Jackson v. Millar, [1976] 1 SCR 225

Supreme Court of Canada

Jackson v. Millar, [1976] 1 S.C.R. 225

Date: 1975-01-28

Bradley Charles Jackson, an Infant Under the Age of Twenty-one Years, by His Next Friend Benjamin Jackson, and the Said Benjamin Jackson (Plaintiffs) Appellants;

and

William Millar, an Infant Under the Age of Twenty-one Years, by His Guardian ad litem, Murray Millar, and the Said Murray Millar (Defendants) Respondents.

1974: October 31; 1974: November 1; 1975: January 28.

Present: Martland, Judson, Spence, Pigeon and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Motor vehicles—Gross negligence—Driver unduly fatigued—Res ipsa loquitur—The Highway Traffic Act, R.S.O. 1970, c. 202, s. 132(3).

M, a sixteen year old youth with very limited driving experience borrowed his father’s car and after ten o’clock p.m. set out with two friends to drive from Toronto to Lake Simcoe in order to attend an all night movie. M had spent the day in active outdoor pursuits and undertook to sleep at a friend’s cottage should he feel it necessary and return to Toronto the following morning. Having fallen asleep during the performance, he was aroused, started out to Toronto, detoured to the cottage and then failed to take advantage of resting there. On the way back to Toronto, both passengers slept. At a point just beyond an intersection and overpass, where the pavement had widened somewhat, M realised that his right wheels were on gravel and off the pavement. He attempted to regain the pavement but skidded, lost control of the vehicle and in the accident J, one of the friends, was very seriously injured. The trial judge found that J was a gratuitous passenger but that the negligence of M was gross negligence and awarded damages of $223,785.07 to J, the infant plaintiff, and of $24,118.08 to the adult plaintiff. The Court of Appeal felt that the facts which established M’s negligence fell short of establishing gross negligence and were of the opinion that the res ipsa loquitur rule was not applicable.

In the result the judgment in the Court of Appeal dismissed J’s action but that Court indicated that, in any

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event, it would have reduced considerably the amount of the damages.

Held: The appeal should be allowed.

The circumstances leading up to the accident and the actual accident itself, sparsely as it was described by M, the infant defendant, quite justified the conclusion by the trial judge that the negligence was gross negligence and since such evidence had been given the trial judge’s finding should not be disturbed and further that, even if the trial judge had failed to find that the plaintiffs had established acts which constituted gross negligence, the maxim res ipsa loquitur could be used by him in finding gross negligence against the driver M.

The Court of Appeal was not justified in its reduction of the award of the trial judge on the basis of failure to take into account the contingencies of life and to allow a discount to reflect present values. The trial judge did work out present value and, while no allowance was made for contingencies of life, in the particular case of this infant plaintiff the only appropriate reduction would be too diminutive to justify interference on appeal.

Walker v. Coates et al., [1968] S.C.R. 599; Burke v. Perry, [1963] S.C.R. 329; Barkway v. South Wales Transport Co. Ltd., [1950] 1 All E.R. 392; Gauthier & Co. Ltd. v. The King, [1945] S.C.R. 143 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a judgment of Osler J. at trial. Appeal allowed, judgment at trial restored.

L.P. Shannon, Q.C., and W.P. Cipollone, for the appellants.

D.W. Goudie, and W.H.O. Mueller, for the plaintiffs.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on October 30, 1972. By that judgment, the said Court of Appeal for Ontario allowed an appeal from the judgment of Mr. Justice Osler after trial pronounced on September 16, 1971, and

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dismissed the action of the plaintiff, the appellant in this Court.

Mr. Justice Osler had found that the negligence of the defendant William Millar was gross negligence and that the infant plaintiff, Bradley Charles Jackson, had, by his negligence to the extent of ten per cent contributed to his injuries, and he therefore gave judgment for the infant plaintiff for $223,785.07 and for the adult plaintiff Benjamin Jackson for $24,118.08.

The action arose as a result of a single car accident on the morning of September 2, 1968, which was, in that year, Labour Day.

