Hartman v. Fisette, [1977] 1 SCR 248

Supreme Court of Canada

Hartman v. Fisette, [1977] 1 S.C.R. 248

Date: 1976-02-25

James Barclay Hartman, as Executor of the Last Will and Testament of Margaret Hartman, deceased (Plaintiff) Appellant;

and

Donald Peter Fisette (Defendant) Respondent.

1975: November 6; 1976: February 25.

Present: Martland, Judson, Ritchie, Dickson and Beetz JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Negligence—Motor vehicles—Statutory burden of proof—Contributory negligence—Elderly woman struck by motor cycle while crossing street between intersections at night—Liability—Damages—The Highway Traffic Act, R.S.M. 1970, c. H60, s. 144(1).

The appellant sued the respondent for damages for personal injuries which she sustained as a result of her being struck by a motor cycle operated by the respondent. The accident occurred on the night of April 24, 1970. She died on December 17, 1972, prior to the trial of the action, which was continued by her executor.

The appellant, then 81 years of age, was attempting to cross a street from west to east between intersections. At the same time a motor vehicle was approaching from the north in the southbound lane and the respondent was driving his motor cycle north in the northbound lane. A six-foot skid mark in the middle of the northbound lane identified the point of impact. Several cars were parked on the west side of the street near the scene of the accident.

The trial judge, in the light of s. 144(1) of The Highway Traffic Act, R.S.M. 1970, c. H60, held that the respondent was negligent. He also found that the appellant was negligent and assessed the degrees of negligence each at 50 per cent. He awarded special damages of $12,467.08 and $12,000 general damages which included $2,000 for pain and suffering, $5,000 for loss of amenities of life for the period between the date of the accident and the date of death, and $5,000 for loss of expectation of life. The Court of Appeal reduced the general damages to $6,000, comprising $1,000 for pain and suffering and $5,000 for both loss of amenities and loss of expectation of life.

Held (Martland J. dissenting): The appeal as to liability should be dismissed and the award of general dam-

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ages should be altered to $7,000, making a total award before apportionment of $19,467.08.

Per Judson, Ritchie, Dickson and Beetz JJ.: There was evidence upon which the trial judge could properly find that the appellant had failed to exercise due care for her own safety and thereby contributed to the accident which befell her. The appellant’s contention that the statutory onus section of The Highway Traffic Act imposes a duty on the defendant to prove that he was not negligent before he can lead evidence that the plaintiff was contributorily negligent was rejected. The further contention that if the defendant had been keeping a proper look-out and could have avoided the accident, then the principle in Davies v. Mann (1842), 10 M. & W. 546, applied and The Tortfeasors and Contributory Negligence Act, R.S.M. 1970, c. T90, had no application, was also rejected.

On the matter of damages, the Courts below erred in making any allowance for loss of expectation of life, there being no evidence to show that the accident caused or contributed to death. The Court of Appeal erred in reducing the award for pain and suffering and for loss of amenities. An award of $2,000 for pain and suffering and $5,000 for loss of amenities of life could not be said to be so inordinately high as to require variation.

Per Martland J., dissenting: The respondent failed to satisfy the onus which rested upon him to prove that the appellant was guilty of negligence contributing to the accident. There was no evidence as to where the respondent was when the appellant commenced to cross the street. It was not possible to find that the appellant was negligent in trying to cross the street in the path of the respondent’s motor cycle without having evidence on this matter.

The Court of Appeal erred in finding that the general damages awarded by the trial judge for pain and suffering and for loss of the amenities of life were inordinately high and his award in respect of those items should be restored. The evidence did not establish that the appellant’s life span had been curtailed as a result of her injuries. There should have been no award in respect of that head of damage.

[Feener v. McKenzie, [1972] S.C.R. 525; Corothers v. Slobodian, [1975] 2 S.C.R. 633; Davies v. Mann (1842), 10 M. & W. 546; Taylor v. Asody, [1975] 2 S.C.R. 414; Kolodychuk v. Squire, [1973] S.C.R. 303 Sparks and

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Fairfax v. Thompson, [1975] 1 S.C.R. 618; Lang v. Polard, [1957] S.C.R. 858, referred to]

APPEAL from a judgment of the Court of Appeal for Manitoba[1], affirming a judgment of Hamilton J. as to apportionment of liability in an action for damages for personal injuries and reducing the amount awarded to the plaintiff. Appeal dismissed as to liability and allowed in part as to damages, Martland J. dissenting.

