Supreme Court of Canada
Goulais v. Restoule et al., [1975] 1 S.C.R. 365
Date: 1974-04-29
Richard Goulais (Plaintiff) Appellant;
and
Marilyn M. Restoule by Her Administrators, Howard Restoule and Nellie Knight (Defendant) Respondent;
and
Maryland Casualty Company, Added by Order Pursuant to Section 222, Subsection 14 of the Insurance Act, R.S.O. 1960, Chapter 190. Respondent.
1973: October 12; 1974: April 29.
Present: Judson, Ritchie, Spence, Laskin and Dickson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Motor vehicles—Negligence—Whether momentary lapse, gross negligence—Driver crossing centre line—Head-on collision—Driver and others killed—Absence of reason for driver’s action.
On March 8, 1969 at 4 a.m. appellant was a passenger in a motor vehicle driven by Marilyn M. Restoule. The highway was straight and level, the visibility was good and the vehicle had its lights on. Just prior to the accident the rate of speed and the driving of the vehicle were normal. The vehicle however crossed the centre line and a head-on collision resulted killing all but the appellant. The point of impact was about the centre of the west bound lane. The trial judge found that there was no gross negligence on the part of Mrs. Restoule and that “the momentary lapse” on her part was not sufficient to constitute gross negligence. The Court of Appeal affirmed the judgment at trial.
Held (Dickson J. dissenting): The appeal should be allowed.
Per Judson, Ritchie, Spence and Laskin JJ.: In the present case the car was driven onto the wrong side of a straight stretch of highway in the face of the lights of oncoming traffic and in spite of being warned the driver was unable to regain her own side before the head-on collision occurred. These circumstances were such as to require an explanation con-
[Page 366]
sistent with lack of gross negligence and no such explanation was suggested.
Per Dickson J. dissenting: Gross negligence is a finding of fact. It has not been made clear in what respect the trial judge erred. The concurrent findings in the Courts below should not be disturbed. The casual inadvertence was of the briefest duration and preceded by an unbroken period of good driving. There were no accompanying aggravating circumstances.
[McCulloch v. Murray, [1942] S.C.R. 141; Walker v. Coates, [1968] S.C.R. 599; Burke v. Perry and Perry, [1963] S.C.R. 329 referred to].
APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of Houlden J. at trial. Appeal allowed with costs, Dickson J. dissenting.
E.W. Sopha, Q.C., for the plaintiff, appellant.
G.B. Smith, Q.C., for the defendant, respondent.
G.E.C. Fellowes, Q.C., for the respondent, Maryland Casualty Company.
The judgment of Judson, Ritchie, Spence and Laskin JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario dismissing an appeal from the judgment rendered at trial by Mr. Justice Houlden whereby he had dismissed the appellant’s claim for damages arising out of an accident which occurred at about 4 a.m. on March 8, 1969, when the motor vehicle in which he was a passenger was being driven on its wrong side of the highway by the late Marilyn Restoule and came into a head-on collision with a motor vehicle proceeding in the opposite direction, with the result that the appellant suffered severe injuries and his wife was killed.
[Page 367]
The essential facts are the subject of concurrent findings in both courts below and I abstract the following from the reasons for judgment of the learned trial judge:
(1) At the place where the impact occurred, the highway is straight and level. All witnesses are agreed that visibility was good. There seems no doubt that Marilyn Restoule had her lights on prior to the accident. The plaintiff testified that just before the collision, Marilyn Restoule was driving normally and was going at a normal rate of speed.
(2) The two automobiles collided head-on. In the collision, the three occupants of the Ratelle vehicle were killed and the three occupants of the front seat of the Restoule vehicle were also killed. The only survivor was the plaintiff.
(3) However, on the evidence, I do not think there can be any doubt that at the time of the impact, Marilyn Restoule had crossed the centre line into the westbound lane of traffic and that the point of impact was about the centre of the westbound lane.
In summarizing the events of the evening before the accident, Chief Justice Gale, speaking on behalf of the Court of Appeal, found as follows:
The evidence was that the plaintiff and his wife went to visit the deceased Marilyn Restoule (hereafter ‘the deceased’) shortly after midnight on March 8, 1969. The plaintiff and the deceased were first cousins. The parties consumed some beer and ate some food during a period of approximately three and one-half hours, although there is no specific evidence as to how much the deceased actually consumed. At about 3:30 in the morning, the deceased undertook to drive the plaintiff and his wife to North Bay, from her home in Sturgeon Falls. During that drive she collided with another automobile travelling in the opposite direction. The deceased had been driving in an easterly direction, and the other driver in a westerly direction. The plaintiff was the sole survivor of the collision.
This action is brought by the appellant on his own behalf and on behalf of his four infant children for damages as the result of the death of his wife, Bella Goulais.
By reason of the provisions of s. 132(3) of The Highway Traffic Act, R.S.O. 1970, the
[Page 368]
appellant’s right of action is dependant upon it appearing that the “loss or damage was caused or contributed to by the gross negligence of the driver of the motor vehicle”, Marilyn Restoule.
