T-1480-83
Claudette Houle (Plaintiff)
and
Claudette Houle in her capacity as tutrix to her
minor daughter, Catherine Gentès (Plaintiff in
that capacity)
and
Martin Gentès (Plaintiff in continuance of suit)
and
Monique Gentès (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: HOULE V. CANADA
Trial Division, Joyal J.—Drummondville, Quebec,
April 6-9, 13-16; Ottawa, July 16, 1987.
Crown — Torts — Artillery shell emanating from military
proving ground picked up by individual not party to action,
and cast into fire — Explosion killing one person and injuring
two others — Presumption of fault not rebutted by Crown —
Risk not eliminated — Newspaper notices inadequate
"Novus actus interveniens" principle inapplicable — Human
intervention not breaking causal link — Shell not dangerous
as result of wrongful act, but dangerous per se — Throwing
shell into fire hazardous act mitigating Crown's liability.
Civil Code — Stray artillery shell exploding when thrown
into fire — Liability, whether determined under art. 1054 Civil
Code or s. 3 Crown Liability Act, subject to same tests —
Liability founded on presumption of fault against property
owner — Presumption not rebutted — Novus actus interveni-
ens principle inapplicable — Human intervention not breaking
causal link but mitigating Crown's liability.
This is an action against the Crown to recover damages
caused by the explosion of an artillery shell. For statement of
the facts and arguments of the parties, see the Editor's Note
infra.
Held, the plaintiffs should have judgment with the liability of
the Crown limited to two-thirds of the damages sustained.
Whether the issue of liability be determined under the civil
law which creates a presumption of fault against the owner of a
thing or under the common law "duty of care", the result is the
same. As owner of a dangerous object which it allowed to
escape onto neighbouring land, the Crown cannot avoid liabili-
ty. The presumption of fault, however, does not create absolute
liability. It was open to the Crown to rebut that presumption by
showing, inter alia, that all safety measures were taken to avoid
danger, or that human intervention was the cause of the
accident. Neither defence had been established. Although the
evidence did indicate that most shells are harmless, it also
demonstrated that some do go astray and are never found. They
represent a risk which cannot be eliminated. The annual notices
published in newspapers would not attract the attention of the
readers because of their length and the fact that they stressed
the danger of trespassing in the designated zone.
The Crown's argument, that it could not be held liable
because the human intervention factor was the sole cause of the
accident, had to be rejected. That argument was based on the
novus actus interveniens principle: the shell was said to have
been in the possession of the person who threw it into the fire
for a sufficiently long period of time to break the causal link
between the presence of the object on the beach, which might
create a presumption of fault, and the subsequent deflagration
which was the causa proxima of the damage. The human
intervention factor may have added a link to the chain of
causation but it did not break the causal link. The shell did not
become dangerous as the result of a wrongful act; it was a
dangerous object per se because it contained a dangerous
substance.
The Crown is liable for the damage sustained, but its liability
is mitigated by the action of the individual who threw the shell
into the fire. That action was impetuous and hazardous. The
individual's admissions that he was ignorant of the danger or
firmly believed that the object was not dangerous do not detract
from the conclusion that he was partly responsible for the
damage suffered.
The principle of joint and several liability, found in article
1106 of the Civil Code, was inapplicable. Joint and several
liability does not apply to successive and independent faults
such as those in question.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Civil Code of Lower Canada, arts. 1054, 1106.
Crown Liability Act, R.S.C. 1970, c. C-38, s. 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
The King v. Laperrière, [1946] S.C.R. 415; Miles v.
Forrest Rock Granite Company (Leicestershire) (Lim-
ited) (1918), 34 T.L.R. 500 (C.A.); Deguire Avenue Ltd.
v. Adler, [1963] B.R. 101 (Que. C.A.).
REFERRED TO:
Grand Trunk Ry. Co. v. McDonald (1918), 57 S.C.R.
