Heeney v. Best (1979), 28 O.R. (2d) 71 (C.A..)

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  • Date: 2018

Heeney v. Best et al.

28 O.R. (2d) 71

108 D.L.R. (3d) 366

ONTARIO COURT OF APPEAL

MACKINNON, A.C.J.O., WILSON AND WEATHERSTON, JJ.A.

10TH DECEMBER 1979.

Negligence — Contributory negligence — Defendants negligently knocking down hydro wires and cutting off power to plaintiff’s premises — Interruption of power extinguishing oxygen to plaintiff’s barn and killing baby chicks — Battery- operated power failure detector in plaintiff’s bedroom not in operation — Had detector been operating chickens could have been saved — Whether plaintiff contributorily negligent.

The defendants negligently drove their truck into some overhead hydro electric wires, interrupting the flow of electrical power to the plaintiff’s premises. This interruption extinguished the supply of oxygen to the plaintiff’s barn where baby chicks were being raised. The power failure was not discovered for several hours, by which time the chickens were dead. The plaintiff had a battery-operated power failure detector in his bedroom which for some unexplained reason was not in operation on the night in question. It was admitted that had the detector been operating the chickens could have been saved. In an action by the plaintiff against the defendants for damages resulting from the loss of the chickens, the trial Judge gave judgment for the plaintiff for one-half of his damages only, on the basis that he had been guilty of contributory negligence. The plaintiff appealed to the Ontario Court of Appeal seeking to reverse the finding of contributory negligence made against him or, in the alternative, to have the percentage of that negligence reduced. Held, the appeal should be allowed in part and the plaintiff should recover 75% of his damages.

The plaintiff, in failing to plug in the alarm device, failed in his own interest to take reasonable care of his property and so contributed to his own damage. The harm to his poultry by the interruption of power for any reason, including an interruption due to the negligence of others, was foreseeable to a reasonably prudent man. However, the greater fault was clearly that of the defendants. The sole cause of the interruption of power was the negligence of the driver of the truck. No negligence of the plaintiff contributed to that interruption. The plaintiff’s position is somewhat analogous to that of a motorist or motorcyclist, innocent in relation to the collision, who, while without a seat-belt or helmet, is struck and injured by a negligent driver, where it is established that a seat-belt or helmet would have prevented some or all of the injuries suffered. The plaintiff’s negligence contributed only to the damages he suffered, the defendants being wholly to blame for the negligent act which set in train the events that caused the ultimate injury or damage to the plaintiff. Under the circumstances, an assessment of fault at 25% to the plaintiff and 75% to the defendants would be appropriate.

[Nance v. British Columbia Electric R. Co. Ltd., [1951] A.C. 601, [1951] 3 D.L.R. 705, 2 W.W.R. (N.S.) 665, [1951] 2 All E.R. 448, 67 C.R.T.C. 340; O’Connell v. Jackson, [1972] 1 Q.B. 270; Taylor v. Asody, [1975] 2 S.C.R. 414, 49 D.L.R. (3d) 724, 3 N.R. 381; Froom et al. v. Butcher, [1975] 3 All E.R. 520, refd to]

Judgment and orders — Pre-judgment interest — Unliquidated claims — Entitlement to interest on an unliquidated claim arises when written notice of substantive claim is given — Judicature Act, R.S.O. 1970, c. 228, s. 38(3)(b)(ii), as amended 1977 (Ont.), c. 51.

APPEAL by the plaintiff from a judgment of Stark, J., 23 O.R. (2d) 19, 94 D.L.R. (3d) 451, finding the plaintiff guilty of contributory negligence and giving judgment for the plaintiff against the defendants for one-half his damages in an action for damages for loss of property.

G. L. Bladon, for appellant, plaintiff.

G. A. Swaye, Q.C., for respondents, defendants, William Joseph Best and Alexander Conrad Florek.

The judgment of the Court was delivered by MACKINNON, A.C.J.O.:– The appellant seeks to reverse a finding of 50% contributory negligence made against him and, if this argument should fail, he seeks, in any event, to have the percentage of that negligence reduced. He also argues that the learned trial Judge erred in awarding pre-judgment interest on the amount recovered from September 26, 1978, the date on which written notice of a claim for interest was given, rather than from November 12, 1976, the date of his loss.

The facts are somewhat unusual. The appellant (plaintiff in the action) is a farmer carrying on, among other farming activities, a broiler chicken operation. He receives some 38,500 day-old chicks every 12 weeks which he places in three barns on the farm. They are kept there from 61/2 to 71/2 weeks by which time they are ready for processing and are sold to a killing plant. The three barns are ventilated by fans powered by electricity, which provide the necessary oxygen.

