Majority
June 2.
AND
THOMAS W.
SUING HIS NEXT FRIEND, T.
(PLAINTIFFS)
.......................
ON APPEAL FROM THE OF APPEAL ONTARIO
Judgment of the Court
J.-The appeals should be dismissed with costs. The trial judge has found that Carl Hanes was negligent. There was ample evidence to warrant this finding and we agree with the Court of Appeal that it cannot be disturbed. The trial judge also found Frank Hanes to have been negligent, as appears from the following extract from his judgment:- As the person in charge of the store, who negligently allowed Carl Hanes to remain on the premises in possession of the dangerous article and to use it, Frank Hanes must be held responsible.
- William Hanes was the occupier of the store as he was the proprietor of the business being carried on therein. The infant plaintiff had entered the store as a customer. As pointed out by Wiles J. in Indermaur v. Dames (1), a customer is entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger of which the occupier knows or ought to know. William Hanes failed in his duty to the infant plaintiff to exercise that care when his employee, Frank Hanes, was guilty of negligence, and William Hanes must also be held liable in damages.
The trial judge awarded the infant plaintiff ten thousand dollars damages.
The Court of Appeal, while agreeing with all the considerations which the trial judge stated moved him to fix that amount, thought there were other matters which had not been sufficiently taken into account by him and reduced the damages to five thousand dollars. The plaintiffs cross-appeal.
Where general damages fixed by a trial judge sitting without a jury have been reduced by a Court of Appeal under circumstances such as we find here, this Court, as a general rule, will not interfere: Ross v. Dunstall (2); Pratt v. Beaman (3).
Mr. Cartwright referred to McHugh v. Union Bank of Canada (4).
That, however, was a case where the Court of Appeal of Alberta determined that there was no evidence upon which the trial judge could assess damages but granted the plaintiff the option to have the matter referred to the Clerk of the Court to take an account of what damages, if any, the plaintiff had suffered by the negligence of the defendants but gave directions which would limit such damages. That decision was affirmed by the Supreme Court of Canada with an alteration in the direction as to the method of assessment. The Judicial Committee, agreeing with the minority opinion that had been expressed in this Court, decided (p. 309) that there was evidence to warrant a determination by the trial judge as to the quantum of damages and that there S.C.R.]