Corothers et al. v. Slobodian et al., [1975] 2 SCR 633

Supreme Court of Canada

Corothers et al. v. Slobodian et al., [1975] 2 S.C.R. 633

Date: 1974-10-01

Bonnie Jo-Anne Corothers and Donald Wayne Corothers (Plaintiffs) Appellants;

and

Ostop Slobodian, J. Kearns Transport Ltd., Thomas Russell Poupard and Guaranty Trust Company of Canada as administrator of Neil Francis Poupard, deceased (Defendants) Respondents.

1974: June 6; 1974: October 1.

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

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Negligence—Head-on collision obstructing highway—Occupants of vehicle injured—Driver of following car running along side of highway to seek aid—Injured by oncoming truck while signalling it to stop—Rescuer entitled to indemnity from original wrongdoer.

On January 21, 1970, at about 7:45 p.m., the appellant C was driving alone in her husband’s car in a westerly direction on the Trans Canada Highway. She was following at a distance of some 200 feet a Monarch car, when suddenly a Volvo collided head-on with the Monarch which was on its proper side of the road. The Volvo was driven by the respondent P and was the property of his father. It broke in two pieces, scattering the bodies of its three occupants on the highway and in the ditch. The Monarch was stopped dead. C swerved to the left and managed to drive through the wreckage. Her car came to rest almost completely on the shoulder, on her left-hand side of the road, some 40 or 50 feet past the Monarch.

C promptly got out of her car, leaving the headlights on, and went to the Monarch where she helped the injured driver. She saw that the latter’s wife was also seriously injured and then went for help. She ran in a westerly direction and had covered only some 50 feet beyond her own car when she saw an oncoming motor vehicle. It was a big semi-trailer tank truck owned by the respondent transport company and driven by the respondent S. She waved her arms over her head signalling the truck to stop. The driver jammed the brakes, his truck jack‑knifed and went into the ditch, coming to a stop somewhat ahead of C’s car. In this process, the right rear dual tandem

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wheels of the tank truck struck C and she was found by the driver lying beside them in the ditch, severely injured.

At the time of the accident, the tank truck was being driven at 58 miles per hour on what S said was “a wet road” and other witnesses said was “an icy road”. The headlights were on low beam.

An action brought by C and her husband against all the respondents was dismissed at trial and an appeal was dismissed by the Court of Appeal. The appellants then appealed to this Court.

Held (Laskin C.J. and Spence, Pigeon and Beetz JJ. dissenting in part): The appeal against the owner of the Volvo and the administrator of P’s estate should be allowed; the appeal against S and the owner of the tank truck should be dismissed.

Per Martland, Judson, Ritchie, Dickson and de Grandpré JJ.: P’s negligence, the sole cause of the collision between the Volvo and the Monarch, gave rise to an independent and direct obligation to C which continued so long as she was engaged in her attempt at rescue. The potential danger to which C was exposed by reason of her presence on the south shoulder of the highway was a reasonably foreseeable consequence of P’s negligence which was a cause, if not the only cause, of C’s injury.

On the question of whether or not S was guilty of any negligence which caused or contributed to the injury sustained by C, it was not found that the Courts below were wrong in failing to find that the condition of the highway traversed by S before and at the time of the jack-knifing was such as to have alerted him to any potential danger in travelling it at 58 m.p.h., which was less than the maximum speed limit. The fact that while driving with his lights on low beam, in the conditions which prevailed, S was unable to stop within the range of his visibility did not give rise to a presumption of negligence on his part. As the event turned out, it was a mistake for S to apply his brakes as he did and it was possible that if he had used his hand brake he could have kept his vehicle under better control, but, appreciating that there had been an accident just ahead of him and faced with a gesticulating woman on the side of the highway, he was acting in a moment of imminent

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emergency and his error of judgment could not be classified as actionable negligence.

Per Laskin C J. and Spence, Pigeon and Beetz JJ., dissenting in part: The action should be allowed against all the defendants jointly and severally. The case was not one in which there were sufficient reasons for apportioning the responsibility otherwise than equally as between the truck driver and the owner on the one hand, and the owner of the Volvo and the estate of its deceased driver on the other.

The onus placed on S under The Vehicles Act, R.S.S. 1965, c. 377, s. 169(1), to exculpate himself was not discharged. It was not contended that C had been in any way negligent and, therefore, the only proper approach to the question of the liability of S was to ask whether he had shown that it was due to an inevitable accident that his vehicle hit a pedestrian. Even apart from the statutory provision, there was a prima facie case of negligence against him on the basis of res ipsa loquitur. On his admission, the accident might have been avoided had he not braked so hard or driven into the ditch so soon, and this meant that he had not shown that the accident could not have been avoided by reasonable care. Also, it could not be said that he had shown reasonable care when, on his own admission, he was driving at such a speed that he could not stop in his range of visibility with the lights he was using.

P’s negligence resulting in the head-on collision with the Monarch and the consequent emergency was a contributory cause of C’s injuries. The situation of peril created by P had not ended when C ran for help. To say that she was not then acting in danger nor anticipating any danger created by the acts of P was to ignore the realities of the situation. What she was doing was nothing but the proper reaction to those acts and an attempt to avoid or to mitigate some of their consequences.