Three youths, the infant plaintiff Bradley Charles Jackson, the infant defendant William Millar, and a third, Ross T. Sanders, were, at the time of the accident, riding in an automobile owned by the adult defendant, Murray Millar, and driven by the infant defendant, William Millar. The three youths had spent a good deal of the summer vacation in 1968 in and around Toronto. The infant plaintiff and the infant defendant had only that summer acquired driving licences and the infant plaintiff had ridden with the infant defendant a number of times in this automobile owned by the father of the latter.

On the evening of Saturday, August 31st, the two infant parties met at a house in Toronto and spent the evening there. The infant plaintiff slept there but the infant defendant went to his own home and, according to the finding of the trial judge, had available for rest, after his arrival home and prior to his leaving home to again meet the infant Bradley the next day at about noon, a period from eight to ten hours. The learned trial judge found as a fact that when the infant defendant joined the infant plaintiff on Sunday morning, the 1st of September, he was well rested.

The two youths spent the balance of Sunday on Centre Island, a park and amusement place adjacent to Toronto, were out in the fresh air during the whole period and did considerable cycling. Their only food was light refreshment taken on the island. The two, after their return to the city at

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about ten p.m. on Sunday, September 1st, determined to drive to Port Bolster on the south shore of Lake Simcoe to attend an all-night drive-in movie. The infant defendant obtained permission from his father, the adult defendant, to take the latter’s automobile. According to the parental instructions, the time for the return was left unfixed but the adult defendant insisted that the car should be available for his use on Monday morning, the 2nd of September. The evidence is concerned with the question of contribution by the two passengers, that is, the infant plaintiff and Sanders, to the cost of the trip. The learned trial judge has held that the infant plaintiff was a gratuitous passenger and there was no appeal therefrom.

The three youths riding in the automobile driven by the infant defendant Millar arrived safely at the out-door theatre in Port Bolster. The learned trial judge has found that no fault could be found with the condition and equipment of the automobile. The three purchased hamburgers and milk shakes at a restaurant opposite the theatre then proceeded to enter the theatre, and it would appear that none of the three really watched much of the motion picture performance because all three, at various times, slept. The learned trial judge, on some contradictions in the evidence, has accepted the evidence of the passenger Sanders that the infant defendant Millar slept for a period not in excess of three hours between two a.m. and five a.m. The evidence of the infant defendant was that when he awoke the picture was over and “everything was closed down”.

Before leaving his father’s home, the infant defendant had demonstrated that he knew the danger of driving an automobile when he was suffering from fatigue and had assured his father, the adult defendant, that if he felt such fatigue he would stay overnight in a cottage near the theatre which was owned by some relatives of the passenger Sanders.

Upon rousing themselves, they left the theatre and drove to this cottage which trip constituted a detour of about six miles from their ordinary route to Toronto but arrived at the cottage at some time very shortly after five a.m. and, seeing no lights on and no cars about, Millar drove on toward

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Toronto. On the way to Toronto, both his passengers slept, at any rate, from time to time, and the learned trial judge came to the conclusion that little information could be obtained from them as to anything which occured during the trip and prior to the accident. The infant plaintiff sat in the front seat to the right of the driver and he appears to have been sitting slouched over to lean against the right front door. Although the vehicle was equipped with seat belts, and the learned trial judge has found the infant plaintiff knew it was so equipped, he made no use of the seat belts.

The route followed highway 48 south from around Lake Simcoe to highway 401 which crosses the northerly part of the City of Toronto. A short distance north of the interchange between highway 48 and highway 401, and probably on the actual drive used by a south‑bound car on highway 48 to reach the west bound lanes of highway 401, the infant defendant states he became aware of some unusual sounds or feel in the operation of his vehicle and that he stopped the car, got out of it and inspected it to find that it seemed to be in order and that all tires were fully inflated. He then re-entered the automobile and proceeded to drive it westerly on highway 401. At that point and during that period, highway 401 had two east-bound and two west-bound lanes each twelve feet in width. The speed limit was sixty miles per hour and the infant defendant has testified that he was driving at about that speed. There had been intermittent rain and some water lay on highway 401 but not in great quantity, and of course the highway was a splendid double-lane limited access throughway.

