Highway Victims Indemnity Fund et al. v. Martineau, [1978] 1 SCR 247

Supreme Court of Canada

Highway Victims Indemnity Fund et al. v. Martineau, [1978] 1 S.C.R. 247

Date: 1977-04-29

The Highway Victims Indemnity Fund (Defendant)

and

Jeannette Martineau and Allen Robindaine (Defendants) Appellants;

and

Pauline Martineau (Plaintiff) Respondent.

1976: March 5; 1977: April 29.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Motor vehicles—Indemnity Fund—Accident caused by unknown driver—Joint condemnation—Liability of Fund limited—Victim not fully compensated—Liability of Fund not extinguished—Computation of interest rate—Highway Victims Indemnity Act, R.S.Q. 1964, c. 232, ss. 6, 9, 14, 15, 16, 26, 28, 29, 36 to 42, 43 and 49—Revenue Department Act, R.S.Q. 1964, c. 66, s. 53 as replaced by the 1972 Revenue Department Act, Quebec, c. 22—Civil Code, art. 1056c.—Code of Civil Procedure, art. 481.

As a result of a car accident involving the car of an unknown reckless driver and that of appellant’s wife, which appellant was driving and in which respondent was a passenger, the latter was seriously injured. She brought an action against the two appellants and the Indemnity Fund. The Superior Court considered that the accident was caused by the fault of the unknown driver and of appellant, and condemned the three defendants jointly to pay respondent the sum of $148,402, evaluating the Fund’s share at seventy per cent and appellant’s at thirty per cent. The Court of Appeal dismissed the appeal concerning liability because it found no manifest error in the trial judgment. It also dismissed the alternative argument of the Fund according to which the liability of the Fund could not exceed $35,000, on the ground that it would be premature to dispose of it, in view of the question that would no doubt be brought up at a later proceeding, that of whether the victim had received payment from another source.

Held: The appeal of appellants Martineau and Robindaine is dismissed. The appeal of the Indemnity Fund is allowed.

[Page 248]

Except in the event of an absolutely obvious error, which has not been shown in the case at bar, this Court will not again reconsider unanimous, concurring findings bearing on issues of fact and credibility which are matters for the trial judge.

The question here is whether the duty imposed on the Indemnity Fund to compensate the victim of an accident caused by an unknown driver is limited to the sum of $35,000, and whether this duty is extinguished by the fact that the victim has received from another party liable for the accident a sum exceeding $35,000.

The liability imposed on the Fund by s. 43 is limited to the amount prescribed by s. 14, that is $35,000. The determining provision with respect to this provision is found in the second paragraph of s. 43, expressed in the words “to the same extent as if [judgment] had been rendered against the author of the accident”. The insertion of these words inserts into s. 43 the idea of a limitation of the Fund’s liability. The Act provides no other limitation than that in s. 14. This interpretation is confirmed by para, (b) of s. 49, which allows the Fund to pay this debt, liquidated by the judgment, only “to the extent prescribed”. The distinct wording of paras. (b) and (e) of s. 49 is not a valid argument against the Fund’s position. The judgment condemning the Fund jointly and severally with another party could not, as regards the Fund, exceed $35,000. Marach, [1970] S.C.R. 402, is not an obstacle to these findings.

Even if, as in the case at bar, the judgment respondent obtained was satisfied to the extent of the sum of $100,000, leaving a balance of $48,000, the Fund’s liability is not extinguished by the compensation already paid to respondent. In such a case, the Act gives a remedy against the Fund up to $35,000. In fact, the Act intends that the financial responsibility it requires for each automobile be guaranteed either by insurers or by the Fund administered and supplied by insurers. The victim is therefore correct in claiming from the Fund the excess of her damages, up to $35,000, to supplement the unknown driver’s lack of financial responsibility.

The deduction provided for by s. 38 has no application here, since respondent received nothing from the unknown driver, and has nothing to deduct from the claim that she is making to the Fund for the fault of the unknown driver.

