Supreme Court of Canada
The Queen v. Jennings et al.,  S.C.R. 532
Her Majesty The Queen, in right of the Province of Ontario, represented by the Minister of Highways for the Province of Ontario (Defendant) Appellant;
Robert Malcolm Jennings, a mentally incompetent person so found by his Committee, Wilmot Stanley Briggs (Plaintiff) and Garry Cronsberry (Defendant) Respondents.
1965: December 15, 16, 17; 1966: April 26.
Present: Cartwright, Martland, Judson, Ritchie and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Highways—Duty to keep highway in repair—Failure to maintain stop sign in proper position—Plaintiff injured in collision at intersection—Liability of Department—The Highway Improvement Act, R.S.O. 1960, c. 171, s. 33.
Damages—Plaintiff rendered unconscious as result of severe brain injury—No hope of recovery—Quantum of damages—Whether income tax which plaintiff would have had to pay on future earnings to be taken into account.
As the result of a collision between an automobile owned by the plaintiff in which he and his wife were passengers and which was being driven by their son and an automobile owned and operated by the defendant C, the plaintiff was so severely injured that he never regained consciousness and his wife was killed. The collision occurred at the intersection of a through highway and a concession road. At the time of the accident the plaintiff’s car was being driven northerly on the highway and the defendant C was driving his car westerly on the concession road. The highway had been marked at the intersection by a stop sign. This sign and its location conformed to the relevant regulations but four days prior to the accident some mischievous boys had turned it around so that as C’s car approached it the driver would not see a stop sign but only the back of the sign which was gray in colour and bore no lettering.
Action was brought for damages suffered by the plaintiff personally and also, pursuant to The Fatal Accidents Act, for damages for the death of his wife. The trial judge found that both the defendant Department of Highways and the defendant C were at fault and apportioned the blame 80 per cent to the former and 20 per cent to the latter. He assessed the damages of the plaintiff personally at $145,795.43 and the damages under The Fatal Accidents Act at $11,300.
Each of the parties appealed to the Court of Appeal. The defendant Department sought the dismissal of the action as against it, alternatively a reduction of the percentage of blame attributed to it and a reduction in the amount of damages. The defendant C by cross-appeal asked that he be absolved from liability and alternatively that the damages be reduced. The plaintiff by cross-appeal asked that the award of damages to him personally be increased. The plaintiff’s cross-appeal was allowed, his total damages being assessed at $180,000.
The Department’s appeal and C’s cross-appeal were dismissed.
The majority in the Court of Appeal were of the opinion that the trial judge had erred in his assessment of damages in regard to the following matters: (1) The trial judge had deducted $50,000 from the total damages on the ground that had the plaintiff been well and normal for the next five years his own personal living expenses would have been $10,000 a year whereas all his estimated living expenses during that period would in fact be covered by an amount which was allowed for hospital expenses. This deduction should not have been made. At most the deduction should have been for not more than a sum sufficient to cover the plaintiff’s food and lodging as distinguished from medical and nursing care in the hospital for five years. (2) There should not have been any reduction made in the damages for loss of future earnings by reason of income tax. (3) The allowance for general damages of $2,000 for loss of enjoyment of life should have been for loss of the amenities of life and was too low. (4) The allowance for loss in respect of certain stock options was too high. That there could be no certainty as to the price of the stock at the time the options would be taken up and that other circumstances might have prevented the plaintiff exercising the options were factors that should have been taken into consideration. (5) In allowing loss of salary for five years some allowance should have been made not only for the fact that the salary was being paid in advance but also some deduction should have been made for the contingency that the plaintiff might have, within that period of time, become ill or died or for other reason might have lost his position.
An appeal from the judgment of the Court of Appeal was brought to this Court. The Department asked that the action as against it be dismissed and alternatively that the assessment of the trial judge should be restored. C as cross-appellant asked that the action as against him be dismissed.
Held: The appeal and cross-appeal should be dismissed.
Per Cartwright, Martland, Ritchie and Spence JJ.: The appellant’s contention that failure to maintain a stop sign as required by the relevant statute (The Highway Improvement Act, R.S.O. 1960, c. 171) and regulations does not amount to “default to keep the King’s Highway in repair” was rejected. Its further contention that even if, contrary to its submission, the failure to maintain the stop sign constituted default in keeping the highway in repair the appellant was relieved from liability by the terms of subs. (3) of s. 33 of the Act was also rejected.
