Morin v. Blais, [1977] 1 SCR 570

SUPREME COURT OF CANADA

Morin v. Blais, [1977] 1 S.C.R. 570

Date: 1975-10-07

Benoit Morin Appellant; and

Roger Blais Respondent.

1974: October 24; 1975: October 7.

Present: Ritchie, Pigeon, Dickson, Beetz and ' de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Motor vehicles — Collision — Inadequate signalling device on the rear of a tractor — Statutory fault — Causal link — Speed and carelessness — Liability divided equally.

At around 9 p.m. on July 23, 1969, while the degree of darkness was set at between seventy and eighty per cent, respondent B was travelling at eighteen to twenty miles per hour in his tractor. Appellant, travelling in the same direction, was driving his car at fifty-five to sixty miles per hour. While M was approaching B, a third vehicle, driven by L (one Lagacé) was coming in the opposite direction. M could not see the tractor soon enough, struck its left rear wheel then swerved to other side of the road and collided with L. The wife of L, who is not a party to the action, was killed in the accident and M was injured. It was shown that the red light on the left rear fender of the tractor was not working, and that the light on the right rear fender was barely visible, if at all, because of the presence of a white light on the rear fender which was, however, pointed toward the ditch. However, the tractor was equipped with the fluorescent triangle prescribed in Order in Council No. 3571. The Superior Court held that the inadequate signalling device was the cause of the accident and concluded that B was the only person liable. The Court of Appeal unanimously set aside the judgment and held that B's fault had not contributed in any way to the accident, and that M was the only person liable. Hence the appeal to this Court.

Held (Ritchie and de Grandpré JJ. dissenting): The appeal should be allowed and the judgment of the Superior Court varied.

Per Pigeon, Dickson and Beetz JJ.: Although there is no doubt as to the fault of respondent, the causal relation, which the Superior Court acknowledged, was denied by the Court of Appeal. The determination of this causal relation does not rest solely with what is known as the judge of fact. In the case at bar, the absence of a red light constituted a breach of a regula­tion. While such a breach does not give rise to the

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offender's civil liability when it does not cause injury to anyone, many of these traffic provisions do nevertheless lay down elementary standards of care and make them binding regulations at the same time. Breach of such regulations constitutes civil fault. In cases where such fault is immediately followed by an accident which the standard was expressly designed to prevent, it is reasonable to presume that there is a causal link between the fault and the accident, unless there is a demonstration or a strong indication to the contrary.

Another cause—and the two are not mutually exclu­sive but cumulative—is the behaviour of appellant who, if he had been driving with the care and prudence required, ought to have seen the obstacle sooner. Not only does the fault of one party not exclude the fault of the other, but the case at bar is particularly amenable to consideration of a common fault. As, with regard to their essential features, the circumstances in the case at bar are not different from those in Hébert v. Lamothe, [1974] S.C.R. 1181, liability should be divided equally between the two drivers, as in the latter decision.

Per Ritchie and de Grandpré JJ. dissenting: The determining cause of the accident was appellant's failure to see something that was clearly visible. Furthermore, although the latter was not exceeding the maximum speed, the reasonable man must act well within the maximum limits set by law when circumstances demand this. The lack of a regulation light is a statutory fault which did not play a determining role in the accident and which has no causal link with it. There are major differences between the case at bar and the decision in Hébert v. Lamothe in which the liability was divided equally. In the latter case the tractor had no rear red light and visibility was reduced by weather conditions.

[Hébert v. Lamothe, [1970] C.A. 855, set aside in part, [1974] S.C.R. 1181; Charest v. Ouellet, [1971] C.A. 616, followed; Lone v. St-André, [1945] Que. Q.B. 164; Trottier et Fils v. Lahaie, [1960] Que. Q.B. 734, referred to.]

APPEAL from a decision of the Court of Appeal of Quebec, setting aside a judgment of the Superior Court. Appeal allowed and judgment of the Superior Court varied, Ritchie and de Grandpré JJ. dissenting.

Gilles Lacoursière, for the appellant.

Jean-Jacques L'Heureux, Q.C., for the re­spondent.

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

DE GRANDPRÉ J. (dissenting)—This Court has to determine the liability of the two litigants before us as a result of a traffic accident involving three vehicles, namely respondent's tractor, appel­lant's car, which was travelling from north to south on Route 13 in St-Célestin, and the pick-up truck belonging to one Lagacé, who was travelling in the opposite direction. The latter was the inno­cent victim of the collision between the tractor and the car, and no one has brought an action against him.

