Silburn v. Antagon Construction Co. Ltd., [1977] 2 SCR 271

Supreme Court of Canada

Silburn v. Antagon Construction Co. Ltd., [1977] 2 S.C.R. 271

Date: 1976-05-05

William Thomas Silburn Appellant;

and

Antagon Construction Company Ltd. Respondent.

1976: March 12; 1976: May 5.

Present: Judson, Spence, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Motor vehicles—Road works—Motorist hitting a pile of gravel on the road—Divided responsibility—Quantum—Intervention of the Court of Appeal justified.

On May 9, 1967, at around 11:25 p.m., appellant was driving his car east on Henri Bourassa Boulevard, in Montreal, when he hit a pile of gravel that was blocking one of the three lanes of traffic. The pile of gravel had been left there by respondent, which was doing work on the road. There were two barricades marking the presence of the obstacle, but according to the preponderance of the evidence, there were no flashers. It was raining that evening, but the area was well lit. Appellant was injured in the accident, and the Superior Court, finding respondent solely responsible, ordered it to pay $96,208 in damages. The majority of the Court of Appeal (the dissenting judge considered that appellant alone was at fault and would have dismissed the action) varied the judgment of the Superior Court by dividing the responsibility equally and reducing the damages to $71,208. Hence the application to this Court to restore the trial judgment.

Held: The appeal should be dismissed.

The question in this case is not whether there was an error of fact on the part of the trial judge, but rather whether the conclusion he drew from proven facts is erroneous. The Court of Appeal decided that it was, and this Court considers its intervention justified. It is impossible to accept the criterion of foreseeability referred to by the trial judge, and on the basis of which he concluded that appellant would have been partially at fault if, instead of colliding with a pile of gravel, he had hit a parked car. The criterion of the reasonable man is valid in both situations.

The reduction of the damages by the Court of Appeal from $70,000 to $45,000 seems equally justified, in light of the principles recognized by this Court. The conclusion of the trial judge is based on a misreading of the testimony, especially when he considered appellant to be

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an active pilot whose career had been brought to an end by the accident, whereas aviation had not been appellant’s chief livelihood for the previous four years. This Court agrees with the Court of Appeal that the evidence that this situation was to change in the near future is not at all convincing. Moreover, the sum of $70,000 as general damages resulting from the loss of an eye which the Superior Court had awarded exceeds considerably the amount generally awarded by the courts at the time, taking into consideration appellant’s age and income. The Court of Appeal was justified in reducing the damages under this head by $25,000.

Dorval v. Bouvier, [1968] S.C.R. 288; Hood v. Hood, [1972] S.C.R. 244; Alexandroff v. R., [1970] S.C.R. 753; Watt v. Smith, [1968] S.C.R. 177; Fanjoy v. Keller, [1974] S.C.R. 315, referred to.

APPEAL from a decision of the Court of Appeal of Quebec[1], varying a judgment of the Superior Court[2]. Appeal dismissed.

J. Gibb Stewart, Q.C., for the appellant.

Guy Pépin, for the respondent.

The judgment of the Court was delivered by

DE GRANDPRÉ J.—Appellant was injured on May 9, 1967, at around 11:25 p.m. when the car he was driving on Henri Bourassa Boulevard, in Montreal, hit a pile of gravel that had been left on the road by respondent, with the result that appellant lost control of his car, which continued for 300 feet before colliding with a pole.

In the Superior Court, respondent was ordered to pay all damages, which were assessed at $96,208. On appeal this judgment was varied, the majority being of the opinion

(a) that responsibility should be divided equally between the parties;

(b) that the damages should be reduced to the sum of $71,208;

Casey J. dissenting, would have dismissed the action, since in his view appellant “was the author of his own misfortune”. This brings us to the present appeal, which raises both the issue of responsibility and the issue of damages.

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The accident occurred immediately to the east of Lacordaire Boulevard. At this point Henri‑Bourassa Boulevard consists of six lanes divided by a cental concrete median. Along this median, every 105 feet, there are modern street lamps. Appellant was driving east at a speed of between thirty and thirty-five miles an hour in the traffic lane alongside the central median. It is this lane which was blocked by the pile of gravel; the other two lanes, comprising a total width of twenty-two feet, were free of any obstruction. The evidence disclosed that, before coming into contact with the pile of gravel, appellant’s car hit two barricades which had been placed there by respondent’s employees. Although the latter also state that they marked the presence of the gravel with flashers, this evidence was rejected by the trial judge and by Deschênes J. in the Court of Appeal, and I shall examine the question of responsibility on the basis of this established fact.