268; Montreal City v. Watt and Scott, [1922] 2 A.C. 555
(P.C.); Quebec Ry. Light, Heat and Power Co. v. Vandry,
[1920] A.C. 662 (P.C.).
AUTHORS CITED
Baudouin, J.-L. La responsabilité civile délictuelle.
Cowansville: Les Éditions Yvon Blais Inc., 1985.
Nadeau, A. et Nadeau, R. Traité pratique de la respon-
sabilité civile délictuelle. Montréal: Wilson & Lafleur
Limitée, 1971.
Pollock, Sir Frederick. Law of Torts: A Treatise on the
Principles of Obligations Arising from Civil Wrongs in
the Common Law, 14th ed. by P. A. Landon. London:
Stevens & Sons, 1939.
COUNSEL:
Germain Jutras for plaintiffs.
M. H. Duchesne, Q.C. and M. Nichols for
defendant.
SOLICITORS:
Jutras et Associés, Drummondville, Quebec,
for plaintiffs.
Deputy Attorney General of Canada for
defendant.
EDITOR'S NOTE
The Executive Editor has decided that the rea
sons for judgment herein should be reported as
abridged. Those portions dealing with Crown lia
bility and whether that should be fixed at less than
100% in view of the negligent act of a third party
are reported in their entirety. His Lordship's 24-
page recital of the facts and 13 pages establish
ing the quantum of damages have been deleted.
Brief summaries of the omitted portions are
provided.
On a June evening in 1982 a group of friends
were gathered at a vacation place on the shore of
the St. Lawrence River. At the beginning of May,
the owners had discovered a cylindrical object
when cleaning up the shoreline. It was a shell
which had emanated from the Department of
National Defence proving ground at Pointe du
Hameau. No one was concerned since it was
believed that the shell was spent and constituted
no danger. The presumption was made that once
fired from a gun, every dangerous property of this
engine of war vanished. On the night in question,
a guest, in approaching a bonfire, struck her foot
on the shell. She asked one of the owners to get
rid of it. He took the shell and cast it into the fire.
Some minutes later there was an explosion which
took one life and left two others injured. This is an
action against the Crown to recover for the dam
ages caused by the explosion of the artillery shell.
Evidence was given that no problem was creat
ed by unexploded shells during the warmer sea
sons. These fell into the sludge on the riverbed,
never again to see the light of day. It was other
wise in winter when defective shells fell on the ice
and snow. Unless recovered, at the spring thaw
they could be carried away on the floating ice.
Several teams were maintained for the purpose of
combing areas to which stray shells might have
escaped. A large area had to be checked. But it
was impossible to recover every missing shell.
More than 90% of these posed no danger. This
was the first unfortunate incident since the open
ing of the military facility in 1952. During that time,
some 400,000 rounds had been fired.
The shell which blew up in the bonfire con
tained TNT, one of the most stable explosives.
But if subjected to intense heat, while it does not
actually explode, there is a sudden burst of fire
("une déflagration") when it reaches a certain
critical temperature. That is what happened here.
The plaintiffs' submissions were as follows: (1)
the shell was owned by the Crown and it was a
dangerous object; (2) the combing system adopt
ed by the defendant was far from efficacious; (3)
all the witnesses who had observed the shell
shared the opinion that it was not dangerous—
similar shells had been taken from the shore and
made into ashtrays and table lamps; (4) the
defendant had failed to publicize the danger of
any shell which had escaped from the test area
and (5) the act of throwing the shell into the fire
was an innocent one—the person who threw it
should not be expected to possess an expert's
knowledge of its dangerous properties.
The arguments for the Crown were: (1) it was
for the plaintiffs to prove ownership of the shell in
the Crown; (2) the testing had been going on for
30 years and the people of the area well knew of
the danger of shells which had gotten away; (3)
residents had been made aware of the danger by
the publication of annual notices in the big city
dailies and in a weekly delivered on a gratis basis
to their doors and even if some did not see them,
the news would have travelled by word of mouth;
(4) the combing system was adequate and (5) it
was unforeseeable that anyone would throw a
shell into the fire.
