R. v. Côté et al., [1976] 1 SCR 595

Supreme Court of Canada

R. v. Côté et al., [1976] 1 S.C.R. 595

Date: 1974-11-27

Her Majesty The Queen, in right of the Province of Ontario, represented by the Minister of Highways for the Province of Ontario (Third Party) Appellant;

and

Gabriel Côté (Defendant) Respondent and Cross-Appellant;

and

Anne Marie Millette and Caroline Millette by their next friend Rodrigue Millette and the said Rodrigue Millette, Xavier North by his next friend Rodrigue Millette and Philippe North (Plaintiffs) Respondents;

and

Constantinos Kalogeropoulos and James Karalekas as administrators of the estate of Angelo Karalekas (Defendants) Respondents;

and

Eric Silk, the Commissioner of the Ontario Provincial Police Force and Constable R.G. Hicks (Third Parties) Respondents.

1974: February 4, 5, 6; 1974: November 27.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Highways—Particular hazard—Knowledge and constructive notice of hazard—Duty of Highway Department to remedy or warn—The Highway Improvement Act, R.S.O. 1960, s. 33(1).

Negligence—Police—Department of Highways—Causation—Contributory negligence—Apportionment of liability.

An accident occurred on a section of highway which was known to have a tendency to ice up with snow blowing across it and which had developed a coating of ice several hours previous to the accident. Despite knowledge of the hazardous condition of this short stretch of the highway by the police and an earlier accident no action had been taken by the Department of

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Highways. Côté driving at 60-65 m.p.h. was attempting to overtake four vehicles and when about to pass the fourth of them he noticed an approaching car, that of Mrs. Millette, coming out of a curve ahead. He realized, according to his account, that his car was on ice (however this was not accepted as a fact by the majority of the Court), managed to pull in behind the Kalogeropoulos car and reduced his speed, but not sufficiently to avoid striking the rear of the Kalogeropoulos vehicle which slewed across the road into the path of the Millette vehicle. At trial, Galligan J. found that Côté was negligent but that the slippery surface of the road was a serious contributing factor. Côté instituted third party proceedings against the Minister of Highways, Constable Hicks and the Commissioner of the Ontario Provincial Police and the trial judge found against the third parties for 75 per cent, apportioned two thirds against the Minister and one third against Hicks and the Commissioner. The Court of Appeal dismissed the appeal of the Minister but allowed that of Hicks and the Commissioner because in the opinion of the Court there was no causal connection between the acts of which the complaint was made and the happening of the accident.

Held: The appeal of the Minister of Highways for Ontario is allowed in part and the judgment of the Ontario Court of Appeal is varied to provide that as between the Minister and the respondent Côté the latter shall bear seventy-five per cent of the liability of Côté towards the successful plaintiffs and the Minister shall bear twenty-five per cent. The cross-appeal of Côté is dismissed with costs.

Martland, Judson, Ritchie and de Grandpré JJ., dissenting in part, would have held Côté solely to blame.

Pigeon and Beetz JJ., dissenting in part, would have affirmed the Ontario Court of Appeal and held Côté twenty-five per cent at fault and the Minister seventy-five per cent at fault.

Per Laskin C.J. and Spence and Dickson JJ.: That some of the events must have taken place before Côté entered the ice patch did not invalidate the concurrent findings against the Minister in the courts below. The trial judge had found that but for the ice the probability was that “Côté could have avoided striking Kalogeropoulos” and that if the impact had not occurred he, the trial judge, was certain that Kalogeropoulos would not have gone out of control to the extent that he did.

[Page 597]

While the duty of care required of the Minister of Highways is confined to reasonably foreseeable dangers, a reasonable person should have anticipated vehicle collisions resulting from the treacherous condition of this short stretch of much-travelled highway which was known to have a tendency to ice up. However imposition of some measure of liability on the Minister does not import recognition of any general duty to salt or sand highways but rests upon the narrower ground of permitting a particularly dangerous icy condition to continue at a particular location in the highway, otherwise passable, which was known to have a tendency to ice up.

Due to the inescapable conclusion that the Côté vehicle was not on ice when it pulled behind and struck the rear of the Kalogeropoulos vehicle Côté should bear a greater portion of the liability which was assessed at 75 per cent Côté, 25 per cent Minister of Highways.