A supplementary indemnity may be added to the amount awarded to respondent, computed by applying to the amount a percentage equal to the excess (three per cent) over the legal rate of the rate of interest fixed

[Page 249]

according to s. 53 of the Revenue Department Act. Appellants could not be condemned to pay interest other than legal interest.

The objection to the payment of expert costs on the grounds that they were only requested in the conclusions of the declaration and that they were not pleaded cannot be upheld.

The Highway Victims Indemnity Fund v. Magnan, [1977] 1 S.C.R. 793, referred to; Marach v. The Highway Victims Indemnity Fund, [1970] S.C.R. 402, distinguished.

APPEALS from a decision of the Court of Appeal of Quebec affirming a judgment of the Superior Court. Appeal of appellants Martineau and Robindaine dismissed, subject to a variation of the Superior Court judgment concerning the legal interest to be paid. Appeal of the Indemnity Fund allowed, subject to a variation of the Superior Court judgment limiting liability to $35,000.

Pierre Magnan, for the appellant, the Indemnity Fund.

C. Dugas, Q.C., for the appellants Martineau and Robindaine.

Marvin Rosenhek and Abraham Slawner, for the respondent.

The judgement of the Court was delivered by

BEETZ J.—The question is whether the duty imposed on the Highway Victims Indemnity Fund to compensate the victim of an accident caused by an unknown driver is limited to the sum of $35,000. It is also necessary to decide whether this duty is extinguished by the fact that the victim has received from another party liable for the accident a sum exceeding $35,000. The action also includes two less important points which will be considered later.

I. The evidence and the pleadings

The circumstances which gave rise to the action are the following.

On the evening of November 18, 1969, appellant Allen Robindaine, driving a car which was the property of his wife, appellant Jeannette Mar-

[Page 250]

tineau, went to get his sister-in-law, respondent, at Lavaltrie, where she had just finished evening courses, and was driving her back to Repentigny.

Driving east on Highway 2, as he was about to meet a tractor-trailor truck coming in the opposite direction, Robindaine suddenly saw in front of him a vehicle which had been following the truck and was preparing to pass it, by entering the lane in which Robindaine was travelling. In order to avoid a head-on collision, Robindaine swerved to the right onto the south shoulder of the road. The driver of the tractor-trailer truck also swerved to the right, driving partially on the north shoulder. The three vehicles passed without touching. The reckless driver passed the truck and continued on his way without anyone being able to learn his identity. In attempting to get back onto the pavement, Robindaine lost control of his car, which crossed the centre of the road, crashed into a second tractor-trailer truck following the unknown driver, skidded and overturned in a ditch. Respondent was seriously injured.

She first brought an action against the driver and owner of the car in which she was travelling. Later, she amended her action to join the Fund and concluded that the three defendants should be found jointly and severally liable.

The Superior Court considered that the accident was caused by the fault of the unknown driver and of Robindaine. It condemned the three defendants jointly and severally to pay to respondent the sum of $148,402.44, with interest at the rate of five per cent per annum from the date of service to December 31, 1971, and eight per cent thereafter. It also apportioned the debt between the defendants, evaluating the Fund’s share of the liability at seventy per cent and Robindaine’s at thirty per cent.

The Court of Appeal dismissed the appeal of Allen Robindaine and Jeannette Martineau because it found no manifest error in the trial judgment. The Fund had also appealed, contending principally that the unknown driver had committed no fault, and alternatively, that the liability of the Fund could in any case not exceed $35,000, its duty to satisfy the judgment depending in addi-

[Page 251]

tion on other matters which it would be premature to discuss at that stage, such as the question of whether the victim had received payment from another source. The Court of Appeal dismissed the Fund’s principal argument on the ground that the trial judge had committed no manifest error; it also dismissed the alternative argument, including the question of limitation of the Fund’s liability, on the ground that it would be premature to dispose of it.