R. Anderson and R.A. Simpson, for the plaintiff, appellant.

K.B. Foster and R.E. Stephenson, for the defendant, respondent.

MARTLAND J. (dissenting)—Margaret Hartman, hereinafter referred to as “the appellant”, sued the respondent for damages for personal injuries which she sustained as a result of her being struck by a motor cycle operated by the respondent. The accident occurred on the night of April 24, 1970. She died on December 17, 1972, prior to the trial of the action, which was continued in the name of James Barclay Hartman, her executor.

The collision occurred in the City of St. James-Assiniboia, in the Province of Manitoba, when the appellant was crossing Amherst Street, between Bruce and Ness Avenues, at a point in front of 303 Amherst Street. The respondent was driving his motor cycle north on Amherst Street. He had a passenger seated behind him. The street was well lit. Trees alongside the road gave some areas more shade than others. There were several cars parked on the west side of the street near the scene of the accident.

The respondent had no recollection of the impact. The appellant, who was examined for discovery, was unable to give her recollection of the occurrence. The passenger on the motor cycle was not called as a witness. The accident occurred to the east of the centre of the highway. There were

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skid marks on the road for a distance of six feet approximately in the centre of the northbound lane.

A young man, aged 17, was driving south on Amherst Street at the time of the accident. He was not called as a witness at the trial. At that time he was a prisoner in Fort Saskatchewan jail in Alberta. He did make a brief statement to the police constable who investigated the accident, which, by consent, was read by the constable at the trial. It is as follows:

I was southbound on Amherst Street about half way between Ness Avenue and Bruce Avenue, and I saw a light of a motor cycle coming towards me, but on his side of the street. I then saw this lady start to cross the street from east to west. I just saw the motor cycle fall. That’s all.

Contrary to this statement, the police constable, as a result of his investigation, expressed the opinion that the appellant had been proceeding from west to east across Amherst Street just before she was struck.

Section 144(1) of the Manitoba Highway Traffic Act, R.S.M. 1970, c. H60, provides:

Where loss or damage is sustained by any person by reason of a motor vehicle upon a highway the onus of proof that the loss or damage did not arise entirely or solely through the negligence or improper conduct of the owner or driver is upon the owner or driver.

Section 131(1) of that Act provides:

When a pedestrian is crossing a roadway at a point other than within a crosswalk, he shall yield the right of way to a driver.

The learned trial judge, in the light of s. 144(1), held that the respondent was negligent, and this finding is not disputed on this appeal. He also found that the appellant was negligent, giving the following reasons:

I am, however, satisfied that the deceased in proceeding to cross with motor vehicles descending upon her from

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two directions at a place that was not too well lit, and coming from behind vehicles thus limiting the opportunity of defendant to avoid colliding with her, was also guilty of negligence.

He assessed the degrees of negligence each at fifty per cent.

With respect to the appellant’s injuries he said:

Mrs. Hartman was conveyed to hospital, and she was either in hospital or a nursing home until her death on December 17, 1972. She suffered a fractured cervical vertebra and knee, but her main disability was a head injury that resulted in her being unable to recall recent events, being unable to care for herself to any extent, and certainly being unable to continue to enjoy life. The medical reports indicate that she suffered a conscious feeling of pain for no more than a month or two. A friend, Mrs. Dixon, who continued to visit weekly reported that Mrs. Hartman was unable to remember her name and was generally unaware of what was happening around her; however Mrs. Dixon made no comment that Mrs. Hartman complained of any pain at any time. Mrs. Hartman was eighty-one, almost eighty-two years of age at the time of the accident. The evidence was unclear whether she lived alone or whether she lived with someone for whom she apparently did housekeeping chores, and I have no evidence as to the cost of her maintenance and the extent of her income or assets prior to the accident. There was evidence that she was an active, hard-working woman who participated in church and legion activities, was interested in what was going on in the world and was generally enjoying life.

He assessed damages at $24,467.08 and awarded the appellant one-half of this amount; i.e., $12,233.54. Of the total amount of $24,467.08, $12,000 represented general damages; i.e., $2,000 for pain and suffering, $5,000 for loss of the amenities of life and $5,000 for loss of expectation of life.