Per Martland, Judson, Ritchie and de Grandpré JJ., dissenting in part: The accident took place on a part of the highway which was completely covered with a thin layer of ice. This ice extended the entire width of the highway for a distance of 625 feet. The impact between the Millette and Kalogeropoulos cars occurred 215 feet from the western end of the patch of ice, at each end of which the highway was dry and presented no driving problems. The unusual situation at the scene of the accident was blowing snow impelled by a north wind. The presence of Kalogeropoulos on the wrong side of the highway was caused by the Côté car striking a light blow at the rear of the Kalogeropoulos car after which impact, because of the ice, Kalogeropoulos was unable to regain control of his car.

Côté driving at a cruising speed of 60 m.p.h. in order to overtake the group of four cars also travelling east at speeds of 50-55 m.p.h. probably increased his speed to over 60 m.p.h., overtook three of the other cars, saw the lights of the Millette car coming towards him and then made a slightly sharper than usual turn to regain the right lane. In doing so he struck the Kalogeropoulos car. While Côté suggested that he was already on ice when he felt the rear of his car swerve, the evidence clearly indicated that as he stopped 215 feet from the western limit of the patch of ice all the events preceding the impact with Kalogeropoulos must have occurred on dry pavement. The accident was thus caused solely by the fault of Côté who did not have his car completely under control and was unable to avoid contact with the rear of the Kalogeropoulos car at a time when the latter could

[Page 598]

no longer do anything to avoid collision with the Millette car. The Department of Highways could not, applying the test of reasonableness, have foreseen the combination in time and space of the factors which, taken together, resulted in the collision.

Per Pigeon and Beetz JJ., dissenting in part: Since the slight impact of the Côté and Kalogeropoulos vehicles would not have caused the Kalogeropoulos-Millette collision but for the icy condition of the highway, Côté’s negligence was not the sole proximate cause of the accident. Further, as multiple or chain collisions are such frequent occurrences they must be regarded as predictable results of a treacherous icy condition on a short stretch of otherwise dry and safe highway. Foreseeability does not require that the particular way in which an accident occurs be anticipated.

The view that the initial slight impact occurred on the dry pavement rests on the premise that Côté correctly indicated the place where he brought his car to a stop. It conflicts with other facts which the trial judge accepted as proven, such as the short distance covered by the Kalogeropoulos car after the first impact. No valid reason was shown to justify an interference with the concurrent findings in the courts below.

[University Hospital Board v. Lepine, [1966] S.C.R. 561; Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. et al. (Wagon Mound No. 2), [1967] 1 A.C. 617 applied; School Division of Assiniboine South No. 3 v. Hoffer, [1971] 4 W.W.R. 746, appeal dismissed [1973] S.C.R. vi referred to.]

APPEAL and CROSS-APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing the appeal of the Minister of Highways but allowing the appeal of the Ontario Provincial Police from a judgment of Galligan J.[2] awarding contribution against the Minister and the Police on a third party claim. Appeal allowed in part, apportionment varied; cross‑appeal dismissed with costs.

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W.G. Gray, Q.C., and K.D. Finlayson, Q.C., for the appellant Minister.

R.K. Laishley, Q.C., and J.C. Barnabé, for the respondent Côté.

J.R.M. Gautreau, for the respondents Millette et al.

W.M. Davis, for the respondent Kalogeropoulos.

B. Wright, and J.T. McCabe, for the respondents Silk and Hicks.

T.C. Tierney, for the respondent Karalekas.

The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by

DICKSON J.—These actions arise as a result of an accident which occurred on March 1, 1968, at approximately 6:45 p.m. on Trans-Canada Highway No. 17 at a point some nineteen miles east of Ottawa and five miles east of Rockland in the Province of Ontario. A vehicle operated by Gabriel Côté, proceeding in an easterly direction from Ottawa toward Montreal, drove into the rear of a vehicle operated by Constantinos Kalogeropoulos, proceeding in the same direction, causing it to cross into the oncoming or westbound traffic lane, where it came into violent head-on collision with a vehicle operated by Anne Marie Millette, proceeding westerly toward Ottawa. Two persons were killed and all other occupants of the Millette and Kalogeropoulos vehicles were seriously injured. The accident took place on a straight stretch of road, twenty-four feet in width with ten-foot shoulders. A short distance west of the accident scene Côté, driving at a speed of sixty to sixty-five miles an hour, overtook four slower moving vehicles and passed three of them. He was about to overtake the fourth, driven by Kalogeropoulos, when he caught sight of an approaching vehicle, that driven by Mrs. Millette, coming out of a curve ahead. He decided to pull in behind Kalogeropoulos; realized then for the first time, according to his account, that his car was on ice; managed to bring his car in behind that of Kalogeropoulos; reduced his speed, but not sufficiently to avoid striking the Kalogeropoulos vehicle which slewed across the

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road into the path of the oncoming Millette vehicle.