The only evidence of the circumstances immediately surrounding the accident is that of the appellant who said:
Q. Now, describe to the Court what happened just before the accident and up to the accident?
A. Well, as we were driving along, she slowly swerved up the side of her lane towards the car that was coming towards us—I mean, the lights. That’s all I seen was the lights. Then I told her, ‘Watch the lights’. That is all. Then it was the accident. I don’t remember after that. I was unconscious.
Q. Could you estimate the distance that this car was away from you when you first saw the lights?
A. Oh, I couldn’t say for sure. The distance, no. All I seen was the lights of the other car coming towards us, but it was us going towards him, I guess.
On cross-examination the appellant gave the following evidence:
Q. And then you said that Restoule was—Marilyn Restoule was driving normally until, I think you said that she slowly swerved into the westbound lane. Is that correct?
A. North.
Q. Pardon?
A. It’s on the opposite lane of her lane.
Q. Up to that one incident, her driving was normal?
A. Yes, she was.
Q. That was the only variation from normal driving. Is that correct?
A. Well, yes.
Q. And this would be the momentary inattention, would that be correct, on her part?
A. I don’t understand the words.
[Page 369]
. . .
Q. This was just a brief instant when she moved into the opposite lane?
A. Yes.
It is to be remembered that at and before the time of the accident there were three occupants of the front seat of the car and the appellant was the sole occupant of the back seat.
In finding that there was no gross negligence on the part of Mrs. Restoule, the learned trial judge had this to say:
According to the plaintiff, just before the collision, she was travelling at a normal rate of speed and driving in a normal fashion. I cannot find that this momentary lapse on her part, serious as the consequences of it were, is sufficient to constitute gross negligence.
Many judicial efforts have been made to assign an exact meaning to the phrase “gross negligence” as employed in The Highway Traffic Act, but it appears to me that the most widely accepted test, and the one which the learned trial judge purported to apply, remains that outlined by Sir Lyman Duff, C.J.C. in McCulloch v. Murray, where he said, at p. 145:
All these phrases, gross negligence, wilful misconduct, imply conduct in which, if there is not conscious wrongdoing, there is a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves.
In the present case there is no suggestion of conscious wrongdoing on the part of Mrs. Restoule, but with the greatest respect for the judgments at trial and in the Court of Appeal, it is my view that a driver who allows her car to “slowly swerve” into the middle of the left hand traffic lane in the face of the approaching lights of another car, is guilty of “a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves”, and having reached this conclusion, I am satisfied that the circumstances disclosed by the evidence in this case were such as to require an explanation
[Page 370]
consistent with lack of gross negligence. (See Walker v. Coates). No satisfactory explanation is suggested by the appellant who was the only survivor of the accident. I appreciate that this conclusion runs contrary to the findings of both courts below, but those findings are based on inferences drawn from facts which are not seriously disputed, and in such a case it is my view that this Court is in as good a position to draw inferences as the trial judge and the Court of Appeal.
I am not unmindful of the decision of this Court in Burke v. Perry and Perry, where it is said at pp. 331 and 332:
... 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 for which the trial judge who has seen and heard the witnesses is far better equipped than are the judges of an appellate court.
As has been stated, however, the present case is one in which all concerned except the appellant were killed and there was accordingly no opportunity to assess the reactions of the persons involved and particularly of the driver, so that this appeal falls to be determined on the basis that Mrs. Restoule drove her car onto the wrong side of a straight stretch of highway in the face of the lights of oncoming traffic at 4 a.m., and in spite of being warned of the approaching lights by the appellant, she was unable to regain her own side before the head‑on collision occurred.
With the greatest respect for those who may hold a contrary opinion, I do not think that in such a case as this the finding of the provincial
[Page 371]
courts that Mrs. Restoule’s conduct constituted a “momentary lapse” rather than “gross negligence” precludes this Court from finding that the negligence was “gross” in the sense that it was a marked departure from the standards referred to by Sir Lyman Duff in McCulloch v. Murray, supra.
In the result I would allow this appeal and confirm the provisional assessment of damages made by the learned trial judge in respect of the appellant’s injuries and the childrens’ damages which he summarized as follows:
I assess the total damages of the plaintiff at $37,188.90, the damages for the children at $500 for Robert, $500 for Leonard, $300 for Teresa, and $1,500 for Charlene.
The total award to the appellant for his own injuries and damages for his children will accordingly be $39,988.90, together with interest on that sum at the rate of five per cent per annum from October 27, 1971, that being the date of the judgment rendered at trial by Mr. Justice Houlden.
The appellant will have his costs throughout.
DICKSON J.: (dissenting)—The facts giving rise to this appeal are summarized in the reasons prepared by my brother Ritchie, which I have had the advantage of reading. With respect I am unable to concur in the conclusion he has reached that Mrs. Marilyn Restoule’s conduct constituted gross negligence.
For several reasons I consider this case, at its highest, as a borderline case. A written statement signed by the plaintiff, Mr. Goulais, dated May 13, 1969, some two months after the accident, contains these words:
A short distance East of the town limits—on highway 17—I noticed the lights of an oncoming vehicle—not too far away. It appeared to me as if this vehicle was coming towards our side of the road—I yelled at Marilyn—watch this car, it seems to be coming toward us. Then impact occurred.