[Videan v. British Transport Commission, [1963] 2 Q.B. 650; Horsley v. MacLaren, [1972] S.C.R. 441, applied; Wagner v. International R. Co. (N.Y.) (1921), 232 N.Y. Rep. 176; Baker v. T.E. Hopkins & Son Ltd., [1959] 1 W.L.R. 966; Haynes v. Harwood, [1935] 1 K.B. 146; Chapman v. Hearse (1961), 106

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C.L.R. 112; Winnipeg Electric Company v. Geel, [1932] A.C. 690; Morris v. Luton Corporation, [1946] K.B. 114; McMillan v. Murray, [1935] S.C.R. 572, referred to]

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], affirming a judgment of Davis J. dismissing the appellants’ claim against all the respondents for damages sustained by the female appellant in a highway accident. Appeal allowed against two of the respondents and dismissed against the two remaining respondents, Laskin C.J. and Spence, Pigeon and Beetz JJ. dissenting in part.

James A. Griffin, Q.C., and Clarence W. Vause, for the plaintiffs, appellants.

John B. Goetz, Q.C., and Hugh D. McLaren, for the defendants, respondents, T.R. Poupard and Guaranty Trust Company of Canada.

L.J. Billesberger, for the defendants, respondents, Ostop Slobodian and J. Kearns Transport Ltd.

The judgment of Laskin C.J. and Beetz J. was delivered by

THE CHIEF JUSTICE (dissenting in part)—I agree with my brother Ritchie that the liability of Poupard to Mrs. Corothers may properly be assessed in terms of the rescue doctrine, now a well-accepted principle in this Court respecting liability in negligence. However, on the question of the liability of Slobodian, I am in agreement with my brother Pigeon.

I would dispose of this appeal as proposed by my brother Pigeon.

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

DE GRANDPRÉ J.—I have read the reasons for judgment prepared for delivery by my brother Ritchie and I would dispose of the appeal in the fashion suggested by him.

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On the facts of this case, in the light of the evidence that Mrs. Corothers was just starting on her errand of mercy at the time of the accident, I share the view that the rescuer is entitled to indemnity from the original wrongdoer. At this time, there is no need for this Court to go any further. I leave to some other occasion the determination of the wrongdoer’s liability should the factors of time and space be different, e.g. if Mrs. Corothers had been injured two miles further west when approaching the farm towards which she was heading.

And it is precisely because the events relevant to this case took place within narrow confines of time and space that I concur in the findings that the truck driver was not negligent. His reaction to apply the brakes hard was a natural one when he saw a gesturing pedestrian and realized that an accident must have occurred “there”.

The judgment of Judson, Ritchie and Dickson JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of Saskatchewan affirming the judgment rendered at trial by Mr. Justice C.S. Davis whereby he had dismissed the appellants’ claim against all the respondents for damages sustained by Mrs. Corothers when she was struck by a semi-trailer truck operated by the respondent Slobodian and owned by J. Kearns Transport Ltd., while running along the side of the highway to seek aid for a man and his wife who had been seriously injured in a head-on collision between the Monarch car in which they were driving and a Volvo owned by the respondent Thomas Russell Poupard and driven by his son, who was unfortunately killed in the accident.

I have had the benefit of reading the reasons for judgment prepared for delivery by my brother Pigeon and I am, generally speaking, in accord with his careful analysis of the facts

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giving rise to the action which is the subject-matter of this appeal.

There does not appear to be any dispute about the fact that Neil Francis Poupard, who was driving his father’s Volvo car in an easterly direction, was on his wrong side of the highway when he collided head-on with a Monarch driven by Anton Hammerschmid, and that his negligence was the sole cause of that collision.

The immediate results of the collision between the two vehicles are, as I have indicated, fully and accurately described in the reasons for judgment of my brother Pigeon and disclose that when Mrs. Corothers came upon the scene immediately after the impact she was faced with a situation of the utmost gravity, dead bodies were strewn over the highway which was also blocked by debris and the remains of the two vehicles. She turned her attention at once to the condition of the driver of the Monarch and his wife; the driver was unable to get to his feet, his face was covered with blood coming from his nose and eyes, he had difficulty in breathing and his leg was also bleeding profusely. His wife was lying partially on the floor of the car unconscious and making no sound except a low moan. The appellant’s action in running up the highway to seek help as she did was, in my opinion, more than justified by the imminent peril in which she found the Hammerschmids. It was indeed a question of life and death as the subsequent death of Mrs. Hammerschmid unhappliy demonstrated, and it was a situation for which the driver of the Volvo was solely responsible.

Mrs. Corothers was, in my opinion, a true “rescuer” as that role was described by Cardozo J. in Wagner v. International R. Co. (N.Y.)[2], at p. 180, where he said:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its conse-

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quences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer… The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

This language was expressly adopted by Willmer L.J. in Baker v. T.E. Hopkins & Son Ltd.[3], at p. 981.

The duty of a wrongdoer to the rescuer of his victim was developed in the United States of America some time before it received authoritative approval in England where it had sometimes been held that the doctrine of voluntary assumption of risk could be invoked as a defence to the rescuer’s claim, but in the case of Haynes v. Harwood[4], Greer L.J. accepted the American rule as stated by Professor Goodhart in the Cambridge Law Journal, vol. v., at p. 192, in the following terms:

In accurately summing up the American authorities …the learned author says this (p. 196): “The American rule is that the doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no such special duty.” In my judgment that passage not only represents the law of the United States, but I think it also accurately represents the law of this country.

In commenting on the difficulties raised by some of the earlier authorities in defining the scope of the wrongdoer’s duty in cases where the plaintiff has sustained injury in rescuing or attempting to rescue a victim from the conse-

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quences of the wrongdoing, Fleming in the 4th edition of his Law of Torts at p. 158 has this to say:

These various difficulties are therefore best overcome by basing the rescuer’s cause of action on the defendant’s negligence, not in its tendency to imperil the person rescued, but in its tendency to induce the rescuer to encounter the danger. Thus viewed, the duty to the rescuer is clearly independent rather than derivative, and it becomes immaterial that the person to be rescued and the defendant are one and the same.