The icy patch was 625 feet in length and covered the full travelled portion of the highway. The collision between the Kalogeropoulos and Millette vehicles took place 215 feet from the western, or Ottawa-Rockland, end of the ice.

About two hours before the events which I have described a Mrs. Maisonneuve, driving east from Rockland, came upon the same patch of ice, skidded along it and ended up in the ditch on the opposite side of the road. Another car went off the road on the north side of the highway. Two others slipped off the south side of the highway. Constable R.G. Hicks of the Ontario Provincial Police Force first came upon the scene at about 4:45 p.m., helped to extricate the cars which had left the highway and returned to his detachment office at about 5:50 p.m. for supper, at which time he alerted the Department of Highways of the state of the road. He returned to the location of the accident after the accident, shortly before 7:00 p.m.

At the end of a lengthy trial Galligan J. found Côté negligent. He held that Côté’s act of passing was the cause of the emergency and he should have turned off the road and onto the shoulder even at risk of injury to himself, rather than striking the rear of the Kalogeropoulos vehicle. In third party proceedings instituted by Côté against the Minister of Highways for the Province of Ontario and against Constable Hicks and his superior, Mr. Eric Silk, Commissioner of the Ontario Provincial Police Force, the judge found against the third parties for 75 per cent of the judgments and costs to which Côté was subjected. Fault as between the third parties was apportioned two-thirds against the Minister of Highways and one-third against Silk and Hicks.

A unanimous Court of Appeal dismissed the appeal of the Minister of Highways but allowed the appeal of the Police against their liability, there being no causal connection in the opinion of

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the Court between the acts of which the complaint was made and the happening of the accident. The acts complained of, insofar as the Police were concerned, included failure to appreciate the situation of danger which existed on the highway, failure to warn persons using the highway of that danger, failure to report the danger to the Department of Highways with promptitude and in a manner which would reflect the gravity of the situation.

In this Court the appellant Minister of Highways asks that the judgment against appellant at trial and on appeal be set aside. Côté in a cross-appeal asks that the judgments against Silk and Hicks be restored.

It is, I believe, the opinion of all members of the Court that the cross-appeal by Côté must fail. The only question of substance is the liability of the Minister of Highways. I have had the opportunity of reading the reasons prepared by my brother de Grandpré, and I agree with him that all of the events which Côté described as having occurred on the patch of ice could not have occurred within a distance of 215 feet. Indeed Côté concedes as much. Some of those events must have taken place before Côté entered upon the ice but in the view which I take of the case, this does not invalidate the concurrent findings against the Minister in the courts below. The analysis of the evidence made by my brother de Grandpré serves in my opinion to increase the degree of culpability of Côté but does not serve to absolve the Minister of Highways entirely.

It may be helpful to recall certain findings of the trial judge and I quote from his judgment:

(1) It is my opinion that had the ice not been there, in all probability Mr. Côté could have avoided striking Kalogeropoulos or if he could not have avoided striking him, I am certain that Kalogeropoulos would not have gone out of control to the extent which he did and would not have crossed the road onto the north half. (Emphasis added)

(2) While I find that Mr. Coté was negligent it is my opinion, as indicated, that the condition of the roadway was a very serious and material factor in the accident.

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(3) At a few places on this highway I find that there was a tendency for surface snow to be blown onto the highway when a strong north breeze was blowing. When the snow was blown onto the highway it would be packed down by passing traffic and would become slippery. These conditions naturally become worse in late February and early March when the sun was becoming warm again. Because during the day the sun would melt the snow, and in the late afternoon and early evening as the sun went down the melted areas would freeze and become treacherously slippery. I find that these conditions regularly occurred at two main areas on highway No. 17 between Ottawa and the scene of the accident (which is a distance of approximately 30 miles). One of these areas is located some considerable distance to the west of the scene of the accident at a place known as Edgewater curves. The other area where this condition developed regularly was at the scene of this accident.

