Stewart J.
The judgment of Hall and Spence JJ. was delivered by
HALL J.
HALL J.—This is an appeal from the Court of Appeal for Ontario which allowed an appeal by the respondents against a judgment of Stewart J. who had maintained the appellant’s action against the respondents and awarded him damages in the sum of $65,401.88. In these reasons Antici Construction Company Limited will be referred to as “Antici”, Her Majesty the Queen, in right of the Province of Ontario represented by the Minister of Highways for the Province of Ontario as “the Province” and The Corporation of the City of St. Catharines as “the City”.
The action arose out of an automobile accident which occurred when the appellant drove his automobile into a mound of sand and gravel in the centre of Westchester Avenue in the City of St. Catharines on October 1, 1964, as a result of which he sustained severe injuries.
Westchester Avenue was being incorporated into proposed Highway No. 406 in the City. On July 16, 1962, the Province entered into an agreement with the City whereby the Province agreed to establish the location of and the design of a new highway and would construct and thereafter maintain it. St. Catharines had not actually conveyed the lands required for the highway to Her Majesty at the time of the accident but the Province had entered into possession of the lands.
On February 4, 1963, the Province entered into a contract with the respondent Antici for 3.6 miles of grading, drainage, granular base, hot mix paving and structures on King’s Highway No. 406 from St. Davids Road (Townline Road) to Westchester Avenue including Geneva St. Ramps and Approaches, Townline Road Underpass, Glenvale Avenue Overpass, Chestnut Street Pedestrian Underpass and Westchester Avenue Underpass in Hamilton District together with such
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other works as were included in the specifications. That contract contained many provisions, including the following:
The Contractor, his agents and all workmen and persons employed by him, or under his control including Sub-Contractors, shall use due care that no persons or property is injured and that no rights are infringed in the prosecution of the work, and the Contractor shall be solely responsible for all damages, by whomsoever claimable in respect of any injury to persons or to lands, buildings, structures, fences, livestock, trees, crops, roads, ways, ditches, drains and watercourses, whether natural or artificial, or property of whatever description and in respect of any infringement of any right, privilege or easement whatever occasioned in the carrying on of the work or any part thereof, or ever occasioned in the carrying on of the work or any part thereof, or by any neglect, misfeasance or nonfeasance on the Contractor’s part or on the part of any of his agents, workmen or persons employed by him or under his control, including Sub-Contractors, and shall at his own expense, make such temporary provisions as may be necessary to ensure the voidance of any such damage, injury or infringement and to prevent the interruption of or danger or menace to the traffic on any railway or any public or private road, and to secure to all persons and corporations the uninterrupted enjoyment of all their rights, and in and during the performance of the said work; and the Contractor shall indemnify and save harmless the Department from and against all claims, demands, loss, costs, damages, actions, suits or other proceedings by whomsoever made, brought or prosecuted in any manner based upon, occasioned by, or attributable to any such damage, injury or infringement.
(Emphasis added.)
* * *
The Contractor shall at all times, provide for the safe passage and control of traffic by the adequate use of notices, flags, lights and flagmen, throughout the entire length of the work and he shall place, maintain, change and remove reflectorized signs in accordance with the written directions of the Engineer. The Contractor may obtain such signs free of cost from the Department on his application to the Engineer.
* * *
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If at any time, the Contractor fails to provide for the safe passage and control of traffic on any existing road or detour for which, under these General Conditions, he is responsible, and if the Contractor fails to correct such an unsatisfactory condition within 24 hours of being so directed in writing, the Engineer shall immediately proceed to maintain the project and the Department may deduct the cost and expense of such maintenance from any monies due or to become due to the Contractor on any account, but in any event the Contractor remains responsible under the said requirements.
