A-372-85
Ivan Letnik and Captain Normac's Riverboat Inn
Limited (Appellants)
v.
Municipality of Metropolitan Toronto, Thomas
William Thompson, Robert G. Bundy, Charles
Colenutt, The Ship Trillium and Her Owners and
Charterers and The Toronto Harbour Commis
sioners (Respondents)
INDEXED AS: LETNIK V. TORONTO (MUNICIPALITY OF
METROPOLITAN)
Court of Appeal, Heald, Mahoney and Mac-
Guigan JJ.—Toronto, January 25, 26, 27 and 28;
Ottawa, February 24, 1988.
Maritime law — Torts — Collision in Toronto harbour
between steamer and permanently moored ship used as restau
rant — Damage apparently minor — Restaurant ship sinking
suddenly, two weeks later — Actual effective cause of collision
not established — Plea of inevitable accident fails — Foresee-
ability — Limitation of liability denied — Reversal of onus of
proof where breach of duty creating risk, injury occurring
within area of risk and evidential gap preventing plaintiff from
proving negligence — Impracticability of obtaining evidence —
Defence of novus actus interveniens fails — Standard of care
applicable to owner of floating restaurant different from that
applicable to owner of ship at sea.
On June 2, 1982, the sidewheel paddle steamer Trillium,
owned by the Municipality of Metropolitan Toronto (Metro),
collided with a permanently moored ship, the Normac, operated
as a floating restaurant at the Yonge Street slip in the Toronto
harbour causing apparently minor damage. Two weeks later,
however, the Normac suddenly went down. This is an appeal
and cross-appeal from the Trial Judge's findings (1) that Metro
and the Trillium were responsible for the collision and liable
for the consequent damages but not for the sinking of the ship
and (2) that they had failed to establish an entitlement to
limitation of liability.
Held, the appeal should be allowed in part and the cross-
appeal dismissed.
With respect to the collision, the cross-appellants (Metro, the
Trillium and captain Colenutt) have not been able to show that
the Trial Judge made some palpable and overriding error which
affected his assessment of the facts. Applying the case of The
Wagon Mound No. 2 to the facts of this case, it is found that
the risk was foreseeable and that the cross-appellants should
have taken precautions to eliminate it.
The defence of inevitable accident, as laid out in Rintoul,
had not been made out in this case, the cross-appellants having
failed to establish that they were not negligent with respect to
every possible cause. Indeed, the Trial Judge found that the
cross-appellants had been negligent in not installing bow thrust-
ers or a quick-release anchor system or a properly located
voice-communication system or a U-shaped finger dock and in
not having the oiler in the engine room when the Trillium was
approaching the dock. Given that finding, the owner could not
limit its liability under section 647 of the Canada Shipping Act,
since this requires that the shipowner show that it was in no
way at fault or privy to what occurred.
With respect to the sinking of the ship, the Trial Judge erred
in placing the onus of proof on the appellants and in accepting
the defence of novus actus interveniens. The House of Lords
held in McGhee that the onus should shift to the defendant (1)
where a person has by breach of duty of care created a risk, (2)
where injury occurs within the area of that risk, and (3) where
there is an evidential gap which prevents the plaintiff from
proving that the negligence caused the loss. In the present case,
there was a breach of the duty of care. The inference is
overwhelmingly probable at the practical level that the collid
ing ship was responsible for the sinking, unless its owners can
show otherwise. There was an evidential gap. While it would
have been possible to raise the ship to determine the actual
cause of the sinking, the cost of doing so made it impracticable.
In such a case, it is the creator of the risk who must bear the
consequences.
The standard of care required of the owner of a floating
restaurant is different from that required of the owner of a ship
at sea. It is highly excessive to apply to the former, as the Trial
Judge did, the standards of care of a reasonably prudent
shipowner in relation to a ship at sea. Given the standard of
conduct to be expected of the proprietor of a moored restaurant
ship, there was in the actions and omissions of the appellants no
new cause disturbing the sequence of events, something that
could be described as either unreasonable, extraneous or
extrinsic.
Given the Trial Judge's finding that the appellants had failed
to take elementary precautions following the collision, they
must bear part of the blame and the damages should be
apportioned 75%-25% in the appellants' favour.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Shipping Act, R.S.C. 1970, c. S-9, s. 647.
CASES JUDICIALLY CONSIDERED
APPLIED:
Stein et al. v. "Kathy K" et al. (The Ship), [1976] 2
S.C.R. 802; 62 D.L.R. (3d) 1; Overseas Tankship (U.K.)
Ltd. v. Miller Steamship Co. Pty., [1967] 1 A.C. 617
(P.C.) (The Wagon Mound No. 2); Rintoul v. X-Ray
and Radium Industries Limited and Others, [1956]
S.C.R. 674; McGhee v National Coal Board, [1972] 3
All ER 1008 (H.L.); Nowsco Well Service Ltd. v.
Canadian Propane Gas & Oil Ltd. et al. (1981), 122
D.L.R. (3d) 228; (1981), 7 Sask. R. 291; 16 C.C.L.T. 23
(C.A.); Oropesa, The, Lord v. Pacific Steam Navigation
Co., [1943] 1 All E. R. 211; (1942), 74 LI. L. Rep. 86
(C.A.); Papp et al. v. Leclerc (1977), 77 D.L.R. (3d) 536;
16 O.R. (2d) 158 (C.A.).
DISTINGUISHED:
Bolton v. Stone, [1951] A. C. 850 (H.L.); The Lady
Gwendolen, [1965] 2 All E.R. 283 (C.A.); Dollina
Enterprises Ltd. v. Wilson-Haffenden, [1977] 1 F.C. 169
(T.D.).
CONSIDERED:
Cook v. Lewis, [1951] S.C.R. 830; [1952] 1 D.L.R. 1.
REFERRED TO:
Powell v. Guttman et al. (1978), 89 D.L.R. (3d) 180;
[1978] 5 W.W.R. 228; 6 C.C.L.T. 183 (Man. C.A.);
Dalpe v. City of Edmundston (1979), 25 N.B.R. (2d) 102
(S.C. App. Div.); Re Workers' Compensation Appeal
Board and Penney (1980), 112 D.L.R. (3d) 95; (1980),
38 N.S.R. (2d) 623 (S.C. App. Div.); Delaney v. Cascade
River Holidays Ltd. (1983), 44 B.C.L.R. 24; 24
C.C.L.T. 6 (C.A.); Lomax v. Arsenault, [1986] 1
W.W.R. 68 (Sask. Q.B.).
AUTHORS CITED
Weinrib, Ernest J. "A Step Forward in Factual Causa
tion" (1975), 38 Modern L. Rev. 518.
COUNSEL:
Harvey Spiegel, Q.C. and A. C. Van Houten
for appellants.
David L. D. Beard, Q.C. and Rui M. Fer-
nandes for respondents.
SOLICITORS:
Green & Spiegel, Toronto, for appellants.