(4) There is no question that this patch did not suddenly develop. There is no doubt on the evidence that it was there at least two hours before this accident and there is no question in my mind that it must have taken a considerable period of time before that to have developed.

(5) I have no hesitation in coming to the conclusion that this tendency of the highway to become treacherously slippery at this place under certain weather conditions was one which was well known to the police officers who patrolled the area. In my opinion it was one which either was known to the servants of the Department of Highways whose duty it was to keep that area of the highway in repair or it was one that ought to have been known to them. The evidence leaves me with no doubt that the area where the accident occurred was one of a very few areas on a long stretch of highway that called for special attention by the highway authorities. I can see no reason why they would not have been able to know that in all probability a dangerous situation must have been developing through the day of March 1, 1968.

(6) I make the observation in passing that the Department of Highways’ premises were located not more than two or three miles from the scene of this accident. The fact that this highway is extremely busy on Friday nights is something which made the condition even more hazardous and more likely to cause an accident that night. This is a factor that would have been in the mind of a reasonable man.

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The judge observed that no evidence has been called by the Department of Highways to advise the Court of the patrols or inspections made, or to dispute the evidence that this area of highway had a dangerous tendency to ice up. The judge summarized his findings in these words:

On evidence I find as a fact that the particular piece of road had a tendency to ice up in certain weather conditions. That when the highway iced up, it was treacherous and dangerous and very likely to cause an accident. I find that on March 1st, 1968 at the time of this accident the road had iced up, that it was treacherous, slippery and dangerous and that this condition had existed for some hours before the unfortunate accident. I further find that the road at the point of the accident was straight and level and a suitable place for passing. The road at the time of the accident was in such an extremely dangerous and hazardous condition that it was dangerous for persons making lawful use of the highway and taking reasonable care for their own safety. The slippery stretch for some reason was difficult for a motorist to see from any distance. Indeed, I do not think any of the motorists who testified as to passing over it saw the icy patch before they were on it. It is my opinion that the servant of the Department of Highways knew or ought to have known of this very dangerous tendency to ice up.

Imposition of some measure of liability upon the Minister of Highways does not import recognition of any general duty to salt or sand highways, failure in the discharge of which would expose the Minister to civil claims. Recovery against the Minister in this case rests upon narrower ground, characterized by Aylesworth J.A. in the Court of Appeal as:

. . . a highly special dangerous situation at a certain location in the highway which otherwise, to persons reasonably using the same, was quite passable and usable for traffic.

I agree with the statement of Aylesworth J.A. that

In the absence of any evidence or explanation from the Department with respect to that dangerous special situation, and in view of the evidence actually adduced that the police knew of the situation approximately two hours before the regrettable accident involved in these

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proceedings occurred and, further, that the police were aware that day, through previous experience in patrolling the highway, that the weather conditions were such as most likely to bring about at this particular location the actual dangerous situation which indeed resulted, we conclude that the same knowledge was available to the Department itself from any reasonable system of patrol or supervision and that the Department is chargeable in law with a failure to maintain the highway—at the dangerous point—within the provisions of the Highway Improvement Act in that regard; . . .

The duty of care which rests upon the Minister of Highways admittedly is confined to reasonably foreseeable dangers, the broad general test being that enunciated by this Court in University Hospital Board v. Lépine[3], at p. 579, “whether a reasonable person should have anticipated that what happened might be a natural result of that act or omission”. If one applies that test to the present case, what happened here was a series of collisions between motor vehicles. The impugned act or omission lay in permitting to continue for some hours a “treacherous, slippery and dangerous” icy condition upon a short stretch of much-travelled highway with a known tendency to ice up. It would seem to me that a reasonable person, familiar with Canadian winters, should have anticipated a vehicle collision or collisions as the natural, and indeed probable, result of such a condition of manifest danger. It is not necessary that one foresee the “precise concatenation of events”; it is enough to fix liability if one can foresee in a general way the class or character of injury which occurred: Overseas Tankship (U.K.) Ltd. v. Miller Steampship Co. Pty. (Wagon Mound No. 2)[4]; School Division of Assiniboine South No. 3 v. Hoffer[5], appeal to this Court dismissed.

