Parkland (County of) v. Stetar et al., [1975] 2 SCR 884

Supreme Court of Canada

Parkland (County of) v. Stetar et al., [1975] 2 S.C.R. 884

Date: 1974-10-23

County of Parkland No. 31 Appellant;

and

Jerome Stetar, Gary Stetar, an infant suing by and with the consent of his next friend, Jerome Stetar; and Karen Stetar, an infant suing by and with the consent of her next friend, Jerome Stetar Respondents.

County of Parkland No. 31 Appellant;

and

Donald Woodrow in his own capacity and Donald Woodrow in his capacity as Administrator ad litem of the Estate of his infant daughter, deceased, Linda Woodrow Respondents.

1974: March 5, 6; 1974: October 23.

Present: Laskin C.J. and Martland, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Highways—Obligation of municipality to keep roads in reasonable state of repair—Removal of crossroad warning sign unknown to county—Failure to discharge duties of inspection and maintenance—The Municipal Government Act, 1968 (Alta.), c. 68, ss. 176, 177, 178 (now R.S.A. 1970, c. 246, s. 178).

Negligence—Attribution of fault 75 per cent to one tort-feasor and 25 per cent to other tort-feasor—Nonsuit of plaintiffs in actions against one tort-feasor for failure to give timely notice—Plaintiffs entitled to recover 100 per cent of damages from other tort-feasor—Contribution not recoverable—The Tort-Feasors Act, R.S.A. 1955, c. 336, s. 4(1)(c) (now R.S.A. 1970, c. 365)—The Contributory Negligence Act, R.S.A. 1955, c. 56, s. 3(2) (now R.S.A. 1970, c. 65).

A collision involving two motor vehicles, one driven by the respondent Stetar and the other driven by one Poirier and owned by Edmonton Car Rentals Limited, occurred at the intersection of two rural roads in Alberta. Prior to the collision, Stetar, accompanied by the other respondents (Stetar’s two children, his friend Woodrow and Woodrow’s daughter) was proceeding in a northerly direction. At the same

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time, Poirier, who was accompanied by his wife and children, was approaching the intersection from the east. The intersection was not controlled by stop signs or other means and was uncommonly dangerous due to a ridge of land between the roads which effectively obscured the approach of westbound traffic from anyone in the position of Stetar coming from the south. Poirier had the right-of-way. In the ensuing collision the Woodrow child was killed and all other passengers of the two cars were injured.

Although the intersection was uncontrolled, the county had at an earlier date erected four crossroad warning signs for north, south, east and westbound traffic. However, for some time prior to the accident and unknown to the county, the sign posted for northbound traffic had been down.

Three actions were commenced: (1) Stetar and his two children sued Poirier, the car rental firm (“Car Rentals”) and the county; Car Rentals and Poirier counterclaimed against Stetar and the county; (2) Mrs. Poirier and each of her three children sued Stetar and the county; (3) Mr. Woodrow on his own behalf and on behalf of his deceased daughter sued Stetar, Poirier, Car Rentals and the county. The actions were tried together. During the trial Woodrow et al. discontinued as against Stetar in the third action. The trial judge dismissed all actions against the county, including the counterclaims in the first action. He nonsuited the Poiriers and Car Rentals for failure to give notice in writing to the county of their respective claims and of their injuries as required by The Municipal Government Act, 1968 (Alta.), c. 68. He considered that ss. 177 and 178 of the same Act absolved the county. The trial judge found Stetar solely to blame. Stetar et al. in the first action and Woodrow et al. in the third action appealed to the Appellate Division of the Supreme Court of Alberta. No appeal against the nonsuit was taken by Mr. Poirier or by Car Rentals in the first action or by Mrs. Poirier et al. in the second action.

The majority in the Appellate Division held: (a) that Stetar was 75 per cent at fault and the county 25 per cent at fault; (b) that the Stetars and the Woodrows were entitled to recover from the county 25 per cent of any damages awarded to them; (c) as the action of the Poiriers and Car Rentals against the

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county had been dismissed at trial and no appeal taken, Stetar was liable for 75 per cent of the damages awarded but the county was under no liability to the Poiriers or to Car Rentals.