The agreement between the Province and the City contained, amongst others, the following clauses:
WHEREAS the parties have agreed upon the construction of a controlled-access highway as part of the King’s Highway (hereinafter called “Highway 406”) within the limits of the boundaries of the City of St. Catharines (hereinafter called “the City”), the approximate location of which is shown marked in red on the plan attached hereto and marked “Schedule A” to this Memorandum of Agreement:
Now THEREFORE THIS AGREEMENT WITNESSES that pursuant to Sections 24 and 27 of The Highway Improvement Act R.S.O. 1960, Chapter 171, and in consideration of the mutual covenants and obligations herein contained the Parties hereto agree as follows:—
1. Subject as hereinafter provided the Minister will, at his sole cost and expense and without undue delay:—
(a) establish the location of, design, construct and thereafter maintain Highway 406 within the present limits of the City;
(b) purchase or otherwise acquire and pay due compensation therefor to the owners thereof, sufficient land on which to construct that portion of Highway 406 lying between the existing southerly limit of the City and the former southerly limit thereof as it existed on December 31st, 1960.
2. The Minister will indemnify and save harmless the Corporation from all loss, expense and liability of whatsoever nature and kind in any manner arising out of the exercise by the Minister of his powers pursuant to paragraph 1.
(Emphasis added.)
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The City took third party proceedings against the Province claiming to be indemnified against the Province pursuant to the terms of the agreement between the City and the Province dated July 16, 1962, and against Antici under s. 450 of The Municipal Act, R.S.O. 1960, c. 249. The Province also took third party proceedings and claimed indemnity from Antici in the event that the appellant and the City should recover judgment against the Province. Stewart J. in his judgment held that the Province and the City should both be indemnified by Antici and should have their costs against Antici for the costs incurred by them in the action and in the third party proceedings on a solicitor and client basis.
On and for some days prior to October 1, 1964, Antici was excavating a manhole in the centre of Westchester Avenue at the west end of Highway No. 406 overpass as part of the works it contracted to do under its agreement with the Province, and in connection with that operation had placed in the centre of Westchester Avenue a large mound of sand and gravel some 25 feet in width and 5 feet in height. This mound was substantially the same colour as the pavement. The mound of earth so placed left a passage for traffic 12 feet in width on both sides. There were wooden barricades running east and west on both sides of the mound but no barricade at the east end. Antici had placed one amber flasher at the northeast corner of the mound and that was the only sign or flasher indicating the presence, extent, height or width of the mound. As stated there was no barricade nor red lanterns or checkerboard or other signs in the area of the mound. Some 235 feet to the east on the north shoulder of the road was a sign which read: “Road Under Construction Ahead”. This was a large sign plainly visible to westbound traffic. About midway between that sign and the mound was a smaller sign containing the word “Slow” on a tripod at the edge of the sidewalk on the north side of the street. There were two other signs further east. The mound in question had been there for at least 24 hours.
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At about half-past four o’clock in the morning of October 1, 1964, the appellant, who was a physician with a large and prosperous practice in the City of St. Catharines, left the St. Catharines Hospital where he had been called professionally and proceeded to return to his home, and in so doing drove along Westchester Avenue in a westerly direction and across the Highway 406 overpass. He was travelling at a minimum of 30 miles an hour and there was no other traffic on the street in the immediate vicinity. He says he did not notice any of the warning signs, the most easterly of which said: “Road Under Construction Ahead”, the second “Caution Road Under Construction For One Mile” and the third previously mentioned which was about midway across the overpass, nor did he recall seeing the small “Slow” sign. He says he saw the yellow flashing light when he was about 300 feet away. He had been aware for some time prior to October 1st that the highway in this area was being repaired. He was travelling at about the centre of the road and intended passing the amber flasher light on the left as it appeared to him that there was ample room to do so to the left whereas the area to the right was much narrower. He did not appreciate that the amber flasher was at the extreme right or north corner of the mound or that there was in fact a mound there at all. He said that he “just slid into the mound” but there were brake marks of about 30 feet to the rear of his automobile, indicating that he had made a last minute effort to stop. The automobile ran up the mound, stopping with the rear wheels at the east end of the mound and the front wheels on the top of it. When the automobile struck the mound and ran up it there was very little damage done to the vehicle but the appellant flew forward and hit his head against the visor. His back also curved and he suffered a compression fracture of the first vertebra of the lumbar region. He felt pain at the time, but immediately after the accident did not seem to be in any great distress.