For the reasons given by McGillivray J.A. in the Court below, it was agreed that the collision was caused by the fault of both defendants and that the apportionment of the blame made by the trial judge ought not to be disturbed.
On the question of the quantum of damages, as to the deduction of $50,000, at the most the amount of this deduction should not have exceeded such portion of the estimated hospital expenses of $20,075 as represented the cost of food, and possibly the cost of lodging. As to item (3), the allowance of $2,000 for loss of amenities of life was very much too low. Damages for loss of amenities of life are not to be reduced by reason of the fact that the injured person is unconsicious and unaware of his condition. As to item (4), the allowance in respect of the loss of the right to exercise options to purchase stock, the estimate of the trial
judge if excessive at all was not greatly so. As to item (5), it appeared that the trial judge did allow for the fact that the salary was in effect being paid in advance, and in view of the circumstances of the case no substantial amount should have been deducted by reason of the other contingencies to which reference was made.
On a consideration of the whole record, the total amount of $180,000 fixed by the Court of Appeal was not excessive and should not be disturbed.
Per Curiam: The principle stated in British Transport Commission v. Gourley,  A.C. 185, (the incidence of taxation on future earnings should be taken into account in assessing damages in respect of loss of such earnings) was rejected.
APPEAL from a judgment of the Court of Appeal for Ontario, dismissing the appeal of the present appellant and the cross-appeal of the respondent Cronsberry from a judgment of Ferguson J., and allowing the cross-appeal of the respondent Jennings as to the quantum of damages awarded. Appeal dismissed.
C.L. Dubin, Q.C., K. Duncan Finlayson, Q.C., and P.J. Brunner, for the defendant, appellant.
Ross V. Smiley, Q.C., for the defendant, respondent and cross-appellant, G. Cronsberry.
B.J. Thomson, Q.C., for the plaintiff, respondent, R.M. Jennings.
Martland, Ritchie and Spence JJ. concurred with the judgment delivered by
CARTWRIGHT J.:—This is an appeal from a judgment of the Court of Appeal for Ontario1 allowing a cross-appeal by the respondent Jennings, varying a judgment of Ferguson J. by increasing the amount of the damages awarded to Jennings personally from $145,795.53 to $180,000 and dismissing the appeal of the present appellant and the cross-appeal of the respondent Cronsberry. McGillivray J.A., dissenting in part, would have affirmed the judgment of the learned trial Judge.
The action arose out of a collision between an automobile, hereinafter referred to as “the Jennings car”, owned by the respondent Jennings in which he and his wife the late Mary Jennings were passengers and which was being driven by their son William E. Jennings and an automobile, hereinafter referred to as “the Cronsberry car” owned and driven, by the respondent Cronsberry.
The collision occurred at about 5 p.m. on Sunday, November 5, 1961, at the intersection of Highway No. 12 which runs North and South, with the Second Concession road of the Township of Thorah which runs East and West.
The Jennings car was being driven northerly on Highway No. 12 at a speed of about 60 miles per hour which was a lawful speed. The Cronsberry car was being driven westerly on the Second Concession road. Highway No. 12 was a through highway and the Second Concession road was a “stop street”. At this intersection Highway 12 had been marked by a stop sign placed at the northeast corner of the intersection 27 feet east of the east edge of the pavement of Highway 12 and 5 feet north of the north edge of the gravel on the Second Concession. The sign and its location conformed to the relevant statutes and regulations but on the Wednesday preceding the day of the accident some mischievous boys had turned it around so that as the Cronsberry car approached it the driver would not see a stop sign but only the back of the sign which was gray in colour and bore no lettering. Cronsberry, who suffered a concussion, had no recollection of the accident or of anything that occurred in the space of a few minutes before it happened.
The two cars collided with great violence in the intersection. Mrs. Jennings was killed, the respondent Jennings was so severely injured that he has never recovered consciousness. William Jennings was not seriously injured.
The action was brought for damages suffered by the respondent Jennings personally and also, pursuant to The Fatal Accidents Act, for damages for the death of the late Mary Jennings.