At a point some 1.8 miles west of highway 48 from whence Millar entered highway 401, the latter crosses Midland Avenue on an overpass. As is usual on highway 401, the asphalt pavement widens at the point of such overpass so that the asphalt stretches from the cement guard rails on the north side of highway 401 to the cement guard rails on the other side. At a point just west of the westerly end of the overpass, the circumstances involved in the accident commenced. This point

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was never accurately fastened down. In the appellants’ factum, it is referred to as a point one hundred and seventy-five feet west of the overpass.

Constable Wallace Sargales gave evidence for the plaintiffs at the trial. He was the first officer to arrive at the scene and he described in considerable detail the condition of the car involved, its position when he arrived, and certain marks along the north shoulder with which I shall deal hereafter. Constable Sargales described a mark which he said appeared to be a tire mark but not a skid mark which ran along the north shoulder immediately adjacent to a guard rail composed of wooden eight-inch in diameter posts joined by two strands of wire cable. That mark was two hundred and ten feet in length. He also testified that fourteen guard posts and two anchor posts had been broken off and the twisted wire cable lay on the ground. In his initial examination, Constable Sargales did not testify where the easterly end of that mark commenced. He was, with the permission of the learned trial judge, later recalled as a witness for the defence and then was cross-examined by counsel for the plaintiffs. He had made a very obvious error in his initial testimony when he described the broken guard posts and twisted cable as being east of the Midland Avenue overpass and he corrected this in the cross-examination after his recall and then was asked:

Q. Well, if it is set out in the police report that the accident occurred 175 feet west of the Midland Avenue overpass would you say that was correct?.

A. That would be correct, sir.

He further testified that he did not walk back to the area of the overpass.

There had been no comment in the respondents’ factum nor during the argument as to that distance of one hundred and seventy-five feet and I think it can be regarded as established that the mark along the north shoulder of the road commenced one hundred and seventy-five feet west of the westerly end of the railing on the overpass.

It was the testimony of the infant defendant that he heard the sound of gravel hitting beneath the

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fenders of the automobile and that he very gradually turned the vehicle to the left so as to travel on the southerly of the two west bound lanes and that despite the gradualness of that move the rear of his vehicle commenced to skid to the south, i.e., to the left, and that although he, the infant defendant, attempted to correct this movement of the car in the standard fashion by a turn into the skid, that is, turning his steering wheel to the left, he was unable to do so. The vehicle went out of control, left the highway and must have gone through not only a 360 degree turn but a further 180 degrees in addition. The vehicle, of course, left the travelled portion of the highway, broke off the sixteen eight-inch posts and ended up facing north-east about ninety feet north of the north limit of the pavement, although these measurements were only approximate.

It is very difficult to follow the infant defendant’s description of this occurrence. If the infant defendant had, when he heard the gravel beneath the right fender of his vehicle, turned very gradually to the left, there would have been no skid or even if the skid had occurred it is inevitable that the skid would have been with the rear of the vehicle going to the right and not to the left as he testified. Then, when a person took the natural action to correct that skid by turning the steering wheel to the right, if such an action were sudden or too extensive, the tendency would be to throw the vehicle into the clock-wise movement which the infant defendant describes.

During the course of the careening of the automobile over the shoulder and through the guard rail, the infant plaintiff was thrown out of the vehicle. Both the infant defendant and the passenger Sanders realized this and even before the vehicle had come to a stop they had jumped out and ran back to where the infant plaintiff lay on the shoulder of the roadway some fifteen to twenty feet from the paved portion of the road and ten feet to the north of the guard rail. This location was some fifty to seventy-five feet from the car.