There was considerable evidence as to the degree of warning which a flasher light of the
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kind which had been provided here would give an oncoming motorist of an object or mound behind the flashing sign.
The learned trial judge found as a fact that the mound was inadequately marked and that respondents were negligent in failing to place adequate or sufficient warning signs or lights whereby users of the highway would have reasonable knowledge of the existence of a mound such as was present in this case. He also found that using a flasher which, according to the evidence would prevent anyone being able to see behind it, as the flasher used in this instance did, constituted a kind of trap and he came to the conclusion that there was actionable negligence on the part of Antici and on the part of the City and the Province for the maintenance of an improperly lighted nuisance or trap in the centre of Westchester Avenue at the time and place in question.
He also found that the appellant was negligent in that he failed to keep a proper look-out and failed to keep his motor vehicle under proper control. He apportioned responsibility 50 per cent to the appellant and 50 per cent to the respondents.
The position of Antici and of the other respondents was that this was a case for the application of the ultimate negligence doctrine. They argued that even if there was negligence on their part that the appellant could, by the exercise of reasonable care for his own safety, have avoided the consequences of their negligence and they relied on Davies v. Marin[5], at p. 549 and similar cases. I do not consider that this is a case for the application of the ultimate negligence doctrine. The negligence of the respondents in maintaining a nuisance, or as the learned trial judge found, a trap in the centre of Westchester Avenue inadequately lighted or protected continued right up until the moment of the accident. I am unable to see that in choosing to go to the left rather than to the right of the flasher sign that the appellant was negligent in so doing. The flasher sign appeared to indicate a passage to either side. There is no question in my mind that
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the appellant was negligent as found by the learned trial judge, but I am unable to accept the view taken by Aylesworth J.A. in the Court of Appeal and concurred in by Kelly and Evans JJ.A. that the appellant’s own conduct was the sole cause of his misfortune and that he is not entitled to recover for his unfortunate injuries. In my view the findings of negligence made by the learned trial judge against the respondents are fully supported by the evidence.
Having so found for the appellant, Stewart J. assessed damages under four headings as follows:
1.
Out-of-pocket expenses.................................................................................
$ 5,803.75
2.
Loss of income................................................................................................
50,000.00
3.
General damages...........................................................................................
50,000.00
4.
Loss in respect of Rhomerol Company........................................................
25,000.00
Total.................................................................................................................
$130,803.75
Although the Court of Appeal dismissed the appellant’s action, it dealt with the question of damages. The item $5,803.75 was not in dispute in the Court of Appeal or in this Court nor was the second item, $50,000 for loss of income. The third and fourth items were contested. In regard to Item No. 4, $25,000 for loss in respect of the Rhomerol Company, the Court of Appeal disallowed that item entirely, and in this Court counsel for appellant conceded that the Court of Appeal was right in disallowing the item. The only item of damages dealt with in this Court was the award of $50,000 for general damages. The Court of Appeal reduced that award to $25,000. The appellant asks that the amount fixed by the learned trial judge for general damages be restored.