In this Court the quantum of the damages was not disputed, nor was the division of liability, if any, between the co-defendants. Only Allen Robindaine and Jeannette Martineau put their liability in issue, and maintained that the accident was caused by the fault of the unknown driver alone. After hearing their counsel, the Court excused the other parties from replying to them on this point: Allen Robindaine and Jeannette Martineau charged that the trial judge had preferred the testimony of respondent to that of disinterested witnesses with respect to the speed of the Robindaine vehicle, that he incorrectly weighed the evidence with respect to the topography, the curve of the road, the difference between the level of the shoulder and that of the road, and so on; these are questions of fact and credibility which are matters for the trial judge; the Court of Appeal reviewed them without finding any reason to intervene; except in the event of an absolutely obvious error, which has not been shown in the case at bar, this Court will not again reconsider unanimous, concurring findings bearing on such issues. The appeal of Allen Robindaine and Jeannette Martineau must therefore be dismissed, subject to a minor correction which will be considered later.

In its brief, the Fund concluded that the judgment against it should be reduced to the sum of $35,000 with interest and the costs of an action for that amount. Having obtained this reduction, the Fund would undoubtedly have raised in a subsequent proceeding the question of whether the victim had been compensated by another source. However, it was admitted at the hearing that the victim had already received from appellants Jeannette Martineau and Allen Robindaine the sum of $100,000, with interest at five per cent from the

[Page 252]

date of service, so that it becomes possible, as the parties have agreed, to settle the entire action now.

II. Limitation of the Fund’s liability for an accident caused by an unknown driver

The recourse of a victim of an accident caused by an unknown driver is based on Division XIII of the Highway Victims Indemnity Act, R.S.Q. 1964, c. 232 (the Act). This division, entitled “Unknown driver or owner”, contains only one section, s. 43:

43. Any person having a claim that could be the basis of an application to the Fund who cannot ascertain the identity of the driver or owner of the automobile that caused the accident may give the Fund a detailed notice thereof.

Failing settlement within sixty days, such person may take action against the Fund and the Fund must satisfy the judgment to the same extent as if it had been rendered against the author of the accident.

The limitation of the Fund’s liability, if any limitation exists, depends on the way s. 43 must be interpreted in relation to s. 14, ss. 36 to 42, and s. 49 of the Act. Section 14 is located in Division V, entitled “Financial responsibility”. The first paragraph of s. 14 reads as follows:

14. The financial responsibility required by this Act amounts, besides interest and costs, to the sum of thirty-five thousand dollars for all damages in the same accident, subject to a deduction of two hundred dollars from all damage to the property of others.

Sections 36 to 42 are part of Division XII of the Act, entitled “Recourse to the Fund”. They allow a creditor of a judgment for damages resulting from an automobile accident, in certain conditions, to apply to the Fund to satisfy such judgment. Section 38 prescribes what is then the extent of the Fund’s obligation:

38. Within seven days of receipt of the application accompanied by an authentic copy of the judgment, the Fund shall satisfy the judgment, up to the amount prescribed in section 14, but deducting from such amount any sum or value received by the creditor and deducting from any amount due for damage to property the sum of two hundred dollars.

[Page 253]

If, however, there is a possibility of claims exceeding the whole of the prescribed amount, the Fund may defer payment to the extent deemed necessary until the other claims are liquidated.

Section 49 is found in Division XV, entitled “Constitution of the Fund”. It reads in part as follows:

49. The Fund has the following powers:

(a) …

(b) to pay, to the extent prescribed, the unsatisfied judgments awarding damages arising out of automobile accidents or the claims susceptible of giving rise to such judgments;

(c) …

(d) …

(e) to indemnify the victims of automobile accidents when the author thereof is unknown;

Section 38 requires the Fund to satisfy an application based on ss. 36 and 37 relating to a judgment obtained against the unknown author of an accident only

up to the amount prescribed in section 14.

Section 43, which establishes the liability of the Fund for the fault of an unknown driver, requires the Fund to satisfy the judgment

to the same extent as if it had been rendered against the author of the accident.

