Littley v. Brooks and Canadian National Ry. Co.

Littley v. Brooks and Canadian National Ry. Co.
Collection
Supreme Court Judgments
Date
1932-03-15
Report
[1932] SCR 462
Judges
Anglin, Francis Alexander; Lamont, John Henderson; Newcombe, Edmund Leslie; Duff, Lyman Poore; Rinfret, Thibaudeau; Smith, Robert
On appeal from
Ontario
Subjects
Torts
Decision Content
Supreme Court of Canada
Littley v. Brooks and Canadian National Ry. Co., [1932] S.C.R. 462
Date: 1932-03-15
Laura Littley and Stanley Littley, an infant, by his next friend, laura littley (Plaintiffs) Appellants;
and
Mansford Brooks and Canadian National Railway Company (Defendants) Respondents.
1931: November 16; 1932: March 15.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Contributory negligence—Action under Fatal Accidents Act, R.S.O., 1927, c. 183 (“Lord Campbell’s Act”)—Application and effect of Contributory Negligence Act, R.S.O., 1927, c. 103—Excessive assessment of damages by jury—Insufficiency of findings—New trial.
In an action under the Fatal Accidents Act, R.S.O., 1927, c. 183 (“Lord Campbell’s Act”), where the deceased has been guilty of contributory negligence, and though his degree of fault has much exceeded that of defendant, the Contributory Negligence Act, R.S.O., 1927, c. 103, is applicable to enable the action to be maintained; and it is also applicable for the purpose of providing for apportionment of the liability; for damages. (Lamont J., dissenting, contra).
Plaintiffs claimed damages for the deaths of the occupants of a motor car through its collision with defendant company’s electric train. The jury found negligence both in defendants and in the driver of the motor car, assessed damages, and apportioned the fault, 25% to defendants, and 75% to the driver of the motor car. This Court held that, having regard to the evidence, the assessment of damages was unreasonably large and such as must have been occasioned by a misunderstanding of the basis upon which the amount ought to be determined; also that the jury should have been asked who was actually driving the motor car, and whether any of the other occupants stood in such a relation to the driver as to imply his responsibility for the driver’s contributory fault or neglect; and that there should be a new trial, but limited to the following issues: (1) the entire amount of damages suffered by each plaintiff; (2) to whom and how should responsibility for the contributory negligence found by the jury be imputed. (Lamont J. dissented, holding, on his grounds next stated, that the action should be dismissed.)
Per Lamont J., dissenting: The requirement, to give a right of action under the Fatal Accidents Act, that deceased’s death was caused by a wrongful act, neglect or default of defendant, has not been affected by the Contributory Negligence Act. To hold that the present action should succeed, with such damages only as would be proportioned to defendants’ fault, would mean that the Contributory Negligence Act, by inference, has amended the Fatal Accidents Act in matters which are of its very essence, viz., (1) so as to give a right of action to dependants where the death, though not caused, has been contributed to, by defendant’s negligence; and (2), so as to restrict dependants’ measure of damages as given by the Fatal Accidents Act, which is based on a principle entirely different from that applicable were deceased living and suing; and implication of such amendments is not justified by the provisions of the Contributory Negligence Act. That Act applies only to cases where the damages sought to be recovered in the action resulted partly from the defendant’s fault and partly from the plaintiff’s fault.
APPEAL by the plaintiffs, and cross-appeal by the defendants, from the judgment of the Appellate Division of the Supreme Court of Ontario[1] ordering a new trial.
The action was brought under the Ontario Fatal Accidents Act, for the benefit of the plaintiff Laura Littley and her son, Stanley Littley, to recover damages for the deaths of the husband and three children of the said Laura Littley, who were occupants of a motor car, the deaths resulting from a collision between the motor car and an electric train of the defendant company, which collision the plaintiffs alleged was caused by the negligence of the defendant company, its servants or agents, and of the defendant Brooks, who was the motorman of the train.
On a previous appeal to this Court in the same case this Court ordered a new trial[2].
The second trial came on before Raney J., with a jury. The following were the questions submitted to the jury, with their answers:
1. Was there negligence on the part of the defendants causing or contributing to the collision?
A. Yes.
2. If so, in what respect did such negligence consist? Answer fully.
A. Speed of train was in excess of ten miles per hour.
3. Was there negligence on the part of the driver of the Littley car contributing to the collision?
A. Yes.
4. If so, in what did such negligence consist? Answer fully.
A. Excessive speed and lack of caution.
5. At what amount do you assess the damages suffered by the plaintiff, Laura Littley, arising from the death of her husband and three children?