The following is the English version of the
reasons for judgment rendered by:
JOYAL J.:
CIVIL LIABILITY OF CROWN
The facts before the Court are clear and are not
substantially in dispute. The Court must still draw
its own conclusions in determining civil liability for
the damage suffered by the plaintiffs. First, I note
the presence of a dangerous object which its owner
allowed to escape onto her neighbour's land.
Second, I note the intervention of an individual
who apparently took up this dangerous object and
threw it into a fire.
I did say a dangerous object. That is my first
conclusion. The shell in question is a dangerous
object and occupies a central place in the case law
on the civil liability of its owner. It is true, as Mr.
Pominville and Mr. Bélanger testified, that trini-
trotoluene is a relatively stable explosive. It is still
an explosive. The deflagration that occurs to this
substance when it is exposed to fire may not have
the intensity of an explosion under ideal condi
tions. It is still a violent explosion and we all know
its consequences. In this connection, I must look
for a moment at the testimony of Mr. Pominville
which suggests clearly that there is still an element
of danger in this type of substance.
To this I would add a second conclusion: the
shell in question was the property of the defendant.
When subjected to the test of the balance of
probabilities, the evidence really could not lead to
any other conclusion.
It was thus a dangerous object owned by the
Crown which escaped onto the neighbouring land.
At both civil and common law, the courts have
imposed on the owner a heavy burden of civil
liability. Civil lawyers have created a presumption
of fault. This is expressed at common law by the
doctrine of "duty of care" or the rule of evidence
res ipsa loquitur. In my opinion, the effects are
essentially the same. In his book on La respon-
sabilité civile délictuelle, Cowansville: Les Edi
tions Yvon Blais Inc., 1985, at page 44, paragraph
73, Professor Jean-Louis Baudouin says:
[TRANSLATION] 73 —Scope — The second case of Crown lia
bility results from failure to perform a duty relating to the
ownership, occupation, possession or custody of property.
Underlying this rather complicated language is the principle of
general liability for the act of things in the keeping or owner
ship of the Crown (buildings, animals and personal property).
Since on the one hand the provisions of the Civil Code creating
certain presumptions date from before 1953, and on the other
Quebec precedents at that time on the act of things recognized
a presumption of fault, it would appear that the law on Crown
liability in this regard is close if not identical to the common
law provisions.
However, the presumption of fault does not
create absolute liability. The owner of a dangerous
object is not an insurer. He is entitled to show that
he took all possible safety measures to avoid the
danger, that it resulted from an act of God, that
the damage was unforeseeable or, as learned coun
sel for the defendant argued, that human interven
tion was the true cause of the accident.
In any case, I have to assume that the statutory
liability under article 1054 of the Civil Code and
under section 3 of the Crown Liability Act [R.S.C.
1970, c. C-38] is subject to essentially the same
tests. The terminology used by lawyers and judges
may vary from one system to the other but the
conclusions remain essentially the same.
The defendant invited the Court to find on the
evidence that all possible safety measures were
taken to avoid a dangerous object becoming the
cause of injury. I readily admit that, as no danger
ous shells were the cause of injury during the
thirty years preceding the accident of June 24,
1982, this conclusion is at first sight an attractive
one. It assumes that the collecting system intro
duced at the start of the PETE operations [Proof
and Experimental Test Establishment] is an effec
tive system and meets all the requirements arising
out of the fact of shells being scattered onto float
ing ice from one year to the next. However, the
defendant had to admit that the collecting system
cannot be perfect. The evidence was that shells do
go astray and are not found. Though the evidence
showed that most such shells are duds and harm
less, they do represent a risk that cannot really be
eliminated. It is not my intent to make any moral
judgment on the defendant's policy in the matter
or to conclude that there was any measure of
carelessness or indifference toward public safety.
