the signs warning of the fall. He had noted that on this particular occasion those signs were not in place. Mr. Hendricks had noted that it was quite evidently impossible to get through the lock. He testified, therefore, that from these observations, he came to the conclusion that the fall created by the dam which he had observed on other occasions did not exist when the dam was open and the lock was not in use and that, therefore, the removal of the signs must indicate that there was no danger of falls and that his boat could proceed downstream without danger. Mr. Hendricks

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testified that from all appearances this bridge was just like the many other bridges between Winnipeg and the St. Andrew’s Lock and his boat had passed safely beneath them all. Mr. Hendricks, therefore, instructed or suggested to the late Mrs. Hendricks that she should turn and pass beneath the bridge in the ordinary course, warning her to keep in the centre in order to avoid any obstructions which might be along the edge of the river. Mrs. Hendricks did operate the boat at some 10 or 12 miles an hour to the space between the 3rd and 4th piers from the west side. The boat so proceeded until it was within 50 feet of the weir. At that time, it became apparent to the late Mrs. Hendricks as well as to both Mr. Hendricks and Mr. Atkinson that there was a waterfall. The stream moved much more swiftly and the roar of the water as it went over the falls was audible. Mrs. Hendricks attempted to turn the boat in order to go back upstream. This, of course, only resulted in the boat going broadside to the current. There is a contradiction as to whether she attempted to reverse the propeller. Mr. Hendricks, at trial, testified firmly that she did not do so and that he did not order her to do so but in a statement given by him to the RCMP on the day of the accident and very shortly thereafter, he had said:

The wife tried to make a turn and so I said to put it in reverse. She put it in to reverse and the motor kicked up.

The passenger John Atkinson in a statement made at the same time said:

As we approached closer, we noticed there was quite a drop so Irene tried to get the boat in reverse but could not. Egan tried to get the motor in reverse but the motor kicked up.

The outboard motor in the Hendricks boat was held in its position down into the water by a lock. This lock was controlled in two different ways: firstly, there was on the dashboard and just to the left of the steering wheel, a lever which thrown one way would tilt the motor up and the other way would tilt it down, secondly, there was a manual control back at the motor. The motor could be driven either locked in the down position or without the lock on. Egan

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Hendricks testified that on this occasion the boat was being operated without the lock on so that if the propeller hit any submerged object the motor would come up without causing damage to it. He also admitted that when the lock was not in position and the motor was suddenly put into reverse the motor would come up out of the water with the result that neither the motor nor the attached rudder being in the water the boat could not be controlled in any way.

The learned trial judge found as negligence on the part of the suppliants the operation of the boat with the motor not locked in place and has evidently accepted the suppliant Egan Hendricks’ earlier statement that the motor kicked up when an attempt was made to reverse the boat rather than his evidence at the trial that it was kicked up when the motor hit what the suppliant Hendricks described as a shelf but which must have been the top of the weir.

I am of the opinion that no negligence in failing to put the lock on the motor before attempting to put it into reverse caused or contributed to the accident. Neither the suppliant Hendricks nor the late Mrs. Hendricks had attempted any evasive action, on Hendricks testimony, until their craft was within 50 feet of the submerged weir. Even if they had succeeded in getting the motor locked no putting of the motor into reverse could have avoided the catastrophe in the short seconds it would take the craft to go that distance of 50 feet and be over the dam. It was then relentlessly in the grip of the current headed over the dam. Moreover, it was broadside to the current due to the late Mrs. Hendricks’ attempt to turn and even if the motor were operating in reverse with throttle open it could have had no preventive effect on the events which occurred. Those events were, of course, going over the top of the weir and down the five-foot falls. The boat was held under the falling water by the turbulence, filled and capsized. The late Mrs. Hendricks was drowned.

Now on those facts, was either the suppliant Egan Hendricks or the late Mrs. Hendricks guilty of such negligence as would bar the sup-

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pliant recovering from the Crown in either his personal capacity or as administrator of the estate of his late wife? Certainly Cattanach J. so held in his reasons:

On the theory of legal causation his acts were the sole proximate cause of his harm. He was in a practical sense the author of his own misfortune even though the respondent might not have been without fault, but with respect to which I make no finding. This is not a case within the Tortfeasors and Contributory Negligence Act, 1954, R.S.M. chapter 266 because, as I have indicated, the negligence of the suppliants was the sole cause of the damage suffered,

Ritchie J. has come to a similar conclusion. With respect, I am of the opinion that such a conclusion is based on a misinterpretation of the evidence. Firstly, as I have said, the Red River was from the earliest days a navigable system and the suppliant had a legal right to be there. It is true that “navigation season” had not opened. Section 1(g) of the Regulations for the Use and Operation of St. Andrew’s Lock, P.C. 6514/49, a copy of which the suppliant acknowledged had been supplied to him on an earlier trip through the lock, defined that season as being the period between the opening and closing of the lock for traffic. Section 4 thereof provided that the lock would be open each day and night during the “season of navigation” but the suppliant was not attempting to go through the lock at a time other than during the “season of navigation”. The lock plainly and visibly was not in operation, the channel thereto being barred by a berm of mud. What the appellant tried to do was to pass downstream under the bridge. Section 17(1) of the same regulations provided:

Vessels approaching Lock or Bridge

17. (1) Every master or person in charge of any vessel on approaching the lock or bridge shall ascertain whether the lock or bridge is prepared to allow them to enter or pass, and stop the speed of any such vessel in sufficient time to avoid a collision with the lock or its gates, or with the bridge or other works.

The suppliant complied with the first requirement of this regulation and did determine that the lock was not prepared to allow him to enter.