A. $20,000.
6. At what amount do you assess the damages of the plaintiff, Stanley Littley, arising from the death of his father?
A. $2,000.
7. How do you apportion the fault as between the defendants on the one hand and the driver of the Littley car on the other?
A. Defendants, twenty-five per cent. Driver of car, seventy-five per cent.
On these findings, counsel for the plaintiffs moved for judgment for the full amount of the damages found to have been suffered by them; but the learned trial judge gave judgment to the plaintiff Laura Littley for $5,000 and to the plaintiff Stanley Littley for $500, these amounts being, in each case, 25 per cent. of the amounts at which the jury assessed the full damages of the plaintiffs.
Both defendants and plaintiffs appealed to the Appellate Division, the defendants asking that the action be dismissed or, in the alternative, that a new trial be had; and the plaintiffs asking that judgment be entered for the full amount of the damages found to have been suffered by them. The Appellate Division set aside the judgment and ordered a new trial[3]. The plaintiffs appealed to the Supreme Court of Canada, asking that the judgment entered at the trial and the judgment of the Appellate Division be set aside and that judgment be entered for the plaintiff Laura Littley for $20,000 and for the plaintiff Stanley Littley for $2,000; or, in the alternative, that a new trial be ordered as to the question of damages only. The defendants cross-appealed, contending that the action should be dismissed.
J.R. Robinson and J.L. Kemp for the appellants.
W.N. Tilley, K.C., and R.E. Laidlaw for the respondents.
ANGLIN C.J.C.—I understand the majority of the court favours a new trial in this case on the two questions stated by Mr. Justice Rinfret. Personally, I very much regret the necessity for further litigation concerning the matters in question here.
At the first trial there was a non-suit. To get rid of that it was necessary for the plaintiffs to come to this court. The case went back and was tried before a jury, Mr. Justice Raney presiding. The Appellate Division ordered a new trial generally, although the Chief Justice of Ontario, in pronouncing the judgment of that court, dealt severally with all the findings of the jury, expressly approving all of them, excepting for the objection, taken as the fourteenth ground of appeal. He dealt with that ground of appeal as follows:
The fourteenth ground of appeal:
“14. The jury did not properly understand the basis upon which the amount of damages, if any, ought to be determined between the parties.”
With respect to the damages suffered by Laura Littley, I think the learned trial judge erred in requiring the jury to find one amount instead of separate amounts in respect of the respective deaths of her husband and her three children, and therefore the finding as to the amount of damages must be set aside and a new assessment had.
The learned trial judge had said to the jury about the beginning of his charge,—after referring to the two claims—made, the one on behalf of Laura Littley, the widow and mother, and the other on behalf of her son Stanley, who was a minor, these two being the only survivors of the family,—
The widow of the late Walter Littley comes to Court representing herself and her son Stanley who was a boy of sixteen at the time of the accident. She claims damages for the loss of her husband and her children on her own account. The basis of her claim is the reasonable expectancy of pecuniary benefits which she had a right to anticipate if her husband and children had survived,—the reasonable expectation of pecuniary benefit. It is on a cash basis. She also comes and asks as representative of her son Stanley, who cannot sue in his own name, because he is in law an infant, she represents him, and she asks for damages on his behalf, which, if they are recovered will be paid into Court and will not be paid to her, subject to the Court’s Order, and her claim on his behalf is based on his reasonable expectation of pecuniary benefits on the survival of his father; if his father had survived, he would have had benefits which it is suggested he has not got now. He and the mother are the sole survivors of the family.
In my opinion, this sufficed to put before the jury the essential fact that, in assessing damages, they must take into account all the claims as preferred by Laura Littley, i.e., her claim for the loss of her boy Leslie, then aged 19, and of her other two infant children, and also her claim for the loss of her husband. The order for a new trial against Laura Littley cannot, in my opinion, be supported on the sole ground for it assigned by the learned Chief Justice, viz., that the learned trial judge erred in requiring the jury to find one amount instead of separate amounts for damages in respect of the respective deaths of the husband and the three infant children. With the utmost respect for the Chief Justice, I find no difficulty in the case on this point. Its only possible materiality would arise from the fact that contributory negligence of the driver of the motor car found by the jury, and evidently, in their opinion, imputable to the mother, could not well be attributed to the two infant children (other than Leslie) on account of whose deaths, as well as that of her husband, she brought action.