In arriving at my conclusion I confine myself
simply to the purely legal or theoretical aspect of
civil liability.
Another aspect of the safety measures taken by
the defendant concerns providing information to
the surrounding community. The only tangible
evidence of a program to this end was the annual
publication of notices in certain national and
regional newspapers. After considerable reflection,
I do not think that the way in which these adver
tisements are prepared is likely to attract the
attention of readers living in the vicinity of Lac
Saint-Pierre. The advertisement does mention the
danger of shells found on banks or near beaches
and warns the public not to touch them and to
inform the authorities immediately. However, the
warning is in the middle of a rather long text
which is likely to bore any reader and discourage
him from reading it more closely. I also note that
the reader's attention is drawn more particularly
to the danger of trespassing in the designated zone.
The notice published in the newspapers is cer
tainly not the only way in which people are
informed. I note that the PETE has been conduct
ing its tests for a number of years. These tests can
continually be heard. The appendices to Exhibit
D-8 filed by the defendant indicate a large number
of shells located outside the danger zone and
reported by individuals. Of this number, ten or so
were regarded as sufficiently dangerous to be
destroyed or demolished. I conclude from this that
by one means or another some people were aware
of the risks and did not hesitate to inform the
authorities as a precaution. Others, whose
familiarity with the surroundings might possibly
give rise to a lack of concern, were much less wary.
In this connection, a misconception by certain
witnesses of the danger inherent in any shell found
on the beaches is perhaps not entirely innocent,
but as we shall see below this observation does not
add to or subtract from the conclusions drawn
from the evidence.
Learned counsel for the defendant urged the
Court to consider the human intervention in depth
and to conclude that such intervention was the sole
cause of the accident. To sum it up, this argument
is based on a mutual and concurrent alternative.
The first is that the shell in question is not a
dangerous object per se and only became danger
ous as the result of an unthinking, impetuous and
wrongful act by Rémi Houle. The other alternative
is based on the principle novus actus interveniens:
the shell in question is said to have been in the
possession or under the supervision of Rémi Houle
for a sufficiently long period of time to break the
causal link between the presence of the object
found on the beach, which might create a pre
sumption of fault, and its subsequent deflagration
which was the causa proxima of the damage.
For obvious reasons I cannot subscribe to the
first alternative. Having decided that a shell con
taining 4-5 lbs. of TNT is a dangerous object, I
must confine myself to the settled rules of law
affecting its owner's civil liability.
As regards the argument based on novus actus
interveniens, the evidence simply showed that the
shell in question, which was found on the beach in
mid-May 1982 and stayed there until late June
1982, was not handled or moved during this
period. It lay on the beach by itself. Rémi Houle's
action may have added a link to the chain of
causation, but that does not make the dangerous
object any less harmful. It continues to be danger
ous because it contains a dangerous substance and,
however ill-advised, the human intervention cannot
break the causal links. What all this means is that
the dangerous object would not have been a source
of injury if it had not been thrown into the fire and
that the human intervention would not have
caused the injury if it had not been a dangerous
object.
In striving to condense decisions of the courts
and derive basic principles from them, some jurists
appear to have devoted particular attention to the
effect of the novus act us interveniens in the case of
a dangerous object. Counsel for the defendant
referred in this connection to the observations of
Professor Baudouin (op. cit.) at page 187, para
graph 361, that:
[TRANSLATION] 361— General observations — In the search
for a logical, direct and immediate causal connection, the
courts have devoted particular attention to the effect of the
novus actus interveniens, that is the new incident, which is
beyond the control of the perpetrator of the fault and which
breaks the direct connection between the fault and the injury,
even though under the system of adequate causation the wrong
ful act might of itself objectively lead to the damage and the
individual foresee its consequences.