The learned trial judge found that both the appellant and Cronsberry were at fault and apportioned the blame 80 per cent to the former and 20 per cent to the latter. He assessed the damages of the respondent Jennings personally at $145,795.43 and the damages under The Fatal Accidents Act at $11,300.
Each of the parties appealed to the Court of Appeal.
The present appellant, hereinafter sometimes referred to as “the Department”, sought the dismissal of the action as against it, alternatively a reduction of the percentage of
blame attributed to it and a reduction in the amount of damages.
The respondent Cronsberry by cross-appeal asked that he be absolved from liability and alternatively that the damages be reduced.
The respondent Jennings by cross-appeal asked that the award of damages to him personally be increased.
The result of these appeals has been stated in the opening paragraph of these reasons.
In this Court, the Department asks that the action as against it be dismissed and alternatively that the assessment of damages made by the learned trial judge should be restored, it does not ask any further reduction of the damages; the respondent Cronsberry asks that the action as against him be dismissed; the respondent Jennings asks that the appeal be dismissed, he does not ask that the assessment of damages made by the Court of Appeal be increased.
Neither the appellant nor the cross-appellant Cronsberry suggests that there was any negligence on the part of the driver of the Jennings car.
On the question of liability there are the following findings of fact all of which are supported by the evidence; (i) that the sign was turned on the Wednesday morning preceding the accident and, notwithstanding a daily patrol by employees of the Department, was allowed to remain in that position up to the happening of the accident; (ii) that this was an unreasonable length of time; (iii) that the position of the sign was an effective cause of the collision in that had it been in its proper position it was probable that Cronsberry would have seen it and stopped before entering Highway 12; (iv) that, even if Cronsberry was unaware that the highway which he was approaching was a through highway and so was entitled to assume that he had the right of way over the Jennings car, he was negligent as he had a clear view for some hundreds of feet to the south of the intersection and could see that the Jennings car was approaching the intersection at such a rate of speed that unless Cronsberry stopped a collision would occur.
On this statement of facts, for the reasons given by McGillivray J.A., I agree that the collision was caused by the fault of both defendants and that the apportionment of
the blame made by the learned trial judge ought not to be disturbed.
Counsel for the appellant submitted that even if the failure to have the stop sign in position was in fact an effective cause of the collision there was no legal liability on the part of the Department. It is common ground that if such liability existed at the time of the accident it must be found in s. 33 of The Highway Improvement Act, R.S.O. 1960, c. 171, the relevant subsections of which are (1)(2)(3) and (10). These read as follows:
33 (1) The King’s Highway shall be maintained and kept in repair by the Department and any municipality in which any part of the King’s Highway is situate is relieved from any liability therefor, but this does not apply to any sidewalk or municipal undertaking or work constructed or in course of construction by a municipality or which a municipality may lawfully do or construct upon the highway, and the municipality is liable for want of repair of the sidewalk, municipal undertaking or work, whether the want of repair is the result of nonfeasance or misfeasance, in the same manner and to the same extent as in the case of any other like work constructed by the municipality.
(2) In the case of default by the Department to keep the King’s Highway in repair, the Crown is liable for all damage sustained by any person by reason of the default, and the amount recoverable by a person by reason of the default may be agreed upon with the Minister before or after the commencement of an action for the recovery of damages.
(3) No action shall be brought against the Crown for the recovery of damages caused by the presence or absence or insufficiency of any wall, fence, guard rail, railing or barrier adjacent to or in, along or upon the King’s Highway or caused by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or upon the King’s Highway that is not on the roadway.
(10) The liability imposed by this section does not extend to a case in which a municipality having jurisdiction and control over the highway would not have been liable for the damage sustained.
The appellant contends that failure to maintain a stop sign as required by the relevant statute and regulations does not amount to “default to keep the King’s Highway in repair”. In the Courts below this submission has been unanimously rejected and, in my opinion, rightly so. It has been repeatedly held in Ontario that where a duty to keep a highway in repair is imposed by statute the body upon which it is imposed must keep the highway in such a condition that travellers using it with ordinary care may do so with safety. The danger created by the failure to maintain the required stop signs marking a through highway is too obvious to require comment. On this branch of the matter I
agree with and wish to adopt the reasons of McGillivray J.A.