In ordering a new trial as against Laura Littley on this ground even, as the learned Chief Justice appears to put it, limited to a new assessment of damages, the Appellate Division seems to me to have been clearly wrong, as it must be quite immaterial how much of the $20,000 pecuniary loss, found to have been occasioned to the widow by the accident, was attributable to the loss of her husband and how much of it to the loss of each of her three children.
There is more to be said in favour of the order for a new trial as against Stanley Littley, if likewise limited, since, in my opinion, the learned Chief Justice is quite right when he says:
Having regard to all the circumstances, I think it highly improper (improbable?) that Stanley sustained a pecuniary loss of $2,000 by his father’s death. Considering the walk of life of the parties, Stanley had about reached the age when he would have been required by his father, to earn his own living. I therefore think that the amount awarded to him is excessive, and that that finding should be set aside.
Here, the amount of damages alone is affected, and the new trial should, with respect, have been limited to that point.
I agree that the assessment of damages at $20,000 in favour of the widow is considerably larger than I would have allowed and it is quite possible that the jury made some mistake in that respect, or took into account something which they should not have considered. With regard to contributory negligence, what the jury evidently meant was this: Taking the case in the by and large, they said to themselves: “We will allow $22,000 (apportioned, $20,000 to Laura Littley and $2,000 to Stanley Littley) as total damages, of which 75 per cent. should be borne by the plaintiffs and 25 per cent. by the company.” While the sums allowed as total damages may seem unreasonable, bearing in mind that the question of the amount of damages is usually exclusively for the jury, and having regard to their treatment of the case as a whole, I would, personally, be satisfied to allow the award to stand. I defer, however, to the views of my learned brothers who think it so grossly excessive that they cannot but assume that there was some error in the minds of the jury as to the proper basis of assessment.
On this ground alone, therefore, I would agree to a new trial—not at large, however, since the Appellate Division has expressly approved of the findings of the jury, excepting those as to the amount of damages,—and that is the only matter which my colleagues find unsatisfactory in the verdict already given.
As indicated above, one reason why I am not entirely satisfied with its findings was the failure on the part of the jury to determine how and to whom the contributory negligence of the driver of the Littley car was to be imputed. I would, therefore, since there must be a partial new trial, agree to the submission to the new jury of a question to cover this point.
For these reasons, I agree in the result of the judgment which I understand is to be delivered by my brother Rinfret. The judgment of Rinfret and Smith JJ. was delivered by
RINFRET, J.—This action was brought under the provisions of the Fatal Accidents Act (c. 183 of R.S.O., 1927). The plaintiffs (appellants) are Laura Littley, widow of Walter Littley, and Stanley Littley, son of the said Walter Littley, an infant suing by his next friend, Laura Littley. They seek damages for the death of Walter Littley, their respective husband and father. Laura Littley personally also claims damages for the death of her two sons, Leslie and Edward, and her daughter, Ivy.
The present appeal brings this case before this court for the second time. In a former appeal, wherein the parties were identical, this court ordered a new trial and, in doing so, took occasion to state the facts[4].
The second trial came on before Raney J., with a jury, and the following were the questions submitted to the jury, with their answers:
1. Was there negligence on the part of the defendants causing or contributing to the collision?
A. Yes.
2. If so, in what respect did such negligence consist? Answer fully.
A. Speed of train was in excess of 10 miles per hour.
3. Was there negligence on the part of the driver of the Littley car contributing to the collision?
A. Yes.
4. If so, in what did such negligence consist? Answer fully.
A. Excessive speed and lack of caution.
5. At what amount do you assess the damages suffered by the plaintiff, Laura Littley, arising from the death of her husband and three children?
A. $20,000.
6. At what amount do you assess the damages of the plaintiff, Stanley Littley, arising from the death of his father?
A. $2,000.
7. How do you apportion the fault as between the defendants on the one hand and the driver of the Littley car on the other?
A. Defendants, 25%. Driver of car, 75%.
On these findings, counsel for the appellants moved for judgment for the full amount of the damages found to have been suffered by them; but the learned trial judge gave judgment to the appellant Laura Littley for $5,000, and to Stanley Littley for $500, these amounts being, in each case, 25 per cent. of the amounts at which the jury assessed the full damages of the appellants. From this judgment, both parties appealed to the Appellate Division of the Supreme Court of Ontario; and, on the 15th day of June, 1931, a new trial was again directed[5]. The appellants, thereupon, appealed to the Supreme Court of Canada, praying that the order for a new trial be set aside, and again asking for the full amount of damages found by the jury. The respondents cross-appealed and gave notice of their intention to contend, on the hearing of the appeal, that the judgment of the Appellate Division ought to be varied and that the action ought to be dismissed with costs.