Professor Baudouin adds these comments in
paragraph 362 [page 188]:
[TRANSLATION] 362 ... One case in which the link is
frequently broken is where the fault of a third party intervenes
between the initial wrongful act and the damage. This may be
illustrated by an example taken from the cases. Some children
picked up a firework abandoned by the defendant after a
fireworks display. When he saw this, the father of one of the
children confiscated it and gave it to one of his employees,
asking him to get rid of it. The employee exploded the firework
in the company of the children and they were seriously injured.
The Court dismissed the father's action against the person who
abandoned the firework, on the ground that the employee's
action was an intervention breaking the link between the initial
fault and the injury.
While it views these comments with the utmost
respect, the Court nevertheless has to relate theory
to the particular facts of the case. It must be
remembered that in the case cited by the writer,
the action for damages was brought by the father
as his son's tutor. The father was fully aware of
the danger of a firework left on a piece of land by
its owner. The intervention of the plaintiff and his
express instructions to his employee to get rid of it
were a type of intervention which a court might
easily regard as a new act breaking the chain of
causation. These particular facts are not before the
Court.
While applying the principles of civil liability
under article 1054 of the Civil Code, the courts
have in the Privy Council decision in Quebec Ry.
Light, Heat and Power Co. v. Vandry, [1920] A.C.
662, imposed what Professor Baudouin character
izes in paragraph 638 [page 312] as a [TRANSLA-
TION] "practically indefeasible presumption
against the custodian", who in order to avoid
liability must therefore [TRANSLATION] "prove it
was impossible to prevent the damage". The writer
goes on [at pages 312-313, paragraph 638]:
However, the Privy Council appears to think that proof of
impossibility must be more than simple general proof of an
absence of fault .... the custodian cannot simply submit gener
al evidence of proper conduct. He must show that it was
impossible to prevent the act causing damage.
Although subsequently, in Montreal City v.
Watt and Scott, [1922] 2 A.C. 555, the Privy
Council backtracked and required only relative
proof that the damage could not have been pre
vented, the presumption of fault still exists.
In the celebrated case of The King v. Laperrière,
[1946] S.C.R. 415, the Supreme Court of Canada
found that the Crown had been negligent in leav
ing an explosive commonly known as a "thunder-
flash" on land. Some young boys picked up the
explosive, which later caused them bodily injury.
Kerwin J., speaking for the majority, said at page
433:
On these facts the appellant contends that there was no
negligence on the part of any officer or servant of the Crown
while acting within the scope of his duties or employment. The
trial judge found that there was negligence on the part of the
officers in charge of the scheme in leaving the unexploded
thunderflash on Giroux's farm without making a search, and
with that I agree. It is evident that whether any of the men
actually traversed part of Giroux's farm or not, the latter was
in fact used as part of the area for the scheme and although in
time of war considerable latitude must be allowed the armed
services in their training operations in Canada, under all the
circumstances in the present case, steps should have been taken
to see that all the thunderflashes used had been exploded.
Thunderflashes are dangerous articles and in the absence of
any such steps it should have been anticipated that an unex-
ploded one would be found by children on Giroux's farm and
that such children might so play with it as to cause injuries to
themselves. The fact that this particular one, while found on
the farm, caused the injuries complained of at another spot,
including those to one who is not the finder, can make no
difference.
The appellant argues that the injuries did not result from
such negligence but that it was caused by a novus actus
interveniens, namely, the action of the two boys. Subject to the
question discussed later, this, however, was the thing that the
officers or servants should have anticipated, and the doctrine
contended for has no application.
At page 436 Estey J. adopted the remarks of
Swinfen Eady, M.R., in Miles v. Forrest Rock
Granite Company (Leicestershire) (Limited)
(1918), 34 T.L.R. 500 (C.A.), at page 501:
The duty of the defendants on bringing this foreign and
dangerous material on the ground and exploding it there was to
keep all the results of the explosion on their own lands, and it
escaped from their own lands at their peril. [My emphasis.]
