Judgments

Decision Information

Decision Content

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.
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