The judgment appealed from was unanimous. It was delivered by the Right Honourable the Chief Justice of Ontario, who went into a discussion of all the grounds of appeal and considered each of them very carefully. He held that “there was ample evidence to support the findings of the jury,” and expressed the “opinion that the charge of the learned (trial) judge was fair and sufficient.” The new trial was ordered for the reason that the jury was required “to find one amount instead of separate amounts in respect of the respective deaths of (the) husband and (the) three children, and therefore the finding as to the amount of damages must be set aside and a new assessment had.”
As regards the award made to the appellant Stanley Littley, he thought “the amount awarded to him is excessive, and that that finding should be set aside.”
The learned Chief Justice, on behalf of the Appellate Division, further expressed the view that, at the new trial, “the jury should be directed to find who was actually driving the car or in control of it at the time of the accident.”
We now have before us the appeal and the cross-appeal from that judgment.
On the cross-appeal, subject to discussing the measure of damages, we have only to say that the questions raised were properly dealt with by the Appellate Division, and we do not think it should be entertained by this court.
On the main appeal, there are two questions to be considered: Whether the new trial was properly ordered for the reasons given by the Appellate Division; and, if not, whether judgment should be entered in favour of the appellants for the full amount of the damages assessed by the jury.
Walter Littley, the husband and father of the respective appellants, was forty-two years old, and apparently in excellent health. He was operator of an electric shovel in a gravel pit. He was being paid sixty cents an hour for a ten-hour day and would average 5 days’ work, or $30 a week throughout the year. The wife’s evidence is that he gave her his wages.
Leslie Littley was nineteen years of age. He was a teamster, receiving $85 every two weeks for himself and his team. He was just commencing in business and was paying for his team; but, up to that time, he had been a market gardener and had given his money to his mother.
Edward was a boy of thirteen, still going to school, and Ivy was a girl of ten.
The appellant Laura Littley was thirty-eight in November, 1928, five months after the accident, and the appellant Stanley Littley was sixteen the following December. The evidence was that Laura Littley was in good health, but that Stanley had a more delicate health than the other children and had been kept away from school for some time before his father’s death. They were left without resources and the mother has been going out to work by the day for a living.
In assessing damages under the Fatal Accidents Act, it is well settled law that the jury are confined to the pecuniary loss sustained by the family and cannot take into consideration the mental suffering of the survivors (Blake v. Midland Ry. Co.[6]). It is the reasonable expectation of pecuniary advantage by the relatives remaining alive that may be taken into consideration (Mayne, On Damages, 10th ed., page 516). The action exists solely “for the benefit of the wife, husband, parent and child of the person whose death was caused” (Fatal Accidents Act, section 3). Under the Act, there is no right of action for the benefit of the brother of the victim of the accident. It follows that the appellant Stanley Littley was entitled to damages only in respect of the death of his father. As for Laura Littley, the pecuniary benefit which she might expect from the continuation of the lives of Edward, aged thirteen, and Ivy, aged ten, are almost negligible, particularly in view of the fact that until they reached the age when they would be earning their own living, they would have to be supported by their father and mother. Any pecuniary advantage which Laura Littley might expect must come substantially from her husband, and to a limited extent, from her son, Leslie. At the time of the accident, Leslie was using his money “to pay for his team.” If we admit that he would later be able to look after himself, it would mean that the earnings of the father would go to maintain himself, his wife and the remaining three children. Assuming no contingencies whatever, such as interruption in work, illness, etc., these earnings would represent about $120 per month wherewith to provide for the whole family. It will be seen at once that the share of that sum available each month for both the mother and Stanley would fall far below $100.
