Supreme Court of Canada
Sparks et al. v. Thompson, [1975] 1 S.C.R. 618
Date: 1974-02-12
Earnest Sparks
and
Ernest Fairfax (Plaintiffs) Appellants;
and
Joseph C. Thompson (Defendant) Respondent.
1973: November 22, 23; 1974: February 12.
Present: Ritchie, Spence, Pigeon, Laskin and Dickson JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION
Appeal—Variation of apportionment of negligence of trial judge—Strong and exceptional circumstances required.
Motor vehicles—Negligence—Contributory negligence—Pulling to roadside on stalling—Other vehicle facing first with bonnets raised—Vehicles encroaching highway—Lights of boosting vehicle obscured—Failure of driver to keep proper lookout.
The appellant Fairfax was having persistent problems with the electrical system of his car which was stalling. He moved it to the shoulder of the road with the wheels encroaching on the highway between 12 and 18 inches. Appellant Sparks came to the assistance of Fairfax and parked his car nose to nose some 18 inches from the Fairfax car with the Sparks car also overlapping the highway by about 18 inches. The lights of the Sparks car were on and while Sparks was connecting the booster cables and Fairfax was on the pavement beside his own car a motor vehicle owned and driven by the respondent Thompson struck the rear bumper of the Fairfax car and Fairfax. Thompson was in a seriously impaired condition. At trial the plaintiffs, appellants were found to be 25 per cent at fault and the defendant, respondent 75 per cent at fault with general damages assessed at $41,000. In the Appeal Division general damages were reduced to $25,000 and fault apportioned, 65 per cent appellants and 35 per cent respondents.
Held: The appeal should be allowed.
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The Appeal Division did not appear to differ as to fact or law from the learned trial judge and the record before the Court does not disclose such strong and exceptional circumstances as to justify an appellate court in varying the apportionment of blame made by the trial judge. The Appeal Division failed to give due weight to the proposition enunciated by the House of Lords in The Umtali (1938), 160 L.T. 114, to the effect that when an Appellate Court has accepted the findings of the judge it would require a very strong and exceptional case to induce the appellate court to vary the apportionment which the judge has made.
The Umtali (1938), 160 L.T. 114; The “Karamea” (1920), 90 L.J.P. 81; Prudential Trust Co. Ltd. v. Forseth et al., [1960] S.C.R. 210; S.S. “Hontestrom” v. S.S. “Sagaporack”, [1927] A.C. 37; Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601; Widrig v. Strazer et al., [1964] S.C.R. 346; Gorman v. Hertz Drive Yourself Stations of Ontario Ltd. et al, [1966] S.C.R. 13; Fagnan v. Ure et al. [1958] S.C.R. 377; Flint v. Lovell, [1935] 1 K.B. 354 referred to.
APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division varying the judgment of Dubinsky J. at trial. Appeal allowed with costs.
J.T. MacQuarrie, and John S. McFarlane, for the appellants.
Harold F. Jackson, Q.C., for the respondent.
The judgment of the Court was delivered by
RITCHIE J.—This is an appeal from a judgment of the Supreme Court of Nova Scotia, Appeal Division, varying the judgment rendered at trial by Mr. Justice Dubinsky whereby he had attributed 25 per cent of the fault to the appellants and 75 per cent to the respondent in respect of serious injuries sustained by the appellants when the motor vehicle of the respondent collided with that of the appellant Fairfax on LaPierre’s Hill just east of the MicMac Rotary in the City of Dartmouth.
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Mr. Justice Coffin, in the reasons for judgment which he delivered on behalf of the Appeal Division, attributed 65 per cent of the fault to the appellants and 35 per cent to the respondent and he reduced the award of general damages made by the trial judge in respect of the injuries sustained by Fairfax from $41,000 to $25,000.
The circumstances giving rise to this appeal were that at about 11 p.m. on the evening of the accident Fairfax experienced a failure in the electrical system of the 1965 Rambler car which he was driving while on Prince Albert Road in Dartmouth. At this point a friend in another car came to his assistance and partially re-charged his battery. Fairfax then proceeded to the MicMac Rotary where his car stalled again and on this occasion his nephew, Ernest Sparks, who was driving his own Oldsmobile car, came to his aid and gave another “boost” or jump start to the Rambler battery. As Fairfax reached LaPierre’s Hill travelling in an easterly direction on his way to the Village of Preston, he encountered further difficulty and as his car was stalling he moved it to the shoulder of the road “as near as possible to the ditch” but leaving his left wheels encroaching on the highway by between 12 and 18 inches. At this point Sparks, who had been following Fairfax since the Rambler’s second failure, drove past the stalled car, turned around and came back, stopping about 18 inches from and facing the Fairfax car, so that the Sparks car was in front of the Rambler nose to nose on its wrong side of the highway with its right wheels overlapping the border of the highway by about 18 inches.