And the same learned author further states, at p. 159:

Much like voluntary assumption of risk, so the plea of contributory negligence has also fallen into disfavour. Today, it stands no real chance of success unless the rescue attempt was utterly foolhardy.

This latter statement is supported also in the reasons for judgment of Willmer L.J. in Baker v. T.E. Hopkins & Son Ltd., supra, at p. 981 where he says:

Assuming the rescuer not to have acted unreasonably, therefore, it seems to me that he must normally belong to the class of persons who ought to be within the contemplation of the wrongdoer as being closely and directly affected by the latter’s act.

The same thought was more fully expressed in a passage from the reasons for judgment of Lord Denning in Videan v. British Transport Commission[5], at p. 669, which was expressly adopted in this Court in Horsley v. MacLaren[6], at p. 444, and reads as follows:

“It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover dam-

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ages from the one whose fault has been the cause of it.”

In my opinion there was nothing wanton in Mrs. Corothers’ behaviour in face of the peril to the Hammerschmids. The fact that she parked her car on the far left side of the highway is explained by the state of the highway at the scene after the collision and her action in going for help as she did and in attempting to flag down the approaching traffic, were, in my view, perfectly normal reactions to the cry of distress from the injured man and the situation which I have described.

In the course of his reasons for judgment in the Court of Appeal, Mr. Justice Woods had this to say:

It is to be noted that the female plaintiff had completed all that she was going to do at the scene of the collision before the arrival of the truck driven by Slobodian. She had left the scene of the accident and her activities had reached a new stage. The situation of peril created by Poupard had ended. The plaintiff was not then acting in danger nor anticipating any danger created by the acts of Poupard. The injury suffered arose from a new act or circumstance, which was not one that ought reasonably to have been foreseeable by Poupard.

With the greatest respect for the views thus expressed I am unable to agree that “the situation of peril… had ended” so long as Mr. Hammerschmid was seriously injured and apparently helpless and his wife near to death on the floor of the car due to Poupard’s negligence. Mr. Justice Woods’ approach appears to me to amount to a finding that Mrs. Corothers’ actions constituted a novus actus interveniens breaking the chain of causation activated by the negligence of Poupard and it seems to me that this reasoning runs contrary to the principle now accepted in this country establishing the duty owing by a wrong-doer to the rescuer of a victim of his negligence and that Mrs. Corothers, having been injured in an attempt to rescue such a victim “can recover damages from the one whose fault has been the cause of it.”

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The negligence in the driving of the Volvo gave rise to an independent and direct obligation to Mrs. Corothers which continued so long as she was engaged in her attempt at rescue, and unless it be accepted that this obligation did not extend beyond the time when she left the actual scene of the collision and that her injury was solely attributable to an intervening act of negligence by Slobodian, it must be concluded that, if Poupard’s negligence was not the sole cause of the second accident, it was assuredly a cause which contributed to it in substantial degree. It should be observed that even if there was something wrongful about the conduct of Slobodian when faced with the gesticulating figure of Mrs. Corothers approaching on the edge of his right side of the highway, his actions were in any event such as to be a reasonably foreseeable consequence of the prior negligence of Poupard. In this regard some assistance is to be derived from the judgment of the High Court of Australia in Chapman v. Hearse[7], where a negligent driver (Chapman) had caused a motor vehicle collision in which he was thrown on to the highway and seriously injured and a passing motorist who happened to be a doctor, stopped to give him assistance when he was struck and killed by an approaching vehicle whose driver (Hearse) was also found to be negligent. The doctor’s executors sued Hearse who claimed indemnity or contribution from Chapman, and whose claim was allowed to the extent of one-fourth of his damages both at trial and in the Supreme Court of South Australia. In dismissing the appeal, the High Court observed, at p. 125:

There can, we think, be no doubt that Dr. Cherry’s presence in the roadway was, immediately, the result of Chapman’s negligent driving and if any support for

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this conclusion should be thought to be necessary ample can be found in the analogous so-called “rescue cases”. The degree of risk which his presence in the roadway entailed depended, of course, on the circumstances as they in fact existed and the circumstances were, in fact, such that the risk of injury from passing traffic was real and substantial and not, as would have been the case if the accident had happened in broad daylight, remote and fanciful. Perhaps, some confirmation for the proposition that the risk was substantial may be found in the fact that within a minute or two, or even less, Dr. Cherry was run down by a driver whose vision of the roadway must have been impeded to a great extent by the prevailing conditions. In these circumstances, we have no doubt that Chapman’s negligence must be regarded as a cause of Dr. Cherry’s death and since, for the reasons which we have given, some casualty of that character was within the realm of reasonable foreseeability the judgment against Chapman should stand.

As I have indicated, the potential danger to which Mrs. Corothers was exposed by reason of her presence on the south shoulder of the highway was a reasonably foreseeable consequence of Poupard’s negligence which in my view was a cause, if not the only cause, of Mrs. Corothers’ injury.

In my opinion, the critical question in this case is whether or not Slobodian was quilty of any negligence which caused or contributed to the injury sustained by the appellant.

It was strongly suggested in the course of the argument that both the trial judge and the Court of Appeal had failed to give sufficient heed to the burden resting on Slobodian by reason of the provisions of s. 169(1) of The Vehicles Act, R.S.S. 1965, c. 377, which read as follows:

169.—(1) Where loss, damage or injury is sustained by a person by reason of a motor vehicle upon a highway, the onus of proof that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicle is on the owner or driver.