From all of the evidence one can only conclude that the impact between the cars of Côté and Kalogeropoulos was slight. The photographs and the amount of the repair bill attest to that. The collision occurred on the icy patch with the result

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that the Kalogeropoulos vehicle was impelled broadside across the highway. It is inconceivable that the same results would have followed if the collision had occurred on dry pavement. I consider the Minister of Highways must bear some responsibility for what occurred; but the increased blameworthiness attributable to Côté due to the inescapable conclusion that his vehicle was not on ice when it pulled in behind the vehicle of Kalogeropoulos suggests that a diminished burden should be borne by the Minister. As between Côté and the Minister of Highways, I would apportion liability seventy-five per cent to Côté, twenty-five per cent to the Minister. I would vary the judgment of the Ontario Court of Appeal to provide that as between the Minister and Côté the latter should bear seventy-five per cent of the liability of Côté towards the successful plaintiffs and the Minister should bear twenty-five per cent. The costs of all parties in all courts should be paid by Côté and by the Minister in like proportions. I would dismiss the cross-appeal of Côté with costs.

The judgment of Martland, Judson, Ritchie and de Grandpré JJ. was delivered by

DE GRANDPRE J. (dissenting in part)—The four actions before the Court are the result of a highway accident which took place between Ottawa and Montreal, about five miles east of Rockland, at about 6:30 p.m. on March 1, 1968. This accident caused the death of two persons, and injured four others.

The victims were the occupants of one or other of the following cars: a Mercedes driven by Anne Marie Millette, travelling west from Montreal to Ottawa, and a Chevrolet driven by Constantinos Kalogeropoulos, travelling in the opposite direction, namely to the east. A third car was involved, that of Côté, and it was going east also.

The Millette car was driving on its side of the highway, that is the north side, and there is no question that its driver was without fault. This was the view of all parties, and the conclusion of all the judges who dealt with the point.

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At the time the accident occurred, the Kalogeropoulos car was on the wrong side of the highway, at an angle of 45 degrees, that is to say north-east. At first glance, needless to say, Kalogeropoulos should be found at fault, unless he can establish that his presence on the wrong side of the highway cannot be imputed to him. This was the conclusion reached by both the trial judge and the Court of Appeal, and it seems a valid one for the reasons I shall now indicate.

The accident took place on a part of the highway which was completely covered with a thin layer of ice. The measurements established that this ice extended the entire width of the highway, for a distance of 625 feet, and that the impact between the Millette and Kalogeropoulos cars occurred at almost exactly where they were found, namely 215 feet from the western end of this patch of ice. The evidence also demonstrated, and this was accepted by the lower courts, that at each end of the sheet of ice the highway was dry and presented no driving problems. The cause of this unusual situation at the scene of the accident was blowing snow impelled by a north wind.

The presence of Kalogeropoulos on the wrong side of the highway was caused by a light blow at the rear of his car from the front of the Ambassador car driven by Côté. Because of the ice, Kalogeropoulos was unable to do anything to regain control of his car when this blow occurred.

The lower courts have found that Côté should be held liable, partly at least, for this light collision between his car and that of Kalogeropoulos. I am entirely in agreement with that finding.

The real problem is to decide whether Côté was solely liable, or whether part of the liability should be borne, either by the Department of Highways, or the Police, or both, jointly and severally with Côté.

The trial judge found that these three parties, Côté, the Department of Highways and the Police, were jointly and severally liable. The Court of

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Appeal did not entirely share this view, and concluded that the Police could not be liable at law because the record did not show that, if they had acted differently, the result would have been any different; in the opinion of the Court of Appeal, this absence of a causal connection between the silence of the Police regarding a situation of which they were aware and the lack of any action by the Department of Highways, justified a corresponding modification of the judgment rendered at first instance.

With respect, I cannot share the conclusion of the lower courts that Côté was not the only person responsible for the accident and the consequences thereof. In my view his negligence was the sole proximate cause of the accident, and I would dispose of the various appeals on the basis of this finding.

In doing so I realize I am setting aside the concurrent findings of the lower courts. To do this, I rely on the well-known passage from the judgment of Taschereau J. in North British & Mercantile Insurance Company v. Louis Tourville et al.[6], a decision which was subsequently followed on several occasions, particularly in The Union Marine & General Insurance Company Limited v. Alex Bodnorchuk and Steve Nawakowsky[7]. I realize also that in his judgment the learned trial judge several times emphasizes the manner in which Côté testified, and states that he accepts the latter’s explanations concerning most of the facts related by him. As to this I would stress three points:

(1) in reading the evidence I willingly accepted the good faith of Coté, and his efforts to assist the courts; the fact remains that in reading a transcript such as that before this Court, the evidence must be seen in the light of what common sense tells us is physically possible;

