Gray v. Cotic

MCINTYRE J.—The appellant is the administrator ad litem of the estate of one Jose Izquierdo, deceased, and the respondent is the administratrix of the estate of Nediljko Cotic, deceased. On August 10, 1975 an automobile accident occurred in Toronto involving a vehicle driven by Izquierdo and one driven by Cotic. The accident was caused wholly by the negligence of Izquierdo, who was killed in the collision along with his young son. Cotic, his wife and two children also suffered injuries in the accident and brought proceedings against the appellant in respect thereof, which were settled out of court. Prior to the accident, Cotic had a history of mental problems. His mental condition deteriorated after the accident, allegedly due, in part at least, to feelings of guilt over the death of Izquierdo and his son. On December 15, 1976, some sixteen months after the car accident, Cotic committed suicide by hanging himself. As a result, the respondent brought action against the appellant for damages under The Fatal Accidents Act, R.S.O. 1970, c. 164, alleging that Cotic’s suicide was caused by the accident for which Izquierdo was wholly liable.

Before trial, which was with judge and jury, counsel for the parties agreed upon the following matters with the approval of the trial judge:

The jury answered the question in the affirmative and judgment was given for the respondent in the amount of $76,000 and costs, with further directions for the apportionment of the funds between the respondent and two infant children of the deceased Cotic which need not concern us here.

The defendant appealed to the Ontario Court of Appeal (Lacourcière, Weatherston and Wilson JJ.A.) arguing that the trial judge had failed to instruct the jury on the issue of the foreseeability of suicide arising from the accident. The issue before the Court of Appeal involved reconciling the apparent conflict between the principle of foreseeability of damage, as enunciated in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (Wagon Mound No. 1), [1961] A.C. 388, and the so-called “thin skull” doctrine that a tortfeasor must take his victim as he finds him. The Court of Appeal majority (per Lacourcière J.A.) found no such conflict and held that the trial judge properly charged the jury. Wilson J.A. (as she then was) agreed in the result that the appeal should be dismissed, but held that in a thin skull case the principle of foreseeability of damages had no application.

The same arguments were advanced by the appellant in this Court as were argued in the Court of Appeal. Counsel for the respondent agreed that the issue in the Court of Appeal involved an interesting question of law but maintained that it was not properly before the Court in the circumstances of this case. The respondent submitted that in return for the respondent’s agreement to reduce the damage claim from $250,000 to $76,000. the parties had agreed before trial that the only question to be decided by the jury was the issue of causation and that all other issues, including that of foreseeability of damage, were subsumed in that question and had been decided in the respondent's favour in the formation and acceptance of the question.

The wording of the question put to the jury and the conduct of the trial proceedings supports the respondent's contention. The record shows that counsel for both parties directed their examination of witnesses and their presentation of evidence at trial to the issue of causation, referring repeatedly to the actual wording of the agreed question to be put to the jury. The trial judge also was concerned with the issue of causation in his charge to the jury and stressed the importance of the narrowly limited question to be answered by them. At trial there were a number of expert witnesses. who gave their opinion as to whether or not the motor vehicle accident "caused or contributed to the death of Ned Cotic". There \Vas ample evidence before the jury wh.ich, if accepted by them (as it clearly was), could enable them to reach an answer to the question in favour of the respondent.

The question of foreseeability of suicide in these circumstances, in my opinion, was answered in favour of the respondent by the very form of the question put to the jury. The limited range of the question makes it clear that the question of foreseeability of suicide was agreed upon by the parties before the trial commenced and the only 1natter left open was that of causation. The parties contested the trial on this basis and it would be improper, in my view, to open a new issue at this time.

I agree with the submission to this effect made by counsel for the respondent and I would dismiss the appeal with costs.