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(2) This section does not apply in case of a collision between motor vehicles upon a highway, nor to an action brought by a passenger in a motor vehicle, other than a public service vehicle, in respect of injuries sustained by him while a passenger.

Evidence for and against Slobodian was given in respect of the issue of negligence. The Courts below came to a definite conclusion, after weighing the evidence, that Slobodian had not been negligent. In that situation the statutory onus ceased to be a factor. (See Winnipeg Electric Company v. Geel[8], at p. 698.) The question now before this Court is as to whether that conclusion was justified.

It was strongly contented that Slobodian was negligent in applying his brakes as he did and failing to use the hand lever which would have affected only his trailer wheels and thus prevented his jack-knifing, and it was put against him also that in driving at 58 miles an hour on a wet or icy road with his lights on low beam, he was guilty of negligence which resulted in his hitting Mrs. Corothers.

Dealing first with the question of speed under the existing circumstances, Slobodian himself gave the following evidence of the condition of the highway as he approached the accident scene after leaving Swift Current approximately 14½ miles away:

Q. Now as you proceeded east out of Swift Current, what was the condition of the road?

A. It was wet.

Q. Was it icy that you noticed?

A. No, it was not icy at all. I couldn’t tell but my unit was sticking to the road real good, and there was no sign of—of it swaying or anything like that.

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And he was later asked by the trial judge:

Q. Tell me this. The road from Swift Current to the scene of the accident that night, was it such that gave you any trouble?

A. No, I had no trouble at all.

Q. Not skidding or anything like that?

A. No. The highway was wet but there was no skidding at any time.

Q. But with eighteen wheels I don’t suppose you skid very much even on wet highway, do you?

A. No.

The witness McCann, who reached the scene almost immediately after Mrs. Corothers was struck, said:

Q. While you were on the surface of the highway, did you notice anything of its condition that evening?

A. At the time of the accident?

Q. Yes.

A. At the time of the accident it was wet. It had been a hot day that day, it had been up in the forties, it had thawed, and we had had cold weather before that and the frost had come out of the highway, which made it wet. Later it froze—it froze into ice later that night.

Q. And how did you find it, when you were there, in terms—

THE COURT:

Q. It froze later, after the accident, did it?

A. Well, I would imagine that it was freezing then but it hadn’t—it hadn’t froze into ice at the time we were there.

MR. GRIFFIN continuing:

Q. And did you find it slippery?

A. No, I didn’t, no.

Q. You were just walking around?

A. No, I would say we were hurrying anyhow if not running.

The R.C.M.P. constable who was on highway patrol out of Swift Current, arrived at the scene approximately 15 minutes after the collision and although he stated that he found that the condition of ice on the highway varied, he was also of

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opinion that a good safe speed for an ordinary car would have been between 40 and 50 miles an hour and that a semi-trailer with eighteen wheels on it could go faster than that. The fact of the matter was that this constable traversed the highway between Swift Current and the scene of the accident at over 60 miles an hour without difficulty.

Slobodian was believed by the trial judge and the Court of Appeal and when the above statements are viewed in the context of the evidence as a whole, including that of some of the witnesses who came on the scene later and considered that the road was then icy at the site of the Poupard collision, I cannot find that these two Courts were wrong in failing to find that the condition of the highway traversed by Slobodian before and at the time of the jack-knifing was such as to have alerted him to any potential danger in travelling on it at 58 miles an hour, which was less than the maximum speed limit.

As to the contention that Slobodian was negligent in that while driving with his lights on low beam in the conditions which prevailed he was unable to stop within the range of his visibility, it does not appear to me, with all respect for those who may hold a different view, that this fact gives rise to a presumption of negligence on his part.

For some years after the judgment of Scrutton L.J. in Baker v. Longhurst & Sons Ld.[9] it was accepted as a general proposition that “a person riding in the dark must be able to pull up within the limits of his vision”. However, in the case of Morris v. Luton Corporation[10], Lord Greene, speaking for the Court of Appeal, finally disposed of this proposition in the following passage:

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I cannot help thinking that that observation turned out in the result to be a very unfortunate one, because the question, as has been so often pointed out, is a question of fact. There is sometimes a temptation for judges in dealing with these traffic cases to decide questions of fact in language which appears to lay down some rule which users of the road must observe.… I cannot regard that observation of Scrutton L.J.’s as in any sense affecting other cases where the circumstances are different. In the hope that this suggested principle may rest peacefully in the grave in future and not be resurrected with the idea that there is still some spark of life in it, I should like to say that I am in agreement with the observation of Lord Wright, sitting in this court in Tidy v. Battman, [1934] 1 K.B. 319, 322. He says there, referring to Baker v. Longhurst & Sons, Ld., and one other case, that they show “that no one case is exactly like another, and no principle of law can in my opinion be extracted from those cases. It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts.”

Mrs. Corothers, who left her home about a quarter of an hour before the accident, said that it was then a clear night and that although the road was damp she had no problem in controlling her car and was proceeding at a variable speed from 50 to 55 miles per hour and perhaps 60 with her lights on low beam and immediately before the accident she saw the Volvo in front of the Hammerschmid car quite clearly.