The right front corner of appellant's car first struck the left rear wheel of respondent's tractor. The car then swerved to the other side of the road and collided with the pick-up truck. This collision resulted in the death of Mrs. Lagacé and in inju­ries to appellant. The Superior Court found respondent, the driver of the tractor, to be the only person liable, whereas the Court of Appeal held unanimously that only appellant, the driver of the car, was liable.

With one exception, the two Courts accepted the same facts as proven:

(a) it was twilight when this accident took place, at around 9 p.m. on the evening of July 23, 1969, and the degree of darkness was set at between seventy and eighty per cent; conse­quently vehicles had to have their lights on;

(b) the pavement is twenty-two feet wide, and there is a shoulder approximately five feet wide on either side;

(c) the road was perfectly dry when the acci­dent occurred;

(d) the road is perfectly straight and visibility is well over 1000 feet;

(e) to the north of the spot where the accident happened, the direction from which the tractor and car were coming, there is a low incline, but the road is flat in the place where the accident occurred;

(f) Lagacé was travelling from south to north at approximately fifty-five miles an hour, while appellant Morin was travelling at fifty-five to

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sixty miles an hour; respondent was travelling at eighteen to twenty miles an hour in his tractor;

(g) Lagacé and Morin both switched their headlights to low beam when they were approxi­mately 1000 feet apart;

(h) at that time Lagacé noticed that there were two headlights approaching (events have shown that this was Blais' tractor), and the headlights of another vehicle that was also travelling from north to south at a greater speed (Morin);

(i) the tractor was equipped with the following signalling devices:

—the two white headlights required by regulations;

—a white light on the right rear fender pointed toward the ditch behind the tractor;

—the fluorescent triangle prescribed in Order in Council No. 3571;

—a red light on the right rear fender, which will be mentioned below;

—in addition, there was a red light on the left rear side that was not working;

(j) appellant did not see any lights on the tractor and when he noticed what he described as a black mass, he applied his brakes; before his vehicle struck the tractor, his righ wheel made a skid mark 112 feet long and his left wheel made a mark 88 feet long; when appellant applied his brakes he was travelling approximately two feet from the west side of the road, that is, from his right-hand side;

(k) when it struck the tractor, appellant's car had already begun to swerve to the left and, according to the marks found by the constables, the tractor was occupying approximately six feet of the pavement;

(l) after the accident, the tractor was off the road on the west side, forty-seven feet from the point of impact, and appellant's car was on the left side of the road, having made a U-turn and collided violently with Lagacé's pick-up truck.

There was only one point on which the Superior Court and the Court of Appeal differed in their

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assessment of the facts. Although the trial judge admitted that the regulation red light was on the right rear fender, he stated that for all practical purposes, it could not be seen by the driver of a car in appellant's position because of the white light directed toward the ditch behind the tractor. The Court of Appeal, for its part, did not spend any time on the point, and appeared to accept that the regulation red light on the right fender was visible to a driver in appellant's position. I accept the trial judge's finding on this point.

However, this does not mean that I accept his conclusion in law. In my opinion, whether or not the regulation red light on the right rear fender was visible from behind, the determining cause of the accident must be sought elsewhere.

The question before this Court is the following: since for all practical purposes the basic facts accepted by the Superior Court and the Court of Appeal were the same, can this Court conclude that the judgment a quo is clearly erroneous? On this point, see Pelletier v. Shykofsky[1] and Dorval v. Bouvier[2]. I do not think that it can. On the contrary, I think that the Court of Appeal was perfectly correct in stating that the lack of the regulation red light on the left rear side of the tractor was not the determining cause of the acci­dent; the determining cause could have been noth­ing other than appellant's failure to see something that was clearly visible.

As the Court of Appeal emphasized, this is not a case in which incomplete signalling devices caused another driver to make an error. This is how the trial judge interpreted the facts when he stated, [TRANSLATION] "a driver approaching from the rear, who saw the lights on the right side of the tractor, might have thought that the vehicle was a motorcycle and expected to have more room to manoeuvre". In the case at bar the situation is entirely different, since appellant stated in his pleadings that the tractor had no lights on it, and since he stated in Court that he saw no lights, reflectors or triangle.

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The fact is that these were all visible. It must not be forgotten that when Lagacé and Morin switched to their low-beam headlights, when they were 1000 feet apart, the tractor was practically half way between the two vehicles. The tractor was therefore located in a dark part of the road and consequently the light from its headlights and the weaker light from its right tail light, which was partially directed toward the ditch, should have been noticed by appellant. However, he did not see anything.