The Court of Appeal unanimously decided that the awards for these three items were inordinately high, and substituted an award of $1,000 for pain and suffering and $5,000 to cover both loss of the amenities of life and loss of expectation of life. In the result, the general damages (before apportionment) were reduced from $12,000 to $6,000.

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On the issue of contributory negligence, the Court was divided. The majority sustained the judgment at trial. Hall J.A., dissenting, would have held the respondent solely to blame for the accident.

In the course of his reasons, Guy J.A., who delivered the majority judgment, said that:

The motorist who was approaching the motorcycle and saw it swerve in an attempt to avoid the lady, and then fall to the ground, was not called as a witness.

The statement of the motorist did not say that the motor cycle had swerved. On the contrary, the only evidence as to the movement of the motor cycle before the accident was a six-foot skid mark.

Guy J.A. went on to say:

In spite of the lack of preparation for this trial, the learned trial judge found from the evidence that was adduced before him that the accident on this residential street in St. James, at night, required the negligent, improper look-out on the part of both the pedestrian and the motorcyclist. He apportioned liability equally. In the light of the evidence that was adduced before him, I cannot say that his apportionment was wrong, and I would uphold this segment of his judgment.

Hall J.A. expressed his view as follows:

The evidence is singularly lacking from which to find or infer that she was so negligent. One can only speculate on the movements of the plaintiff in relation to the approaching motor cycle. The mere fact that she was in the street and there struck by the motor cycle is not sufficient evidence from which to infer contributory negligence. Whether the plaintiff was crossing the street from west to east, or vice versa, is open to serious question. Moreover, evidence on both sides of that issue is quite unimpressive. In all events, the movements of this elderly lady in relation to the approaching motor cycle is, with respect, pure speculation.

On the evidence, one can only conclude that the defendant failed completely to discharge the presumption of total responsibility arising from the facts themselves and the force of the statute. Any other finding is speculation or conjecture as opposed to proper legal inference.

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I am in agreement with this opinion. With respect to the application of s. 131(1), as with respect to the contributory negligence as found by the trial judge, the all important question, in determining whether the appellant failed to exercise due care for her own safety, is as to where the respondent was when she commenced to cross the street. I cannot see how it is possible to find that the appellant was negligent in trying to cross the street in the path of the respondent’s motor cycle without having evidence on this matter. There is absolutely no evidence on this point, and the onus rested upon the respondent to prove her negligence.

Accepting the finding of the trial judge that the appellant was proceeding from west to east, she had safely crossed the southbound lane, after leaving the parked cars behind her. She had walked half way across the northbound lane before she was struck. She must, then, have been visible to the oncoming motorcyclist while she walked at least twelve feet. The respondent could not recall having seen her at all. The six-foot skid marks indicate that he was practically on top of her before he applied his brake. There is no evidence that he sought to swerve to avoid her. As he was operating a motor cycle and not a car, he could have done so without difficulty had he been keeping a proper look-out.

In my opinion the respondent failed to satisfy the onus which rested upon him to prove that the appellant was guilty of negligence contributing to the accident.

On the issue of damages, in the light of the evidence as to the appellant’s injuries, it is my opinion that the Court of Appeal erred in finding that the general damages awarded by the trial judge for pain and suffering and for loss of the amenities of life were inordinately high, and I would restore his award in respect of those items. As to the award for loss of expectation of life, the appellant lived for some 32 months after the accident. Counsel for the appellant was unable to refer us to any evidence which could establish that the appellant’s life span had been curtailed as a result

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of her injuries. There should have been no award in respect of that head of damage.

In the result, I would allow the appeal and would award damages in the total amount of $19,467.08, being the amount assessed by the trial judge less the $5,000 awarded for loss of expectation of life. The appellant executor is entitled to costs in this Court and in the Courts below.