Beard, Winter, Toronto, for respondents.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This appeal and cross-appeal
arise out of a collision in Toronto Harbour on June
2, 1981, between the ship Trillium owned by the
respondent the Municipality of Metropolitan
Toronto ("Metro") and the ship Normac owned by
Captain Normac's Riverboat Inn Limited.
The appellants discontinued their action against
Thomas William Thompson, Robert G. Bundy and
the Toronto Harbour Commissioners before trial.
As a result the only remaining respondent besides
Metro and the Trillium is Captain Colenutt, who
was the captain and master of the Trillium at the
time of the accident.
The Normac, built in 1902 and used originally
as a fireboat and subsequently as a passenger
vessel on the Great Lakes, was operated as a
floating restaurant under the name of Captain
John's Restaurant by the appellant Ivan Letnik,
who is also the sole shareholder of the corporate
appellant. The ship's registered tonnage was 347.3
tons, her overall length 117.2 feet and her beam
25.1 feet. She was permanently moored at the
southern or harbour end of Yonge Street, to the
wall of a large mooring slip on the north side of
Toronto Harbour known as the Yonge Street slip.
The berth was leased from the Toronto Harbour
Commission. The Normac occupied a major por
tion of the 200-foot northern wall, and was the
only ship occupying a berth against that wall.
The Yonge Street slip is roughly in the shape of
a U, open to the south, with a flat base along the
north, where the Normac was berthed. Along the
slip's east wall there was moored a larger ship, the
Jadran, also owned by the appellant Letnik, which
was in the process of conversion to a restaurant
and was used for catering to special dining groups.
On the west wall of the slip the most southerly
berth, which was the first berth on the left when
entering the slip, was regularly occupied by the
Trillium. Farther along the west side were berthed
five tour boats owned and operated by Simpsons
Tour Boats Limited, two groups of two rafted
together with a single boat moored between them.
The Trillium, built in 1910, is a sidewheel
paddle steamer with a compound reciprocating
steam engine. Her length is 138.5 feet, her
beam 45 feet and her registered tonnage 425.48
tons. She is double ended with two wheelhouses
each equipped with a wheel, the necessary naviga
tional equipment, and a communication system to
the engine room located on the main deck. She is
owned and operated by Metro under the control of
its Department of Parks and Property. She had
been out of service from 1956 until after rehabili
tation in 1975 when she came into use on charter
runs in and around the immediate vicinity of
Toronto Harbour. Her crew consisted of a captain,
a mate, an engineer, an oiler and three deck hands.
On the evening of June 2, 1981, despite the
efforts of her engineer to put her engines in
reverse, the Trillium failed to stop as she reached
her berthing position, carried on and hit the out-
board boat of the first two Simpson tour boats and
sheered to starboard. The captain attempted to
avoid the Normac, but his manoeuvre did not
succeed, and the Normac was struck amidships.
Although there were 132 diners and crew aboard
at the time, no one was injured but certain damage
of an apparently minor nature was immediately
visible.
Exactly two weeks later, on June 16, 1981, the
Normac suddenly sank, less than two hours after
the first sign of water was noticed on board, on the
deck of the cargo room near the entrance to the
engine room.
At trial, Addy J. arrived at the following find
ings and conclusions (Appeal Book, Appendix 1,
page 58):
1. The defendants, Metro and the Trillium are responsible at
law for the collision with the Normac and are liable for the
damages occasioned by the collision but not for the sinking of
the ship or for the damages flowing from that event.
2. The said defendants have failed to establish their entitle
ment to limitation of liability.
3. The quantum of damages, if not agreed upon, will be
referred for assessment pursuant to my order of 5 November,
1984.
4. Costs will be deferred.
From this judgment the appellants have
appealed and the respondents cross-appealed.
* * * * *
Since the cross-appeal raises issues relating to the
prior event, the collision, it is fitting to begin there.
The distinguished Trial Judge dealt with that
event as follows (Appeal Book, Appendix 1, pages
30-5 8):
I find that, although it has been established that the failure
of the Trillium to stop before hitting the Normac must in all
probability have been due to some mechanical defect, malfunc
tion or breakdown, that the precise nature or cause of same has
not been established and that it has not been proven that there
was any negligence or lack of technical skill on the part of any
member of the crew, which resulted in the failure of the engine
to go into reverse and stop the vessel.
The fact that the actual effective cause of the collision has
not been established does not relieve a defendant from liability
under circumstances where a ship in motion under the domin
ion and control of its master, collides with another properly
moored vessel in broad daylight.
The present defendants have satisfied me that no act or
omission of the captain or of any member of the crew at or
immediately before the collision caused the Trillium to go out
of control. However, when, as in the case at bar it has been
established that a defendant's ship went out of control or broke
down by reason of some mechanical defect, there is an onus on
that party to show by positive evidence that the mechanical
defect was latent and was neither reasonably foreseeable nor
detectable by the exercise of reasonable care and skill on the
part of those responsible for the ship and that the defect or
breakdown was not due to any fault or negligence such as
improper care or maintenance on his part or on the part of
anyone for whose actions he is vicariously liable.
Furthermore the burden of proof on the part of a ship which
runs into another when moored or anchored in conditions of
good visibility and fair weather is a very onerous one.
Where the precise cause of the mechanical breakdown or
mechanical defect which led to a collision has not been deter
mined then, obviously, a defendant is not in a position to
discharge the onus upon him and liability should, without more,
attach.
Although it has not been established in evidence that the
immediate effective cause of the accident was due to any
particular act or omission on the part of the defendants, it has
been established that, had certain actions or precautions been
taken previously, the collision with the Normac might probably
have been avoided. It has also been established that the proba
bility of those actions or precautions being effective to prevent
damage was reasonably foreseeable.
As to the question of foreseeability, it is of some significance
that, on an occasion previous to the accident, the Trillium had
difficulty in docking and struck some of the Simpson Tour
Boats (little or no damage was caused) and that, on another
occasion, it collided with the ship Jadran causing only very
slight damage to the paint work. The engineer of the Trillium,
on one of those occasions, believes that the trouble might
possibly have been due to condensate in the reversing cylinder
but was not certain. The actual cause of the malfunction was
never determined.
The owner of Simpson Tour Boats was so concerned with the
fact that the Trillium was experiencing difficulty in docking,
that he wrote a letter in 1978 (Exhibit P-5) to the Commission
er of Parks and Property, who was responsible for the operation
of the ferries for the defendant Metro, stating that the Trillium
had, on two occasions, experienced difficulty in docking and
suggested that another berth be used.
One Robert George Bundy was appointed Commissioner of
Parks and Property for Metro in 1978 and shortly after his
appointment, when aboard the Trillium, he noticed that the
captain took considerable time and had some difficulty in
docking the ship at Hanlan's point in Toronto Harbour. As a
result of that experience he recommended to Metro that bow
thrusters be installed on the Trillium to increase manoeuvrabil
ity. For financial reasons, the recommendation was not adopted
by Metro until some time after the accident. Consideration was
also given to the installation of a "U" shaped finger dock at the
north end of the Trillium's berth to allow front loading of the
ship and also prevent her from going forward into the slip
beyond the regular berthing position. This recommendation was
not carried out until after the accident. It is true that the
question of bow thrusters and of a "U" shaped finger dock were
considered mainly in regard to the lack of manoeuvrability of
the Trillium in high winds. However, Metro was aware of the
fact that, on at least two' occasions, the ship had failed to
reverse as it should have.