[Page 372]
and later in the same statement, “I still feel strongly that Marilyn is not to blame for this accident.” We have, therefore, the unusual situation of the plaintiff, and sole survivor of the accident, asking this Court to stigmatize as grossly negligent the deceased driver whom the plaintiff earlier declared to be free of blame. At trial Mr. Goulais said:
Well, as we were driving along, she slowly swerved up the side of her lane, towards the car that was coming towards us—I mean, the lights. That’s all I seen was the lights. Then I told her, “Watch the lights”. That is all. Then it was an accident. I don’t remember after that.
and:
All I seen was the lights of the other car coming towards us, but it was us going towards him, I guess. (Emphasis added)
The trial judge found, on all the evidence, particularly the location of the debris, that at the time of the impact Mrs. Restoule had crossed the centre line into the westbound traffic lane and the point of impact was about the centre of the westbound lane. I think this was a correct finding. I do not quote from the statement given by Mr. Goulais for the purpose of questioning the judge’s finding but rather because, if Mr. Goulais thought the oncoming vehicle was coming toward his side of the road, it is not unlikely Mrs. Restoule was under the same impression. The travelled portion of the roadway was only twenty-two feet in width and the hour was four o’clock in the morning.
For a second reason, I think this is a borderline case. Mr. Goulais answered “yes” to the question “This was just a brief instant when she moved into the opposite lane”. So whether Mrs. Restoule’s action is called a “momentary lapse” on her part as the trial judge and the Court of Appeal described it, or casual inadvertence or
[Page 373]
thoughtlessness, there is no doubt it was of the briefest duration and the word “momentary” is apt. Thirdly, the momentary lapse, if I may so term it, was preceded by an unbroken period of good driving. Finally, there were none of the aggravating circumstances such as excessive speed, or an awareness of undue fatigue which one so often finds in cases of this nature, the cumulative effect of which may make what would otherwise have been a case of simple negligence into one of gross negligence.
Because this is a borderline case, it is eminently one in which to apply the words of Duff C.J. in Albert v. The Aluminum Company of Canada Limited, at p. 642:
In this Court, in view of the concurrent findings of the courts below, we are not called upon to say what we should have done if one of us had been sitting in the place of the trial judge. We say nothing whatever about that. The onus was upon the appellant to establish that the courts below were clearly wrong in the manner in which they disposed of the issue, and, in order to do that, it is necessary that something should be pointed out that is definitely wrong in what they did. Our attention has not been called to any error of law, to any error with respect to the burden of proof, to any material misapprehension of the effect of the evidence, and we are satisfied that, on the whole, this is a case in which we could not properly interfere.
and what was said in this Court in Burke v. Perry, at p. 331:
I am conscious of the fact that Mrs. Perry’s behaviour was very near the borderline between simple negligence and gross negligence and I can readily understand the difference of opinion which existed in the Courts below, 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”
[Page 374]
involves a reconstruction of the circumstances of the accident itself including the reactions of the persons involved, and this is a function for which the trial judge who has seen and heard the witnesses is far better equipped than are the judges of an appellate court.
In Kerr v. Cummings, a car was proceeding northerly from Nanaimo towards Port Alberni in the Province of British Columbia. It crossed the highway, proceeded along the shoulder for 66 feet and rammed a concrete abutment of a bridge on the west side of the road. This Court declined to find gross negligence in the “mere happening of the occurrence”. The driver and another passenger were killed, a third passenger so badly injured that he remembered nothing of the accident, and the plaintiff had fallen asleep and did not know what had happened.
In Walker v. Coates, this Court found gross negligence when a vehicle being driven south toward Banff crossed the centre double traffic line and struck a direction sign 18 inches off the eastern edge of the highway, but in that case fatigue was an important factor, p. 606:
... I do think that a driver like Coates who continued to drive when he was feeling tired and who had had very little sleep for thirty-six hours before the accident, should have foreseen the danger that he might go to sleep at the wheel and that his doing so under these circumstances involved a breach of duty to his passenger which constituted gross negligence.
Gross negligence is a finding of fact, to be found by the trial judge, or the jury, if there is one. In the present case the trial judge did not misapprehend the facts. His recital of the salient facts is clear, comprehensive and accurate. And he did not misdirect himself as to the law. He applied the “very marked departure” test of
[Page 375]
McCulloch v. Murray. There are concurrent findings in the courts below that Mrs. Restoule’s conduct did not constitute gross negligence. It has not been made clear to me in what respect the trial judge and the Court of Appeal erred in fact or in law and I would accordingly dismiss the appeal with costs.
Appeal allowed with costs, DICKSON J. dissenting.
Solicitor for the appellant: Elmer W. Sopha, Sudbury.
Solicitors for the defendant, respondent: Valin, Loukidelis, Smith & Valin, North Bay.
Solicitors for the third party, respondent: Beaton, Leake & Fellowes, Toronto.
Email this Content