The engine bonnets of both cars were raised and the lights of the Sparks car were left on. While Sparks was standing between the cars securing cables from the battery of one to the other and Fairfax was apparently walking on the pavement beside his car, a motor vehicle, which was also proceeding eastwardly, owned and operated by the respondent, Thompson, struck the rear bumper of the Fairfax car driving it
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forward and thus injuring Sparks who was standing between the two parked cars. As the Thompson vehicle brushed by it struck Mr. Fairfax causing him grievous injuries as a result of which he lost his leg.
I adopt the following description of the scene of the accident contained in the reasons for judgment of the learned trial judge:
Leaving the MicMac Rotary, one goes in an easterly direction by No. 7 Highway towards LaPierre’s Hill in the city of Dartmouth. First one passes the so-called Dartmouth watershed area which lies on the north side of this highway. Constable Trueman estimated that the distance from the watershed to that point on LaPierre’s Hill where the accident occurred was roughly a quarter of a mile. He said that the collision took place ‘just before you hit the top of LaPierre’s Hill.’ Asked as to what type of a hill this was, he replied ‘It’s quite a high grade.’ The paved portion of the highway is 22 feet in width and at this particular location, there is a shoulder or gravel portion of road on either side of the pavement. The southern shoulder, i.e. the right shoulder of the road as one travels easterly, is here approximately 6-7 feet wide and ends in a deep ditch. The opposite or northern shoulder, however, is considerably wider. Constable John Friis of the Dartmouth Police Force, when speaking of the difference between the two shoulders at this point, said that ‘a car could just park and be clear of the pavement on this (the south) side but on the other side two cars could park side by side.’
It is apparent from the testimony of witnesses that the road in this area runs quite straight in an upward grade and one has clear visibility (apart from atmospheric conditions) for several hundred feet as one approaches the top of the hill from the west, and then has equally clear visibility for a considerably longer distance after passing the crest and starting the gradual downward descent towards the city limits of Dartmouth.
I also adopt the following findings of fact made by the learned trial judge:
(1)1 am satisfied and find as a fact that the condition of the highway surface that night was good and
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played no part whatsoever in bringing about the collision.
(2) I have no difficulty in concluding that notwithstanding the darkness of the night, the atmospheric or weather conditions at the time were good.
(3) I find as a further fact that immediately prior to the crash, there was no motor vehicle in front of the defendant’s going in the same direction, nor was there any motor vehicle coming from the opposite direction.
The learned trial judge also noted that after the Fairfax vehicle had taken up its position by the side of the highway “a couple of cars did drive by in an easterly direction without experiencing any difficulty whatsoever. One passing motorist stopped to inquire if he could be of assistance.”
These were the circumstances facing Mr. Thompson as he travelled eastwardly in what can only be described as a seriously impaired condition as a result of the alcohol he had consumed. The evidence in this latter regard was not limited only to the results of two breathalizer tests taken shortly after the accident, one of which showed a reading of 140 milligrams of alcohol in 100 millilitres of blood and the other, taken 11 minutes later which registered 130 milligrams of alcohol in 100 millilitres of blood, but was further confirmed by the evidence of a passenger in the Thompson car who testified that the respondent had been drinking and that before the accident his car had gone off the paved portion of the highway twice and on one occasion over to the left side of the centre line.
The situation immediately before and at the time of the accident was that the Thompson car was being driven at a point on Highway No. 7 at LaPierre’s Hill where the paved portion is 22 feet in width and the visibility is uninterrupted for several hundred feet. The night was dark and there were no street lights, but the condition of the highway surface was good as were the weather conditions. Under these circumstances Thompson drove into the back of the Fairfax vehicle which was parked as near as possible to the ditch on the south side of the road and protruding for a maximum of 18 inches on the
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highway. The Fairfax car had been passed without difficulty by other motorists and there was no traffic coming in either direction on the highway.
In holding the respondent Thompson to have been negligent, the learned trial judge made the finding that:
…a motorist who drove his car properly as was his duty to do, ought to have experienced no problem in traversing the spot in question.