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I am of the opinion that he also complied with the second requirement and determined that the bridge was prepared to allow him to enter. The suppliant, as I have stressed, had never seen the lock, dam and bridge except when the gates and curtains were down and had then and only then observed a waterfall on the north side thereof. On those occasions, he had also noted signs on the buoys warning of “Danger—Falls Ahead”, referring to the very falls which he had observed. On this occasion, he observed from the south end of the channel, and then again from midstream, an ordinary six-pier bridge with no sign of any dam or gate or curtain. The suppliant, neither then nor on previous occasions, saw any concrete weir. In normal flow of water, that weir was covered with 14 feet of water, and even with the dam open with 28 inches of water. The suppliant, when the gates and curtains had been lowered on these previous occasions, had observed the signs warning of the waterfall and had also observed the waterfall which was the subject of such warning.

On June 19, on the other hand, the signs were not present and the gates and curtains which he knew caused the waterfall had been raised. The suppliant, therefore, concluded that the gates and curtains not being in place to stay the flow of the stream and cause the water to pile up against them, there would be no difference in the level of the water at either side of the bridge. I am of the opinion that the suppliant was justified in coming to that conclusion. From the point where he made the observation, about 400 yards to the south of the bridge and dam, he could neither see nor hear the waterfall and could see small boats in the area just north of the bridge. The suppliant was entirely ignorant of the large totally submerged concrete weir. Under all the circumstances present on the 19th of June, I have concluded that the suppliant, when he stood up in his boat at this point 400 yards away from the dam and bridge and looked north, was not negligent in determining that his boat could pass safely under the bridge and in instructing the late Mrs. Hendricks to so proceed.

However, the suppliant then sat down in the seat facing the stern and resumed his conversa-

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tion with the passenger Mr. Atkinson. The boat moved forward at a speed of about 10 or 12 miles an hour. At the former speed, it would take 60 seconds to cover the 400 yards to the bridge. During that time, the suppliant should have been keeping a very close watch. The manœuvre which he had directed the late Mrs. Hendricks to carry out was unusual and was one which he had not previously performed. There would seem to have been plenty of time to stop the forward progress of the boat had the suppliant and the others in the boat been alert. It is to be remembered that other small boats running back and forth across the fore bay had moved the superintendent to install the warning signs and that those boats, although their occupants had endangered themselves, had escaped in safety. Unfortunately, neither the suppliant nor the late Mrs. Hendricks, nor indeed their passenger Mr. Atkinson, sensed anything was amiss until the boat was only 50 feet upstream from the waterfall of 4 or 5 feet where the water tumbled over the northerly edge of the concrete weir. The learned trial judge assessed that weir as being 35 feet wide at the base. A reference to the sketch which he used (Ex. 9) would appear to show that the weir was 30 feet wide across its top. So the boat must have been only 20 feet south of the southerly edge of the weir when the late Mrs. Hendricks operating it and the other two at the same moment appreciated their plight. As I have pointed out, it was then impossible to prevent the catastrophe, particularly when in an attempt to go back upstream the late Mrs. Hendricks had turned the boat so it was broadside to the rushing current. I am of the opinion that this lack of proper attention and failure to keep the boat under control during the progress forward from the point of turning to the moment when, all too late, they appreciated the danger, was negligence on the part of the suppliant and of the late Mrs. Hendricks.

I am, however, not of the opinion that this negligence can be separated in time from that which I have outlined above as being attributable to the Crown. It was the negligence in the failure to replace the warning signs which caused the suppliant to determine to carry out what turned out to be a fatal manœuvre and which led him

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to believe that the late Mrs. Hendricks could drive the boat forward under the bridge safely. Acts of negligence on both sides were, in my opinion, operating simultaneously.

I am further of the opinion that the suppliant and his late wife are identified in the negligent operation of the boat. It was the suppliant who determined that the boat should be driven under the bridge and so instructed his wife. It was the suppliant who sat facing the stern and failed to keep a proper lookout which would have warned him of the danger in time. However, the late Mrs. Hendricks, with the same knowledge as her husband, did drive the boat forward and she herself failed to keep the sharp lookout necessary. They committed the same acts of negligence. Therefore, as to both the suppliant claiming on his own behalf and as administrator of the estate of his late wife, I would apply the Tortfeasors and Contributory Negligence Act, R.S.M. 1954, c. 266. I am of the opinion that the facts which I have outlined justify the equal division of the negligence between the suppliant and the Crown.

The learned trial judge, despite his refusal to grant any relief, very properly made a detailed assessment of the damages which he would have awarded had he found otherwise on the question of liability. The learned trial judge set these damages out as follows:

(1) Special damages to the suppliant on his own behalf for damage to the boat and loss of personal property..............................................	$          670.00
(2) General damages to the suppliant on his own behalf....................	Nil
(3) Special damages under the Trustee Act for funeral expenses.....	929.11
(4) General damages under the Fatal Accidents Act and the Trustee Act for pecuniary loss to the suppliant and and his daughter	20,000.00
(5) General damages under the Trustee Act for pain and suffering and loss of expectancy of life.................................................................	2,500.00

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Counsel for the suppliant has agreed that the damage item set out by the learned trial judge in No. (5) is covered by the allowance made in No. (4). With this I agree.

I would, therefore, allow the appeal with costs here and in the Exchequer Court and grant the appellant judgment for 50 per cent of the other damages as found by the learned trial judge, i.e., $21,599.11. That amount is $10,799.55.

Appeal allowed with costs, ABBOTT and RITCHIE JJ. dissenting.

Solicitors for the plaintiff, appellant: Walsh, Micay & Company, Winnipeg.

Solicitor for the defendant, respondent: D.S. Maxwell, Ottawa.