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

DICKSON J.—The motor cycle of the respondent Fisette collided with the deceased, Mrs. Margaret Hartman, at about 10.30 p.m. on the night of April 24, 1970, in front of 303 Amherst Street, in the City of Winnipeg. 303 is located on the east side of the street at about the middle of the block. Amherst Street is 24 feet in width. The accident occurred in the middle of the northbound lane, in which Fisette was proceeding. A six-foot mid-lane skid mark identified the point of impact. Mrs. Hartman had been visiting at 306 Amherst Street, on the west side of the street, earlier in the evening. She was in the habit of crossing the street at various points within the block. On this particular evening, she was attempting to cross Amherst Street from west to east between or behind one of several vehicles parked on the west side of the street. The parked cars created some obstruction to visibility. It was a very dark evening. Street lights, staggered approximately 200 feet apart, illuminated the area, but nearby trees caused shadows to be thrown across the street, and the point of impact was within one of the shadows. Mrs. Hartman was 81 years of age. She was wearing a full length grey coat, as well as a grey hat. At the time she moved to cross the street, a car driven by one Baillie was approaching from her left, and the motor cycle driven by Fisette was approaching from her right. Section 131(1) of The Highway Traffic Act, R.S.M. 1970, c. H60, requires a pedestrian crossing a roadway at a point other than within a cross-walk to yield the right of way to a driver.

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The prime question in this appeal is whether upon those facts, all of which are to be found in the evidence, the trial judge could properly find that Mrs. Hartman had failed to exercise due care for her own safety and thereby contributed to the accident which befell her.

I would answer that question in the affirmative. It is true that the state of the evidence can only be described as very unsatisfactory, but the finding of fault on the part of Mrs. Hartman rests on more than mere speculation or conjecture. Due to injuries, which each sustained, neither Mrs. Hartman nor Fisette had any recollection of the accident. Miss Gail Sproule, who had been riding with Fisette on the motor cycle at the time of the mishap, was in Greece when the case came on for trial, and was not available as a witness. Baillie, the driver of the motor vehicle, was incarcerated in Fort Saskatchewan penitentiary at the time and did not testify. By agreement of counsel, a statement which he had given to the police was admitted in evidence. It reads:

I was southbound on Amherst Street about half way between Ness Avenue and Bruce Avenue, and I saw a light of a motor cycle coming towards me, but on his side of the street. I then saw this lady start to cross the street from east to west. I just saw the motor cycle fall. That’s all.

The significance of this statement lies, I think, in the words “…I saw a light of a motor cycle coming towards me… I then saw this lady start to cross the street…”. It is true that Baillie speaks of the lady crossing from east to west, whereas investigation by the police officers led them to conclude she was crossing from west to east. The dissenting judge in the Court of Appeal, Hall J.A., relied upon this conflict in concluding that the movements of Mrs. Hartman in relation to the approaching motor cycle were pure speculation. I do not think it matters greatly, or in any way affects the outcome, whether Mrs. Hartman was crossing from west to east or from east to west for it cannot be disputed that at night she stepped onto the roadway between intersections at a time when a motor vehicle was approaching from one direction, and the motor cycle from another, and she was under a

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duty to yield the right of way to the driver of each of these vehicles. There was evidence upon which the trial judge could rely in finding contributory negligence on the part of Mrs. Hartman. A majority of the judges in the Manitoba Court of Appeal who heard the appeal agreed. Guy J.A., who delivered the majority judgment made the statement, unsupported by the evidence, that the defendant Fisette had swerved his motor cycle, but this inadvertence does little, if anything, to invalidate the concurrent finding of negligence on the part of Mrs. Hartman.

Counsel for Mrs. Hartman contended that the statutory onus section of The Highway Traffic Act of Manitoba, s. 144(1), imposes a duty on the defendant to prove that he was not negligent before he can lead evidence that the plaintiff was contributorily negligent. Thus, the trial judge was in error in finding the plaintiff contributorily negligent before the defendant had proved that he, the defendant, was not negligent. Counsel is in error in so interpreting s. 144(1), for according to the proposed test, a defendant would never be able to escape total liability for an accident unless he could totally absolve himself from fault and thus satisfy the onus. He would never be able to prove the plaintiff contributorily negligent and thus show that he was not “entirely or solely” responsible for the accident.

The correct view of s. 144(1) of The Highway Traffic Act is found in a judgment by Ritchie J. in Feener v. McKenzie[2]. While Ritchie J. was in dissent as to the result of the case (i.e. whether the trial jury was misdirected as to the onus of proof), his explanation of s. 221(1)(b) of the Motor Vehicle Act of Nova Scotia, phrased in the same way as the Manitoba statute, is clear and helpful to the case here. At pp. 537-8, he notes that the “pre-

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sumption… 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”. Pigeon J. expressed the view in Corothers v. Slobodian[3], at p. 658, that Ritchie J.’s interpretation of the effect of s. 221(b) was consistent with that of the majority. The effect of the shift in onus in sections such as s. 144(1) is not felt until the end of a case. Then if a defendant has failed to prove lack of negligence on his part, in whole or in part, on a balance of probabilities, the Court will find him liable. The purpose of the statute is to leave the burden of “disproof” on the defendant throughout the trial. There is no conflict with the purpose of the statute if the defendant proves he was not “entirely or solely responsible” by showing that the plaintiff was partly responsible.