Captain Colenutt testified quite clearly at the trial that, had
bow thrusters been installed previous to the accident, there
would have been no collision whatsoever. He stated that he
could have, with the bow thrusters, turned the Trillium around
before it struck any ship in the slip.
The telephone in the engine room providing voice communi
cation with the bridge was not in front of or within easy reach
of the engineer. The latter would have had to abandon the
controls, turn arround and walk to the bulkhead behind his
position at the control panel in order to talk to the bridge. On
the day of the accident he never did this as, understandably
enough, he was too preoccupied in attempting to get the engine
to reverse. Furthermore, the engineer gave permission to the
' The cross-respondents admitted in the course of argument
that the Trial Judge erred in referring to two occasions. The
evidence shows that there were three occasions on which the
Trillium had problems in manoeuvring, but only one on which
there was a failure to reverse properly. Nevertheless, in context,
this must be seen as a minor error which could not affect the
result.
oiler to go above on deck immediately before the Trillium
began its approach to dock, instead of keeping him on duty in
the engine room where he belonged during the crucial docking
operation. Had the oiler been in the engine room, he could
easily have been requested by the engineer to advise the bridge
immediately by telephone of the difficulties being encountered.
Had there been a telephone or a microphone immediately in
front of the engineer or had the oiler been kept at his post in
the engine room, the captain could have been made aware of
the difficulties being experienced in the engine room when the
ship was still some distance (approximately three boat lengths)
from the entrance to the Yonge Street Slip. As it was, the
captain was never made aware that something was wrong until
the ship was almost fully in its berthing position at which time
he noticed that the Trillium did not appear to be losing way.
The captain might well have been able to take evasive action at
the helm had he been advised on time.
Also, there seems to be no doubt that, had the "U" dock been
installed previously to the 2nd of June 1981, the collision with
the Normac would not have occurred. It is also of some
significance that Metro occupied other docks immediately to
the west of and adjacent to the Yonge Street slip. These were
individual docks and were used by the regular ferries which, as
previously stated, were much more manoeuvrable than the
Trillium. As they were end-loading docks, any ferry entering
one could not proceed beyond the actual berthing position and
any danger to vessels in the vicinity was greatly reduced. In
windy conditions, the Trillium did in fact use one of these
docks. Having regard to the delay experienced at times in
getting the Trillium in reverse and having regard to the
number of vessels occupying positions in front of the Trillium's
berth, I feel that there is negligence attributable to Metro in
failing to use at all times for the Trillium one of the ferry docks
which it had available.
Although anchors are generally used for manoeuvring pur
poses only on much larger ships than the Trillium, there seems
to be a reasonable probability that, had it been fitted with an
anchor properly located with a quick release system, rather
than the cumbersome anchoring system available aboard the
vessel, the forward motion might have been checked and the
collision avoided or, at least, the force of collision might have
been reduced to some extent. The fact that the Ship Inspectors
approved the anchor for use on the Trillium or, for that matter,
any other machinery or equipment on the ship, does not, in any
way, constitute conclusive evidence that the machinery or
equipment is of a nature, standard or quality or has been
installed in such a manner that, should damage occur, the
owners would be freed from liability on any such ground.
The factual situation in this case is, in my view, one to which
the principle of res ipsa loquitur might well be applied ...
Res ipsa loquitur is applicable where the facts leading to the
accident are unknown. Otherwise, a plaintiff who is in posses
sion of the details or who, with reasonable diligence, would be
able to become aware of them, has an onus of establishing
them, but, if he attempts to establish how the mischief occurred
and fails to attain this goal, he is not, for that reason only,
barred from invoking res ipsa loquitur as an alternative, pro
viding the required conditions for relying on the rule exist ....
As to the additional conditions for res ipsa loquitur to apply,
the Court should first of all be satisfied that in the ordinary
course of events the accident would not have occurred in the
absence of negligence. The second requirement is that the
object causing the damage be under the dominion and control
of the defendant. Both these conditions have been met.
Res ipsa loquitur has been applied frequently and consistent
ly, not only in cases of damage caused by falling objects,
defective products, fires and explosions, but in cases involving
positive actions on the part of the defendant, such as medical
malpractice cases, ground transportation cases of all kinds, as
well as air transportation matters. Although it is a principle
which is associated directly with common law, since it is
essentially an evidentiary rule and not one of substantive law, I
can see no reason why the principle should not be applied to
admiralty law cases. A rose by any other name ... !
INEVITABLE ACCIDENT
The defendants pleaded inevitable accident. A considerable
amount of argument was directed to this issue and several cases
were referred to in support of it. At the outset, it should be
clearly stated that inevitable accident does not mean unex
plained accident.
I do not feel that it is at all necessary to review in extenso the
law pertaining to this principle. The defendants relied mainly
on the Supreme Court of Canada decision of Rintoul v. X- Ray
and Radium Industries Limited and Others ([1956] S.C.R.
674) where Cartwright J., as he then was, in delivering the
judgment of the Court stated at page 678 of the above men
tioned report:
In my view, in the case at bar the respondents have failed
to prove two matters both of which were essential to the
establishment of the defence of inevitable accident. These
matters are (i) that the alleged failure of the service brakes
could not have been prevented by the exercise of reasonable
care on their part, and (ii) that, assuming that such failure
occurred without negligence on the part of the respondents,
Ouellette could not, by the exercise of reasonable care, have
avoided the collision which he claims was the effect of such
failure.
The defendants, however, in the case at bar, have failed to
satisfy both these requirements. In the first instance they have
failed to establish the cause of the engine failure, and thus,
have not established that it could not have been prevented by
the exercise of reasonable care on their part. With regard to the
second requirement, they have failed to establish that, even if
the following precautions had been taken, namely, the installa
tion of bow thrusters, of a quick release anchor system and of a
properly located voice communication system, and even if the
oiler had been kept in the engine room when the Trillium was
approaching dock, in all probability the collision would occur in
any event. The failure of the ship to stop in time and the
probable effectiveness of these measures were both reasonably
forseeable. Therefore the failure to take them constitutes
negligence.
I conclude that the plea of inevitable accident fails and there
is liability on the part of the defendants for the collision.
LIMITATION OF LIABILITY
Where limitation of liability is sought pursuant to the provi
sions of section 647 of the Canada Shipping Act the onus is
clearly on the defendant owner to establish that the collision
occurred without his fault or privity. It is a heavy onus. As
stated by Ritchie J. ... in Stein et al. v. "Kathy K" et al. (The
Ship), [l976] 2 S.C.R. 802, at page 819; 62 D.L.R. (3d) 1, at
page 13:
The burden resting on the shipowners is a heavy one and is
not discharged by their showing that their acts were not "the
sole or next or chief cause" of the mishap.