Counsel for the respondent noted the absence in s. 43, as did counsel for Jeannette Martineau and Allen Robindaine, of an express limitation of liability like that found in s. 38. They claimed that s. 43 substitutes the Fund entirely for the unknown author of the accident, and that the effect of the last phrase of this section is to impose on the Fund a liability as full as that of the unknown driver.

They also claimed that the distinction between the limited liability regime of s. 38 and the total liability regime of s. 43 is continued by the distinct texts of paras. (b) and (e) of s. 49.

Finally, they relied on the decision of this Court

[Page 254]

in Marach v. Highway Victims Indemnity Fund[1], which, in their submission, held that the provisions of Division XII of the Act, ss. 36 to 42, do not apply to the recourse in Division XIII, s. 43.

In my opinion, the Fund is correct in claiming that the liability imposed on it by s. 43 is limited to the amount prescribed by s. 14, that is, $35,000. If the text of the Act was not clear, and it was necessary to go back to the principles on which it is based and to their internal logic, in order to interpret it, it should be asked, for example, why the Act would treat the victim of an unknown driver more favourably than the victim of a driver whose identity is known. However, it is not necessary to go back to these principles: s. 43 cannot, in my opinion, be read otherwise than as subject to the other provisions of the Act, including those which limit the Fund’s liability to $35,000.

The recourse in s. 43 is not open to all victims of unknown drivers, but only, as provided in the first paragraph of this section, to those who have a claim that could be the basis of an application to the Fund. It is impossible to give a meaning to this limitation without referring to ss. 36 and 40. Thus, the recourse in s. 43 is not open, in view of s. 36, to the victim of an unknown driver, unless the victim’s claim relates to an accident which occurred in the province after September 30, 1961, which caused damage of at least one hundred dollars resulting from injuries or death, or of more than two hundred dollars for damage to property. The victim of an unknown driver may also not make use of the recourse in s. 43 if he or she falls into one of the categories excluded by s. 40.

These references in the first paragraph of s. 43 to other provisions of the Act do not by themselves allow us to settle the question we must decide. However, they show that s. 43 must be read having regard to other provisions of the Act, and that the recourse created by this section is not absolutely independent.

[Page 255]

The determining provision with respect to the limitation of the Fund’s liability is found in the second paragraph of s. 43, expressed in the words to the same extent as if [judgment] had been rendered against the author of the accident.

If, as was claimed, the Fund’s liability is as great as the unknown driver’s, either these words are useless, or they should rather be read as follows: to the same extent as the author of the accident. The insertion of the words to the same extent as if [judgment] had been rendered against the author of the accident inserts into s. 43 the idea of a limitation of the Fund’s liability. The Act provides no other limitation than that in s. 14. Moreover, the words to the same extent as if [judgment] had been rendered against the author of the accident specify this limitation: if judgment had been rendered against the author of the accident, his identity would be known, and the situation, with respect to the Fund’s liability, would be that provided for by ss. 38 and 14; the Fund’s liability would be limited to $35,000.

This interpretation is confirmed by para, (b) of s. 49, which uses in both the English and French versions, in imposing a limitation on the power of the Fund to pay a claim based on an unsatisfied judgment, expressions identical to those in s. 43: “extent” and “mesure”.

Section 49 determines the powers of the Fund when no judgment has been made against it. It gives it, in particular, the power to settle claims without waiting for an action to be brought or judgment rendered against it. Is this a claim based on an unsatisfied judgment against the author of the accident? Paragraph (b) of s. 49 empowers the Fund to pay it. However, since the quantum of damages is fixed by the judgment, para. (b) allows the Fund to pay this debt, liquidated by the judgment, only to the extent prescribed. Without the words to the extent prescribed, it could be asked whether the Fund did not have the power simply to pay the judgment, disregarding any extent, and it would be necessary to resort to interpretation to solve the problem. Thus it was preferable to be