He added a passage from Pollock on Torts,
14th ed. at page 402:
This amounts to saying that in dealing with a dangerous
instrument of this kind the only caution that will be held
adequate in point of law is to abolish its dangerous character
altogether.
In Deguire Avenue Ltd. v. Adler, [1963] B.R.
101, Quebec Court of Appeal, the case concerned
the fault of certain painters in failing to connect a
gas stove to the feeder pipe and the fault of
building caretakers who accidentally turned on a
meter which the painters had turned off some
weeks earlier. Choquette J.A. said the following at
pages 105-106:
[TRANSLATION] In my view the first factor is the fault of the
painters St-Onge and St-Denis, personal employees of Adler.
Their failure to connect the stove or the opening of the gas
feeder pipe might not have created injury in an apartment
house with a single meter; but in an apartment building with a
large number of units some of which were occupied and some
were empty, and with a number of meters (located alongside
each other in the same room), some being on and others off, I
think the situation is different. The risk that a meter might be
turned on accidentally, as in fact happened, was a danger which
the painters should have foreseen the consequences of and of
which they should have warned the caretakers. The fact that
the danger continued to exist for over five weeks also indicates
a failure of supervision by Boivin both in his capacity as Adler's
foreman and in his capacity as superintendent of Deguire
Avenue Ltd.
It was argued that this fault by the painters, without which
the explosion would not have occurred, was too remote a cause
to make them and their supervisor (Adler) liable. To this I
would answer that the painters' fault is a continuous one, like
the danger they created and allowed to continue, and that it has
to be regarded as one of the determining causes of the damage.
It is true that, as counsel for the defendant
mentioned, a victim has to present evidence of a
direct connection between the injury caused and
the fault alleged against the defendant. As Profes
sor Baudouin says (op. cit.), at paragraph 366
[page 189]:
[TRANSLATION] 366 . .. the best means of determining
whether causation is direct is by looking at the situation of
fact....
Examining the facts in Laperrière (op. cit.), and
responding in particular to the argument of novus
act us interveniens, the intervention of the young
people in that case was not instantaneous. They
began playing with the shell by taking powder
from it in small quantities and setting the powder
on fire. One of them even burned his finger in
doing so. It was not until the evening of the same
day that the accident occurred, in circumstances in
which the young people had already been warned
of the danger. These circumstances apparently
prompted the then Chief Justice to express his
dissent, but this did not prevent a majority of the
Court affirming the judgment against the Crown.
The authorities cited by Kerwin, Hudson and
Estey JJ. clearly indicate the extent to which the
civil liability of an owner applies in such
circumstances.
So far as the question of foreseeability is con
cerned, it is clear on the evidence that the actions
of the Crown were directed specifically at the
dangerous aspect of the shells which went astray
on the river bank.
Whether under the civil law, which creates a
presumption of fault, or the common law rule of a
"duty of care", the conclusion is the same. On the
evidence the Crown cannot avoid all liability.
LIMITS ON CROWN LIABILITY
However, the conclusion which I have just
stated does not end the discussion. I must assess
the factor of human intervention in throwing a
dangerous object into the fire. To do this, it will be
necessary to briefly return to the evidence, which
the Court can only consider at one remove. This is
the testimony of Rémi Houle, one of the hosts at
the ill-fated celebration on June 24, 1982. My
comments on his actions that evening are some
what succinct, since he is not a co-defendant and
an action for damages brought against him by the
plaintiffs is pending in the Quebec Superior Court.
His testimony is thus limited to what he gave at
the Coroner's inquest. In essence it was that he
thought the shell found on his beach was a dud
and, as it had already been fired by the PETE,
presented no danger. He described the shell as a
kind of cartridge which [TRANSLATION] "looked
completely harmless". He had already seen such
cartridges in previous years and had never paid
any attention to them. He assumed it was some
thing National Defence had fired into the water.