This Court shared the view of the Courts below that Stetar was negligent and that Poirier was not negligent. It also agreed that if the county had to bear some measure of responsibility for the accident, the proper apportionment was 75 per cent to Stetar and 25 per cent to the county. These questions were then considered: (a) Was the county under any duty, the breach of which contributed to the accident? (b) Could the Poiriers and Car Rentals recover 100 per cent of their damages from Stetar, although he was only 75 per cent responsible for the accident?

Held: The judgment of the Appellate Division should be varied.

In the absence of a warning sign the road on which the accident occurred was perilous in the extreme, and the county had, therefore, failed to discharge the statutory obligation imposed upon it by s. 176(1) of The Municipal Government Act to keep the road in a reasonable state of repair having regard to its character and the locality in which it was situated and through which it passed. By virtue of s. 178 the county was under no duty to place a traffic control device at the intersection and no cause of action would have arisen for failure to do so, but, having erected a warning sign, it came under a duty to make adequate and proper inspections to ensure the proper maintenance of the sign and under a duty to re‑erect it when it knew or ought to have known that the sign was not in its proper position. The county failed to discharge those duties. Section 177(c) might have afforded a defence but to engage this section the county would have had to allege and prove that the sign was removed by someone other than a municipal official or employee or as a result of an act of vandalism, and the onus would be upon the county to show that affirmatively. The county failed to so prove.

As to the second question, the Poiriers and Car Rentals were entitled to recover 100 per cent of their damages from Stetar. Section 3(2) of The Contributory Negligence Act, R.S.A. 1955, c. 56 (now R.S.A. 1970, c. 65) provides that “where two or more persons are found at fault they are jointly and severally liable to the person suffering the damage or loss, but as between themselves… they are liable to make contribution to and indemnify each other in the

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degree in which they are respectively found to be at fault”. Stetar had no enforceable claim for contribution against the county because of s. 4(1)(c) of The Tort-Feasors Act, R.S.A. 1955, c. 336 (now R.S.A. 1970, c. 365) which provides that “Where damage is suffered by any person as a result of a tort… any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is or would, if sued, have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise”. Section 4(1)(c) of the latter Act is specifically directed to the question of recovery as between tort-feasors and takes precedence over s. 3(2) of The Contributory Negligence Act. The failure of the Poiriers and Car Rentals to give timely notice of their intention to sue the county makes it impossible for Stetar to recover contribution from the county.

Hart v. Hall and Pickles, Ltd., [1968] 3 All E.R. 291, applied; George Wimpey & Co. Ltd. v. British Overseas Airways Corp., [1954] 3 All E.R. 661, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, varying a judgment of Cullen J. Judgment appealed from varied.

J.D. Ross, for the appellant.

W.H. Veale, for the respondents Stetar and Woodrow et al.

John Maher, for Edmonton Car Rentals and Guy Poirier.

W.T. Pidruchney, for Louise Poirier.

The judgment of the Court was delivered by

DICKSON J.—The date was December 14, 1969, but the afternoon was warm and sunny. There had been a recent snowfall. Christmas was approaching and Jerome Stetar, accompanied by his two children and his friend Donald Woodrow and Woodrow’s daughter drove out into the country to look for a Christmas tree. At about 3:45 p.m., driving northerly on a rural Alberta road they approached an intersection. Approaching the same intersection from the east was another car, driven by Guy

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Poirier, in which Mrs. Poirier and her three children were passengers. The car was owned by Edmonton Car Rentals Ltd. which I will refer to as “Car Rentals”. Poirier’s speed was 30 miles per hour and Stetar’s speed was 40 and 45 miles per hour. The intersection was not controlled by stop signs or other means and was uncommonly dangerous due to a ridge of land between the two roads which effectively obscured the approach of westbound traffic from anyone in the position of Stetar coming from the south. Poirier had the right-of-way. In the ensuing collision the Woodrow child was killed and all other passengers of the two cars were injured.

