Hyperlawhypertext legal database Hartman v. Fisette [1977] 1 SCR 248

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Hartman v. Fisette

[1977] 1 SCR 248 Court SCC Decision date 1976-02-25 English

PartiesJames Barclay Hartman, as Executor of the Last Will and Testament of Margaret Hartman, deceased (Plaintiff) Appellant·Donald Peter Fisette (Defendant) Respondent

Counsel (4)
R. Anderson and R.A. Simpson, for the plaintiff, appellant.
K.B. Foster and R.E. Stephenson, for the defendant, respondent.
Solicitors for the plaintiff, appellant: D’Arcy & Deacon, Winnipeg.
Solicitors for the defendant, respondent: Aikins, MacAuley & Thorvaldson, Winnipeg.

Judges Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean

Decision 1–4 Majority (1) · DICKSON J. (4)

On appeal from Manitoba

Subjects Torts

Contents

Majority

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

DICKSON J.

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.

Footnotes

  1. [1] [1975] W.W.D. 9.
  2. [2] [1972] S.C.R. 525.
  3. [3] [1975] 2 S.C.R. 633.
  4. [4] (1842), 10 M. & W. 546, 12 L.J. Ex. 10, 152 E.R. 588.
  5. [5] [1975] 2 S.C.R. 414.
  6. [6] [1973] S.C.R. 303.
  7. [7] [1975] 1 S.C.R. 618.
  8. [8] [1957] S.C.R. 858.

Statutes and regulations cited

  • Unresolved citations
    • Section 131(1) of The Highway Traffic Act
    • s. 144(1)
    • s. 144(1) of The Highway Traffic Act
    • s. 221(1)(b)
    • s. 221(b)
    • s. 4(1) of the Manitoba Act