The defendants in the case at bar insofar as the issue of
limitation of liability is concerned are in substantially the same
difficulty as they are regarding the issue of inevitable accident.
Since the cause of the collision has not been established they
are not able to prove that the collision occurred without any
fault or privity on their part. Considerable evidence was led
which established some degree of negligence or laxity on the
part of the defendants which, if related to the cause of the
collision, would have prevented them from availing themselves
of the protection of section 647. These areas where improper
supervision and control were established included the lack of
certain standing orders, operational instructions and other
supervisory directives as well as administrative procedures. The
plaintiffs were obviously unsuccessful in arguing that these
matters related to the cause of the accident which remained
undetermined. But by the same token the defendants were
unable to establish affirmatively, as they are obliged by law to
do, that none of these acts or omissions contributed in any way
to the accident. It thus became impossible for them to dis
charge the onus imposed by section 647 and limitation of
liability cannot be successfully invoked.
The weight of the cross-appellants' Memoran
dum of Fact and Law was devoted to disputing the
Trial Judge's view of the facts. But they have not
been able to show that "the learned trial judge
made some palpable and overriding error which
affected his assessment of the facts": Stein et al. v.
"Kathy K" et al. (The Ship), [1976] 2 S.C.R. 802,
at page 808; 62 D.L.R. (3d) 1, at page 5. On the
factual side, apart from the minor error I have
noted in a footnote above, the Trial Judge's find
ings of fact were richly supported by the evidence,
and therefore unassailable in this Court on the
basis that the Trial Judge erred in finding that the
adoption of safety measures would have forestalled
the collision.
With respect to the legal question as to the
foreseeability of the risk and the consequent neces
sity of precautions, the cross-appellants relied
heavily on Bolton v. Stone, [1951] A. C. 850,
where the House of Lords held that the risk of
cricket balls being driven out of the ground on to
an unfrequented public road and severely injuring
a passerby was so small that a reasonable man
would have been justified in taking no steps to
eliminate it.
But Bolton v. Stone has now been put in context
by the later Privy Council decision in Overseas
Tankship (U.K.) Ltd. v. Miller Steamship Co.
Pty., [1967] 1 A.C. 617, at pages 642 and 643
(The Wagon Mound No. 2), where Lord Reid,
who had also been one of the Law Lords delivering
reasons for judgment in Bolton v. Stone, said
(footnotes omitted):
But it does not follow that, no matter what the circumstances
may be, it is justifiable to neglect a risk of such a small
magnitude. A reasonable man would only neglect such a risk if
he had some valid reason for doing so, e.g., that it would involve
considerable expense to eliminate the risk. He would weigh the
risk against the difficulty of eliminating it. If the activity which
caused the injury to Miss Stone had been an unlawful activity,
there can be little doubt but that Bolton v. Stone would have
been decided differently. In their Lordships' judgment Bolton v.
Stone did not alter the general principle that a person must be
regarded as negligent if he does not take steps to eliminate a
risk which he knows or ought to know is a real risk and not a
mere possibility which would never influence the mind of a
reasonable man. What that decision did was to recognise and
give effect to the qualification that it is justifiable not to take
steps to eliminate a real risk if it is small and if the circum
stances are such that a reasonable, man, careful of the safety of
his neighour, would think it right to neglect it.
On such an inquiry as to the magnitude of the risk
foreseen, the facts will be decisive. In the case at
bar, it seems clear that the risk identified by the
Trial Judge as foreseeable was not that of a failure
on the part of the Trillium's engine to reverse, as
the cross-appellants argued, but rather that of a
collision from whatever cause, a possibility which
on the Trial Judge's view of the evidence the
cross-appellants should have been aware of and
should have regarded as real. This Court has no
warrant to challenge those findings.
With respect to the defence of inevitable acci
dent, the leading Canadian authority is Rintoul v.
X-Ray and Radium Industries Limited and
Others, [1956] S.C.R. 674, on which both parties
and the Trial Judge relied. Cartwright J. (as he
then was), in rejecting this defence where an
automobile accident was caused by a brake failure,
held that two matters had to be proved by the
offending driver in order to make out the defence
(at page 678):
These matters are (i) that the alleged failure of the service
brakes could not have been prevented by the exercise of reason
able care on their part, and (ii) that, assuming that such failure
occurred without negligence on the part of the respondents,
Ouellette could not, by the exercise of reasonable care, have
avoided the collision which he claims was the effect of such
failure.
The cross-appellants admitted that they were not
in a position to point to the specific cause of the
accident here. They argued, however, that, where
no specific cause of an accident can be found, but
where they establish no negligence with respect to
all possible causes of the accident, then the defence
has been made out.
It is true that the learned Trial Judge did not
explicitly refer to this alternative of negativing all
possible causes, but that cannot be considered too
surprising in the light of the failure of the cross-
appellants to call any evidence whatsoever as to
the causes, actual or possible, of the collision. In
these circumstances he must be taken to have
implicitly found that the cross-appellants, on
whom the onus of proof admittedly rested, had not
satisfied him that they were not negligent with
respect to every possible cause. Indeed, he found
that they were actually negligent in not installing
bow thrusters or a quick-release anchor system or
a properly located voice communication system or
a U-shaped finger dock and in not having the oiler
in the engine room when the Trillium was
approaching the dock. In my view, the Trial Judge
applied the proper legal principles and his rejection
of the defence of inevitable accident was supported
by the evidence.
The final issue on the cross-appeal is the limita
tion of owner's liability provided for by section 647
of the Canada Shipping Act [R.S.C. 1970, c. S-9]
where a collision occurs without his actual fault or
privity. The relevant part of the section is as
follows:
647... .
(2) The owner of a ship, whether registered in Canada or
not, is not, where any of the following events occur without his
actual fault or privity, namely,
(d) where any loss or damage is caused to any property,
other than property described in paragraph (b) [i.e. damage
or loss to any goods merchandise or other things whatever on
board the owner's ship], or any rights are infringed through
(i) the act or omission of any person, whether on board
that ship or not, in the navigation or management of the
ship, in the loading, carriage or discharge of its cargo or in
the embarkation, carriage or disembarkation of its passen
ger, or
(ii) any other act or omission of any person on board that
ship;
liable for damages beyond the following amounts, namely,
(I) in respect of any loss or damage to property or any
infringement of any rights mentioned in paragraph (d), an
aggregate amount equivalent to 1,000 gold francs for each
ton of that ship's tonnage.
Metro claims, under this Act, the right to limit its
liability to $52,720.39.
In The Ship `Kathy K", supra, at pages 819
S.C.R.; 13 D.L.R., Ritchie J. described the onus of
proof for this defence as follows:
The burden resting on the shipowners is a heavy one and is
not discharged by their showing that their acts were not "the
sole or next or chief cause" of the mishap. As Viscount
Haldane stated in Standard Oil Co. of New York v. Clan Line
Steamers, Ltd. ([1924] A.C. 100), at p. 113:
... they must show that they were themselves in no way in
fault or privy to what occurred.