Although the intersection was uncontrolled, the county had sensibly at an earlier date erected four crossroad warning signs for north, south, east and westbound traffic. Unhappily, at the time of the accident the sign posted for northbound traffic had been down for a period which from the evidence cannot be stated with any degree of precision but would seem to have been for not less than one month and not more than six months.

In May of 1971, some seventeen months following the accident, the crossroad warning sign which formerly faced northbound traffic was pointed out to Mr. Connors, an insurance adjuster, by Mr. Hennig, a farmer who lived in the district. The sign was in the east ditch of the road. A pipe approximately two inches in diameter had been affixed to the sign but had been broken off two or three inches below the bottom of the sign. At least two persons were aware before the accident that the sign was down. One was Hennig and the other Constable Cameron of the R.C.M.P. whose detachment carried out police duties within the county. It would appear neither communicated the fact to the county.

Three actions were commenced: (1) Mr. Stetar and his two children sued Mr. Poirier, Car Rentals and the County of Parkland No. 31; Car Rentals and Mr. Poirier counterclaimed against Stetar and the county; (2) Mrs. Poirier

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and each of her three children sued Stetar and the county; (3) Mr. Woodrow on his own behalf and on behalf of his deceased daughter sued Stetar, Poirier, Car Rentals and the county. The actions were tried together. During the trial Woodrow et al. discontinued as against Stetar in the third action. The trial judge, Cullen J., dismissed all actions against the County of Parkland No. 31, including the counterclaims in the first action. He nonsuited the Poiriers and Car Rentals for failure to give notice in writing to the county of their respective claims and of their injuries as required by The Municipal Government Act, 1968 (Alta.), c. 68. He considered that ss. 177 and 178 of the same Act to which I shall shortly refer absolved the county. The trial judge found Stetar solely to blame. Stetar et al. in the first action and Woodrow et al. in the third action appealed to the Appellate Division of the Supreme Court of Alberta. No appeal against the nonsuit was taken by Mr. Poirier or by Car Rentals in the first action or by Mrs. Poirier et al. in the second action.

The majority in the Appellate Division (Allen and Sinclair JJ.A.) held: (a) that Stetar was 75 per cent at fault and the County of Parkland 25 per cent at fault; (b) that the Stetars and the Woodrows were entitled to recover from the county 25 per cent of any damages awarded to them; (c) as the action of the Poiriers and Car Rentals against the county had been dismissed at trial and no appeal taken, Stetar was liable for 75 per cent of the damages awarded but the county was under no liability to the Poiriers or to Car Rentals. Kane J.A., dissenting, would have affirmed the judgment at trial. Leave to appeal to this Court from the majority judgment of the Appellate Division was granted to the County of Parkland No. 31. Stetar et al. and Woodrow et al. filed and served a notice of intention to vary so as to provide that the County of Parkland was 100 per cent liable.

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Subsequently leave was granted to Stetar et al. and Woodrow et al. to cross-appeal as against Poirier, Car Rentals and Mrs. Poirier et al. by filing and serving a notice of intention to vary so as to provide that Poirier was liable jointly and severally with the county. Still later, a notice of intention to vary was filed by Poirier, Car Rentals and Mrs. Poirier et al. against Stetar so as to provide that Stetar was 100 per cent liable.

This ail seems rather complicated but essentially, from the plethora of proceedings, two questions emerge. Before touching them I may say that I share the view of the Courts below that Stetar was negligent and that Poirier was not negligent. Stetar in violation of The Highway Traffic Act failed to yield the right-of-way to Poirier. I also agree that if the County of Parkland No. 31 must bear some measure of responsibility for the accident, the proper apportionment is 75 per cent to Stetar and 25 per cent to the county. That leaves for consideration these questions:

(a) Was the County of Parkland No. 31 under any duty, the breach of which contributed to the accident?