The respondent, Florek, was the owner of a truck which, in the early morning of November 12, 1976, was being operated by the defendant, Best. The box of the truck, which had been left in the “up” position, struck hydro supply wires near the appellant’s premises which resulted in the electric power supply to the appellant’s farm being cut off and the ventilating fans ceasing to operate. The respondent admitted at trial that he, as owner of the truck, was responsible for the negligence of his driver, Best. Best was not served with the proceedings and did not appear at the trial.

When the appellant arose on the morning of November 12th, he discovered that the power was off, and, on going out to the barn, he found some 31,000 of his chickens dead. It was agreed that the monetary value of the loss of the six-week-old chickens was $31,500.

Contributory negligence

The trial Judge held that the appellant had suffered direct damage as a result of the negligence for which the respondent was, in law, responsible, and this finding has not been appealed by the respondent. He went on to hold, on the facts to which I shall refer in a moment, that the appellant was guilty of contributory negligence, and, as he found it impossible to establish the respective degrees of fault, he apportioned the liability in equal shares pursuant to the Negligence Act, R.S.O. 1970, c. 296. In the result, the appellant was awarded $15,750, half of his loss, and it is from this finding that he now appeals.

At the time of the accident, the appellant possessed an alarm device consisting of a battery, light bulb, and bell which, when plugged into an electrical outlet, would warn of a power failure. He was fully aware of the dangers of a power failure to his poultry, as they needed constant ventilation to survive. He had experienced (at least) two power failures before this particular event: on one occasion, he had lost some 12 chickens; on another, he had been warned in time and had been able to open the barn doors and save the chickens. The appellant also had arranged a “back-up” system consisting of an auxiliary generator and a tractor, which were in working order on November 12th, and which could be used to supply the necessary power in the event of a power failure.

For reasons unknown to the appellant, the alarm device was not plugged into an electrical outlet in the upstairs hall on the night of November 11th/12th. He was frank to admit in cross-examination and in reply to questions from the trial Judge that, had he been alerted to the power failure by the alarm going off, he could have saved the chickens by opening the doors of the barn or by making use of the secondary source of power supply through the “back-up” system.

Counsel for the appellant argued strenuously that the appellant was not guilty of negligence in failing to have the alarm plugged in, and submitted that he was being “penalized” for having an alarm device. There was evidence from one witness that 40 to 50% of his poultry farmer customers had alarm systems, while two other witnesses estimated that about 25% of their customers had alarm systems. This evidence did not disclose whether these 25 or 40 or 50% comprised only the largest poultry farm operations or represented a cross-section of all sizes of operation and therefore possibly 90% of the larger operations, nor was it established into what class or category with respect to size of operation the appellant would fit. If the evidence was introduced for the purpose of establishing a custom or standard for poultry farm operations of the size conducted by the appellant, it was unsatisfactory. In any event, counsel for the appellant argued that this evidence established that it is not the custom in the trade, generally, to have alarms and that, accordingly, the appellant was not negligent in having a non-operating alarm on the night of November 11th/12th. He was, the argument went, in the same position as if he had had no alarm, which conduct would accord with the custom and meet the standards, generally, of poultry farmers.

Like the trial Judge, I am not persuaded by this argument. In my view, all the facts, including the fact that the appellant had considered it wise to have an alarm device of some description for some six years prior to this occurrence, must be considered in determining whether the appellant was guilty of contributory negligence. He acknowledged in the course of his evidence that it was good common sense, in view of the money he had at stake, to have an alarm system. He stated that it was a “good tool for management” and that he purchased the alarm device originally because it gave him a chance to save his chickens in case of a power failure. With respect to the loss of electric power on November 12th, if his alarm had been plugged in and gone off, he agreed, as already stated, he would not have suffered any loss. In light of all the facts recited, the plaintiff, in failing to plug in the alarm device, failed in his own interest to take reasonable care of his property and so contributed to his own damage: Nance v. British Columbia Electric R. Co. Ltd., [1951] A.C. 601, [1951] 3 D.L.R. 705, 2 W.W.R. (N.S.) 665. The harm to his poultry by the interruption of power for any reason, including an interruption due to the negligence of others, was foreseeable to a reasonably prudent man, and the appellant’s failure to have his alarm device operating contributed to his loss. In dealing with the question of contributory negligence it is helpful to consider what the English Court of Appeal had to say in O’Connell v. Jackson, [1972] 1 Q.B. 270. There the plaintiff, an experienced motorist, was travelling to work on his moped when he was struck by the defendant’s car. The plaintiff, who, contrary to the Highway Code, was not wearing a safety helmet, although he knew the risk, sustained severe head injuries. The defendant’s negligence was the sole cause of the accident and the trial Judge held that, although wearing a crash helmet would probably have reduced the gravity of the plaintiff’s head injuries, the plaintiff was not guilty of contributory negligence because, in all the circumstances, his conduct was not unreasonable. In reversing the trial Judge and holding the plaintiff 15% responsible, Edmund Davies, L.J., made the following statement which I think is apposite here (pp. 277-8):

More to the point, the evidence of the plaintiff himself in the present case establishes that he was alive to this risk and had only himself to blame for failing to remedy the omission. In these circumstances, we respectfully dissent from the judge’s complete exculpation of the plaintiff, and we hold that he should bear part of the responsibility for the severe consequences of the accident.