After having assisted Mr. Hammerschmid, Mrs. Corothers left her car on her own left-hand side of the road and then, as she described it, “ran to beat heck along the side of the highway”. She only covered 50 feet before she saw the oncoming trailer truck and froze in her tracks waving her arms. The situation from Slobodian’s point of view was that her running figure suddenly appeared in front of the headlights of her own car for a distance of 50 feet

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and his immediate reaction was to jam on his brakes, as a result of which his truck jack-knifed and the right rear wheels struck the appellant causing her the injury complained of. It was the sudden application of the brakes which brought about this result. In my view it does not necessarily follow that the same result would not have occurred if the headlights of the truck had been on high beam. The trial judge and the Court of Appeal made no finding of negligence in this regard, and I do not think that their conclusion in favour of Slobodian should be disturbed on this ground.

As the event turned out, it was a mistake for Slobodian to apply his brakes as he did and it is possible that if he had used the hand brake he could have kept his vehicle under better control, but he appreciated that there had been an accident just ahead of him and he was faced with a gesticulating woman on the side of the highway so that he was acting in a moment of imminent emergency, and I do not think that his error of judgment can be classified as actionable negligence. In this regard I refer to the following passage from the reasons for judgment of Sir Lyman Duff in McMillan v. Murray[11], at p. 574, which appears to me to apply directly to the problem raised by this appeal:

The real question for the trial judge was whether or not the appellant had acquitted himself of the statutable onus. On the record alone, as we have it before us, I should have thought the appellant had shown that, in the situation which confronted him, he had not failed in that standard of care, skill and judgment which can fairly and properly be required of the driver of a motor vehicle. In other words, I should have thought that if there was a mistake of judgment on his part, it was an excusable mistake and that the most unfortunate misadventure was an accident. The standards to be applied are not standards of perfection.

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In this view, the finding of the trial judge, who had the opportunity of observing the appellant under cross-examination, ought not, I think, to be disturbed.

I think that Mr. Justice Woods, speaking for the Court of Appeal, correctly applied this authority to the facts of the present case when he said of Slobodian:

He suddenly came upon an unusual situation, not of his own creation. The standards to be applied are not those of perfection. If he made a mistake it is excusable in the circumstances.

For all these reasons I would allow the appeal of the appellants against Thomas Russell Poupard and the Guaranty Trust Company of Canada with costs throughout, and I would dismiss the appeal against Ostop Slobodian and J. Kearns Transport Ltd., with costs in this Court.

The appellants will be entitled to add the amount of any costs taxable by Ostop Slobodian and J. Kearns Transport Ltd., to the judgment hereby awarded against Thomas Russell Poupard and Guaranty Trust Company of Canada.

As neither the trial judge nor the Court of Appeal found it necessary to assess the appellants’ damages, I direct a reference to the Court of Queen’s Bench of Saskatchewan for the making of such an assessment and further direct that judgment be entered for this amount against Thomas Russell Poupard and the Guaranty Trust Company of Canada, as the administrator of his son’s estate, and that it bear interest from the date of the judgment at trial.

The judgment of Spence and Pigeon JJ. was delivered by

PIGEON J. (dissenting in part)—The appeal is from a judgment of the Court of Appeal for Saskatchewan affirming a judgment at trial dismissing the action against all defendants.

The action was instituted to recover damages for injuries suffered by the appellant Bonnie Jo‑Anne Corothers, in a motor vehicle accident

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which occurred on the Trans-Canada Highway, January 23, 1970, at about 7.45 p.m. This appellant, then 23 years old, was the wife of the other appellant who operated a clothing store in Herbert, Saskatchewan. She worked as a cocktail waitress in the evening, at a hotel in Swift Current. On the day of the accident, she left Herbert around 7.30 p.m. driving alone in her husband’s Plymouth car. She was following at a distance of some 200 feet a black Monarch car, doing 50 miles per hour, she said, when suddenly a red Volvo collided with the Monarch which was on its proper side of the road. The Volvo was driven by Neil Francis Poupard and was the property of the respondent Thomas Russell Poupard.

The collision was terrible. The heavy Monarch weighing over 5,000 pounds, was stopped dead. The Volvo broke in two pieces, scattering the bodies of its three occupants on the highway and in the ditch. The front part of the car remained in front of the Monarch. The rear part went past on the other side of the road. Mrs. Corothers swerved to her left, managed to drive through the wreckage and was brought to a stop by a heavy object. She did not see that this was actually the body of one of the occupants of the ill-fated Volvo. Her car came to rest almost completely on the shoulder, on her left-hand side of the road, some 40 or 50 feet past the black Monarch. There is no direct evidence that it could not be moved but the fact is that a tow truck was used to lift it for removing the dead body.

Mrs. Corothers promptly got out of her car, leaving the headlights on, and went to the Monarch where she helped the driver, one Hammerschmid, get in a position where he could breathe easier. She saw that the latter’s wife was very seriously injured—it did prove fatal—and she went for help. She stopped at her car to pick up her coat which was light coloured. She put it on and ran in a westerly direction quite close to the yellow painted line marking the side of the pavement on her left. She was 50 feet or more past her car when she saw a motor vehicle coming. It was a big semi-trailer tank truck

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owned by respondent J. Kearns Transport Ltd. and driven by the respondent Ostop Slobodian. She waved her arms over her head signalling the truck to stop. The driver jammed the brakes, his truck jack-knifed and went into the ditch, coming to a stop somewhat ahead of Mrs. Corothers’ Plymouth. In this process, the right rear dual tandem wheels of the tank truck struck her and she was found by the driver lying beside them in the ditch, severely injured.

Under those circumstances, the onus provision of The Vehicles Act, R.S.S. 1965, c. 377, became applicable against the defendants Slobodian and J. Kearns Transport Ltd. It is in the following terms:

169.—(1) Where loss, damage or injury is sustained by a person by reason of a motor vehicle upon a highway, the onus of proof that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicle is on the owner or driver.