[Page 256]

explicit. This is the same, by extension, for a claim which is likely to give rise to a judgment against a driver whose identity is known; it is a debt, the amount of which will be fixed by the judgment to be pronounced against the author of the accident, if the Fund does not settle it before. The situation is different with respect to a claim based on s. 43. If the Fund does not settle it within sixty days, action will be brought against it personally, and if it loses, it will be faced with an executory judgment against it for a determined sum. Paragraph (e) of s. 49 is then not applicable, because the Fund does not need the power to satisfy an executory judgment against it. The judgment is sufficient. If, on the other hand, the Fund settles a claim based on s. 43 without waiting for action to be taken against it or judgment made, as para. (e) of s. 49 allows it to do, it then compensates the victim without a debt existing. Paragraph (e) of s. 49, in contrast with para (b), does not again make mention of “extent”, which does not mean, however, that the powers of the Fund to make such a settlement are unlimited. The distinct wording of paras. (b) and (e) of s. 49 is explained by these specific considerations, and is not a valid argument against the Fund’s position. (On this subject, as on the entire question, see the article by Mr. Camille Antaki: “La structure du régime de l’article 43 de la Loi de l’indemnisation”, (1972), 32 Revue du Barreau 30.)

With respect to Marach,

Everything that is said in it must be read in the context of the question then before the Court.

Pigeon J., speaking for this Court in The Highway Victims Indemnity Fund v. Magnan[2].

The question of the limitation of the Fund’s liability did not arise in Marach, since the damages were assessed at less than $35,000. The question was whether the judgment condemning a known author of the accident, and the Fund on behalf of an unknown, jointly and severally, to pay damages to the victim, was immediately executory against the Fund notwithstanding the fact that the

[Page 257]

appeal by the known author was still pending. The answer given by this Court was in the affirmative, and was unanimous although the reasons varied. The majority applied the ordinary rules of law to the method of recovery on judgments rendered under s. 43, noting the distinct nature of the recourse provided by this section and its independence in relation to procedure in the other recourses provided for by the Act. The minority judges reached the same conclusions because it was not shown that an insurer would benefit from the amount which the Fund was called upon to pay.

I do not interpret the reasons of the majority as meaning that the recourse under s. 43 is absolutely independent: Abbott J., speaking for the majority, expressly concurred in the opinions of Rivard and Brossard JJ.A. in the Court of Appeal; Rivard J.A. had included in his reasons the subrogation in favour of the Fund provided for in s. 39, as a basis for dismissing the argument that any sum paid by the Fund to the victim would benefit an insurance company; this recognizes a degree of interdependence between Divisions XII and XIII of the Act. What in fact we have to determine are the limits of interdependence between the systems of recourses, created by these two divisions, which are certainly separate, and this can only be done on a case-by-case basis.

Marach is thus not an obstacle to my findings, which are that the Fund’s liability under s. 43 is limited to $35,000, and that the judgment condemning the Fund jointly and severally with another party could not, as regards the Fund, exceed that sum.

III. Continuation of the Fund’s liability

The judgment obtained by respondent has been satisfied to the extent of $100,000, leaving a balance of $48,402.44. Must the Fund be condemned to pay $35,000 to respondent, or is it released by the fact that respondent has already been compensated by Jeannette Martineau and Allen Robindaine for a sum exceeding that amount?

In order to solve this problem, it is necessary to consider the wording and, scheme of the Act.

[Page 258]

The text which must again be the starting point is that of s. 43: the Fund is liable to respondent to the same extent as if [judgment] had been rendered against the author of the accident; if such were the case, we saw above, the identity of this author would be known; however, it is not, and we cannot know whether the author is insured; thus it is necessary to act as though he were not, and hold the Fund liable to the same extent as if judgment had been rendered against an author who was identified but not insured. In other words, it must be decided what the Fund’s liability would be if Jeannette Martineau and Allen Robindaine had satisfied the judgment respondent obtained against them, and also against another driver who was identified but carried no insurance, to the extent of the sum of $100,000.

The other provisions of the Act show its scheme, and, I believe, that the Fund’s liability is not extinguished by the compensation already paid to respondent.