(b) Can the Poiriers and Car Rentals recover 100 per cent of their damages from Stetar, although he was only 75 per cent responsible for the accident? They say that having paid them 100 per cent of their claims Stetar can recover 25 per cent from the county. Stetar and the county, on the other hand, say, and the majority of the Appellate Division were of the same mind, that having lost in their action against the county and having failed to appeal, the Poiriers and Car Rentals cannot now collect indirectly from the county what they could not collect directly.

The following statute law of the Province of Alberta bears on the legal position of the

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county: s. 221 of The Highway Traffic Act, 1967(Alta.), c.30:

(1) The council of a municipality may authorize the placing, erecting or marking of traffic control devices at such locations as are considered necessary for controlling highways subject to its direction, control and management.

Section 2, para. 28 of the same Act:

“traffic control device” means any sign, signal, marking or device placed, marked or erected under the authority of this Act for the purpose of regulating, warning, or guiding traffic;

Section 176 of The Municipal Government Act, supra:

(1) Every public road, street, bridge, highway, square, alley or other public place that is subject to the direction, management and control of the council including all crossings, sewers, culverts and approaches, grades, sidewalks and other works made or done therein or thereon by the municipality or any other person with the permission of the council shall be kept in a reasonable state of repair by the municipality, having regard to

(a) the character of the road, street, bridge, highway, square, alley, public place or work made or done therein or thereon, and

(b) the locality in which it is situated or through which it passes,

and if the municipality fails to keep it in a reasonable state of repair, the municipality is civilly liable for all damages sustained by any person by any reason of its default, in addition to being subject to any punishment provided by law.

Section 177:

Default under section 176 shall not be imputed to a municipality in any action

(a) Without proof by the plaintiff that the municipality knew or should have known of the disrepair of the road or other work, or

(b) if the municipality proves that it had not actual or constructive notice of the disrepair or that it took reasonable means to prevent the disrepair arising, or

(c) where any traffic control device has been defaced, removed or destroyed by someone other

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than a municipal official or employee, or as a result of an act of vandalism, without proof by the plaintiff that the municipality knew of the defacement, removal or destruction, and failed to restore, repair or replace the traffic control sign in a reasonable period of time.

Section 178:

No action shall be brought against a municipality for the recovery of damages caused

(a) by the presence or absence or insufficiency of any wall, fence or guardrail, railing, curb, pavement, markings, traffic control device, illumination device or barrier adjacent to or in, along or upon the highway….

In my opinion the county failed to discharge the statutory obligation imposed upon it by s. 176(1) of The Municipal Government Act to keep the public road on which the accident occurred in a reasonable state of repair having regard to the character of the road and the locality in which it was situated and through which it passed. The road was subject to the direction, management and control of the county. In The Queen v. Jennings et al.[1], at p. 537, Mr. Justice Cartwright, as he then was, said:

The appellant contends that failure to maintain a stop sign as required by the relevant statute and regulations does not amount to “default to keep the King’s Highway in repair”. In the Courts below this submission has been unanimously rejected and, in my opinion, rightly so. It has been repeatedly held in Ontario that where a duty to keep a highway in repair is imposed by statute the body upon which it is imposed must keep the highway in such a condition that travellers using it with ordinary care may do so with safety. The danger created by the failure to maintain the required stop signs marking a through highway is too obvious to require comment. On this branch of the matter I agree with and wish to adopt the reasons of McGillivray J.A.

It is plain from the evidence that anyone using, with ordinary care, the road on which Mr. Stetar travelled could not do so in any degree of

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safety. In the absence of a warning sign the road was perilous in the extreme. It follows that unless the county is absolved by s. 177 or s. 178 of The Municipal Government Act, the county must be held liable for the damages sustained by reason of its default. The Highway Improvement Act, R.S.O. 1960, c. 171, under consideration in the Jennings case, did not contain provision analogous to ss. 177 and 178 of The Municipal Government Act of Alberta.