(2) This section does not apply in case of a collision between motor vehicles upon a highway, nor to an action brought by a passenger in a motor vehicle, other than a public service vehicle, in respect of injuries sustained by him while a passenger.

I have to say, with respect, that this important provision appears to have been practically ignored in the Courts below. All the trial judge said in his oral judgment was this:

Notwithstanding my regrets and sympathy for this young woman, I have got to follow the law; and the conclusions are that she has failed to establish a case against any of the Defendants for the reasons which have been fully canvassed during the argument, and accordingly her action will be dismissed.

In the Court of Appeal, Woods J.A. ended the reasons for judgment as follows:

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The learned trial Judge in effect found that Slobodian was not at fault in suddenly braking his unit. Suddenly discovering a car on the wrong side of the highway with a woman immediately in front of him, his first concern, as he said in his evidence was to avoid hitting her. He applied his brakes and tried to miss her. The learned trial Judge did not fault him for this. He suddenly came upon an unusual situation not of his own creation. The standards to be applied are not those of perfection. If he made a mistake of judgment, it is excusable in the circumstances, McMillan v. Murray [1935] S.C.R. 572.

With respect, this approach to the question would be proper on a charge of criminal negligence, but it is not correct in a civil case especially where the onus is on a defendant to exculpate himself. In McMillan v. Murray, Duff C.J. did say (at p. 574) that the standards to be applied are not standards of perfection, but dealing with the onus provision of the Alberta statute, he went on to state the test to be applied in the following terms (at p. 575):

We think that, under the statute, standing by itself, the defendant may acquit himself of the onus cast upon him by establishing that the plaintiff’s negligence materially contributed to the mishap, and that he could not, in the result, by the exercise of reasonable care, have avoided the consequences of that negligence; or that the mischief was directly caused by the negligence of the plaintiff as well as that of himself co-operating together.

In this Court, it was not contended that Mrs. Corothers had been in any way negligent. Therefore, the only proper approach to the question of the truck driver’s liability was to ask whether he had shown that it was due to an inevitable accident that his vehicle hit a pedestrian. Even apart from the statutory provision, there was a prima facie case of negligence against him on the basis of res ipsa loquitur. A properly driven vehicle does not suddenly move sideways on the highway when passing a pedestrian so as to throw him or her into the

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ditch. In the Courts below, on what basis was Slobodian exculpated?

He applied his brakes and tried to miss her,

says Woods J.A.

In my view, this reason is radically erroneous in a civil case. The question is not whether the driver was deliberately or recklessly negligent. It is: Has he shown that he could not have avoided the accident by reasonable care, bearing in mind that the mere fact of the accident raises a presumption of negligence, that is that the driver did not use reasonable care. In the instant case, Slobodian himself admits that his tank truck was empty at the time and that this increased the likelihood of a jack-knifing. He also admits that this type of unit will always go into a skid if the brakes are applied hard. He also says that there was a special lever which would apply the brakes to the trailer wheels only. This would prevent a jack-knife but he always used the foot brake which operated on all wheels except the two front wheels so that steering is never lost by braking. Finally, when asked why he turned to the right instead of to the left to pass by Mrs. Corothers, he answers:

Well, I think I tried to put the unit in the ditch.

As we have seen, it is a fact that the trailer truck went into the ditch and the plan made by the constable who investigated the accident shows that the skid marks it left in so doing start more than 100 feet ahead of Mrs. Corothers’ car. Thus, it is perfectly clear that she was hit by the trailer rear wheels when the truck going past her was going into the ditch, whether as a result of the application of the brakes or of a deliberate steering in that direction, or by a combination of those two factors. Even assuming that it was necessary to brake and to go into the ditch, because this was done when the truck was more than 100 feet away from Mrs. Corothers’ car, nothing in my view could possibly

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justify Slobodian in doing it before he had safely passed her. When asked:

But you would have missed her by just keeping on straight down the highway, would you not?

his answer was:

Well, you can’t say for sure.

If it was for the plaintiff to show that Slobodian could have avoided the accident by reasonable care, this answer could be considered as exculpating because it might be said to raise a doubt. But here, any doubt must be resolved against the truck driver and if, on his admission, it may be that he would have avoided the accident by not braking so hard or not driving into the ditch so soon, this means that he has not shown that the accident could not have been avoided by reasonable care.

It must also be considered that Slobodian’s truck was at the time of the accident being driven at 58 miles per hour on what he says was “a wet road”, other witnesses say “an icy road”. His exact speed is known because his unit was fitted with a recording device. On his own admission, he was driving at that speed with his lights on low beam. There was a slight curve on the highway, but the visibility was unobstructed. On high beam he would have seen 500 feet ahead but on low beam, his range of visibility was 200 feet only. When asked if he could stop in that distance driving at 58 miles an hour, Slobodian’s answer was:

On dry pavement you could.

He knew perfectly well he was not on dry pavement. How can it be said that he has shown he used reasonable care when, on his own admission, he was driving at such a speed that he could not stop in his range of visibility with the lights he was using? In fact, Woods J.A, appears to have appreciated that the mere fact

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that Slobodian had applied his brakes and tried to miss Mrs. Corothers was not enough because he went on to say:

He suddenly came upon an unusual situation, not of his own creation. The standards to be applied are not those of perfection. If he made a mistake of judgment, it is excusable in the circumstances.

