Judgment of the Court — DICKSON J.
The judgment of the Court was delivered by
DICKSON J.—On April 8, 1976 Teresa Taylor and a friend were taking a ski lesson from Paul Ankenman on the slopes of Gibson Pass, in Manning Park, British Columbia when Larry LaCasse came over the crest of a knoll and accidentally collided with her, causing her grievous injuries. Through her parents she sued LaCasse for skiing out of control, Ankenman for negligence in conducting the ski lesson, Jaegli Enterprises as Ankenman's employer, and other defendants as occupiers and operators of the ski hill for negligence
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in permitting a danger or trap to exist where Teresa was injured. At the end of a nine-day trial Mr. Justice Meredith, the presiding judge, delivered a judgment in which he very carefully considered all of the evidence and concluded that the accident had been caused solely by Larry LaCasse and that the plaintiffs should recover damages, in an amount to be assessed, against LaCasse. The claims against Paul Ankenman, Jaegli Enterprises Limited and the other defendants were dismissed with costs. LaCasse appealed but abandoned his appeal. The plaintiffs appealed the dismissal of the action against the other defendants. The appeal was allowed (Seaton and MacDonald JJ.A., Craig J.A. dissenting) against Paul Ankenman and Jaegli Enterprises Limited and liability apportioned against them jointly and severally to the extent of twenty per cent. The appeal against the other defendants was dismissed. The present appeal is brought, with leave of this Court, by Jaegli Enterprises Limited and Paul Ankenman from the order of the Court of Appeal for British Columbia.
We are all of the opinion that the appeal should be allowed. We would adopt the reasons of Mr. Justice Craig on appeal. Mr. Justice Craig referred to several judgments of this Court including Schreiber Brothers Limited v. Currie Products Limited and Gulf Oil Canada Limited[2] (pronounced March 27, 1980) and Stein v. "Kathy K."[3] (to which might now be added Lewis v. Todd[4] for the proposition that it is wrong for an appellate court to set aside a trial judgment where there is not palpable and overriding error, and the only point at issue is the interpretation of the evidence as a whole. Mr. Justice Craig concluded:
Although I do not necessarily subscribe to everything the trial Judge said in this case, I am, having regard to these statements of authority, unable to say that the trial Judge was plainly wrong in finding as a fact that the respondent Ankenman was not negligent.
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We agree.
The appeal should be allowed. The judgment of the Court of Appeal for British Columbia should be set aside in so far as it apportions liability to the respondent Paul Ankenman and through him, to his employer, Jaegli Enterprises Limited. The judgment at trial should be restored. In the circumstances of the case there should be no costs to any party in this Court or in the Court of Appeal.
Appeal allowed.
Solicitors for the appellant Jaegli Enterprises Limited: Guild, Yale & Co., Vancouver.
Solicitors for the appellant Paul Ankenman: Harper, Grey & Co., Vancouver.
Solicitors for the respondents Teresa Taylor, by her guardian ad litem Jim Taylor and the said Jim Taylor, and Deborah Taylor: Lawrence & Shaw, Vancouver.
Solicitors for the defendants at trial Her Majesty The Queen in right of the Province of British Columbia, The Honourable the Minister of the Department of Recreation and Travel Industry, Grace McCarthy, and Herb Green: Ladner, Downs, Vancouver.
[1] (1980), 112 D.L.R. (3d) 297.
[2] [1980] 2 S.C.R. 78.
[3] [1976] 2 S.C.R. 802.
[4] [1980] 2 S.C.R. 694; (1980), 115 D.L.R. (3d) 257.
Footnotes
- [1] (1980), 112 D.L.R. (3d) 297.
- [2] [1980] 2 S.C.R. 78.
- [3] [1976] 2 S.C.R. 802.
- [4] [1980] 2 S.C.R. 694; (1980), 115 D.L.R. (3d) 257.