It should be added that it was raining that evening and that the road was wet, with the result that the surface was glistening, reducing visibility. However, appellant admitted in his testimony that visibility “was no big problem”. Nevertheless, appellant saw nothing before the impact, neither the barricade nor the gravel.

On these facts the trial judge concluded that respondent was solely responsible, saying that the driver could not be held at fault since it had been a rainy evening with poor visibility. The learned judge added that if appellant had collided with a parked car he would have found him partially at fault, because the presence of such a car was foreseeable.

The Court of Appeal did not come to the same conclusion. I have already mentioned that Casey J., dissenting, would have simply dismissed the action. Rinfret and Deschênes JJ. reached the conclusion that appellant must bear half the blame. Rinfret J. held that appellant was negligent in not seeing the pile of gravel notwithstanding the flashers put out by respondent’s employees, the lamps in the middle of the boulevard and the general illumination from a gas station located at the southeast corner of the intersection. Deschênes

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J. for his part did not think that the evidence pointed to the existence of flashers operating in the few minutes preceding the accident. I have already said that it is preferable to examine the question of responsibility on the basis of this premise. However, in view of appellant’s admission that the visibility was not too bad, and in view of the existence of various sources of light which would certainly have enabled plaintiff-appellant to see the obstacle if he had been driving his car attentively, Deschênes J. also concluded that the driver was partially responsible. He stated that:

[TRANSLATION] This is no longer a question of fact, but a question of the conclusion that must he drawn from the proven facts.

With all due respect to the trial judge, after carefully considering all the evidence I am unable to accept his conclusion that the entire responsibility for this accident should be borne by appellant. In my opinion respondent was in a situation in which he should normally have reacted to the obstacle, and his lack of any response even in extremis forces me to conclude that he was certainly not paying as much attention as a careful driver would to the handling of his car.

Was the Court of Appeal justified in intervening? In other words, is this a situation in which the conclusion of the trial judge is sufficiently erroneous that it should be set aside? The criteria are well known, and it is sufficient to refer as a reminder to Dorval v. Bouvier[3], and to the review of the case law made by Laskin J., as he then was, in Hood v. Hood[4], at p. 251.

In my opinion the Court of Appeal was justified in varying the trial judgment. Certainly there can be no doubt as to the fault of respondent, and there is no cross-appeal before the Court. However, the fault of the appellant-driver seems to me equally clear (Alexandroff v. the Queen[5]). I cannot accept the criterion of foreseeability which the trial judge relied on and conclude with him that appellant would have been partially at fault, if

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instead of colliding with a pile of gravel he had hit a parked car. Both cases involve the same conduct on the part of appellant. The criterion of the reasonable man is valid in both situations.

There remains the question of damages. The Court of Appeal reduced from $70,000 to $45,000 the general damages for twenty-five per cent permanent partial incapacity and the resultant loss of enjoyment of life. In light of the relevant principles I am in agreement. In contrast with the situations in Watt v. Smith[6] and Fanjoy v. Keller[7], the circumstances in the case at bar justified the intervention of the Court of Appeal.

At the time of the accident, appellant had a total income of $11,000. The trial judge, giving plaintiff’s evidence a positive character it did not have, came to the conclusion that the permanent incapacity should be calculated on the basis of an earning capacity of $15,000 a year. This conclusion is based on a misreading of the testimony. The trial judge’s error, as Deschênes J. points out, lies in the fact that he viewed the matter as if appellant were an active pilot and calculated the damages as if the accident had put an end to his career. For the previous four weeks aviation had not been appellant’s chief livelihood; he merely earned approximately $2,000 a year as a military reserve pilot. In order to establish that this situation was to change in the near future, appellant presented the testimony of a Mr. George, the president of a construction company with sites in several places in Canada. Deschênes J. analysed this testimony and pointed out that at the time of the accident, only preliminary conversations had taken place, and at the time the trial, at the end of 1970, the witness George had not yet hired a permanent pilot. I share the opinion of Deschênes J. that nothing could be less convincing than the evidence concerning this employment possibility.

There are two other points that should be made. The first is an error in calculation: having decided

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on an earning capacity of $15,000 a year and a permanent incapacity of twenty-five per cent, the trial judge determined the compensation on the basis of a loss of at least $4,000 a year. Moreover, the figure of $70,000 as general damages resulting from the loss of an eye exceeds considerably the amount generally awarded by the courts at the time, taking into consideration the injured person’s age (thirty-four at the time of the accident) and income. Like the Court of Appeal therefore, we must conclude that the amounts decided upon by the trial judge should be reduced by $25,000.

For these reasons I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Stewart, McKenna, Gagné, Kisilenko & Kohl, Montreal.

Solicitors for the respondent: Pépin & Barrette, Montreal.