The cross-appellants again admitted that they
could not establish a specific cause but contended
that they had shown an absence of negligence in
relation to all possible causes. Again, however, this
flies in the face of the facts as found by the Trial
Judge, who found actual negligence on the part of
the cross-appellants in their failure to take precau
tions in the light of previous events, and was
supported by the evidence in so finding.
In the result, I would dismiss the cross-appeal.
* * * * *
At trial, the appellants as plaintiffs alleged that
the sinking of the Normac on June 16, 1981 was
caused by the collision two weeks earlier. The
respondents took the position that the appellants
had failed to prove any causal connection and also
pleaded novus actus interveniens.
There was no direct evidence as to the cause of
the sinking and the Trial Judge rejected the appel
lants' two theories accounting for it: (1) that the
fish plate extension of the Trillium's forward
rudder struck the Normac below the water line
just before its bow struck the shell plating above
the rubrail, or (2) that the shock of the collision
was somehow transmitted to some other parts of
the hull plating and caused leaking in undetectable
places. He was more impressed by the respondents'
theory that water entered through the stern tube
gland of the propeller shaft, which was packed
with hemp lubricated with tallow and had not been
examined in twelve years. About this theory he
said (Appeal Book, Appendix 1, page 54):
Although there is no direct evidence to establish that water
did in fact enter through the stern tube gland, and the explana
tion remains a theory, it is, nevertheless, the only explanation of
the sinking which is consistent with all of the factual evidence
and with the series of occurrences related by the witnesses as to
what happened on the 16th of June.
Nevertheless, he found it unnecessary to decide
the actual cause in the light of the appellants'
failure to satisfy the burden of proof which rested
on them. Alternatively, he accepted the principle
of novus actus interveniens advanced by the
respondents (Appeal Book, Appendix 1, pages
54-56):
Whatever might be the actual cause of the sinking of the
Normac the plaintiffs have, for the above reasons, failed to
establish it and to establish a causal link between the collision
and the sinking itself. Where liability for a collision has been
established by a plaintiff, he must also establish, on a balance
of probabilities, that all the damages for which he claims
compensation resulted from the actual collision.
Even, if by reason of a coincidence in time or for some other
motive, one might possibly be prepared to establish some
relation between the collision and the actual sinking, the failure
of the plaintiff Letnik to take what I consider to be the most
elementary precautions, which failure undoubtedly resulted in
the sinking, would bring into play the principle of novus actus
interveniens.
I have already commented to some extent on these elemen
tary precautions which, among other things, include:
1. failure to close the vent holes;
2. failure to place extra bilge pumps aboard and to install a
stern bilge pump;
3. failure to maintain a 24 hour watch with instructions to
ensure that the ship was not taking on water;
4. failure to test or examine the bilge pump and the pump well
periodically.
From a practical point of view, since the conduct of the
plaintiff Letnik was so far removed from being reasonable, any
chain of causation attributable to the original impact must be
considered as effectively broken. The failure of the plaintiffs, in
my view, goes well beyond the situation where the court might
find negligence on the part of the plaintiffs which merely
contributes to the occurrence and therefore leads to an appor
tionment of the blame. The link between liability for the
original collision and the actual sinking would be much too
remote and be considered as broken by the acts or omissions of
the plaintiff.
Although the principle of novus actus interveniens is normal
ly applied where the intervening cause is attributable to the act
of a third party it is also applicable where it is that of the
plaintiff himself. Furthermore, even through the word "actus"
would seem to imply misfeasance as opposed to nonfeasance,
the principle does apply where a failure to act has caused the
damage and the failure is totally beyond what might ordinarily
be expected. The chain of causation is then considered as
broken. The failure would, in the circumstances of the present
case, be considered as the real effective cause as the conduct of
the plaintiff Letnik can indeed be qualified as blameworthy,
unreasonable or unwarranted. It amounts in effect to foolhardi
ness which would preclude one from considering the sinking4f
the Normac as a natural and direct consequence of the colli
sion. (See The Paludina (1924), 20 Ll. L. Rep. 223 (CA.),
aff'd (1926), 25 Ll. L. Rep. 281, as to captain's failure to stop
engines where ship was set adrift following a collision; The
Fritz Thyssen, [1968] P. 255, aff'd [1967] 2 Lloyd's Rep. 199
(C.A.), as to refusal to accept aid; and The Fogo, [1967] 2
Lloyd's Rep. 208 (Adm. Div.), as to failure to arrange for tugs
to beach vessel following collision; and finally The Hermes,
[19691 1 Lloyd's Rep. 425 (Can. Ex.Ct.) where there was a
failure of the captain of the plaintiff's ship to beach it.)
For the above reasons I conclude that the defendants are not
liable at law for the sinking of the Normac and are not obliged
to compensate the plaintiffs for any damages resulting
therefrom.
On appeal the appellants' principal argument
was that the Trial Judge erred in law in holding
that the onus of establishing the causal connection
between the collision and the sinking rested on
them. They contended rather that, on the basis of
the decision of the House of Lords in McGhee y
National Coal Board, [ 1972] 3 All ER 1008, the
onus of negativing a causal connection fell on the
respondents. (Since he did not refer to it in his
reasons for decision, I assume that this authority
was not cited to the Trial Judge.)
In the McGhee case the "pursuer" (in Scots law,
"plaintiff" at common law) contracted dermatitis
while employed by the defender to clean out brick
kilns, and it was admitted that the dermatitis was
caused by the dusty working conditions in the
kilns. Because of the defendant's failure to supply
showers at the work site, as was common in the
industry, the pursuer had to bicycle home after
work caked with sweat and grime, and both at trial
and on appeal it was found that the employer was
negligent in not providing adequate washing facili
ties. Nevertheless, in the absence of medical evi
dence that dermatitis would not have occurred had
showers been provided, both the Trial Judge and
the Court of Appeal held that the pursuer's action
failed because he had not shown that the breach of
duty had caused or materially contributed to his
injury.
The House of Lords unanimously allowed the
appeal, and only Lord Kilbrandon did so by revers
ing on the facts and finding that the pursuer had
succeeded in showing that his injury had been
caused or contributed to by his employer's breach
of duty. Lord Wilberforce went the furthest in
explictly proposing the reversal of the onus of
proof (at pages 1012-1013):
My Lords, I agree with the judge below to the extent that
merely to show that a breach of duty increases the risk of harm
is not, in abstracto, enough to enable the pursuer to succeed.
He might, on this basis, still be met by successful defences.
Thus, it was open to the respondents, while admitting, or being
unable to contest that their failure had increased the risk, to
prove, if they could, as they tried to do, that the appellant's
dermatitis was 'non-occupational'.