It would seem from s. 178 that the County of Parkland No. 31 was under no duty to place a traffic control device at the intersection in question and no cause of action would have arisen for failure to do so, but, having erected a warning sign, the county in my view came under a duty to make adequate and proper inspections to ensure the proper maintenance of the sign and under a duty to re-erect it when the county knew or ought to have known that the sign was not in its proper position to give warning to northbound traffic of the dangerous intersection. The county failed to discharge those duties.

Section 177(c) might have afforded a defence but to engage this section the county would have had to allege and prove that the sign was removed by someone other than a municipal official or employee or as a result of an act of vandalism, and the onus would be upon the county to show that affirmatively. The county failed to call any evidence at trial. The trial judge however said:

The sign had been supported on a pipe and this pipe had been broken two inches below the sign. It would be hard to conceive of a municipality having done this to the sign. There is an inference, albeit a weak inference, that this had been done by someone other than the municipality.

With respect, there is nothing to support that inference. There is no reliable evidence to suggest by whom or in what manner the sign was removed. The breaking of a two-inch pipe would require the application of great force and if one were to speculate it is just as likely that

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the pipe was knocked down by snow clearing or road maintenance equipment of the county as by vandals. The plain fact is that the county did not prove, nor indeed attempt to prove, that the removal of the pipe was the act of someone other than a municipal official or employee or an act of vandalism.

Mr. Justice Kane, dissenting in the Appellate Division, was of the opinion there were sufficient indicia to warn Stetar of the approaching intersection and the collision was due entirely to his failure to maintain a proper look-out. It is true that photographic Exhibits 7 and 8 show a power line and a barbed wire fence at Stetar’s side of the road, which turn off to the east at about the southern boundary of the intersection. Exhibit 7, however, was taken from the west side of the road facing in a north-easterly direction and can not be relied upon as a fair portrayal of what was visible to one approaching the intersection directly from the south, and I confess I find little in the winter scene depicted in Exhibit 8 to alert a car driver approaching at 40 to 45 miles an hour that an intersection and latent catastrophe are imminent. It was then suggested Stetar knew that in Western Canada there is an intersecting road every one or two miles and this should have put him on the quivive but I am unaware of any authority which obliges the driver of an automobile to drive with one eye on his odometer. The best evidence as to the nature of the intersection and approach to it comes from those who actually drove to it and through it. None of these persons found the features to which I have referred to be helpful as a warning. At the risk of unduly protracting these reasons, I would like to quote verbatim the evidence of the witnesses who were not parties to the proceedings and were familiar with the intersection:

Constable Cameron of the R.C.M.P.

Q. Prior to, or on December 14th, 1969, had you ever approached the intersection from the south, travelling in a northerly direction?

A. Yes, I have.

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Q. Would you tell the Court, please, what you observed as to visibility of the intersection?

A. Well without prior knowledge of the intersection I believe it to be practically impossible to tell that there was an intersection there. It is probably one of the worst intersections that I have seen as far as visibility of traffic, it was very poor.

As I say the intersection itself was situated on the top of a hill which precluded any previous warning without a sign of an intersection.

Q. And as you say there was no sign?

A. There was no sign.

Mr. Connors—an insurance adjuster

Q. Would you describe, please, what you have to say as to the visibility of the intersection as you approached it from the south?

A. Well, the view to the east was completely obstructed by a bank on the east side of the road, you could not see the intersection until you were right in it.

Q. And how far would you be from the intersection before you were aware that there was an intersection there?

A. Well, there is a power pole on the southeast corner, and you are past it before you can see the intersection, you have to be right in it before you can see it.