Moreover, in the seconds that followed, his headlights, even on low beam, should have enabled him to see an obstacle 300 feet ahead of him, particularly if, as in the case at bar, this obstacle was equipped with the white lights to which I have just referred, as well as the regulation triangle. While it is true that low beams are directed mainly downward and to the right, they would also illumi­nate a fluorescent marker 300 feet ahead, which was affixed to the rear of the tractor in accordance with the regulation in Order in Council No. 3571[3], which reads as follows:

That all vehicles except a bicycle, and all combina­tions of vehicles the normal highway speed of which is 25 miles per hour or less, be equipped with a warning emblem attached to a durable, rigid and weather-proof backing.

That the said emblem consist of a triangular orange fluorescent marker with a dark red reflective border, conforming on all points with the CSA D198-1967 standard of the Canadian Standards Association, a marker which it is now possible to obtain on the market;

That the said marker be affixed to the rear of the vehicle or combination of vehicles, approximately at the center, and that its base be at the height of between three and five feet from the ground;

That in normal weather conditions, this marker be completely visible at any distance between 600 and 100 feet during the day and also at night when it is directly in front of the headlights of a motor vehicle;

That the use of this marker does not exclude the lights, reflectors and other signalling devices required by the Highway Code.

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The triangular marker on the tractor in question complied in all respects with the requirements of this regulation.

It is true that the last paragraph of the order refers to the other signalling devices required by the Highway Code. But, of course, their absence must have played a determining role in the acci­dent; in my opinion, this is not the case here. I adopt the following two paragraphs taken from the reasons of Turgeon J.A.:

[TRANSLATION] We should consider whether the lack of the regulation red light on the left rear side of the tractor may have contributed to the accident. Since plaintiff-respondent failed to see the indicators that were on the tractor and that were visible from a distance of at least 500 feet, in my view there is no doubt that, had there been an additional red light on the left side, he would not have seen it either.

I conclude that there is no causal link between the statutory fault found by the trial judge to have been committed by defendant-appelant, and the accident sus­tained by plaintiff-respondent.

The parties referred the Court to Hébert v. Lamothe[4], a decision in which the liability was divided equally between the two drivers. In my opinion, there are major differences between that decision and the case at bar. It suffices to mention the following facts:

(a) "banks of fog had settled on the highway" when the Hébert accident took place;

(b) "the road was wet and slippery";

(c) the tractor "was not equipped with reflec­tors" and had "no red rear lights";

(d) the only light on the rear of the tractor was white and it would disappear "at any time" behind a burlap bag.

It was in this context that Abbott J., speaking for the whole Court, began by repeating the ratio decidendi of Casey J.A., whose dissenting opinion was accepted by this Court (at p. 1185):

Casey J.A. dissented, holding that the respondent had been extremely imprudent in that, despite the rain and fog, he ventured onto a main road with a vehicle whose

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rear light was inadequate to the point of being almost inexistent.

Abbott J. continued (at p. 1185):

Under today's conditions, normal prudence requires that the driver of any slow-moving vehicle making use of a main highway when visibility is reduced, should take adequate safety precautions to ensure that following traffic be made aware of his presence in good time.

(The underlining is my own)

There is one final comment to be made regard­ing speed. Appellant stated at all times that he was not blinded by the headlights on Lagacé's pick-up truck. I have no reason to reject his statement, particularly since at the time appellant should have seen the tractor 300 feet ahead of him, he was some 600 feet from Lagacé's vehicle. However, if he was partially blinded, appellant was required to reduce his speed. It is true that the maximum speed in the place where the accident occurred is sixty miles an hour, but this does not mean that drivers are entitled to maintain this speed under any conditions. The reasonable man of art. 1053 C.C. must act well within the maximum limits set by law when circumstances demand this. In other words, this is a case of the application to the matter of speed of the duty to take care discussed by this Court on many occasions.

For all these reasons, I would affirm the judgement a quo and would dismiss the action, the whole with costs.

The judgment of Pigeon, Dickson and Beetz JJ. was delivered by

BEETZ J.—I have had the advantage of reading the reasons of my brother de Grandpré. He sum­marizes the facts.

There is no doubt as to the fault of respondent. Both the Superior Court and the Court of Appeal agree on this. However, the causal relation be­tween this fault and the accident, which the Supe­rior Court acknowledged, was denied by the Court of Appeal. In the latter's opinion, respondent's fault, the mere breach of a regulation, did not contribute in any way to the accident. In support of his findings Turgeon J.A., speaking for the Court of Appeal, cited three of its decisions dealing

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with the problem of causality in circumstances in which a vehicle struck the rear of another vehicle at night: Lone v. St-André[5], Trottier et Fils v. Lahaie[6], Hébert v. Lamothe[7].