But the question remains whether a pursuer must necessarily
fail if, after he has shown a breach of duty, involving an
increase of risk of disease, he cannot positively prove that this
increase of risk caused or materially contributed to the disease
while his employers cannot positively prove the contrary. In this
intermediate case there is an appearance of logic in the view
that the pursuer, on whom the onus lies, should fail—a logic
which dictated the judgments below. The question is whether
we should be satisfied in factual situations like the present, with
this logical approach. In my opinion, there are further consider
ations of importance. First, it is a sound principle that where a
person has, by breach of duty of care, created a risk, and injury
occurs within the area of that risk, the loss should be borne by
him unless he shows that it had some other cause. Secondly,
from the evidential point of view, one may ask, why should a
man who is able to show that his employer should have taken
certain precautions, because without them there is a risk, or an
added risk, of injury or disease, and who in fact sustains exactly
that injury or disease, have to assume the burden of proving
more: namely, that it was the addition to the risk, caused by the
breach of duty, which caused or materially contributed to the
injury? In many cases of which the present is typical, this is
impossible to prove, just because honest medical opinion cannot
segregate the causes of an illness between compound causes.
And if one asks which of the parties, the workman or the
employers should suffer from this inherent evidential difficulty,
the answer as a matter in policy or justice should be that it is
the creator of the risk who, ex hypothesi, must be taken to have
foreseen the possibility of damage who should bear its
consequences.
The present factual situation has its differences: the default
here consisted not in adding a material quantity to the accumu
lation of injurious particles but by failure to take a step which
materially increased the risk that the dust already present
would cause injury. And I must say that, at least in the present
case, to bridge the evidential gap by inference seems to me
something of a fiction, since it was precisely this inference
which the medical expert declined to make. But I find in the
cases quoted an analogy which suggests the conclusion that, in
the absence of proof that the culpable condition had, in the
result, no effect, the employers should be liable for an injury,
squarely within the risk which they created and that they, not
the pursuer, should suffer the consequence of the impossibility,
foreseeably inherent in the nature of his injury, of segregating
the precise consequence of their default.
Lord Reid favoured "a broader view of causa
tion ... based on the practical way in which the
ordinary man's mind works in the every-day
affairs of life" (at page 1011):
I think that in cases like this we must take a broader view of
causation. The medical evidence is to the effect that the fact
that the man had to cycle home caked with grime and sweat
added materially to the risk that this disease might develop. It
does not and could not explain just why that is so. But
experience shews that it is so. Plainly that must be because
what happens while the man remains unwashed can have a
causative effect, although just how the cause operates is uncer
tain. I cannot accept the view expressed in the Inner House that
once the man left the brick kiln he left behind the causes which
made him liable to develop dermatitis. That seems to me quite
inconsistent with a proper interpretation of the medical evi
dence. Nor can I accept the distinction drawn by the Lord
Ordinary between materially increasing the risk that the dis
ease will occur and making a material contribution to its
occurrence.
There may be some logical ground for such a distinction
where our knowledge of all the material factors is complete.
But it has often been said that the legal concept of causation is
not based on logic or philosophy. It is based on the practical
way in which the ordinary man's mind works in the every-day
affairs of life. From a broad and practical viewpoint I can see
no substantial difference between saying that what the respond
ents did materially increased the risk of injury to the appellant
and saying that what the respondents did made a material
contribution to his injury.
Lord Salmon emphasized the senselessness of
exonerating an employer who had materially
increased the risk of his employee's contracting
dermatitis (at page 1018, footnotes omitted):
Suppose ... it could be proved that men engaged in a particular
industrial process would be exposed to a 52 per cent risk of
contracting dermatitis even when proper washing facilities were
provided. Suppose it could also be proved that that risk would
be increased to, say, 90 per cent when such facilities were not
provided. It would follow that if the decision appealed from is
right, an employer who negligently failed to provide the proper
facilities would escape from any liability to an employee who
contracted dermatitis notwithstanding that the employers had
increased the risk from 52 per cent to 90 per cent. The
negligence would not be a cause of the dermatitis because even
with proper washing facilities, i e without the negligence, it
would still have been more likely than not that the employee
would have contracted the disease—the risk of injury then
being 52 per cent. If, however, you substitute 48 per cent for 52
per cent the employer could not escape liability, not even if he
had increased the risk to, say, only 60 per cent. Clearly such
results would not make sense; nor would they, in my view,
accord with the common law.
I think that the approach by the courts below confuses the
balance of probability test with the nature of causation. More
over, it would mean that in the present state of medical
knowledge and in circumstances such as these (which are by no
means uncommon) an employer would be permitted by the law
to disregard with impunity his duty to take reasonable care for
the safety of his employees.
My Lords, I would suggest that the true view is that, as a
rule, when it is proved, on a balance of probabilities, that an
employer has been negligent and that his negligence has
materially increased the risk of his employee contracting an
industrial disease, then he is liable in damages to that employee
if he contracts the disease notwithstanding that the employer is
not responsible for other factors which have materially con
tributed to the disease: Bonnington Castings Ltd y Wardlaw
and Nicholson y Atlas Steel Foundry & Engineering Co Ltd.
I do not find the attempts to distinguish those authorities from
the present case at all convincing.
In the circumstances of the present case, the possibility of a
distinction existing between (a) having materially increased the
risk of contracting the disease, and (b) having materially
contributed to causing the disease may no doubt be a fruitful
source of interesting academic discussions between students of
philosophy. Such a distinction is, however, far too unreal to be
recognised by the common law. I would accordingly allow the
appeal.
Lord Simon of Glaisdale summed up the case
this way (at page 1015):
To hold otherwise would mean that the respondents were under
a legal duty which they could, in the present state of medical
knowledge, with impunity ignore.
It is immediately apparent from these speeches
that the majority of the Law Lords were reacting
strongly against an overly logical conception of
factual causation in favour of a more practical,
common-sense approach, where there is an inher
ent evidentiary gap which would otherwise have
been fatal to the plaintiff's case.
It is true that only Lord Wilberforce explicitly
reversed the burden of proof, but I believe it is fair
to conclude that by refusing to distinguish between
materially increasing the risk and materially con
tributing to the injury, Lord Reid, Lord Simon of
Glaisdale and Lord Salmon were effectively taking
the same position, since one can hardly suppose
that they wished to hold the defendants liable even
if they could disprove negligence. Moreover, the
interpretation I propose is in accordance with that
of the five Canadian appellate courts which have
followed the McGhee decision: Powell v. Guttman
et al. (1978), 89 D.L.R. (3d) 180; [1978] 5
W.W.R. 228; 6 C.C.L.T. 183 (Man. C.A.); Dalpe
v. City of Edmundston (1979), 25 N.B.R. (2d)
102 (S.C. App. Div.); Re Workers' Compensation
Appeal Board and Penney (1980), 112 D.L.R.
(3d) 95; (1980), 38 N.S.R. (2d) 623 (S.C. App.
Div.); Nowsco Well Service Ltd. v. Canadian Pro
pane Gas & Oil Ltd. et al. (1981), 122 D.L.R.
(3d) 228; (1981), 7 Sask. R. 291; 16 C.C.L.T. 23
(C.A.); Delaney v. Cascade River Holidays Ltd.
(1983), 44 B.C.L.R. 24; 24 C.C.L.T. 6 (C.A.).
In Lord Wilberforce's view, then, an onus shift
should occur (1) where a person has by breach of
duty of care created a risk, (2) where injury occurs
within the area of that risk, and (3) where there is
an evidential gap which prevents the plaintiff from
proving that the negligence caused the loss.