Counsel for the appellant also contended that if the defendant had been keeping a proper look-out and could have avoided the accident, then the principle in Davies v. Mann[4] applied and The Tortfeasors and Contributory Negligence Act, R.S.M. 1970, c. T90 had no application. If the so-called last opportunity or last-clear-chance doctrine, said to derive from Davies v. Mann, can be said to have survived the passage of the Contributory Negligence Acts, as to which I harbour gravest doubt, having regard to the apparent intent of provisions such as contained in s. 4(1) of the Manitoba Act, I do not think the doctrine can have the remotest application on the facts of this case.

I do not think we find here such palpable and demonstrable error on the part of the trial judge in appreciation of the legal principles to be applied or apprehension of the facts as to warrant an appeal

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court in substituting its apportionment of fault for that made by the trial judge. See Taylor v. Asody[5]; Kolodychuk v. Squire[6]; Sparks and Fairfax v. Thompson[7].

I would dismiss the appeal as to liability.

On the matter of damages, the trial judge awarded special damages of $12,467.08 and $12,000 general damages which included $2,000 for pain and suffering, $5,000 for loss of amenities of life for the period between the accident, April 24, 1970, and death, December 12, 1972, and $5,000 for loss of expectation of life. The Court of Appeal reduced the general damages to $6,000, comprising $1,000 for pain and suffering and $5,000 for both loss of amenities and loss of expectation of life. With respect, I am of the opinion (i) that the trial judge and the Court of Appeal erred in making any allowance for loss of expectation of life, there being no evidence to show that the accident caused or contributed to death and (ii) that the Court of Appeal erred in reducing the award for pain and suffering and for loss of amenities. Although Kerwin C.J. in Lang v. Pollard[8] held that this Court should not, except in very exceptional circumstances, interfere with the amounts fixed by the Court of Appeal where they differ from the damages assessed by the trial judge, it seems to me that an award of $2,000 for pain and suffering and $5,000 for loss of amenities of life cannot be said to be so inordinately high as to require variation. Counsel for the respondent acknowledged that the award of $5,000 for loss of amenities made by the Court of Appeal should not be reduced even though the element of loss of life expectancy be extracted. We are therefore only concerned with whether the Court of Appeal should have reduced the award for pain and suffering from $2,000 to $1,000. Mrs. Hartman was a very active woman prior to the accident and incapacitated thereafter. As a result of the accident, she was critically ill from multiple injuries. She suffered a fracture of her second cervical spine and fracture of the knee joint and tibia. She

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sustained a head injury which resulted in a collection of blood and fluid beneath the outer covering of the brain, necessitating an operation on her head. Respiratory difficulty had to be alleviated by a tracheostomy. Dr. Dwight Parkinson, neurosurgeon, stated that Mrs. Hartman would have been aware of pain and discomfort. Dr. Peter Berbrayer said that Mrs. Hartman could feel pain following the accident. A note made by him in the early morning of April 25, 1970, recorded that her neck was painful. I should have thought that if it could be said there was error in the amount of the award made by the trial judge for pain and suffering and for loss of amenities of life, the error lay in the modest amounts awarded.

I would dismiss the appeal but alter the award of general damages to $7,000, making a total award before apportionment of $19,467.08.

The denial of an award for loss of expectation of life resulted from a question put by my brother Martland during argument and not from any submission of counsel for the respondent. In this Court, the award for pain and suffering has been restored to $2,000. In these circumstances, it would seem appropriate to direct that there be no costs to either party in this Court.

Appeal dismissed as to liability and allowed in part as to damages, MARTLAND J. dissenting.

Solicitors for the plaintiff, appellant: D’Arcy & Deacon, Winnipeg.

Solicitors for the defendant, respondent: Aikins, MacAuley & Thorvaldson, Winnipeg.