Since the learned trial judge found the infant plaintiff was only a gratuitous passenger, the

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provisions of what is now s. 132 of The Highway Traffic Act, R.S.O. 1970, c. 202, apply. Subsection (3) of that section provides:

(3) Notwithstanding subsection 1, the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in, or upon, or entering, or getting on to, or alighting from the motor vehicle, except where such loss or damage was caused or contributed to by the gross negligence of the driver of the motor vehicle.

Therefore, in order to succeed, the plaintiffs must prove that their “loss or damage was caused or contributed to by the gross negligence of the driver of the motor vehicle”. The learned trial judge found that the infant defendant had been guilty of gross negligence in two particulars: firstly, that he continued to drive while sleepy and fatigued which, in the circumstance of this case, constituted in itself and taken alone gross negligence, and secondly, that he failed to keep his vehicle under proper control. The learned trial judge was of the opinion that these acts of negligence were cumulative and when accumulated constituted gross negligence. The learned trial judge was, moreover, of the opinion that the maxim res ipsa loquitur should be applied in favour of the plaintiffs. There is no doubt, after the decision of this Court in Walker v. Coates et al.[1], that the maxim is applicable in aid of the proof of gross negligence as well as in the proof of ordinary negligence. The learned trial judge noted that the infant defendant had given testimony as to what occurred but the learned trial judge referred to that testimony in these words:

In my view, this is no answer, even if believed in full. What followed leaves intact the presumption that there was a very marked departure from the normal standard and not a careful moderate turn from one lane to the other.

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I shall deal subsequently with the learned trial judge’s disposition of the issue of damages.

The Court of Appeal for Ontario, by a unanimous judgment, allowed the defendants’ appeal. In so far as liability is concerned, the reasons were given chiefly by Evans J.A. The learned justice on appeal expressed the view:

There is no doubt that Millar was guilty of simple negligence but such a finding, of course, cannot support the claim of a gratuitous passenger.

He also expressed the view:

With respect to the opinion of the learned trial judge, I do not believe his finding with respect to fatigue to be supported by the evidence nor has there been established a sufficient causal connection between the alleged fatigue and the accident . . . Millar denies that he was fatigued and while his evidence must be viewed in the light of his self-interest it cannot be disregarded particularly as it is not contradicted by any other direct evidence and is supported to some considerable extent by his conduct in the operation of the motor vehicle.

With all respect for the learned justice on appeal, this finding is made after an experienced trial court judge had heard the evidence, and I am sure considered the evidence with the utmost care, and reserved his judgment from the 28th of June to the 16th of September and then had written reasons for judgment in which he very carefully considered all the relevant evidence. Even if the learned trial judge’s finding had not involved any finding of credibility and had merely been confined to determining which view of the facts would be more probable, I am of the opinion that his findings should not have been disturbed on appeal. There is much authority for this proposition. Perhaps Burke v. Perry[2], should be cited, where Ritchie J. said at pp. 331-2:

. . . but the difficult task of assessing the quality of the negligent actions of the driver of a motor vehicle immediately before and at the time of an accident in order to determine whether or not they are to be characterized as “gross negligence” involves a reconstruction of the circumstances of the accident itself including the reactions of the persons involved, and this is a function

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for which the trial judge who has seen and heard the witnesses is far better equipped than are the judges of an appellate court.

I refrain from citing many other authorities to a similar effect.

I might add that the circumstances described in the evidence are circumstances which fully support the learned trial judge in his view as to both grounds of negligence which he found cumulative to constitute gross negligence.

The infant defendant, only sixteen years of age and having a licence a very few months, and having very limited experience in driving upon a highway, had been engaged in active outdoor pursuits during the whole of Sunday and then, after ten o’clock at night, when one would have thought it was time to retire, he succeeded in persuading his father to permit him to drive from Toronto to Lake Simcoe in order to attend an all-night movie. He demonstrated to his father that he realized the dangerous character of fatigue and undertook to sleep at a friend’s cottage if fatigued and yet, having arrived at the movie theatre, he fell asleep and slept for about about three hours. On his own evidence, he was aroused after the performance was over and, in what would appear inevitably to have been a befogged state, he started out to Toronto, detoured to the cottage where he had said he could obtain rest and then failed to take advantage of it.