In argument both parties took the position that
McGhee is good law, but they disagreed as to its
applicability to the instant facts, particularly in
respect to Lord Wilberforce's second and third
principles.
In my own view, in McGhee, the House of Lords
went well beyond the previous precedent in Cook
v. Lewis, [1951] S.C.R. 830; [1952] 1 D.L.R. 1. In
that case, where injury occurred when two hunters
fired simultaneously, the Supreme Court of
Canada affirmed the British Columbia Court of
Appeal in setting aside the finding of the jury
exculpating both defendants from negligence,
holding that in such circumstances the burden of
proof had shifted to the defendants. Cartwright J.
for the majority declared that if the jury found
themselves unable to decide which of the two shot
the plaintiff, because in their opinion both shot
negligently in his direction, both defendants should
be found liable. I adopt the two distinctions point
ed out by Professor Ernest J. Weinrib, "A Step
Forward in Factual Causation" (1975), 38
Modern L. Rev. 518. The first distinction is as
follows (at page 524):
In contrast to Cook v. Lewis where one can be certain that the
plaintiff was injured through the commission of a tort complete
in all its elements (duty, breach, cause, injury), it is possible
that in McGhee the injury was not the result of a tort at all.
A second distinction is of equal significance, ibid.,
at page 526:
Until McGhee [the] reversal of onus of proof was restricted to
instances in which the absence of proof was somehow the doing
of the culpable defendant .... By contrast in McGhee the
opportunity of proof was not impaired by the defender but was
merely absent.
The respondents took the position that the sink
ing of the Normac did not come within the area of
risk created by their negligence, since that area
has to be defined in terms of time as well as of
place, and that the fourteen-day period between
the collision and the sinking was too great to
satisfy the time element.
This argument has a superficial attractiveness
because everyone must agree that there could be
periods of time after which it would be unreason
able to place the burden of proof on a tortfeaser
with respect to possible consequences of his
negligence.
Nevertheless, I think that time as such is not of
the essence even in such cases. What one is really
dealing with is the overwhelming practical proba
bility of factual causality. Where the danger at
stake, for instance, is of an environmental kind, as
time increases it might become increasingly dif
ficult to infer that a newly-observed deterioration
was probably caused by the initial negligence. In
such a case the very complexity of the subject
matter increases the possibility of other causes of
the observed effect, or, at least decreases the virtu
al practical certainty that justifies the causal
inference. 2
Here the subject matter is not complex but
simple. A ship has sunk, two weeks after it was
struck by another. Sinking is a relatively common
consequence of a ship collision, and the sinking as
well as the collision are both extremely foreseeable
2 In Lomax v. Arsenault, [1986] 1 W.W.R. 68 (Sask. Q.B.),
where the Court reversed the onus following McGhee, it held
nevertheless that the diversion and replacement of water in a
lake during the summer was not a cause of the fact that 75% of
the fish in the lake died the following winter.
consequences of the respondents' negligence, as
determined by the Trial Judge with respect to the
collision. It is theoretically possible that there
might have been other causes, but given that the
Normac had passed twelve years in the same berth
without problems and then suddenly sank two
weeks after the collision, I find the inference over
whelmingly probable at the practical level that the
colliding ship was responsible, unless its owners
can show otherwise. I would adopt as my own the
words of Bayda J.A. (as he then was) in the
Nowsco case, supra, at pages 246 D.L.R.; 313
Sask. R.; 47 C.C.L.T.:
For the principle to apply, that breach must create a risk and
there must occur an injury within the area of the risk. But, it
may be asked, does not every breach of duty create a risk? For
example, does not a careless driver create the risk of a collision
with another motor vehicle? If injury occurs within the area of
risk, that is, if a collision with another vehicle occurs—does the
law place the onus of disproving causation on the offending
driver? To be sure, it does not. But that is not the situation
contemplated by the principle under examination here. Rather
the breach of duty contemplated must be such that the risk it
creates is of a magnitude that would prompt one to say about
that risk "it is so unreasonable that injury is more likely to
occur than not". In the parlance of the ordinary man one must
be able to say that the creator of the risk was "certainly asking
for trouble".
I must conclude here that the respondents were
asking for the very trouble that occurred, viz., the
sinking of the Normac.
The respondents also argued that there was no
evidence gap in the sense of McGhee because all
the appellants had to do to determine the actual
cause of the sinking was to raise the ship. It is true
that in the case at bar the evidence might in this
sense have been made available: it was not beyond
the present state of science as in McGhee or
blasted into pieces as in Nowsco. However, the
appellants argued that it was a virtual impossibili
ty for them to bridge the evidence gap. The market
value of the Normac had been estimated at
$450,000 as of an inspection on May 15, 1981
(Appeal Book, vol. 1, pages 76-77). Estimates for
raising and refloating the ship after sinking for
temporary repair at her berth ranged from
$324,000 to $890,000. There was also an offer,
apparently to salvage and remove her, for $65,000
(Transcript of Proceedings, vol. 6, page 865;
Appeal Book, vol. 1, pages 127 ff.).
It seems to me that the appellants have the
better of the argument from the viewpoints of both
practicability and policy. The economic cost of
bridging the evidence gap appears to me to be so
completely disproportionate as to be impracticable.
Further, as Bayda J.A. expressed it in Nowsco, at
pages 246 D.L.R.; 314 Sask. R.; 47 C.C.L.T.:
Briefly put, if causation is overwhelmingly difficult to prove or
impossible to prove then it is a matter of public policy or justice
that it is the creator of the risk who should be put to the trouble
of hurdling the difficulty or bearing the consequences.
It would not seem just for the courts to impose on
the appellants an expense of the scale required to
establish the factual causality.
I therefore conclude, on the basis of the McGhee
principle, that the Trial Judge was in error in not
putting the onus on the respondents to negative
any causality for the sinking of the Normac.
With such a shift of onus, it remains open of
course to the respondents to disprove causation
and so to escape liability. This they attempted to
do by relying on the evidence of the expert witness
Edwardson, whose theory that water entered the
Normac through the stern tube gland was found
by the Trial Judge to be the only one "consistent
with all the factual evidence and with the series of
occurrences related by the witnesses as to what
happened on the 16th of June." It seems certain
that the Trial Judge did not make a finding on this
point because he went on to use the phrase "what-
ever might be the actual cause of the sinking of the
Normac."
In any event, through what opening the water
entered the Normac is a neutral fact in the
absence of credible evidence as to what caused the
opening. The propellor-tube theory is as consistent
as any other with the respondents having caused
the sinking.
It is true that the witness Edwardson testified
that, in the words of the Trial Judge (Appeal
Book, Appendix 1, page 52):
1. The shock of the collision could not have caused the gland
to leak as packing glands were designed and installed to
withstand the strain of a propeller pushing a ship through a
force ten gale without giving way.
2. Putting grease around the outside of the gland as the owner
Letnik stated he had done when the vessel was first moored
would be of no use whatsoever in preventing water from
entering. For grease to help, the packing would have to be
removed and the gland repacked. This can only be done when
the ship is in dry dock, unless the gland has grease cups or some
other greasing device.