Notwithstanding these facts, the jury assessed the damages at an amount the interest of which would be sufficient to provide an income of $100 a month for the mother alone. In addition to that, on the assumption that the Contributory Negligence Act does not apply in mitigation of the damages, she would become the owner of the capital sum necessary to produce that income, and a further sum of $2,000 was assessed in favour of the son, Stanley. For, let it be observed that this is not a verdict for $20,000 only. The $2,000 going to Stanley must, of course, be taken into account. Although the possible loss, remote as it is from the monetary standpoint, arising out of the deaths of the three children, may not be disregarded, the fact remains that, in this case, the damages which stand to be assessed are, almost entirely in the case of the wife, and exclusively in the case of Stanley Littley, damages resulting from the death of their respective husband and father. So that the verdict of $22,000 must be held to represent practically the pecuniary benefits which both appellants might have reasonably expected from the continuation of the life of Walter Littley. The jury, as was explained by the foreman at the trial, “based that amount on what (they) felt the widow should get a month on the basis of six per cent., which would give her one hundred dollars a month, which would be approximately $20,000.” The explanation throws light on what was in the minds of the jury. Having regard to the material circumstances of all concerned, $100 a month to the widow alone would not, in any event, be warranted by the evidence; but the jury disregarded altogether the fact that, in addition to the income, they were giving the capital as well; and, besides that, they were awarding $2,000 to Stanley Littley.
We cannot escape the conclusion that the assessment of damages, both in favour of the wife and of the surviving child, was excessive and out of proportion to the total pecuniary loss occasioned by the deaths of the persons in respect of whom the damages were awarded.
Having regard to the evidence, we are clearly of the opinion that the assessment was unreasonably large and such as must have been occasioned by a misunderstanding of the basis upon which the amount ought to be determined. On that ground alone, therefore, there would have to be a new trial.
We may now deal with the question whether, in view of the finding that there was “negligence on the part of the driver of the Littley car contributing to the collision”, judgment should nevertheless, as the appellants contend, be entered in their favour for the full amount of the damages assessed by the jury.
By the Fatal Accidents Act of Ontario, it is provided that:
2. Where the death of a person has been caused by such wrongful act, neglect or default, as, if death had not ensued, would have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances amounting in law to culpable homicide.
3. (1) Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and except as hereinafter provided shall be brought by and in the name of the executor or administrator of the deceased, and in every such action such damages may be awarded as are proportioned to the injury resulting from such death to the persons respectively for whom and for whose benefit such action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned persons in such shares as may be determined at the trial. The Contributory Negligence Act (c. 103 of R.S.O., 1927) provides as follows:
2. In any action or counterclaim for damages, which is founded upon fault or negligence, if a plea of contributory fault or negligence shall be found to have been established, the jury, or the judge in an action tried without a jury, shall find:—
First: The entire amount of damages to which the plaintiff would have been entitled had there been no such contributory fault or neglect;
Secondly: The degree in which each party was in fault and the manner in which the amount of damages found should be apportioned so that the plaintiff shall have judgment only for so much thereof as is proportionate to the degree of fault imputable to the defendant.
3. Where the judge or jury finds that it is not, upon the evidence, practicable to determine the respective degrees of fault the defendant shall be liable for one-half the damages sustained.
The appellants submit that by section 2 of the Fatal Accidents Act a right of action in the deceased, had he survived, is made a condition precedent to a right of action accruing to certain of his dependents under the provisions of the Act. They further submit that, if such condition precedent be fulfilled, the survivors of the class named in section 3 of the same Act have a statutory right of action untainted and unaffected by anything which the deceased may have done or agreed to, so long as he, by such conduct or agreement, had not completely barred his own right of action, had he survived. Therefore, while, before the Contributory Negligence Act, contributory negligence was a good defence to an action under the Fatal Accidents Act, this was the case because contributory negligence would have deprived the deceased of his right of action had he survived. By the Contributory Negligence Act, his right of action is no longer barred, but his right to recover is limited proportionately to the percentage of negligence attributed to the defendant. It is therefore submitted that the condition precedent to a successful action under the Fatal Accidents Act is satisfied and the persons entitled to sue under that Act are given a new statutory right of action, which is unaffected by the conduct of the deceased.
In a recent case, Price v. B.C. Motor Transportation Ltd.[7], the Chief Justice of this Court had occasion to examine a similar question under the British Columbia statutes. Those statutes, although not identical in terms, are substantially the same as the Ontario Acts. The Chief Justice said[8]: The presence of the condition of the right of action, i.e., that it must be “such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof,” has been held to require that the deceased would have had an enforceable cause or right of action for the injury had he survived. To this cause of action, contributory negligence on his part would, of course, have been a defence. That being so, he could not have successfully maintained an action where contributory negligence was established, had he survived, and his personal representative or widow, etc., could, accordingly, maintain no action for damages caused by his death.