(2) the trial judge himself, though giving Coté the greatest possible credence, had to dismiss his testimony on a major point, namely the existence of guard rails on the south side of the highway at the place where the accident occurred, and along the few hundred feet west of this location;

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(3) the evidence before the courts in litigations arising out of automobile accidents is concerned both with points that are easy to verify, and with others that are much less straightforward, given the fluid character of the events; in the present case it is common ground, the fact having been admitted by Coté on three occasions, that he stopped his car opposite the Millette and Kalogeropoulos cars, that is about 215 feet from the western end of the patch of ice, though his cruising speed was 60 m.p.h., or even a little more.

The starting point of a searching study of the evidence was an observation made by Coté in his testimony, when he was asked whether he thought everything he had described could have taken place within a distance of 215 feet. Quite candidly, he replied he did not see how that was possible.

The principal facts indicated by the evidence must therefore be recited:

—at the location of the accident the highway runs straight for over two miles to the west, and about 750 feet to the east;

—it is for all practical purposes level, though there is a slight gradient from west to east, which is not significant in the circumstances;

—the pavement is 24 feet wide, and each shoulder is 10 feet;

—Cote’s cruising speed was about 60 m.p.h.;

—at that speed he caught up with a group of four cars which were also travelling east, at a speed of 50-55 m.p.h.;

—Coté decided to overtake these cars, and did overtake three of them before pulling back to his right behind the leading one, driven by Kalogeropoulos;

—the identity of the driver of the last car in the line of four is established; it was driven by the witness Hisey, who was travelling about five car lengths behind the car immediately in front of him; there is no evidence as to the spacing between the three other cars in the line;

—in order to overtake, Coté probably increased his speed to over 60 m.p.h.;

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—he re-entered the right lane before overtaking the lead car, when he saw the lights of a car coming out of the curve, from east to west; this was identified as the Millette car at the time of the accident;

—in order to regain the right lane he made a slightly sharper turn than usual;

—as he was in the process of regaining the right lane he felt the rear of his car swerve; he suggests he was already on the ice;

—he was able to regain the right lane and tried to guide his car so that it did not collide with that of Kalogeropoulos; as he stated in his testimony, he was reasonably confident he could do so because there was a comfortable distance between him and the back of the Kalogeropoulos car;

—unfortunately, his expectations were not fulfilled; he attributed the collision between the front of his car and that of Kalogeropoulos to the fact that the latter applied his brakes; this assertion was denied by Kalogeropoulos, but I do not regard the point as significant;

—the impact was slight, as is indicated by the photograph of the cars and the fact that the damage to the Côté car was valued at $90;

—Kalogeropoulos then apparently applied his brakes and went across the highway at an angle, for a distance that was not established by testimony;

—as indicated above, Côté stopped his car opposite the Kalogeropoulos and Millette cars, and the three cars he had just overtaken also stopped before they reached the location of the accident.

It clearly follows from the foregoing that it was physically impossible for Côté to stop at more than 60 m.p.h., on sheer ice, within a distance of 215 feet. We can certainly rely on the calculations, made several times and accepted by all the courts, to the effect that at 60 m.p.h. the distances for reaction and braking make a total of some 225 feet, and then on perfectly dry pavement, with a car in perfect mechanical order.

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In the case at bar Côté explained the accident by the fact that he was taken by surprise when, as he was trying to pull to the right after overtaking three of the cars, he realized he was on sheer ice. He had not reacted or commenced braking at that point, so that the total of 225 feet on a perfectly dry pavement was the minimum he would take to stop his car. If in fact, as shown by the uncontradicted evidence, Côté stopped at a point situated 215 feet from the western limit of the patch of ice, all the events preceding the slight impact with the rear of the Kalogeropoulos car must have occurred before Côté entered upon such patch, that is to say, at a time when he was on dry pavement and perfectly in a position to control his car. The cause of this impact could not be the ice, since he was not yet on it; on the contrary, such cause was his excessive speed, having regard to the distance between the rear of the Kalogeropoulos car and the front of the unknown car following it.