It was next argued by counsel for the appellant that even if, contrary to his submission, the failure to maintain the stop sign constituted default in keeping the highway in repair the appellant was relieved from liability by the terms of subs. (3) of s. 33. This point was disposed of adversely to the appellant at the hearing and counsel for Jennings and for Cronsberry were not called upon in regard to it. On this point also I am content to adopt the reasons of McGillivray J.A.
For the above reasons I conclude that the judgment finding both defendants liable to the plaintiff and as between them apportioning the blame 80 per cent to the Department and 20 per cent to Cronsberry should be upheld and it remains to consider the question of the quantum of the damages awarded to Jennings personally. The amount of the damages awarded pursuant to The Fatal Accidents Act is not questioned.
Jennings was born on April 16, 1909. His normal life expectancy at the date of the accident was 22, 43 years. He is a graduate engineer. In 1955 he had become general manager of the Small Appliances Department of the Canadian General Electric Company at Barrie. In 1959 he had been made a vice-president of the company. The plant had progressed rapidly and satisfactorily under his management. He was paid by way of salary plus an annual “incentive bonus”. His gross earnings had increased from $13,752 in 1955 to $26,294.44 in 1961. According to the evidence of Mr. Marrs, the manager of the Personnel Accounting of the company, Jennings’ gross earnings in 1962 would have amounted to $30,525 and by 1967 would have increased to $34,000 a year and have continued at that rate until his retirement. If he retired at age 60 he would have received an annual retirement income of $7,025 and if he retired at 65 an annual retirement income of $11,215. Following the accident the company continued to pay his salary until the end of February 1962 when he was retired. He receives an annual retirement income of $4,842, which if he should still be living in 1974 when he reaches 65 years of age would be increased to $4,992.
The termination of Jennings’ employment deprived him of the right to exercise certain options to purchase stock in
American General Electric at fixed prices. He lost the right to purchase 594 shares at $52.25, U.S. funds, and the right to purchase 117 of such shares at $68.25, U.S. funds. At the date of the trial the current market price of the shares was $82, U.S. funds, and Mr. Marrs calculated the amount of profit which would have resulted if Jennings had exercised his option and sold the shares at the market at $19,695 U.S. funds.
The evidence of Dr. Harrison as to the physical condition of Jennings is uncontradicted. He suffered so severe a brain injury in the accident that he has never regained consciousness. He has been a patient at the Queen Elizabeth Hospital since January 4, 1962. He is confined to bed. He cannot speak. He cannot make any voluntary movement. He cannot swallow and is fed through a duodenal tube that passes through his nostril down to his stomach. He has a tracheotomy tube in his windpipe because without it he cannot breathe. He is incontinent as to his bladder and his bowels and has to have bladder drainage with a permanent catheter. There is no hope of recovery or improvement. He does not suffer pain and does not realize what his condition is. He is kept alive by “very meticulous care”. He is taking nourishment well and Dr. Harrison was of opinion that since his admission to the Queen Elizabeth Hospital up to the date of the trial in May 1963 his general physical condition had perhaps improved. The chief danger to his life is from a secondary infection developing either in the respiratory tract or in the bladder. The examination in chief of Dr. Harrison concluded as follows:
Q. Are you able to give his lordship any assistance as to his probable life expectancy in this condition?
A. My lord, that is a very difficult question. Barring what you might call a medical accident, in the way of one of these medical accidents taking place, his general vital functions are such that he could almost live—well, indefinitely. In my own experience out there, we had one patient that went over five years in this condition. It was the result of a motor accident. He, I may say, had many more sort of acute attacks of one sort or another during his illness than Mr. Jennings has had. I would hate to give a prognosis on whether he will live five years or ten years or even longer.
At the date of the hearing of the appeal in this Court, which concluded on December 17, 1965, Jennings was still alive.
In approaching the assessment of damages the learned trial judge stated that his calculations were based on Jennings living for five years from the date of the trial but no longer.
The learned trial judge stated that while it was not customary to assess damages item by item he found it desirable to do so in this case. He allowed nothing for pain and suffering owing to the fact that Jennings has remained unconscious ever since the accident. He allowed:
Out of pocket expenses to the date of trial, agreed upon,