The purpose of the Act is to insure compensation to highway accident victims, by the means and to the extent for which it provides. The primary method used by the Act is a form of constraint which requires financial responsibility of all drivers, owners, chauffeurs and operators up to the sum of $35,000 for all damages in the same accident (s. 14). This financial responsibility is required for each automobile registered in the name of the same owner (s. 15). Proof of financial responsibility is most often made by means of a guarantee of liability insurance (s. 16). If an accident occurs, the operator’s or chauffeur’s permit of any person driving an automobile involved in the accident, the registration of every automobile registered in the name of such operator or chauffeur, the operator’s or chauffeur’s permit of every registered owner of an automobile involved in the accident and the registration of every automobile registered in the same of such owner shall be suspended (s. 26), unless there is proof of the financial responsibility required, as provided for by s. 28. The suspension cannot be cancelled unless there is proof of financial responsibility in the future, and either security that the holder will

[Page 259]

satisfy any condemnation resulting from the accident up to the amount deemed sufficient but not exceeding $35,000, or proof that he has been held not responsible or has satisfied any claim resulting from the accident up to the amount deemed sufficient but not exceeding $35,000 (s. 29). The constraint is also imposed on insurers. No insurance policy may cover responsibility less in extent than that provided in s. 14 (s. 9). An insurer cannot set up against third parties the causes of nullity or of lapse that might be set up against the insured, up to the amount provided in s. 14, for each automobile (s. 6).

Since the constraint used by the Act as the primary means of attaining its goal is not absolute, the goal cannot be completely attained solely by this method. The Act supplements it with an additional method, the constitution of the Fund on which it imposes the duties provided for in Divisions XII and XIII. The primary method and the additional method are complementary to each other, and the Act establishes a certain measure of integration between them, since it provides that the Fund shall be administered and funded by insurers.

The Act is not intended to guarantee compensation of $35,000 to each victim. The primary method and the additional method it uses would not be sufficient for this in many cases in which, for example, a single accident had several victims. However, it is intended that the victim should be able to count on there being liability insurance to the amount of $35,000 for each automobile involved in the accident. When the primary component of the system it has set up—quasi-obligatory insurance for each driver involved in an accident—does not by itself fully provide this guarantee, and when the victim has a wholly or partially unsatisfied claim, the Act attains the same goal by means of the other component of this system: it gives the victim recourse against the Fund up to $35,000 for each uninsured automobile, for the unsatisfied part of the victim’s claim.

[Page 260]

This interpretation appears to me to be borne out by the text of ss. 6 and 15. Section 6 provides that an insurer cannot set up against third parties the causes of nullity or of lapse that might be set up against the insured,

up to the amount, for each automobile, prescribed in section 14.

Section 15 provides that the financial responsibility required by the Act

is required for each automobile registered in the name of the same owner.

When the primary method of quasi-obligatory insurance is not sufficient to guarantee the financial responsibility required by the Act for each automobile, it is logical to conclude that the result of the additional method is to ensure that the same requirement is met, and that recourse may be had to the Fund for each automobile involved in the accident. In view of the integrated nature of these two methods, the Act intends that the financial responsibility it requires for each automobile be guaranteed either by insurers or by the Fund administered and supplied by insurers.

In the case at bar, two automobiles were involved in the accident: that of Jeannette Martineau and that of the unknown driver. Jeannette Martineau has financial responsibility up to the amount required by the Act, but she has not fully compensated the victim. If the unknown driver were known and insured, his insurer would be bound to compensate respondent up to at least $35,000, whatever the causes of lapse of nullity which it could have set up against the insured. The Fund replaces this insurer. The victim is therefore correct in claiming from the Fund the excess of her damages, up to $35,000, to supplement the unknown driver’s lack of financial responsibility.

It is true that s. 38 provides that the Fund shall satisfy the judgment obtained by the victim

Up to the amount prescribed in section 14, but deducting from such amount any sum or value received by the creditor.