Mr. Weir—a civil engineer and land surveyor

Q. Would you describe for the Court, please, what your visibility was as you approached the intersection from the south?

A. There is no—as you approached from the south there is no indication of a—that you are coming to an intersection until you are right at the intersection.

and later:

Q. As you are about 45 feet from the middle of the intersection you are aware that an intersection exists?

A. Yes, there was no indication before you get to that point.

Q. And approximately how many feet would that be from the south boundary of the intersection?

A. 25 to 30 feet, something like that.

Mr. Schuster—Secretary-Treasurer of the County of Parkland No. 31, on discovery

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A. It would be pretty difficult to see the intersection itself without a sign at the intersection.

This evidence tends to confirm Constable Cameron’s impression that “it was an extremely dangerous intersection.”

And there is this finding by the trial judge: “Now the evidence indicates that so far as Stetar was concerned this was a blind intersection.”

In the face of all of this it does seem to me to be placing an unwarranted and undue but en on Mr. Stetar to hold that he should have been sensitive to the approaching intersection and that the absence of the warning sign was not a material factor contributing to the accident. I agree with the majority of the Appellate Division that the County of Parkland No. 31 is liable in part for the accident.

The second question is whether the Poiriers and Car Rentals can recover 100 per cent of their damages from Stetar having regard to (a) the attribution of fault 75 per cent to Stetar and 25 per cent to the county; (b) the nonsuit of the Poiriers and Car Rentals in their actions against the county for their failure to give timely notice; (c) the authorities which support the proposition that s. 4(1)(c) of The Tort-Feasors Act, R.S.A. 1955, c. 336 (now R.S.A. 1970, c. 365) and its English counterpart, s. 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act, 1935, do not admit of a claim for contribution by one tort-feasor against another when that other has been sued by the injured person and held not liable: George Wimpey & Co. v. British Overseas Airways Corporation[2]; Aleman v. Blair and Canadian Sugar Factories Ltd.[3]; Hart v. Hall and Pickles, Ltd.[4]. Section 4(1)(c) of the Tort-Feasors Act of Alberta provides:

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4. (1) Where damage is suffered by any person as a result of a tort, whether a crime or not,…

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is or would, if sued, have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise…

In Hart v. Hall and Pickles, Ltd., supra, the Court of Appeal had occasion to consider the meaning of s. 6(1)(c) of the Law Reform (Married Women and Tortfeasors) Act, 1935. Lord Denning M.R. commented on this section and the Wimpey case at p. 293:

This point depends on the interpretation of the Act of 1935. Before that Act when there were separate tortfeasors causing one damage, the plaintiff could sue them each in turn till he got the total amount of his damages: and neither of the tortfeasors had any right of contribution from the other. Now this statute gives a right of contribution. Section 6(1) provides that:

“Where damage is suffered by any person as a result of a tort… (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage…”

That is all I need read. Those words as construed by the House of Lords cover two situations: (i) where a tortfeasor has been sued and has been held liable; and (ii) where a tortfeasor has not been sued, but, if he had been sued, he would have been held liable. The words do not cover a third situation; (iii) where a person who is alleged to be a tortfeasor has been sued and has been held not liable. If he has been held not liable on the merits of the case, clearly he cannot be sued for contribution. If he has been saved from liability by reason of the Statute of Limitations, again he cannot be sued for contribution, see George Wimpey v. British Overseas Airways Corpn.

(Italics added.) Section 3(2) of The Contributory Negligence Act, R.S.A. 1955, c. 56 (now R.S.A. 1970, c. 65) must be considered. This subsection provides:

(2) Except as provided in sections 4 and 5, where two or more persons are found at fault they are

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jointly and severally liable to the person suffering the damage or loss, but as between themselves, in the absence of any contract express or implied, they are liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault.