In assessing appellant’s general damages, Stewart J. said:
I turn now to the question of damages. When his car struck the sand pile and ran up it there was
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actually very little damage done to the vehicle but he flew forward and hit his head against the visor, his back also curved and suffered a compression fracture of the first vertebra of the lumbar regions. He had pain in his neck, low back pain, pain in his chest but immediately after the accident did not seem to be in any great distress. He was driven to the police station by a car which came upon the scene shortly after the accident had occurred, was driven back again to the scene of the accident and ultimately taken to the hospital. The plaintiff says that he suffered terrible pain in his back and neck while in the hospital for eight weeks after the accident. He was then, and is still, in a brace. He also began to feel very depressed and still has fits of depression. He seemed to be recovering up to June 1965 when he was working three or four hours a day but suddenly he would find that he was unable to bend and had some difficulty with his knee. In July he was worse and was advised “to get away from it all”. He therefore took a two months’ holiday in Hawaii and after six weeks had improved considerably although his back still hurt. His knee, however, was much better. In October 1965 he returned to work but gave up obstetrics. He did his best to develop his practice in ways that would involve less strain and in this he was highly successful. During 1966 when he was too tired he would stop work and took rather more frequent holidays than usual and various courses in medicine. He still had headaches but they were fewer in frequency and in density, while his neck would bother him particularly at night. His back was painful and he was unable to sit for very long and had difficulty in climbing stairs. He developed pains in his hips which he attributes to the accident and suffered loss of libido and sexual ability for which he says the accident is to blame. This apparently started when he was in the hospital and remained a disturbing factor. Previously his sexual activity was normal and satisfying. He would suddenly have outbursts of fatigue which would last for a week or so and he was of opinion that there was a 35 to 45 per cent reduction in his capacity to work.
During 1967 he still suffered fatigue and pain in his back, neck and leg. He is of opinion that there was a decrease in his practice of surgery of about 50 per cent, in obstetrics of 100 per cent, and general
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medical practice of 25 per cent. I find it curious however to note that there is not as much loss as one would expect. This may be attributable to the doctor’s ingenuity in finding work which his condition makes tolerable.
There was a pre-existing deterioration in two discs and also a pre-existing arthritis which would account for part of the pain in his back, which I have considered in assessing the plaintiff’s damages. I was impressed with Mrs. Cartwright who has been his nurse-secretary for twelve years. She gave a vivid description of his former very active business life and said that he now did very little night work and frequently would cancel appointments, reducing the number of patients seen from 20 to 30 daily as opposed to formerly approximately 60 a day. She said that he was a very happy person before the accident but is now quite subdued with frequent fits of depression. Dr. Michael Sabia, who has known the plaintiff for twenty years, similarly described him and stressed that he was very hard working, spent long hours at his profession and was of a generally optimistic nature and that now he has become gradually more and more withdrawn, less productive and with fits of depression, anxiety, tension and worry. His movements have slowed considerably and he is no longer, as the doctor put it, bouncy. He limps sometimes and with an occasional shuffle, probably when he is overtired. He said that the ability of the plaintiff to “socialize” had decreased considerably, that he generally had to retire early. He described the arthritic spurring which was caused by pre-existing arthritis in the first vertebra of the lumbar region and other places in the spine, together with the narrowing of two discs. Dr. Bateman said that there had been some damage to the spinal cord and column, the nerves of the back and to the abdominal viscera. He described the considerable general improvement by June 1965, having examined him in May of this year shortly before the trial of this action. He noticed a residual decrease of movement in the neck accompanied with pain when the head was turned. There was, however, nothing much wrong. There was tenderness in the lumbar region and pain in all sorts of bending. The plaintiff’s thigh was still weak and there was a burning sensation in the hip. Dr. Bateman’s prognosis was that the damage to the cord produced an abnormal area completely apart from the site of the previous trouble and that this damage was permanent and that any improvement was most unlikely. He also said that the diminution of the Libido was caused by the
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accident although this was not explained to my satisfaction. He believes that there will be a 25 per cent permanent impairment. Dr. Palmer McCormick examined the plaintiff in April 1965 where he made similar findings as Dr. Bateman with whose evidence he agreed. He stated, however, that instead of putting the permanent impairment at 25 per cent he would put it at 35 per cent. Dr. McCormick is of opinion that there will be a further reduction in his ability to carry on his practice caused by the damage to the cervical, dorsal and lumbar spine causing pain, limitation of movement, fatigue, frustration and depression.