I regard this as equivalent to a finding that Thompson failed to keep a proper look-out.
The learned trial judge however, attributed 25 per cent of the fault for the accident to the appellants in having their vehicles parked with any part thereof on the main highway, and he appears to have felt that it would not have been unreasonable for Fairfax to have left his car at Prince Albert Road where it first broke down and in this regard he quotes from the cross‑examination of Fairfax where he said, in part:
I wanted to get home. I went by several places where I could have parked the car. I knew that the car might quit on me… It did not occur to me to send anyone ahead and back. I knew it was a dangerous place.
In attributing negligence to Sparks, Dubinsky J. had this to say:
The plaintiff, Sparks, when he came upon his uncle’s car broken down at the rotary, should have assisted in moving it to some safe spot where it could remain for the night and taking Mr. and Mrs. Fairfax to their home. Instead of doing that, he helped to get the Rambler started again and the very fact that he then followed behind it, is evidence that he feared that it would break down again, which it did. On No. 7 Highway, his Oldsmobile, when traffic was clear, could have pushed the Rambler to the greater safety of the northern shoulder. Instead, he went on ahead and came back to position his car on the wrong side of the road, knowing full well that both vehicles were stationed on the paved portion of the road for some 12-18 inches. With both hoods or bonnets up, he should have realized—Fairfax too should have real-
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ized—that the lights of the Oldsmobile were cut off to motorists approaching from the west.
Although I am not entirely satisfied in my own mind from the record before us that the appellants were guilty of any negligence which caused or contributed to the accident, I am nevertheless reluctant to interfere with the finding made by the judge who saw and heard the witnesses and who has made such a careful and detailed analysis of their evidence in his reasons for judgment. I would therefore not disturb Mr. Justice Dubinsky’s finding.
In the course of his reasons for judgment in the Appeal Division, Mr. Justice Coffin appears to have adopted the view that the trial judge’s finding of negligence against Thompson was based entirely on the fact that he found him to have been impaired by alcohol at the time of the accident. In referring to the trial judge’s finding against Thompson, Mr. Justice Coffin observed:
He found negligence on the part of the appellant in these words:
‘As for the defendant, I am equally satisfied that he too was guilty of negligence contributing to the collision that night. His ability to drive his motor vehicle was impaired by his consumption of alcohol’.
The position taken by the appellant in this appeal is that the trial judge found the negligence in the impairment without in any way indicating what specific wrongful act or omission arose in the appellant’s conduct as a result of this impairment and contributed to the accident.
With the greatest respect for the views of the members of the Appeal Division, I do not think that Mr. Justice Dubinsky’s finding of negligence against the respondent was by any means limited to the fact that his ability to drive was impaired. On the other hand, as I have said, I think his finding was clearly based on failure to keep a proper look-out and Mr. Justice Coffin himself indicates that this was so in a passage where he says:
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In short, then, the trial judge did have before him evidence that other vehicles were able to negotiate passing operations without difficulty or danger; that one passenger in the Thompson vehicle saw the Fairfax car before Thompson and that there was some slight evidence of instability on the part of Thompson in the operation of his motor vehicle just prior to the accident itself.
It is difficult, then, to say that the learned trial judge was entirely wrong in the inferences he drew from the facts before him that there was negligence on the part of the appellant. There was some evidence before him on which he could reach this conclusion. I am, however, of the opinion with respect that the learned trial judge erred in his finding that the liability should be so greatly proportioned against the appellant. In my view, the negligence which contributed most to the resulting accident was that of the respondents, Sparks and Fairfax, in placing their vehicle in so dangerous a position on the highway.
With all respect it appears to me that in varying the apportionment of fault awarded by the learned trial judge, the members of the Appeal Division failed to give due weight to the series of cases in the English courts and in this Court which subscribed to the proposition stated by Lord Wright in the House of Lords in The “Umtali”, where he said:
I ought to add that it would require a very strong and exceptional case to induce an Appellate Court to vary the apportionment of the different degrees of blame which the judge has made when the Appellate Court accepts the findings of the judge. I doubt that there ever could be a case where the Appellate Court would take that course, but certainly this is not such a case.
The matter was put in similar language by Scrutton, L.J. in the Court of Appeal in England in The Karamea, where he said:
The only other point that I desire to mention is that I entirely agree with my brethren in this, that if you agree with the findings of fact and law of the learned Judge below, and the only difference is that the Court
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of Appeal attaches more importance to a particular fact than he did, it would require an extremely strong case to alter the proportions of blame which the learned Judge below has attributed to the ships.