The subsection does not have the effect of limiting the right of the Poiriers and Car Rentals to full recovery from Stetar. On the contrary it declares the joint and several liability of persons at fault to the person suffering damage or loss. It is only as between themselves that persons contributing to the damage or loss are liable to make contribution to and indemnify each other. This might suggest a right of contribution and indemnification as between Stetar and the county, but I would consider that s. 4(1)(c) of The Tort-Feasors Act precludes any such contribution or indemnification in the present case. The relationship of The Contributory Negligence Act and The Tort-Feasors Act on the issue of contribution between tort-feasors is such that in my opinion s. 4(1)(c) of the latter Act must prevail over s. 3(2) of the former Act. These Acts cover related subject-matter and must be read the one with the other. Section 3(2) of The Contributory Negligence Act in its last clause states a general rule reflected as well in The Tort-Feasors Act that tort-feasors are liable to make contribution and indemnify each other in the degree in which they are found to be at fault or negligent. While The Contributory Negligence Act concerns generally the question of contributory negligence, The Tort-Feasors Act addresses itself more particularly to the relationship of tort-feasors. Section 4(1)(c) of the latter Act is specifically directed to the question of recovery as between tort‑feasors and in my opinion takes precedence over s. 3(2) of The Contributory Negligence Act.

It is contended that it is unjust to require Stetar to pay in full the claims of the Poiriers and Car Rentals when they, by their delay, have made it impossible for Stetar to recover contri-

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bution from the county. It is fundamental, however, to tort law that a plaintiff can proceed against any one of a number of joint or several tort-feasors; there is no duty upon him to sue all those whom he believes contributed to his hurt. He may elect to recover the full amount of his damage from a tort-feasor only partly to blame and that tort-feasor, prior to enactment of s. 4(1)(c) of The Tort-Feasors Act, had no right to contribution from any other person: Merryweather v. Nixan[5]. Section 4(1)(c) and its counterpart in other jurisdictions have ameliorated the common law in that the right to contribution has now been recognized; however, even in those cases in which for some reason the right to contribution does not exist, the victim retains the right of full recovery from the tort-feasor whom he has sued. I am accordingly of the view that Stetar has no enforceable claim for contribution against the county in respect of any amount paid by Stetar to Poirier and Car Rentals in the first action and to Mrs. Poirier and children in the second action.

The same considerations would apply with respect to the claims against the county advanced on behalf of Woodrow et al. and on behalf of the Stetar children but for s. 4 of The Contributory Negligence Act, reading:

4. Where no cause of action exists against the owner or driver of a motor vehicle by reason of section 214 of The Highway Traffic Act, no damages, contribution or indemnity shall be recovered from any person for the portion of the damage or loss caused by the negligence of such owner or driver but the portion of the damage or loss so caused by the negligence of such owner or driver shall be determined although such owner or driver is not a party to the section.

The Woodrows and the Stetar children were gratuitous passengers in the Stetar vehicle; s. 214 of The Highway Traffic Act, R.S.A. 1970, c. 169, permits recovery by gratuitous passengers only in the case of gross negligence; there is no evidence that Stetar was grossly negligent,

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therefore, if sued, he would not have been liable. In the absence of s. 4 above, the county would have had to bear 100 per cent of the damages without right of contribution from Stetar but the section has the effect of limiting the liability of the county to 25 per cent of the damages sustained by Woodrow et al. and by the Stetar children.

In the result, I would vary the judgment of the Appellate Division of the Supreme Court of Alberta and:

(a) Dismiss the claim of Stetar et al. against Poirier and Car Rentals;

(b) Allow the claim of Stetar et al. against the county to the extent of 25 per cent of the damages;

(c) Allow the counterclaim of Poirier and Car Rentals against Stetar to the extent of 100 per cent of the damages;

(d) Allow the claim of Mrs. Poirier et al. against Stetar to the extent of 100 per cent of the damages;

(e) Allow the claim of Woodrow et al. against the county to the extent of 25 per cent of the damages but dismiss, with costs in this Court, the motion to vary;

(f) Allow the Poiriers and Car Rentals their costs against Stetar throughout. As success as between Stetar et al. and the county is divided, I would not allow costs in this Court to either party.

Judgment accordingly.

Solicitors for the appellant: Hansen, Joyce, Ross & Hustwick, Edmonton.

Solicitors for the respondents: Brower, Johnson, Liknaitzky & Veale, Edmonton.