He concluded his reasons as follows:
I am of the opinion that his loss of income would not exceed $50,000 and at this amount I assess it. His loss from the drug company I assess at $25,000 and his general damages at $50,000, a total of $130,803.75.
In dealing with this item of general damages, Aylesworth J.A. said in his reasons:
The learned trial judge allowed $50,000 to the plaintiff for general damages in addition to $50,000 damages for loss of income from his practice. He allowed a further amount with respect to losses claimed in connection with the drug company to which reference later will be made. The allowance made by the learned trial judge for loss of practice in the amount of $50,000 is not in issue in this appeal. It stands as the compensation to the plaintiff for all loss of earnings in his profession as a physician. Therefore, what remains to be assessed to the plaintiff for general damages are his damages as a person for personal injuries including permanent impairment, for pain and suffering and for loss of enjoyment of life. Bearing in mind the extent and nature of his injuries and the evidence concerning the other elements of general damages as I have mentioned them, we think that the amount of $50,000 as general damages is so inordinately high as to require interference by this court. In our view it shocks the conscience. We are all of the view that at the high end of a reasonable and generous allow-
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ance for general damages would be the sum of $25,000, exactly half of what was awarded, and we would assess the general damages at that figure.
It is a general rule of long standing that a Court of Appeal may not re-assess an award on the basis that it does not agree with the amount awarded unless that amount is so excessive or insufficient as to be an entirely erroneous estimate. I am unable to agree with Aylesworth J.A. that the amount awarded under the heading of General Damages is so inordinately high that it shocks the conscience. Here was a successful professional man, 51 years of age, in good health who could look forward to many years of good life and who, barring some unexpected eventuality to which all men are subject, had every expectation of retiring in due course and living out his allotted span in good health enjoying the fruits of his labours in such activities as he might choose. Instead, he must now look forward to a very restricted life with pain as a daily burden, and instead of improving as time goes on, he will, according to Dr. McCormick, suffer further reduction of his activities due to the damage to the cervical, dorsal and lumbar spine causing pain, limitation of movement, fatigue, frustration and depression. In these circumstances I do not see that the Court of Appeal was justified in substituting its assessment for that of the learned trial judge.
I would, accordingly, allow the appeal with costs here and in the Courts below, fixing the compensation payable to the appellant at $52,901.87 for which amount the appellant will have judgment against the respondents.
The claims of the Province and of the City under their respective third party proceedings to be indemnified remain to be dealt with.
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Dealing, first, with the claim of the City, I am of the view that by virtue of s. 450 of The Municipal Act, R.S.O. 1960, c. 249, the City is entitled to be indemnified by Antici, and by virtue of clause 2 of the agreement dated July 16, 1962, previously quoted, the City is also entitled to be indemnified by the Province. The indemnity will include the City’s costs in all Courts, including costs payable by the City to the appellant. The Province is entitled to be indemnified by Antici and will have judgment against Antici for all damages and costs it will be required to pay to appellant and to the City, as well as for all costs incurred by it in respect of the appellant’s action and in respect of the third party proceedings. All costs shall be taxed on a party and party basis.
Appeal allowed with costs, MARTLAND and RITCHIE JJ. dissenting in part.
Solicitor for the plaintiff, appellant: John J. Robinette, Toronto.
Solicitors for Her Majesty the Queen: Kingsmill, Jennings, Toronto.
Solicitors for the Corporation of the City of St. Catharines: Seymour, Lampard, Nicholls and Greenspan, St. Catharines.
Solicitors for Antici Construction Co. Ltd.: McGarry and McKeon, Toronto.
Footnotes
- [1] [1966] S.C.R. 13.
- [2] [1957] S.C.R. 858.
- [3] [1966] S.C.R. 13.
- [4] [1964] S.C.R. 376.
- [5] 10 M. & W. 546.
Statutes and regulations cited
-
Unresolved citations
- Sections 24
- 27 of The Highway Improvement Act
- s. 450 of The Municipal Act