However, Edwardson's credibility as an expert on
this type of ship was impeached when he first
asserted without qualification that "the bottom of
the ship where the bilge is . .. would be flat",
without sheering (Proceedings, vol. 20, page
5490), and then had subsequently to recognize
that it was not flat but sheered (ibid., pages 5504-
5505, 5509). Since there was no other relevant
evidence, it is manifest that the respondents have
failed to meet the onus imposed on them. They can
therefore be saved from liability only if the Trial
Judge was right in holding that the conduct of the
appellants amounted to a supervening cause
(novus actus interveniens) which broke the chain
of causation to the respondents and was in effect
the real cause of the sinking.
The appellants argued, largely on the basis that
the Trial Judge used the phrase "the principle of
novus actus interveniens" in contrast with his clear
acknowledgment of "the defence plea of inevitable
accident" (see, for example, Appeal Book, Appen
dix 1, page 3), that he failed to recognize that
novus act us interveniens was also a defence plea
and so misplaced the onus of proof. I am not
prepared, without more, to accept that interpreta
tion of the meaning of such an experienced Trial
Judge.
I do, however, respectfully disagree with the
Trial Judge on the standard of care required of the
appellants following the collision. His view is as
follows (Appeal Book, Appendix 1, page 44):
On this issue, I do not agree with the argument of the
plaintiffs that Mr. Letnik is to be judged by the standard of
care to be exercised in the circumstances by a mere restaurant
owner since he was not, in fact, a qualified mariner. He chose
to purchase both the Jadran and the Normac, to bring them to
Toronto and convert them to floating restaurants. The Normac
was still a registered ship under the Canada Shipping Act and
the standard of care to be applied to the plaintiffs should be
that of a reasonably prudent ship owner. If the owner lacked
the knowledge, he should have sought and obtained advice on
the subject. The advice he did seek was largely limited to
determining what would have to be done in order to get the ship
to dry dock or as to the ultimate cost of repairs. Nothing was
apparently done in order to seek advice as to ensuring the
immediate safety of the ship.
The respondents supported the Trial Judge's
approach by reference to The Lady Gwendolen,
[1965] 2 All E.R. 283 (C.A.), where one of a
brewing company's ships used for the ancillary
purpose of transporting their wares, negligently
collided in thick fog with a vessel lying at anchor.
In an action by the brewers for limitation of
liability, it was held in part by the English Court
of Appeal that, although their shipping business
was only ancillary to their brewing business, they
must be judged by the standard of conduct of the
reasonable shipowner.
But this case, like Dollina Enterprises Ltd. v.
Wilson-Haffenden, [1977] 1 F.C. 169 (T.D.),
which the respondents also cited, involved the
standard of conduct for ships at sea. The Normac,
on the other hand, though technically a ship, was
in reality a floating restaurant moored to a slip.
No doubt it must meet reasonable standards for
staying afloat in that capacity, but it seems to me
highly excessive to apply to it the standards of care
of a reasonably prudent shipowner in relation to a
ship at sea.
Letnik's actions and omissions after the collision
are described by the Trial Judge as follows
(Appeal Book, Appendix 1, page 42):
After the hole in the starboard side of the Normac was
repaired by means of a welded patch on the night of June the
2nd by a firm of ship repair specialists known as Ship Repairs,
she was pumped dry. All the evidence indicates that to all
appearances she remained perfectly dry with the bilges appar
ently free of water during the entire two week period until the
16th of June. During the first week, a steamship inspector, one
Mr. Torrance, and a naval architect, one Mr. Johnson, sur
veyed the ship. The "A" frames [which secured the Normac to
the slip] were re-adjusted and new temporary wiring was
installed for the two sewage pumps and the bilge pump. How
ever, no work whatsoever was done during the two week period
to repair the port side of the ship, thus, neither the hole torn in
the side nor the two openings to which had been affixed two
vents which had been knocked aside and torn loose out of their
openings in the hull by the collision, were closed. Mr. Letnik
was advised by Ship Repairs to secure the lines on the ship but
there is no evidence whether or not this was done.
Although all of the expert witnesses who testified
were wise after the event and had many recom
mendations as to what Letnik should have done in
the two-week period, the two experts he engaged
gave no alarm (their reports appear in Appeal
Book, vol. 1, pages 99 ff.) and the condition of the
ship gave no reason for alarm since it was "to all
appearances perfectly dry": the damage on the
port side referred to by the Trial Judge was well
above the water line. Letnik's intention was to get
the ship to drydock for permanent repairs (Pro-
ceedings, vol. 1, pages 104-105). Given the stand
ard of conduct to be expected of him as the
proprietor of a moored restaurant ship, there is in
his actions and omissions no "new cause coming in
disturbing the sequence of events, something that
can be described as either unreasonable or
extraneous or extrinsic." (Lord Wright for the
Court of Appeal in the Oropesa, The, Lord v.
Pacific Steam Navigation Co., [1943] 1 All E. R.
211, at page 215; (1942), 74 Ll. L. Rep. 86, at
page 93.)
Since the respondents are unable to establish the
defence of novus actus interveniens, the general
rule of foreseeability governs. As Lacourcière J.A.
put it for the Ontario Court of Appeal in Papp et
al. v. Leclerc (1977), 77 D.L.R. (3d) 536, at page
539; 16 O.R. (2d) 158, at page 161:
Every tortfeasor causing injury to a person placing him in the
position of seeking medical or hospital help, must assume the
inherent risks of complications, bona fide medical error or
misadventure, and they are reasonably foreseeable and not too
remote ....
I must therefore conclude that the respondents
cannot escape liability for the sinking of the
Normac.
* * * * *
On the one hand, the Trial Judge found that the
appellants had failed to take elementary precau
tions following the collision, in particular, not clos
ing the vent holes on the port side, not placing
extra bilge pumps on board including a stern bilge
pump, not maintaining a 24-hour watch to monitor
any water the ship might take on board, and not
periodically examining the bilge pump and the
pump well. Whether this is conceptualized as con
tributory negligence or as failing to mitigate dam
ages, the result is the same, viz., a proportioning of
responsibility for the damages resulting from the
sinking.
On the other hand, the respondents' negligence,
as the perpetrator of the collision from which all
else flowed, was in my opinion much the greater. I
would therefore apportion the damages 75%-25%
in the appellants' favour.
In the result, the appeal should be allowed and
the judgment of the Trial Judge varied so as to
provide that the respondents are responsible for
the sinking of the Normac and are liable for 75%
of the damages arising from the sinking. The trial
judgment should be further varied to provide that
the plaintiffs (appellants) are entitled to all of
their taxable costs against the Municipality of
Metropolitan Toronto and the ship Trillium with
regard to the damages arising from the collision
and 75% of their taxable costs with regard to the
damages arising from the sinking.
Since the appellants have been entirely success
ful on the cross-appeal and substantially successful
on the appeal, I would dismiss the cross-appeal
with costs in this Court and allow the appeal with
costs in this Court.
HEALD J.: I agree.
MAHONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.