During the argument, it was stressed that the infant defendant’s stop to inspect his automobile before he entered highway 401 showed his altertness. If an inference may be drawn, then I take the opposite inference: that he was in such a fatigued condition that he imagined faults in the vehicle which inspection proved not to exist. Then the actual accident, sparsely as it is described by the infant defendant, would again indicate his being overcome by fatigue. It is apparent, when one looks at the photographs, that as the vehicle crossed the overpass above Midland Avenue the

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asphalt widened out right to the guard rail. If the infant defendant’s vehicle had been allowed to drift even slightly to its right as it crossed that overpass then it would be inevitable that having proceeded beyond it the gravel at the north edge of the road would rattle against the fenders on the right side of the car. Nothing serious could result but it would seem that this inexperienced and very fatigued boy was so frightened at this sound that he proceeded to take such action as resulted almost inevitably in the accident which did occur. Surely, a learned trial judge who heard the evidence which I have summarized could well conclude that that driver had been guilty of gross negligence, and I cannot accept the view that his opinion should be interfered with on appeal.

The learned trial judge was of the opinion that even if he had failed to find that the infant plaintiff had established acts which constituted gross negligence on the part of the defendant, he was entitled to use the maxim res ipsa loquitur and rule for the plaintiff on the basis of that maxim.

In the Court of Appeal, both MacKay J.A. and Evans J.A. were of the opinion that the rule was not applicable. Evans J.A. cited Clerk & Lindsell on Torts, 13th ed., para. 967 at p. [567] as follows:

The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition; (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.

I am content, for the purpose of dealing with the circumstances in this case, to accept that, as did Evans J.A., as an accurate description of the applicable maxim noting that the learned author had used the word “doctrine” while the better expres-

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sion seems to be that used by Lord Norman, in Barkway v. South Wales Transport Co. Ltd.[3], at p. 399, a “rule of evidence”.

It was the opinion of both McKay J.A. and Evans J.A. that there had been evidence as to why or how the occurrence took place and that therefore the maxim was inappropriate. MacKay J.A. also cited Kellock J. in this Court in Gauthier & Co. Ltd. v. The King[4], at p. 152, that “skidding of a motor vehicle on a highway is a neutral fact equally consistent with negligence or no negligence”. It is true that there was an explanation in the present case but that explanation was styled by the learned trial judge in the words which I have already cited that it was no answer even if believed in full. Kellock J., in the authority cited by MacKay J.A., i.e., Gauthier & Co. Ltd. v. The King, said that skidding was a neutral fact and then proceeded to examine all the evidence as to how the skid occurred and came to the conclusion that the evidence of the respondent, the Crown, did not amount to an answer to the prima facie case which had been adduced by the appellant, allowed the appeal, and gave to the appellant, the plaintiff, judgment.

In my view, an exactly similar course was taken by Osler J. at trial, in the present case. The learned trial judge considered the explanation given by the infant defendant and came to the conclusion that under all the circumstances it was not a valid explanation and that therefore the maxim applies. In my opinion, he was correct in such a course.

The judgment of the Court of Appeal resulted in that Court dismissing the action. Under such circumstances, it would not be usual for the Court to deal with the question of damages. By its judgment, the plaintiffs were not recovering any damages. The Court of Appeal for Ontario, however, proceeded to consider damages. The Court left untouched the award of special damages to the

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adult plaintiff of $24,118.88 and the award of $150,000 less a ten per cent reduction to the infant plaintiff as compensation for pain and suffering, loss of enjoyment of life and the amenities of life, loss of life expectancy and inability to lead a normal life. The ten per cent reduction had been that determined by the learned trial judge as being the apportionment for the contributory negligence which he attributed to the infant plaintiff due to the infant plaintiff’s failure to utilize the seat belt which was available to him on the front seat of the defendant’s vehicle. There has been no appeal from such a ten per cent reduction.