Other factors support this conclusion. Côté tells us in his testimony that he began moving to the right behind the Kalogeropoulos car when he saw the Millette car coming out of the curve. He added that he would probably have had time to overtake the Kalogeropoulos car, but he thought it wiser not to. Now, the evidence indicates that the curve east of the scene of the accident ends about 750 feet from the place where the Millette and Kalogeropoulos cars stopped. If we assume that the Millette driver was also driving her car at 60 m.p.h., it follows that at that moment in time Côté himself was about 750 feet from the place where he finally stopped, that is to say 500 feet and more from the beginning of the patch of ice. Besides, if he thought it was possible to overtake the Kalogeropoulos car without colliding with the Millette car coming in the opposite direction, the distance between Millette and Côté must have been at least 1500 feet, consisting of the two 750 foot distances just referred to.

The matter of guard rails needs no further elaboration. If Côté’s testimony on this point is to

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be accepted, when he says that at the time he re-entered the right lane there were guard rails on the north side of the Highway, then he must have done so 1500 feet west of the patch of ice, as demonstrated by the evidence on this point, which is corroborated by the photographs taken three days after the accident, on March 4, 1968.

A further corroboration of the foregoing is the fact that, although he pulled to the right rather sharply, Côté did not lose control of his car, which only swerved slightly. The effect of such a sudden manœuvre on ice would have been to cause him to lose control of his car completely.

I have set aside the finding of the Court of Appeal that the Department of Highways should be ordered to pay part of the damages because, in my view, it committed no fault giving rise to liability. In order to find against the Department it must be concluded that the latter should have foreseen every possibility of damage, in particular the faulty conduct of Côté and its consequences. Put another way, the question is as follows: should the Department guided by the standards of the reasonable man, have foreseen the combination in time and space of all these factors which, taken together, produced this unfortunate accident? I think not. In matters of delictual liability the conduct of the parties is blameworthy only if the kind of damage was normally and reasonably foreseeable. That was not the case here. The University Hospital Board v. Gérald Lépine[8].

For these reasons, and with all deference to the lower courts, I conclude that the accident was caused solely by the fault of Côté, who did not have his car completely under control and was unable to prevent a slight collision between its front end and the rear of the Kalogeropoulos car, at a time when the latter could no longer do anything to avoid contact with the Millette car coming in the opposite direction.

I would vary the judgments appealed from so as to hold Côté solely liable for the accident and condemn him to pay all the damages suffered by

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the various victims. The appeals by Her Majesty the Queen in right of the Minister of Highways would accordingly be allowed, and Côté’s cross-appeals dismissed; the whole with costs in all courts.

Since preparing these reasons I have had an opportunity of reading the reasons written by Pigeon and Dickson JJ. Though in the circumstances I cannot hold the Department liable, I should add that if I had had to apportion fault between the Department and Côté, I would definitely have concurred in the view of Dickson J, and would have found Côté seventy-five per cent liable for the accident and its consequences.

The judgment of Pigeon and Beetz JJ. was delivered by

PIGEON J. (dissenting in part)—The facts are summarized in the reasons of my brother de Grandpré. I am, however, unable to agree with his conclusions.

In the first place, it does not appear to me that Côté’s negligence was the sole proximate cause of the accident. On any view of the facts, it is obvious that the slight impact of Côté’s car to the rear of Kalogeropoulos’ car would not have caused that car to come into collision with the Millette car if it had not been for the icy condition of the roadway. This becomes only more obvious if this initial impact is taken to have occurred on the dry pavement, that is more than 215 feet from the collision point. Under s. 2 of The Negligence Act, R.S.O. 1970, c. 296, liability for contributory negligence arises “When damages have been caused or contributed to by the fault or neglect of two or more persons”. I can find no authority to support the view that this applies only to “the proximate cause” to the exclusion of any other fault or neglect without which the damage would not have ensued. It must be borne in mind that the damage with which we are concerned in this case is that which arose out of the second collision, not the initial impact.

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In the second place, I cannot agree that this second collision was not a foreseeable consequence of the icy condition of the roadway. Multiple or chain collisions are such frequent occurrences that they are among the predictable results of a treacherous icy condition on a short stretch of otherwise dry and safe highway. Foreseeability does not imply or require that the particular way in which some accident occurs be actually anticipated. The test was laid down as follows by Duff J. (as he then was) in Winnipeg Electric Rway Co. v. Canadian Northern Rway Co.[9] at p. 367:

Where there is a duty to take precautions to obviate a given risk the wrongdoer who fails in this duty cannot avoid responsibility for the very consequences it was his duty to provide against by suggesting that the damages are too remote, because the particular manner in which those consequences came to pass was unusual and not reasonably foreseeable.