In this Court in the case of Prudential Trust Co. Ltd. v. Forseth, Mr. Justice Martland, speaking for the Court, adopted a passage from the reasons for judgment of Lord Sumner in S.S. Hontestroom v. S.S. Sagaporack, in which he said:
None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.
The italics are my own.
I cannot find in the present case that the judges of the Appeal Division differed as to fact or law from the learned trial judge, and the record before this Court does not disclose to me any very strong and exceptional circumstances such as would justify an appellate court in varying the apportionment of the different degrees of blame which the judge has made.
In reducing the award of damages made by Mr. Justice Dubinsky in respect of the injuries sustained by Fairfax, Mr. Justice Coffin had this to say:
Mrs. Judith K. Murphy, secretary of the R.C. Murphy’s Services Ltd., who owned and operated an Imperial Oil Station on Ochterloney Street in Dartmouth, Nova Scotia, with whom the respondent, Fairfax, was employed indicated that Mr. Fairfax’s gross pay for a week was $70 and after deductions his weekly net return was $63. The trial judge said that he was satisfied that Mr. Fairfax would have earned
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had he worked all of 1970, the total sum of $4200, and that had he not been injured, he would have continued to work for at least five years at an annual income of not less than that amount. On this basis he made his award of general damages of $41,000. In deference it appears to me that this is high. I am not ingoring the fact that the respondent Fairfax sustained much pain and suffering. I am, however, impressed with the argument on behalf of the appellant that at present-day rates $41,000 invested in trustee securities would yield approximately $3280 a year without encroaching on principal and that at $63.05 a week, Mr. Fairfax’s take-home pay was, on the evidence of Mrs. Murphy $3278.60 plus some extra money which he earned on certain week-ends during the year. It is my view that this argument is sound and that if the award stood, and there were no division of liability, the respondent would have his income undiminished for the rest of his life with little or no encroachment on the capital of the award.
I am of the opinion that he would be adequately compensated if the general damages of $41,000 were reduced to $25,000 and I would vary the award accordingly.
Although he recognizes that Fairfax “sustained much pain and suffering” it appears to me that Mr. Justice Coffin viewed the trial judge’s award as if it had been made entirely to compensate Fairfax for loss of income. Fairfax lost his leg as a result of the accident. In making his award Mr. Justice Dubinsky said:
Keeping in mind the permanent nature of the injury he has sustained, the pain undergone, his impaired health and loss of the usual amenities of life to which he was accustomed, and also being satisfied, as already indicated, that were he not injured he could have continued to work for at least five years and at an annual income of not less than $4,200.00, I have come to the carefully considered conclusion that Ernest Fairfax’s general damages, inclusive of loss of income, come to $41,000.00.
The italics are my own.
The fact that this award happens to be such as to give an income return which would leave Fairfax’s income undiminished for the rest of
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his life, does not appear to me to be a conclusive argument against the award’s validity because the total figure arrived at by Dubinsky J. included all the other factors which he has mentioned in addition to loss of income.
I think the role of an appellate court in the assessment of damages should be controlled by the principle stated by Viscount Simon in Nance v. British Columbia Electric Railway Company Ltd., at p. 613 where he said:
Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
This well-known statement has been adopted in this Court on many occasions and I refer particularly to the judgment of Hall J. in Widrig v. Strazer et al., and to that of Spence J. in Gorman v. Hertz Drive Yourself Stations of Ontario Ltd. et al., at p. 18. I refer also to the judgment of Mr. Justice Locke in Fagnan v. Ure et al., at p. 385 where he adopted the rule as stated by Greer L.J. in Flint v. Lovell, at p. 360 in the following terms:
In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it in the judgment of
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this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.
I can detect no error of principle and no misapprehension of any of the evidence in the reasons of Mr. Justice Dubinsky and I find Mr. Justice Coffin’s phrase “In deference it appears to me that this is high” to be less than a finding that the amount awarded “was so extremely high or so very small as to make it … an entirely erroneous estimate of the damage …” to which Fairfax was entitled.
For all these reasons I would allow this appeal and restore the judgment rendered at trial by Mr. Justice Dubinsky.
The appellants will have their costs throughout.
Appeal allowed with costs.
Solicitor for the plaintiffs, appellants: John S. McFarlane, Halifax.
Solicitor for the defendant, respondent: Harold F. Jackson, Halifax.
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