The first of these three decisions involves a particular set of circumstances: the truck hit from the rear had broken down, but its lights were on in accordance with regulations. The second decision is essentially to the same effect as the third, and it is in fact cited in the latter. The third was quashed by this Court following the decision of the Court of Appeal in the case at bar: Hébert v. Lamothe[8].

Damage generally results from several sets of facts. Once the primary circumstances are established, the determination of a causal relation be­tween one or more facts evincing fault and the damage presupposes a choice, an appraisal and a characterization of the facts. Thus, in Hébert v. Lamothe, the Superior Court and the Court of Appeal had held that the sole cause of an accident was the negligence of the driver of a car who had struck the rear of a poorly illuminated tractor; despite these concurrent findings, this Court did not hesitate to intervene and divide the liability between the two drivers.

In the case at bar, the Court of Appeal appeared to see no choice except between two mutually exclusive hypotheses, namely respondent's fault or appellant's fault. It did not entertain the possibility of a common fault in a case which is particularly amenable to it. This comes close to an implicit application of the "last clear chance" theory, which has sometimes been accepted at common law before division of liability was made possible by legislation in cases of common fault. It goes without saying that this theory was never part of the civil law.

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The red light on the left rear fender of respond­ent's tractor was not working, and the red light on the right rear fender was barely visible if at all. Drivers approaching the tractor from the rear were warned of its presence only by a white light, also located on the right rear fender, and the fluores­cent triangle required by Order in Council No. 3571. The white light was not designed to indicate the presence of the vehicle from a distance, but to light farm machinery used with the tractor. It was not a tail light, but a spotlight of undetermined intensity that could be turned in any direction. When the accident occurred, this light was pointed partly downward and partly in the direction of the ditch to the right of the tractor, in an angle as to which the evidence provides no particulars. Its light could reduce or neutralize the effect of the red tail light located on the right rear fender, but there is nothing to indicate that the spotlight was at an angle that enabled drivers to see it from any considerable distance. The reflecting marker required by regulations was in its proper place, but its use alone is deemed inadequate by Order in Council No. 3571. Its effectiveness may be further reduced at dusk for cars using their low-beam lights.

I am unable to say with the Court of Appeal that there is no causal link between respondent's fault and the accident. The accident occurred because the tractor was not seen. The fact that it was not very visible can be attributed to respond­ent and is in my opinion one of the causes of the collision.

Another cause—and the two are not mutually exclusive but cumulative—is that accepted by the Court of Appeal in finding appellant at fault. The tractor struck by appellant was not equipped with adequate signalling devices, but it did have some, and was not completely invisible. I do not feel that it is erroneous to infer from this that if appellant had driven his vehicle with the care and prudence required, he ought to have seen the obstacle sooner.

The mere breach of a regulation does not give rise to the offender's civil liability if it does not cause injury to anyone. However, many traffic

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provisions lay down elementary standards of care and make them binding regulations at the same time. Breach of such regulations constitutes civil fault. In cases where such fault is immediately followed by an accident which the standard was expressly designed to prevent, it is reasonable to presume that there is a causal link between the fault and the accident, unless there is a demonstra­tion or a strong indication to the contrary. In my view, this was the approach used by the Court of Appeal in Charest v. Ouellet[9], which was affirmed orally by this Court on May 10, 1973, in the following manner:

"... We are all of the opinion that the Court of Appeal did not err in its judgments".

A passage from the same decision, to the same effect, is also quoted with approval by this Court in Hébert v. Lamothe.

With regard to their essential features, I cannot distinguish between the circumstances in the case at bar and those in Hébert v. Lamothe, and, as was decided in that decision, I would divide the liabili­ty equally between the two drivers.

The Superior Court ordered respondent to pay appellant $9,900 with interest since the date of service. The amount is not contested.

I would allow the appeal, set aside the judgment of the Court of Appeal except with regard to costs, and, modifying the judgment of the Superior Court, I would order respondent to pay appellant $4,950 with interest since the date of service, and costs in Superior Court and in this Court.

Appeal allowed with costs, RITCHIE and DE GRANDPRÉ E. dissenting.

Solicitors for the appellant: Godin, Lacoursière & Lamy, Trois-Rivières.

Solicitors for the respondent: Bourret, Allaire, L'Heureux, Gratton & Blain, Montréal.