The reasons for this deduction are not applicable in the case at bar, in my opinion. Deducting sums or value received by the creditor prevents him from being compensated twice for the same

[Page 261]

damage, in the first place. This is not the case here. Next, and most importantly, this deduction is intended to deal with sums or value received from the same driver against whom the creditor has obtained a judgment which the Fund is asked to satisfy. If this driver has financial responsibility up to the amount provided for by s. 14, the Fund is released from liability. If the driver has compensated the victim for part of this amount, the Fund is liable for the balance up to $35,000. In the case at bar, the victim received nothing from the unknown driver, and has nothing to deduct from the claim that she is making to the Fund for the fault of the unknown driver. Finally, the deduction provided for by s. 38 prevents the Fund from being called on to make a payment which would benefit the insurer, contrary to s. 37; if, for example, Jeannette Martineau and Allen Robindaine were insured up to $150,000, the Fund could not be required to contribute $35,000 to the compensation of respondent, because such a contribution would benefit the insurer of Jeannette Martineau and Allen Robindaine. The Fund would then be completely released from liability. There is nothing to indicate that such is the case here.

The deduction provided for in s. 38 thus has no application here, and the Fund is still fully liable.

IV. Other matters

The first paragraph of the order in the trial judgment reads as follows:

Condemns the Defendants jointly and severally to pay to Plaintiff the sum of $148,402.44 with interest at 5% annually from the date of service of the action to December 31st, 1971, and thereafter at 8% annually, the whole with costs of experts and exhibits.

(1) Counsel for the appellants Jeannette Martineau and Allen Robindaine submitted that, according to art. 1056c of the Civil Code, a supplementary indemnity may be added to the amount awarded to respondent, computed by applying to the amount a percentage equal to the excess (three per cent) over the legal interest rate of the rate of interest fixed according to s. 53 of the Revenue Department Act, R.S.Q. 1964, c. 66,

[Page 262]

as replaced by the Revenue Department Act, 1972 (Qué.), c. 22, (Order in Council No. 3784‑72, Quebec Official Gazette, December 30, 1972), but that appellants Jeannette Martineau and Allan Robindaine could not be condemned to pay interest other than legal interest, in accordance with art. 481 C.C.P. The letter of art. 1056c supports him. This is in reality only a change in the label or description of the excess, but it is possible for this change to affect the relationship between insurer and insured. I would therefore amend the trial judgment to this extent.

(2) The order in the trial judgment cited above also awarded expert costs to respondent. Counsel for the appellants Jeannette Martineau and Allen Robindaine noted that these costs were requested only in the conclusions of the declaration, and that they were not pleaded. This is too narrow a concept of pleading. I would not agree with it.

V. Conclusions

I would dismiss the appeal of Jeannette Martineau and Allen Robindaine with costs, except as follows: amending the decision of the Court of Appeal, I would amend the judgment of the Superior Court by replacing the words “to December 31st, 1971, and thereafter at 8 per cent annually”, in the first paragraph of the order, by the following: “and an additional indemnity of 3 per cent annually on the said sum of $148,402.44 as from January 1st, 1972”; I would allow the appeal of the Highway Victims Indemnity Fund with costs in this Court and in the Court of Appeal, and amending the decision of the Court of Appeal, I would amend the judgment of the Superior Court by replacing the final period by a comma, in the first paragraph, and adding to it the following words: “said condemnation against the Defendant the Highway Victims Indemnity Fund to be limited however to the sum of $35,000 with interest at 5 per cent from the date of service of the action and costs as aforesaid”.

Appeal of Martineau and Robindaine dismissed with costs.

[Page 263]

Appeal of the Indemnity Fund allowed with costs.

Solicitors for the appellant, the Indemnity Fund: Gilbert, Magnan & Marcotte, Montreal.

Solicitors for the appellants. Martineau et Robindaine: Dugas, Dugas & Massicotte, Joliette, Quebec.

Solicitors for the respondent: Rosenhek & Machlovitch, Montreal.