Dube v. Labar

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.

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.

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.

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.

Was there negligence on the part of the Plaintiff Gregory Dube which caused or contributed to the damage suffered by him?

Answer: Yes.

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.

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%

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

I therefore would dismiss the appeal with costs to the respondent.

The following are the reasons delivered by

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.

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.

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.

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.

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.

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.

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.

For these reasons I would dismiss the appeal with costs.