As I read this it appears to me that the truck driver was exculpated because he was faced with the emergency created by the collision between the Volvo and the Monarch, as a result of which the highway was obstructed. If that is indeed the basis of the judgment, then it seems totally inconsistent with the other finding that there was no connection between the injury suffered by Mrs. Corothers and the collision caused by the negligence of Poupard, the driver of the Volvo.

On the evidence in this case, it is abundantly clear that the collision was solely due to such negligence: the Volvo veered suddenly into the path of the Monarch. In my view, the truck driver cannot be exculpated on account of the emergency due to the collision, without involving the author of that collision into liability for the ensuing result. I just cannot accept that this can be said not to be foreseeable by the author of the first collision. Multiple collisions are such frequent occurrences that dangerous emergency manoeuvres to avoid them are to be expected.

In this Court, it was contended by counsel for Poupard that Slobodian had reacted solely to the presence of Mrs. Corothers waving her arms over her head. However, here is the answer he gave to question 69 on discovery put in evidence at the trial;

Well, when I seen this lady running towards me then I knew that there was something wrong, that there must have been an accident there.

This is conclusive evidence that Slobodian did not act as he did simply on account of seeing a pedestrian waving for him to stop. Had the highway been clear, I cannot think he would

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have made the mistake of jamming his brakes so as to endanger a pedestrian. What I have quoted shows that the Court of Appeal did not think so and they exculpated the driver on account of the emergency without unfortunately realizing that this brought into the picture Poupard’s negligence which they dismissed from consideration, saying:

It is to be noted that the female plaintiff had completed all that she was going to do at the scene of the collision before the arrival of the truck driven by Slobodian. She had left the scene of the accident and her activities had reached a new stage. The situation of peril created by Poupard had ended. The plaintiff was not then acting in danger nor anticipating any danger created by the acts of Poupard. The injury suffered arose from a new act or circumstance, which was not one that ought reasonably to have been foreseeable by Poupard.

With respect, it appears to me that it could not correctly be said that the situation of peril created by Poupard had ended. His car in two broken pieces was obstructing the highway together with the damaged Monarch and a dead body. There was also Mrs. Corothers’ Plymouth which was stopped in an irregular and dangerous position from which it could not readily be moved. It was not a place of safety for her. If she had remained inside, who knows if Slobodian’s semi-trailer would not have crashed on it as a result of hitting the obstructions? In any case, being uninjured, she certainly properly felt under a moral, if not a legal duty, to run for help and to signal and flag down any oncoming traffic. To say that she was not then acting in danger nor anticipating any danger created by the acts of Poupard is to ignore the realities of the situation. What she was doing was nothing but the proper reaction to those acts and an attempt to avoid or to mitigate some of their dreadful consequences.

This is not a case in which I can feel any hesitation in interfering with concurrent findings. The basic facts were indisputable but they were not correctly appreciated in accordance with proper legal principles.

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In my view, it cannot be considered that once it is accepted that Poupard’s negligence was a contributory cause of Mrs. Corothers’ injuries, the burden imposed by s. 169 of the The Vehicles Act is discharged because under those circumstances, “the onus of proof that the loss or damage did not entirely or solely arise through the negligence” of Slobodian is met and the burden of proving that his actions contributed to the loss then rests on the plaintiff. In my opinion, the decision of this Court in Feener v. McKenzie[12] dealing with the effect of the same words in the Nova Scotia Motor Vehicle Act is conclusive against that view. In that case, Hall J. said with the agreement of the majority (at p. 544):

The law in Nova Scotia as to the effect and interpretation of this section was set out by Ilsley C.J. in Tuckey v. Dyer (1961), 27 D.L.R. (2d) 408, where Ilsley C.J. correctly applied the judgment of this Court in Dearing v. Hebert, [1957] S.C.R. 843. The section under review in Dearing v. Hebert was to all intents and purposes, the same as s. 221(1) (a) and (b) of the Motor Vehicle Act of Nova Scotia and in particular contains the same phrase “… did not entirely or solely arise through the negligence or improper conduct …” and Locke J. for the majority, referring to the matter of onus, quoted with approval from the judgment delivered by Lord Wright in Winnipeg Electric Company v. Geel, [1932] A.C. 690, as follows:

But the onus which the section places on the defendant is not in law a shifting or transitory onus: it cannot be displaced merely by the defendant giving some evidence that he was not negligent, if that evidence, however credible, is not sufficient reasonably to satisfy the jury that he was not negligent: the burden remains on the defendant until the very end of the case, when the question must be determined whether or not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence. If, on the whole of the evidence, the defendant establishes this to the satisfaction of the jury, he will be entitled to judgment; if, however, the issue is left in doubt or the evidence is balanced and even, the defendant will

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be held liable by virtue of the statutory onus, whereas in that event but for the statute the plaintiff would fail, because but for the statute the onus would be on him.

It is, accordingly, beyond question that in telling the jury as he did, “the moment he [the driver] can prove he was not entirely or solely to blame, then the burden falls back upon the pedestrian to prove that the driver was responsible”, the learned trial judge misdirected the jury on a most vital aspect of the case.

I think I should add that I do not read Ritchie J.’s dissenting reasons in that case, with which I agreed, as expressing a different view of the effect of the words “entirely or solely”. Here is how he concluded on that point (at pp. 537-538):

In my opinion the effect of s. 221(1)(b) of the Motor Vehicle Act in the trial of an action where damages are claimed for an injury sustained by any person by reason of the presence of a motor vehicle upon a highway, is to create a rebuttable presumption that such injury arose “entirely or solely” through the negligence or improper conduct of the operator of the motor vehicle. This presumption against the operator remains until the very end of the case, but it is a presumption which can be rebutted either in whole or in part, and if after all the evidence has been heard the jury is satisfied that the operator was only partly to blame, then the fault is to be divided in accordance with the provisions of the Contributory Negligence Act. If, on the other hand, the jury is satisfied on the whole of the evidence that there was no fault on the part of the operator which caused the accident, the plaintiff’s action must be dismissed. The question of whether, and to what extent, the presumption has been rebutted is one which can only be determined at the conclusion of the case.