He said he moved the shell several times in the
course of the weeks during which it was on the
shore. According to him, his action in throwing the
shell into the fire was quite natural: it was just a
way of ensuring that the guests did not trip over it.
This was nonetheless an impetuous and hazard
ous action by the witness, the culpability of which
cannot be removed by declarations that he was
ignorant of the danger or firmly believed that the
object was not dangerous. The mere fact that the
shell, which weighed 10 or 12 lbs. and could be
seen at a glance not to be a spent "cartridge",
would have led a reasonable man with good judg
ment to wonder what the "cartridge" contained.
The admissions of the witness cannot deflect from
him a conclusion that, even unwittingly, he was
partly responsible for the damage suffered.
I would add to this that the object in question is
not a consumer-oriented product which the witness
could know the characteristics of and the limits of
the risks associated with its use, which he men
tioned in his testimony. The attitudes and actions
of the witness regarding the shell were based
simply on his belief and not on knowledge or
experience. This in my view was still another
reason for caution.
I must therefore conclude that the Crown's civil
liability is mitigated by the action of this witness.
Bearing in mind the evidence on the initial and
unavoidable liability of the Crown, I set its liabili
ty at 66 2 / 3 percent of the damage suffered.
In other circumstances this conclusion might
give rise to the application of the principle of joint
and several liability stated in article 1106 of the
Civil Code. On the facts before the Court, how
ever, I must rule out application of that principle.
Article 1106 reads as follows:
Art. 1106. L'obligation résultant d'un délit ou quasi-délit
commis par deux personnes ou plus est solidaire.
The English version of this article would seem to
be even more specific:
Art. 1106. The obligation arising from the common offence
or quasi-offence of two or more persons is joint and several.
[My emphasis.]
Professor Baudouin deals with this situation in
the case of a series of faults. He in fact says at
page 199 of his text:
[TRANSLATION] 387— ... When two separate faults are
committed in succession and each of them can be related to a
specific damage, there can be no joint and several liability of
the perpetrators to the victim. There are two separate wrongs,
and this precludes the application of article 1106 C.C.
The writer goes on to say that the courts, while
not making a finding of joint and several liability,
may on the facts of the case allow liability to be
divided proportionately.
At page 572 of A. and R. Nadeau, Traité
pratique de la responsabilité civile délictuelle,
Montréal: Wilson & Lafleur Limitée, 1971, the
writers cite the decision of the Supreme Court of
Canada in Grand Trunk Ry. Co. v. McDonald
(1918), 57 S.C.R. 268, which held that joint and
several liability does not apply to the separate and
independent wrongs of the co-perpetrators of
damage except in so far as they are simultaneous
and contribute directly to the accident.
The writers pursue this theme at page 574
[paragraph 612], observing:
[TRANSLATION] ... it is quite clear that successive and
independent faults, committed by different persons on different
dates and at different places, do not make their perpetrators
jointly and severally liable.
It seems clear on the facts before the Court that
these were successive and independent faults and I
have only to consider the fault of the Crown.
I could not in any case hold jointly and severally
liable a third person who is not a party to the case,
but where the evidence leads me to conclude that
the liability of the Crown must be limited to
two-thirds of the damage sustained. In limiting its
liability in this way, I do not wish to make any
kind of ruling against that third person or in any
way to restrain a Superior Court which already
has before it a claim against that person.
EDITOR'S NOTE
His Lordship assessed the plaintiffs' damages
and ordered the defendant to pay the following
amounts: to the dead man's widow, Claudette
Houle-Gentès, for income loss $190,000; for loss
of consortium and servitium $20,000; for bodily
injuries $4,400 and, as guardian of her minor
child, Catherine, $10,000; to Monique Gentès, a
student, for bodily injuries $6,000 and to Martin
Gentès, a child of Claudette Houle-Gentès having
attained the age of majority, $10,000. The above
amounts were those awarded after a reduction of
one-third, the defendant having been found two-
thirds to blame.
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.