The Court of Appeal, however, disagreed with the learned trial judge’s award of $95,000 damages to the infant plaintiff for diminution of earnings, special expenses, and costs of future hospitalization, Evans J.A. saying:

In so doing I believe the learned trial Judge erred in that he failed to take into account either the contingencies of life or the discount which should be allowed for the present value of a capital sum to cover future expenses.

It will be seen, therefore, that the award was subjected to two criticisms: firstly, a failure to take into account the contingencies of life, and, secondly, the failure to allow a discount to reflect present values.

The learned trial judge arrived at the sum of $95,000 in the following fashion. He allowed an amount of $2,805 per year for hospitalization for each year during the continuance of the infant plaintiffs life expectancy. He allowed $1,500 per year to cover the additional expenses which the plaintiff incurred due to his rather terrible physical condition and he allowed $2,500 per year as being the diminution of the plaintiff’s earning ability due to his injuries. These three amounts the learned trial judge totalled to $6,805. per year. The learned trial judge found that the infant plaintiff had, due to his injuries, a reduced life expectancy and that life expectancy, at the date of the trial, stood at 32.5 years. If the learned trial judge

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would have allowed a lump sum payment of 32.5 x $6,805 he would have had to allow, by a mere exercise in arithmetic, $221,112.50. The learned trial judge, however, only allowed $95,000 and worked out $95,000 as being a rounded out figure to cover 6.805 x $14,200 which was a one payment annuity that would supply $1,000 per year for 32.5 years. It is, therefore, apparent that the learned trial judge did, as to this figure, work out present values and allowed such present value rather than a mere arithmetical multiplication.

It is true the learned trial judge did not make any allowance on the $6,805 per year for 32.5 years to represent contingencies of life. Such contingencies, of course, reflect the possibility that any one might, a few months after the accident, have suffered injuries for which he could not obtain compensation but which would curtail or eliminate his ability to earn a living. He might suffer financial disaster which would lessen or eliminate his earning ability. He might fall into personal habits such as alcoholism or drug addiction which again would reduce or eliminate his earning ability. There should be an allowance for these contingencies of life. Such allowances must vary with the individual circumstances in each particular case. The contingencies did not affect either of the annual figures of $2,805 or $1,500 Should the plaintiff’s earning ability be prejudicially affected by accident or by other causes in the future, his hospital expenses and the additional costs for personal care represented by those two last named would continue unabated. It is only the sum of $2,500 per year as loss of future income which is truly subject to this contingency and in the particular case of this infant plaintiff must be considered. Due to his condition and to the results of his injuries, he will lead a very sheltered life and will be constantly under medical care. There will be considerably less chance of him being in another non-compensable accident. It is unlikely he will be in a position where financial disaster will overtake him. He will be a worker in a sheltered

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workshop not an independent business man.

The medical attention which he will receive constantly should be expected to have the effect of impeding any likelihood of personal habits detracting from his earning ability. It is much more likely that any diminution of earning ability should be due to utter frustration caused by his disability, the result of the accident giving rise to this action.

The Court of Appeal would have reduced that $95,000 figure to $50,000, a reduction of a little more than forty-seven per cent. In my opinion, a reduction of twenty-five per cent only on the $1,500 annual amount would have been adequate under the circumstances; if the $1,500 had been reduced by $350 to cover the contingencies of life, it would only have reduced the $95,000 by $4,970. When one considers the amounts in question in the award of damages in this particular case and the estimation of $2,500 per year reduction in the infant plaintiffs earning ability, surely it is most modest, then a sum less than $5,000 is diminutive and one could not say that the award to include that $5,000 would be inordinately high.

I would, therefore, allow the appeal and restore the judgment of the learned trial judge in full. The plaintiffs are entitled to their costs in this Court and in the Court of Appeal for Ontario.

Appeal allowed with costs.

Solicitors for the appellants: Phelan, O’Brien, Rutherford, Lawer & Shannon, Toronto.

Solicitors for the respondents: Thomson, Rogers, Toronto.