The ground now taken by the plaintiff is that the defence of contributory negligence being done away with by the statute of 1925 leaves the right of action under Lord Campbell’s Act absolute and unqualified. In other words, the other provisions of the Contributory Negligence Act would have no application to a case under Lord Campbell’s Act.
I find nothing in the Contributory Negligence Act to exclude its application as a whole to cases under Lord Campbell’s Act, which are so common. On the contrary, everything in the former statute indicates that such cases must have been present to the mind of the Legislature which enacted it.
Contributory negligence is a defence which the statute does away with, but only conditionally, the condition being that, “where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss shall be in proportion to the degree in which each person was at fault.” I cannot conceive that the Legislature intended that this Act should apply for the purpose of enabling the plaintiff to maintain an action under Lord Campbell’s Act, notwithstanding the establishment of contributory negligence imputable to her, and yet should not also apply for the purpose of providing for the apportionment of her damages under section 2.
That this case comes within section 2 is perfectly clear, the term or condition of its application thereby provided being that, where contributory negligence is shown, there shall be an apportionment of damages in proportion to the degree in which each person was at fault. Any person taking advantage of the Contributory Negligence Act must do so on the terms and conditions laid down by the Legislature.”
In the British Columbia case7, the view taken by the other members of the court made it unnecessary for them to pass upon that point. In the present case, the point has to be decided and the opinion thus enunciated by the Chief Justice may now be stated as being the opinion of the court on the question raised by the appellants.
At the outset, it should be said that the whole case proceeded on the basis that the Contributory Negligence Act applied. Should we now come to the conclusion that it does not, the consequence would be that the verdict is the result of misdirection throughout and a new trial is inevitable, in any event. But, as there is to be a new trial any- how, we think we should, under the circumstances, give a direction to the judge who shall preside at the trial.
At common law, contributory negligence of the plaintiff is a complete defence to an action “founded upon fault or negligence”. The result was that in any such case, “if a plea of contributory fault or negligence (was) found to have been established”, the victim of the accident could not successfully maintain an action and recover damages in respect thereof. As a consequence, under the Fatal Accidents Act, and under similar circumstances, if the death of the victim ensued, neither could an action be successfully maintained “for the benefit of the wife, husband, parent and child of the person whose death was so caused”. Contributory negligence of the deceased or imputable to him continued under the Act to be a complete defence against the action of the named relatives. The action could not be maintained, not on account of the contributory fault or negligence of the relatives who brought it, but on account of the contributory fault or negligence of the victim of the accident.
The Contributory Negligence Act, of Ontario, has not created a new right of action and it has not taken away the defence of contributory negligence. It has only modified the effect of that defence. Where contributory negligence used to be an absolute answer to the action, the Act says that henceforth it shall not be so and it shall only mitigate the liability of the negligent party owing to the contributory fault of the victim. (Compare The Napierville Junction Railway Company v. Dubois [9]). What the jury is to find is “the degree in which each party was in fault”. “Party” here means “party to the accident”. Under the Act, the primary concern is to establish the degree of liability of each party to the accident. The apportionment of the amount of damages follows only as a matter of consequence. When, therefore, we have a verdict such as we have here, and the jury finds that the fault of each party contributing to the accident should be apportioned in the ratio of twenty-five per cent. for the defendants and seventy-five per cent. for the other party, the meaning of the Act and the intention of the legislature is that, the defendants having been found guilty of fault or negligence contributing to the accident only in the proportion of twenty-five per cent., their liability for the consequences of that accident is limited to twenty-five per cent., and they are answerable only to that extent towards the person claiming damages resulting from the accident. In such a case, says the Act, “the plaintiff shall have judgment only for so much thereof as is proportionate to the degree of fault imputable to the defendant”. The injurious participation by the defendants in the wrongful acts which caused the accident having been in the proportion found by the jury, they are to contribute towards the compensation for the damages in that proportion. They are to pay only that proportion of the damages which they have caused,—and they are not responsible for more. The Act applies to “any action or counterclaim” (section 2) and, by definition (section 1), the plaintiff in any such action or the defendant in any counter-claim “shall have judgment only for so much (of the entire amount of damages) as is proportionate to the degree of fault imputable to the defendant”.