I can see no analogy between the facts presently in issue and those in University Hospital Board v. Lépine[10]. In that case the question was as to the duty of a doctor and of a hospital to a given patient and what was held to be not reasonably foreseeable was the latter’s sudden leap through the window. In my view, our very recent judgment in Bonnie Jo-Anne Corothers et al v. Ostop Slobodian and J. Kearns Transport Ltd., Thomas Russell Poupard and Guaranty Trust Company of Canada[11] is much more relevant. Although we were divided on another question, we were all of the opinion that the injury suffered by the plaintiff when running for help after a collision caused by the negligence of Poupard was a foreseeable result of that negligence, although obviously Poupard could not have foreseen the actual combination of factors which would cause this injury namely, that the empty tank truck which the plaintiff signalled to stop would jackknife on a sudden application of the brakes and hit her sideways into the ditch. In my view, applying the test of foreseeability in a reasonable and realistic way means asking the question whether a fatal head-on collision is a

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possible consequence of an earlier insignificant rear end impact when a short stretch of an otherwise safe and dry highway is allowed to remain in a slippery condition as described in this case. I cannot see any reason for answering that question in the negative.

I must add that if I could accede to the view that the initial impact occurred on the dry pavement more than 215 feet away from where the fatal collision occurred, I doubt whether I would still absolve the driver of the Kalogeropoulos car from any blame for that and would still see a causal connection with the initial impact. If Côté was on dry pavement when he let his car hit another car in the rear instead of getting off the pavement, could he, having no knowledge of the icy condition further down the road, reasonably foresee that this might result in a head-on collision more than 200 feet away? In the view I am taking of the case, I find it unnecessary to answer this last question. However, I must point out that the only witness who said that Côté’s car was brought to a stop on the shoulder at the very place where the collision occurred is Côté himself. Bearing in mind what could be deduced from this fact, I doubt very much if his statement should properly be considered as establishing the fact beyond controversy so that this may become the basis for invalidating the concurrent findings of the courts below.

In almost every automobile accident case, it is impossible to reconcile the statements of all witnesses, even if they are all credible witnesses. A trial judge is therefore obliged to find the facts by giving to every element of proof such weight as appears proper in the circumstances. Of course, it would be a grave error not to start from facts established by precise measurements such as the 215 foot distance previously mentioned as existing between the start of the icy surface and the place where the fatal collision occurred. A finding made contrary to such clear and certain evidence would undoubtedly invite interference on appeal. However, I cannot agree that such is the situation with respect to the place where Côté says he brought his car to a stop. And it conflicts with other facts which the trial judge accepted as proven such as

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the short distance travelled by the Kalogeropoulos car after the first impact. In my view, no valid reason has been shown in this case to justify an interference with the concurrent findings of facts in the courts below.

On all the other questions, I am in agreement with the reasons given for the Court of Appeal by Aylesworth J. and I would affirm its judgment and dismiss all appeals and cross-appeals to this Court with costs. However, seeing that four members of the Court hold that the appeal of the Minister of Highways should be allowed in full and three others would allow it to the extent of providing that as between the Minister and Côté the latter should bear seventy-five percent of the liability towards the successful plaintiffs and the Minister should bear twenty-five percent, the costs of all parties in all courts to be paid by Côté and the Minister in like proportions, I accept that such last conclusion should be the judgment of the Court, agreeing with such disposition of the costs under the circumstances.

Appeal allowed in part, cross-appeal dismissed, with costs, MARTLAND, JUDSON, RITCHIE, PIGEON, BEETZ and DE GRANDPRÉ JJ. dissenting in part.

Solicitors for the appellant: Kingsmill, Jennings, Toronto.

Solicitors for the respondent Côté: Hughes, Laishley, Mullen, Touhey & Sigouin, Ottawa.

Solicitors for the respondents Millette et al.: Wentzell & Gautreau, Ottawa.

Solicitor for the respondents Silk and Hicks: A.R. Dick, Toronto.

Solicitor for J.M. Dennery: Cyrille H. Goulet, Ottawa.

Solicitors for J. Karalekas: Hewitt, Hewitt, Nesbitt, Reid, McDonald & Tierney, Ottawa.

Solicitors for C. Kalogeropoulos: Cuzner, MacQuarrie, Gordon & Davis, Ottawa.