To what extent this finding should be reflected in the diminution of the (STERLING)7,097.13 awarded as full compensation is not an easy question. The plaintiff being entirely innocent in relation to the collision without which he would not have been injured at all, the tests of blameworthiness and causative potency commonly adopted since Davies v. Swan Motor Co. (Swansea) Ltd., [1949] 2 K.B. 291 are not entirely easy to apply to the injury which in fact followed. It seems to us that only a broad approach is possible. It must be borne in mind that, for so much of the injuries and damage as would have resulted from the accident even if a crash helmet had been worn, the defendant is wholly to blame, and the plaintiff not at all. For the additional injuries and damage which would not have occurred if a crash helmet had been worn, the defendant, as solely responsible for the accident, must continue in substantial measure to be held liable, and it is only in that last field of additional injuries and damage that the contributory negligence of the plaintiff has any relevance. It is not possible on the evidence to measure the extent of that field and then apportion that measure between the blameworthiness and causative potency of the acts and omissions of the parties.

We can only cover the two stages in one stride and express the responsibility of the plaintiff in terms of a percentage of the whole. Giving the best consideration that we can to the whole matter, we assess the responsibility of the plaintiff in terms of 15 per cent. of the whole, and allow the appeal to the extent of reducing the damages to that extent. I am here in somewhat the same position in determining the degree of contributory negligence.

I do not agree with the trial Judge, however, that it is impossible to establish the degrees of fault in the instant case and that the liability, accordingly, should be apportioned in equal shares. In my view, with deference, there is demonstrable error in this case in the failure to determine the degrees of fault: Taylor v. Asody, [1975] 2 S.C.R. 414, 49 (3d) 724, 3 N.R. 381. The greater fault was clearly that of the respondent. The sole cause of the interruption of power was the negligence of the respondent’s driver. No negligence of the appellant contributed to that interruption. The appellant’s position is somewhat analogous to that of an innocent motorist or motorcyclist (innocent in relation to the collision, that is) who, while without a seat-belt or helmet, is struck and injured by a negligent driver, where it is established that a seat-belt or helmet would have prevented some or all of the injuries suffered.

The appellant’s negligence only contributed to the damages he suffered, the respondent being wholly to blame for the negligent act which set in train the events that caused the ultimate injury or damage to the appellant. Under the circumstances, I assess the degree of fault or negligence of the appellant at 25% and of the respondent at 75%. In doing so, I receive some comfort and support from the words of Lord Denning, M.R., speaking for the Court in Froom et al. v. Butcher, [1975] 3 All E.R. 520. There the plaintiff’s car was involved in a collision with a car driven by the defendant. The accident was wholly attributable to the negligence of the defendant. The plaintiff was not wearing a seat-belt at the time and he suffered injuries to his head and chest which could have been avoided if he had been wearing his seat-belt. The trial Judge held that the plaintiff was not guilty of contributory negligence in failing to wear his seat-belt. After reviewing a number of “seat-belt” decisions, Lord Denning, M.R., said the following (pp. 527-8):

Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But insofar as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share. But how much should this be? Is it proper to enquire whether the driver was grossly negligent or only slightly negligent? or whether the failure to wear a seat belt was entirely inexcusable or almost forgivable? If such an enquiry could easily be undertaken, it might be as well to do it. In Davies v Swan Motor Co (Swansea) Ltd, [1975] 1 All ER at 632, [1949] 2 KB at 326, we said that consideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But we live in a practical world. In most of these cases the liability of the driver is admitted; the failure to wear a seat belt is admitted; the only question is: what damages should be payable? This question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.

Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such cases the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. As I have stated, the same reasoning is applicable to the facts of this case and an appropriate division of liability is 25/75 in favour of the appellant.

Interest

The trial Judge awarded interest on the judgment at 9% from the day that interest was claimed by a written notice dated September 26, 1978. The appellant argued that he was entitled to interest on the amount of his loss at the rate he had to pay his bank, namely, 113/4%, from the date of the accident. