At trial, the defences of volenti non fit injuria
and contributory negligence were put to the jury. This appeal was from a
judgment of the Yukon Court of Appeal, which found the charge to the jury to be
adequate and dismissed plaintiff's appeal from the jury's verdict barring his
negligence claim by operation of the volenti principle. The appeal also
concerned the appellate court's deference to a jury's verdict.
Held: The appeal should
be dismissed.
Per Estey, McIntyre,
Chouinard and Le Dain JJ.: The defence of volenti requires not merely
plaintiff's knowledge of a risk but his express or necessarily implied
acceptance of the risk of harm without recourse to law, along with an inference
that defendant took no responsibility for plaintiff's safety. Volenti
requires an awareness of circumstance and consequences rarely present at the
relevant time in drunken driver‑willing passenger cases.
The charge to the jury here, while consistent with
the authorities, should have gone one step further and explained that a finding
must first be made on the facts as required to support the application of the volenti
principle. If the factual requirements of the volenti principle were
present in the view taken by the jury, that would be the end of the matter and
the remaining questions relating to contributory negligence need not be
answered except as a matter of completeness lest for some reason the finding of
volens be set aside in circumstances not requiring a new trial. The jury
should have been instructed to direct their minds to the contributory
negligence issue only after they had considered and rejected the volens
defence.
The manner in which the defences of volens
and of contributory negligence were put to the jury was confusing and
misleading as to the implications of a finding that the plaintiff absolved the
defendant. The charge to the jury as a whole failed to make clear the
extraordinary nature of the volenti defence by making explicit the
interaction of the questions about defendant's negligence and plaintiff's
contributory negligence while failing to mention the more drastic implications
of a finding of volenti.
Any confusion resulting from the charge was overcome
by the answers given by the jury to the questions put to them. There were no
ambiguities in their answers suggesting actual confusion. Although the series
of questions was not without ambiguity, it was not unreasonable to conclude
that the jurors approached contributory negligence as an alternative solution
to volenti. The jurors had before them a clearly worded question on volenti.
It would be improper, however confusing the charge might have been, for this
Court to assume that the jury misunderstood the meaning of the question in the
face of such clear wording.
A jury's verdict in civil proceedings is accorded
great deference by the courts. Although the verdict here is not one that every
jury would have reached, it does not have the character of unreasonableness
that must be apparent on the face of a jury verdict before an appellate court
can upset it. The paramount principle operating here is the duty of the court
to sustain the jury's disposition without judicial interference so long as it
is reasonable to do so.
Per Wilson J.: The
trial judge adequately instructed the jury on all issues that they were required
to deal with. Their answers to his clearly framed questions showed that they
fully understood the questions and they should therefore be treated as
definitive.
Neither the charge on the defences of volenti non
fit injuria and contributory negligence nor the language or format of the
questions put could have misled the jury. The charge effectively brought home
to the jury the stringent nature of the volenti defence and it conformed
to the principles laid down by the Court relating to that defence. Good trial
practice required that the jury deal with all the issues at trial even if a
finding of volenti were made, in the event that that finding be
overturned on appeal.
It was open to the jury on the evidence to reach the
conclusion it did on the volens issue. No complaint was made about the
trial judge's charge or about the clarity of the jury's answers at any stage in
the proceedings. The sole basis of the appeal to this Court, that the defence
of volenti was not available in a case involving negligence on the
highway, was without merit.
Cases Cited
By Estey J.
Car & General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Miller v. Decker, [1957] S.C.R. 624; Lehnert
v. Stein, [1963] S.C.R. 38; Eid v. Dumas, [1969] S.C.R. 668; Jamieson
v. Harris (1905), 35 S.C.R. 625; McLoughlin v. Kutasy, [1979] 2
S.C.R. 311; Grinnell Co. of Canada Ltd. v. Warren, [1937] S.C.R. 353; Pronek
v. Winnipeg, Selkirk and Lake Winnipeg Railway Co., [1933] A.C. 61; Vancouver‑Fraser
Park District v. Olmstead, [1975] 2 S.C.R. 831; McCannell v. McLean,
[1937] S.C.R. 341; Scotland v. Canadian Cartridge Co. (1919), 59 S.C.R.
471, referred to.
By Wilson J.
Lehnert v. Stein,
[1963] S.C.R. 38, referred to.
Statutes and Regulations Cited
Contributory Negligence
Ordinance, R.O.Y.T., c. C‑14.
Authors Cited
Salmond, Sir John William.
Salmond and Heuston on the Law of Torts, 18th ed., by R. F. V. Heuston
and R. S. Chambers, London, Sweet and Maxwell, 1981.
Williams, Glanville L. Joint
Torts and Contributory Negligence, London, Stevens & Sons, 1951.
APPEAL from a judgment of the Yukon
Court of Appeal dismissing an appeal from a judgment of Maddison J. sitting
with jury. Appeal dismissed.
B. A. Crane, Q.C., and R. Lunau, for the appellant.
D. O'Connor, Q.C.,
and T. Preston, Q.C., for the respondent.
The judgment of Estey, McIntyre, Chouinard and Le
Dain JJ. was delivered by
1. Estey
J.‑‑This is an appeal from the decision of the Court of
Appeal for the Yukon Territory, dismissing the plaintiff's appeal from a jury
verdict barring his negligence claim by operation of the principle, volenti
non fit injuria. It also concerns the appellate court's defence to the
verdict of a jury. The appellant (plaintiff) and respondent (defendant), co‑workers
at a construction site, became acquainted shortly before the car accident,
giving rise to the action, occurred. The night before the accident, the parties
had participated in an evening of drinking and partying in Haines Junction, a
town close to the construction camp where both lived. The morning of the
accident, drinking was resumed early. The parties decided to retrieve the
respondent's car, which had become stuck on the way home the night before, and
then drive into Haines Junction to retrieve the appellant's eyeglasses and to
try to find two young women whom they had met the previous night. On their
arrival in Haines Junction, the appellant and respondent each consumed more
alcohol. They left the bar, found the two women, and drove them approximately
fifty or sixty miles toward Whitehorse at their request. Having dropped the
women off, the parties started back to Haines Junction. The appellant had been
driving throughout. The respondent, while a passenger, had apparently been
drinking beer in the car. At some point on the return trip, the parties passed
two hitchhikers, and decided to stop to pick them up. When the appellant tried
to start the car again, he was unable to do so, and the respondent got into the
driver's seat and started the car. At about this time, the appellant saw some
friends passing in another vehicle, and, when they stopped, went to talk to
them. He returned to the car and went to the driver's side, but the respondent
was still in the driver's seat. In a short exchange, the respondent said that
he was capable of driving. The appellant then got into the car as a passenger.
2. The accident occurred very shortly
thereafter. The respondent, while driving, turned to speak to the hitchhiker
sitting in the back seat. As he did so, the car veered to the right. The
appellant, according to the testimony of the other hitchhiker who was seated on
the front seat between the appellant and the respondent, attempted to grab the
wheel and straighten out the car's course. The respondent's attempts at
correction resulted, eventually, in the car's overturning on the right‑hand
embankment, causing personal injuries to the appellant. Samples of the
respondent's breath later registered at .25 and .24 in tests administered by
the police.
3. At trial, without objection from the
parties, only two defences, volenti non fit injuria and contributory
negligence, were put to the jury. The trial judge, after summarizing the
evidence, charged the jury on the volenti defence as follows:
One of
the defences of the defendant in this case is the maxim volenti non fit
injuria. Translated, that means "to one who is willing no harm is
done".
The
burden is on the defendant, in each case, to prove that the plaintiff,
expressly or by necessary implication, agreed to exempt the defendant from
liability for any damage suffered by the plaintiff, occasioned by the
defendant's negligence. In every case, the question is whether the plaintiff
gave an express or implied consent to accept or assume the risk without
compensation. In other words, did the plaintiff really consent to absolve the
defendant from his common‑law duty of care, saying or implying, in
effect, "I am prepared to take the risk of your negligence and if I am
injured you will not be legally responsible for my damages." The question
is not simply whether the plaintiff knew of the risk, but whether the
circumstances were such as necessarily to lead to the conclusion that the whole
risk was intentionally incurred by the plaintiff.
...
If you
find that there is evidence of an initial common design which would, as a
matter of common sense, entail the risk of injury, you might think that the appropriate
inference may be not that the defendant undertook to exercise due care
throughout, but that the plaintiff agreed to take upon himself the obvious risk
of harm. The burden lies upon the defendant of proving that the plaintiff,
expressly or by necessary implication, agreed to exempt the defendant from
liability.
Therefore,
your test is not simply whether the plaintiff knew of the risk, but whether the
circumstances are such as necessarily to lead to the conclusion that the whole
risk was voluntarily incurred by the plaintiff.
Immediately after his discussion of the volenti defence, the
trial judge said:
Having
earlier discussed negligence [which was done in an earlier general part of the
charge just before volenti was discussed], I want to turn to the allied
and associated matter of contributory negligence.
...
If you are satisfied by a
preponderance of evidence that Dube's conduct amounted to a breach of that duty
to take reasonable care for his own safety, then you would be justified in
ascribing to him a portion of the blame for his injuries....
The judge charged the jury that contributory negligence could arise in
two ways, "firstly, from the plaintiff's active conduct in grasping the
steering wheel ...; secondly, you may find that the plaintiff was negligent
about his own safety, when he remained in the vehicle after the defendant took
over the driving, knowing what he knew of the defendant's condition at that
time". He went on:
Now, if
you find that there was no negligence on the part of the defendant in the first
place, then you need not bother considering contributory negligence. However,
if you find that there was negligence on the part of the defendant, then you must
consider whether the defendant has proved contributory negligence, of either of
the two forms which I have mentioned, on the part of the plaintiff.
(Emphasis added.)
In contrast, no mention was made of the relationship between the two
routes, or defences, open to the jury.
4. The jury was then requested to answer a
number of questions. These questions, and the answers given, are as follows:
1. Was
there negligence on the part of the Defendant Robert Labar which caused or
contributed to the damage suffered by the Plaintiff in the accident?
Answer:
Yes.
2. If
your answer to question No. 1 is "yes", of what did such negligence
consist?
Answer:
a) Labar
was operating a vehicle while impaired.
b) Labar
failed to maintain proper control of his vehicle.
c) Labar
failed to operate his vehicle with proper care when he turned to converse with
his passengers.
3. Did
the Plaintiff Gregory Dube expressly or impliedly absolve the Defendant Robert
Labar from liability for negligence?
Answer:
Yes.
4. If
your answer to question No. 3 is "yes" of what did such absolution
consist?
Answer:
By willingly assuming the role of passenger in the Labar vehicle with Labar as
the operator while knowing his state of impairment.
5. Was
there negligence on the part of the Plaintiff Gregory Dube which caused or
contributed to the damage suffered by him?
Answer:
Yes.
6. If
your answer to question No. 5 is "yes", of what did such negligence
consist?
Answer:
Dube's touching, grabbing or attempting to touch or grab the steering wheel was
a contributing factor.
7. If
your answer to question No. 1 is "yes" and your answer to question
No. 5 is "yes", state in percentages the degree of fault or
negligence attributable to each:
Defendant
Robert Labar: 75%
Plaintiff
Gregory Dube: 25%
TOTAL:
100%
8. Disregarding
the apportionment of negligence you have made in response to question No. 7
above, at what amount, if any, do you assess the damages sustained by the
Plaintiff Gregory Dube under the following heads of damage?
(a)
For pain, suffering and loss of enjoyment of life from the date of the accident
to date and in future? $ 5,000
(b)
For loss of income from the date of the accident until
today?
15,000
(c)
For loss of prospective earnings from this date
forward? 0
TOTAL $20,000
These damages were reduced to $15,000 to account for the plaintiff's
contributory negligence. However, because the jury had answered the third
question affirmatively, the plaintiff's action was dismissed. An appeal to the
Yukon Court of Appeal was also dismissed. Taggart J.A., writing for the Court
of Appeal, stated in part:
It seems to me, given the
very clear and accurate charge of the judge, the answer given by the jury to
question 3 must be taken to mean that the plaintiff had impliedly absolved the
defendant from liability for negligence and had done so having regard for their
answer to question 4, by willingly assuming the role of passenger in the
vehicle driven by the defendant at a time when he knew of the defendant's
incapacity to drive.
...
I think it was open to the
jury on the evidence to reach the conclusion they did on the issue of volens.
Being of that view I think that we ought not to interfere.
5. The plaintiff's appeal to this
Court was argued on the basis that the defence of volenti is
inapplicable to a case involving negligence on the highways. This submission is
plainly inconsistent with four decisions of this Court: Car & General
Insurance Corp. v. Seymour, [1956] S.C.R. 322, Miller v. Decker,
[1957] S.C.R. 624, Lehnert v. Stein, [1963] S.C.R. 38, and Eid v.
Dumas, [1969] S.C.R. 668. However, while acknowledging that volenti
is in principle available to a defendant driver, these cases establish that the
defence will only be made out in unusual circumstances. The test has been
variously described. In the Seymour case, supra, Rand J. wrote,
at p. 324:
In such commitments the
question ought, I think, rather to be, can the defendant reasonably be heard to
say, as an inference from the facts, that the risk of injury from his own
misconduct was required by him to be and was accepted by the complainant as
such a term [of the undertaking]?
Rand J. conceived of volenti as a bilateral
"exchange of terms" governing the activity in which the
parties were engaged. Abbott J., dissenting in the Miller case, supra,
accurately paraphrased (at p. 626) the test set out by Kellock J. in Seymour,
supra, (at p. 332):
...for a negligent driver
to be completely relieved from liability, the plaintiff must have agreed
expressly or by implication to exempt the defendant from liability for damages
suffered by the plaintiff and occasioned by the negligence of the defendant
during the carrying out of the latter's undertaking. In other words, to
constitute a defence there must have been an express or implied bargain between
the parties whereby the plaintiff gave up his right of action for negligence.
As was pointed out by Kellock J. at p. 331, the question in each particular
case is, in the language of Lindley L.J. in Yarmouth v. France ((1887),
19 Q.B.D. 647 at 660), "not simply whether the plaintiff knew of the risk,
but whether the circumstances are such as necessarily to lead to the
conclusion that the whole risk was voluntarily incurred by the plaintiff".
Finally, in Lehnert v. Stein, supra, Cartwright J. (as he
then was) held (at p. 43) that:
...where a driver of a
motor vehicle invokes the maxim volenti non fit injuria as a defence to
an action for damages for injuries caused by his negligence to a passenger, the
burden lies upon the defendant of proving that the plaintiff, expressly or by
necessary implication, agreed to exempt the defendant from liability for any
damage suffered by the plaintiff occasioned by that negligence, and that, as
stated in Salmond on Torts, 13th ed., p. 44:
The true question in every
case is: Did the plaintiff give a real consent to the assumption of the risk
without compensation; did the consent really absolve the defendant from the
duty to take care?
6. Thus, volenti will arise only
where the circumstances are such that it is clear that the plaintiff, knowing
of the virtually certain risk of harm, in essence bargained away his right to
sue for injuries incurred as a result of any negligence on the defendant's
part. The acceptance of risk may be express or may arise by necessary
implication from the conduct of the parties, but it will arise, in cases such
as the present, only where there can truly be said to be an understanding on
the part of both parties that the defendant assumed no responsibility to take
due care for the safety of the plaintiff, and that the plaintiff did not expect
him to.
7. Common sense dictates that only rarely
will a plaintiff genuinely consent to accept the risk of the defendant's
negligence. Glanville Williams wrote in Joint Torts and Contributory
Negligence (1951), at pp. 307‑08, that
the defence must be
restrictively construed and...rarely applies in negligence actions. In almost
every negligence action of modern times where the defence of volens has
been raised it has failed. This is because the cases in which a person truly
consents to run the risk of another's negligence are altogether exceptional.
He then drew the following conclusions as to the nature of the defence,
which were expressly adopted by this Court in Lehnert v. Stein, supra,
and in Eid v. Dumas, supra:
It is
submitted that the key to an understanding of the true scope of the volens
maxim lies in drawing a distinction between what may be called physical and
legal risk. Physical risk is the risk of damage in fact; legal risk is the risk
of damage in fact for which there will be no redress in law.... To put
this in general terms, the defence of volens does not apply where as a
result of a mental process the plaintiff decides to take a chance but there is
nothing in his conduct to show a waiver of the right of action communicated to
the other party. To constitute a defence, there must have been an express or
implied bargain between the parties whereby the plaintiff gave up his right of
action for negligence.
8. The example given by Glanville Williams,
supra, at p. 308, of a person who, knowing that road traffic accidents
regularly occur, nevertheless decides to go for a walk along a roadside and
thereby runs the risk that he may be run down, illustrates the nature of the
distinction. That person could not reasonably be seen to have assumed the risk
in the manner required to support the defence of volenti. To permit the
defence to succeed on facts showing merely that the plaintiff knew of the risk
and yet chose to undergo it is inconsistent with the decisions of this Court, supra,
which require not merely knowledge, but express or necessarily implied
acceptance of the risk of harm without recourse to law by the plaintiff, along
with an inference that the defendant, for his part, took no responsibility for
the plaintiff's safety.
9. The defence of volenti will,
furthermore, necessarily be inapplicable in the great majority of drunken
driver‑willing passenger cases. It requires an awareness of the
circumstances and the consequences of action that are rarely present on the
facts of such cases at the relevant time.
10. The charge of the learned trial judge, on
the law of volens, was consistent with the authorities in our Court as
noted above. In my view, however, the instructions to the jury should have gone
one step further. The learned trial judge ought to have explained to the jury
that a finding must first be made on the facts as required to support the
application of the volenti principle. If the factual requirements of the
volenti principle are present in the view taken by the jury, that is the
end of the matter and the remaining questions relating to contributory
negligence need not in that event be answered except as a matter of
completeness lest for some reason the finding of a volens might be set
aside in circumstances not requiring a new trial. All this should have been
explained to the jury. The jury should have been instructed to direct their
minds to the contributory negligence issue only after they had considered and
rejected the volens defence. Without such a direction the charge failed
to make clear the consequences of a finding of volenti.
11. I consider, with all respect to those who
have held otherwise, that in this case the manner in which the two defences
were put to the jury was misleading and confusing as to the implications of a
finding that the plaintiff had absolved the defendant. The portion of the
charge relating to volenti, although closely modelled, as the Court of
Appeal noted, on the language of Cartwright J. in Lehnert, supra,
must be considered in context. When so viewed, it can be seen that the jury
could easily have been confused as to the relationship between the two
defences, volenti and contributory negligence, and their relative
effects on the outcome of the action.
12. Prior to the enactment of legislation
allowing for apportionment of damages in cases where the plaintiff's own
negligence had contributed to his injuries (here, the Contributory
Negligence Ordinance, R.O.Y.T., c. C‑14), drawing a distinction
between the defences of volenti and contributory negligence was
unnecessary. Both had the same drastic effect of denying completely
compensation to the plaintiff. This is no longer the case. Apportionment
permits a sensible distribution of the financial burden of negligent conduct.
It is a more flexible and more appropriate response in the great majority of
cases in which negligent conduct of the plaintiff is argued to support a volenti
defence. Thus, it is of great importance to keep the two defences distinct (see
Salmond and Heuston on the Law of Torts (18th ed. 1981), at pp. 472‑73,
Glanville Williams, supra, at p. 308).
13. Primarily, the nature of the volenti
defence was obscured by two aspects of the charge. First, there is the fact
that the trial judge passed quickly over the defence of volenti to the
defence of contributory negligence, using the words "allied and associate
matter" in such a way that the jury could have thought he was referring to
a relationship between the defences. Secondly, he instructed the jury that (as
has already been noted in another context above):
... if you find that there
was negligence on the part of the defendant, then you must consider
whether the defendant has proved contributory negligence ....
(Emphasis added.)
The impression given by these words is that the only circumstances in
which the plaintiff's failure to take due care for his own safety would not
affect the outcome of the action are those in which the defendant's own conduct
conformed to the standard expected of him by the law of negligence. In fact, of
course, there was another set of circumstances in which the plaintiff's
contributory negligence could have no effect on the outcome; that is, if the
jury finds the plaintiff has assumed the risk of the defendant's negligence
under the volenti rule. By making explicit the interaction of two of the
questions put to the jury (namely, the questions of the defendant's negligence
and the plaintiff's contributory negligence), but failing to mention the much
more drastic implications of a finding of volenti, the charge to the
jury as a whole failed to make clear the extraordinary nature of the volenti
defence. Further confusion could have resulted from the fact that the same
evidence, showing that the appellant willingly assumed the role of passenger while
knowing of the respondent's state of impairment, was put to the jury as support
for both defences with no instructions as to the distinction between them.
14. Any confusion which might in this case
have resulted from the charge, however, must be considered to have been
overcome by the answers given by the jury to the questions put to them. There
are no ambiguities suggesting actual confusion in the language used by the jury
in their answers. The series of questions is not itself without some ambiguity,
as without a qualification such as is found in the first phrase of question
eight, they may be read as defining one problem with one solution rather than
one problem with two, inconsistent, solutions. However, it is not unreasonable
to conclude that the jurors may indeed have approached contributory negligence
as an alternative solution to that afforded by their answer on the issue of volenti.
Since no claim was made by the defendant against the plaintiff, the jury was
not concerned in answering any question with a finding of the plaintiff's
liability. It must be borne in mind that the jurors had present before them a
clearly worded question on volenti which expressly asked whether the
plaintiff had, by any conduct on his part, absolved the defendant from
liability for negligence. It would be improper, however confusing the judge's
charge might have been, for this Court to assume that the jury misunderstood
the meaning of question number three in the face of such clear wording. Questions
five through eight were surplus, given the answer to questions three and four,
and it is reasonable to conclude that the jury so understood them.
15. At the outset it was observed that the
courts accord a jury verdict rendered in civil proceedings with great
deference. With reference to a special verdict, it was said some time ago in
this Court, "We also fully agree that answers by a jury to questions
should be given the fullest possible effect, and, if it is possible to support
the same by any reasonable construction, they should be supported", per
Nesbitt J. in Jamieson v. Harris (1905), 35 S.C.R. 625, at p. 631.
Spence J. in McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, wrote at p. 314:
"Every effort must be exerted to understand and give a reasonable
construction to the jury's answers remembering that jurors `are laymen who are
not accustomed to state matters with the particularity and clarity which more
trained men might exhibit' ". See also Grinnell Co. of Canada Ltd.
v. Warren, [1937] S.C.R. 353, and Pronek v. Winnipeg, Selkirk and Lake
Winnipeg Railway Co., [1933] A.C. 61.
16. The jury's conclusion that the plaintiff
consented to bear the legal risk when he entered the car as passenger, knowing
of the defendant's state of impairment, is doubtless one that not every jury
would have reached. It does not have the character of unreasonableness,
however, that must be apparent on the face of a jury verdict before an
appellate court can upset it: Vancouver‑Fraser Park District v.
Olmstead, [1975] 2 S.C.R. 831, McCannell v. McLean, [1937] S.C.R.
341. This case is rather of the sort considered in Scotland v. Canadian
Cartridge Co. (1919), 59 S.C.R. 471, where Sir Louis Davies C.J. wrote at
p. 477:
I say
on this main and controlling issue I would as a juryman probably have found
against the plaintiff. But that is not my province. I have only to determine
whether in the conflict of evidence we have before us in this case, scientific
and practical, we find enough to justify reasonable men in reaching the
conclusion these jurymen did. After much consideration and thought I have
reached the conclusion, though not without much doubt, that there is such
evidence in the record and that I ought not, in view of the extreme
jurisdiction which juries are permitted to have over questions of fact, to set
aside their findings on mere doubts I may entertain or on my reaching on the
reading of the evidence a conclusion different from that the jury reached.
17. The paramount principle here operating is
the duty residing in the court to sustain, so long as it be reasonable to do
so, the jury's disposition of the issues without judicial intervention. The
court is concerned, of course, at all times, with providing ultimate justice
consistent with the principles of the law. Here, two routes lie open to a
reviewing tribunal but in the selection of the appropriate route the paramount
principle of support of a jury verdict governs. Despite, therefore, the
potential of the jury charge to confuse, this appeal must be dismissed. It is
not apparent from their answers to the questions put that the jury members were
in fact, when in the throes of ultimate disposition of the issue, confused, nor
is their conclusion on the vital issue of volenti so unreasonable as to
justify its reversal by an appellate court.
18. I therefore would dismiss the appeal with
costs to the respondent.
The following are the reasons delivered by
19. Wilson
J.‑‑The facts of this case and its history in the courts
below are fully dealt with in the reasons of my colleague, Estey J., and it is
not necessary for me to repeat them here. I agree that the appeal should be
dismissed but am not fully in agreement with my colleague's reasons.
20. I would respectfully support the unanimous
conclusion of the Court of Appeal for the Yukon Territory that the trial judge
properly instructed the jury in this case. I do not believe that the judge's
instruction on the defences of volenti non fit injuria and contributory
negligence misled or confused the jury. And I can see no basis on which to
conclude that the language or format of the written questions put to the
members of the jury would have caused any confusion in their minds. In my view,
the judge adequately instructed the jury on all the issues they were required
to deal with. He put clearly framed questions before them and received very
clear answers. I think their answers showed that they fully understood the
questions and I believe therefore that their answers should be treated as definitive.
21. My colleague considers that the fact that
the judge's instruction on volenti was followed by an instruction on
contributory negligence would have confused the jury and made it appear that
these defences were interrelated. In this connection it should be noted that at
the end of the part of his charge dealing with the defence of volenti
the judge stated:
Having
earlier discussed negligence, I want to turn to the allied and associated
matter of contributory negligence.
It seems to me that the jury would have understood the judge to be
saying that contributory negligence was "allied and associated" with
negligence not with volenti. The judge was quite properly dealing one
after the other with the two defences put forward by the defendant.
22. I believe that the judge's charge was
effective in bringing home to the jury the stringent nature of the volenti
defence. It conforms to the principles laid down by this Court. Indeed, it
parallels the language used by Cartwright J. (as he then was) in Lehnert v.
Stein, [1963] S.C.R. 38, at p. 43, which appears to have been consistently
followed in the courts below. I can find no error in it. The trial judge
emphasized in several places that it was not enough for the jury to find that
the plaintiff had voluntary assumed the risk of harm. They had to go on and
determine whether or not the plaintiff had agreed to absolve the defendant
either expressly or by necessary implication from any liability for negligence.
I believe this is a correct statement of the law as it currently stands. I
quote the relevant passage from the judge's charge:
The
burden is on the defendant, in each case, to prove that the plaintiff,
expressly or by necessary implication, agreed to exempt the defendant from
liability for any damage suffered by the plaintiff, occasioned by the
defendant's negligence. In every case, the question is whether the plaintiff
gave an express or implied consent to accept or assume the risk without
compensation. In other words, did the plaintiff really consent to absolve the
defendant from his common‑law duty of care, saying or implying, in
effect, "I am prepared to take the risk of your negligence and if I am
injured you will not be legally responsible for my damages." The question
is not simply whether the plaintiff knew of the risk, but whether the
circumstances were such as necessarily to lead to the conclusion that the whole
risk was intentionally incurred by the plaintiff.
23. My colleague is of the view that the trial
judge should have instructed the jury that a finding of volenti made it
unnecessary for it to answer the question concerning contributory negligence.
The difficulty with this is that if the defence of volenti were to be
rejected on appeal it would be necessary in order to avoid another trial to
have the jury's answer on the alternate defence of contributory negligence. It
seems to me to be good trial practice to have the jury deal with all the issues
at trial in case their finding on a specific issue is overturned on appeal. The
classic example is the jury's assessment of damages even although they have
made a finding of no liability.
24. I agree, of course, that the judge might
have prefaced question 5 with the words "If your answer to question 3 is
`no' ..." but his failure to do does not in my view vitiate the jury's
answer to the question. The legal effect of its answer to question 3 was
determinative of the plaintiff's claim.
25. I agree with the unanimous conclusion of
the Court of Appeal that it was open to the jury on the evidence to reach the
conclusion it did on the volens issue. That being so, the Court of
Appeal was, in my view, correct in refusing to interfere. No complaint has been
made about the charge at any stage of the proceedings; nor has counsel at any
stage alleged that the jury's answers were ambiguous or gave rise to any
uncertainty. The sole basis of the plaintiff's appeal to this Court was that
the defence of volenti is unavailable in a case involving negligence on
the highway. I agree with my colleague that this submission is without merit.
26. For these reasons I would dismiss the
appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Anton, Asquith &
Campion, Whitehorse.
Solicitors for the respondent: Boylan, Preston, Kidd
& O'Brien, Whitehorse.
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