I agree with Mr. Justice Cooper that the charge which the learned trial judge delivered at the conclusion of this case was not such as to suggest to the jury that the burden of proof shifted as the case progressed, and like the Court of Appeal, I do not think that there was any misdirection in this regard which could have affected the verdict as found by the jury.

It appears to me that the jurors in the present case must have concluded, after having heard all the evidence, that the infant plaintiff had placed “himself in

[Page 659]

the way of the defendant’s vehicle in such a manner that the defendant could not reasonably avoid the impact” and under these circumstances they did not have to be concerned with any question of contributory negligence. (Emphasis added.)

This conclusion was expressed after a review of authorities including references to Poole & Thompson Ltd. v. McNally[13] and McMillan v. Murray[14]. These two cases, it must be noted, dealt with similar onus of proof sections in Prince Edward Island and in Alberta prior to the insertion of the words “entirely or solely” and prior to the enactment of The Contributory Negligence Act in those provinces. In the first case, it was said that without those words, contributory negligence of the plaintiff might not avail as a defence to the motorist because it would not show that the injury did not arise through his negligence. This was the view that was rejected in the passage from McMillan v. Murray which I have quoted earlier. It was there held that, even without the words “entirely or solely”, proof of contributory negligence was as complete a defence against the statutory presumption of negligence as against proven negligence at common law. However, in the interval between the two judgments (November 20, 1934, and November 22, 1935), the Legislature of Alberta had added the words “entirely or solely” by chap. 82 of the Statutes of 1935, and the Legislature of Saskatchewan had similarly inserted them in s. 86 of the Vehicles Act, 1935 (Sask.), c. 68, assented to February 21, 1935. Later on, contributory negligence ceased to be a complete defence in the two provinces by the enactment of The Contributory Negligence Act, in Alberta by chap. 18 of the Statutes of 1937, in Saskatchewan by chap. 23 of the Statutes of 1944. Therefore, when Bearing v. Hébert came before this Court in 1957, the Alberta onus of proof section was considered in the context of that enactment. No reference was then made to McMillan v. Murray based as it was on the common law rule as to the effect of contributory negligence. It was mentioned in Feener v.

[Page 660]

McKenzie but Dearing v. Hébert was followed in holding that a different result should obtain in the light of the applicable Contributory Negligence Act. However, in so far as the onus of the car driver was said to be to show that he could not “by the exercise of reasonable care” have avoided the mishap, nothing detracts from the value of Duff C.J.’s words.

I have to stress that in the Winnipeg Electric case, Lord Wright said in the passage above quoted, which is taken from p. 695 of the report,

…the burden remains on the defendant until the very end of the case, when the question must be determined whether or not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence….

It would be contrary to the basic rule governing appeals to hold that the question becomes different in appeal and Lord Wright said nothing of the kind at p. 698. What Turgeon J.A. said in the passage quoted there from his reasons in Stanley v. National Fruit Co.[15], at p. 141, is this:

But if evidence for and against is given upon the points in question, the rule in favour of the preponderance of evidence should be applied as in ordinary civil cases, and the statutory onus will cease to be a factor in the case if the Court can come to a definite conclusion one way or the other, after hearing and weighing the whole of the testimony.

That this was not read as implying that the effect of the onus provision disappears at any stage is apparent from the fact that at p. 699, after quoting from Duff J.: “The onus of dis-

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proving negligence remains throughout the proceedings”, Lord Wright goes on to say:

The position of the defendants under the statute is thus analogous to the position of the defendant in a case to which the principle often called res ipsa loquitur applies.

In my view, the action should be allowed against all defendants jointly and severally. This is not a case in which I can find sufficient reasons for apportioning the responsibility otherwise than equally as between the truck driver and the owner on the one hand, and the owner of the Volvo and the estate of its deceased driver on the other hand. Because the damages were not assessed by the trial judge, there will have to be a reference if the parties cannot agree as to the assessment. It should also be mentioned that while there was no objection taken to our jurisdiction, Mrs. Corothers’ affidavit does not show that her husband’s claim reaches the jurisdictional amount. However, because in such a situation, special leave to appeal is invariably granted on request as a matter of course, it may be taken to have been granted.

I would accordingly allow the appeal with costs throughout and direct that judgment be entered in favour of the plaintiffs against the defendants jointly and severally, for an amount to be assessed by reference to the Court of Queen’s Bench of Saskatchewan, this condemnation to bear interest from the date of the judgment at trial and to be apportioned equally as between the defendants Ostop Slobodian and J. Kearns Transport Ltd. on the one hand, and Thomas Russell Poupard and Guaranty Trust Company of Canada as administrator on the other hand.

Judgment accordingly.

Solicitor for the plaintiffs, appellants: Clarence W. Vause, Swift Current.

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Solicitor for the defendants, respondents, Ostop Slobodian and J. Kearns Transport Ltd.: J. Green, Regina.

Solicitors for the defendants, respondents, Thomas Russell Poupard and Guaranty Trust Company of Canada: Pierce, Hleck, Kanuka, Goetz, Thuringer, Semenchuck & Naylen, Regina.