The cases cited by the appellants are not in point. In Mills v. Armstrong, commonly known as the Bernina case[10], three claims were made by the representatives of three of the victims for whose death action was brought. The accident consisted in a collision between two ships. Two of the victims were held to have had nothing to do with the negligent navigation, while the other (Owen) was found to have been connected with the wrongful acts contributing to the collision. Before the Court of Appeal, the claim on behalf of the latter’s representative was given up. The two other claims were maintained in full, on the ground that, in each case, the victims for whose deaths the actions were brought were not parties to the negligence and could in no way be connected therewith, and therefore the Admiralty rule as to half damages did not apply. In the House of Lords, the question upon that rule was mentioned, but not argued. Lord Herschell expressed thus the ground of the decision:
They (the defendants) do not allege that those whom the respondents represent were personally guilty of negligence which contributed to the accident; nor * * * that there was contributory negligence on the part of any third person standing in such a legal relation towards the deceased men as to cause the acts of that third person, on principles well settled in our law, to be regarded as their acts.
In the case of British Electric Railway Company v. Gentile[11], the question was one of prescription and turned upon the construction of the Special Act of the electric railway company. It was decided that the particular enactment (whereby certain actions against the company had to be brought within six months of the event giving rise thereto) did not cover an action under the Families Compensation Act in British Columbia.
In Union Steamship Company of New Zealand v. Robin[12], the particular statutes therein involved and which had to be construed were quite different. The Workers’ Compensation Act (1908) of New Zealand, sec. 62, gave to a servant who was injured by the negligence of a fellow-servant a right of action against his employer, it being provided by subs. 3 that
no servant shall be entitled to recover from his employer in an action brought under this Act in respect of the negligence of a fellow-servant a larger sum by way of damages for any one cause of action than five hundred pounds.
As will have been noticed, the limitation as to damages expressly applied to “an action brought under this Act” by the servant himself and there was “nothing to restrict the right” (covered by sec. 5 of the Deaths by Accident Compensation Act (1908) of New Zealand) “enabling the jury to give damages as they think proportioned to the injury resulting from the death.”
Under the Ontario Contributory Negligence Act, the limitation as to damages is only consequential. The true purport of the Act is a limitation as to responsibility. The limitation applies “in any action or counterclaim for damages which is founded upon fault or negligence” and not, as in the New Zealand case, to “an action brought under this Act.”
Moreover, the right of the jury to award damages is expressly limited to an amount “proportionate to the degree of fault imputable to the defendant.”
In fact, the New Zealand statute appeared to be clear enough, and the discussion in the case centred not on the construction to be put upon the statute, but upon the effect of an amendment made in 1911. The Act of 1908 contained the following provision:
Nothing in this subsection shall affect the measure of damages in an action brought against an employer in respect of the death of a servant.
In the amending statute, that provision was not repeated. The argument was that the removal of the provision must be assumed to have had some definite purpose; and it must follow that the limitation it was designed to avoid no longer applied[13]. The decision was that
The mere omission in a later statute of a negative provision contained in an earlier one cannot by itself have the result of effecting a substantive affirmation. It is necessary to see how the law would have stood without the original proviso, and the terms in which the repealed sections are subsequently re-enacted.
The decision in that case cannot affect the present case.
We hold, therefore, that the provisions of the Contributory Negligence Act (c. 103 of R.S.O., 1927) are applicable to an action brought under the Fatal Accidents Act (c. 183 of R.S.O., 1927).
It may not be without interest to point out that such is also the solution invariably given to similar cases in the province of Quebec, where the rule has always formed part of the law of the province.
This, however, does not end the matter. In order to affect the amount of damages recoverable by the appellants, it must be shown, in the words of Lord Herschell,
that those whom (they) represent were personally guilty of negligence which contributed to the accident, (or) that there was contributory negligence on the part of any third person standing in such a legal relation towards the deceased * * * as to cause the acts of that third person * * * to be regarded as their acts.
It follows that, in this case, the jury ought to have been asked who was actually driving the car and, further, whether any of the other occupants of the car stood in such a relation to the driver (the actual wrongdoer) as to imply his responsibility for the contributory fault or neglect of the driver. The appellants urge that the onus was upon the respondents, in order to establish their plea of contributory negligence. But there was evidence from which the facts might at least be inferred and the point is that the jury made no finding upon those facts. We know that the car belonged to the son, Leslie Littley. If he was not the actual driver, he may be responsible as owner. We know that the trip was on the father’s mission. We know also that the owner of the car, Leslie, was not of age, and even if the father was not driving, he might yet be found to have been in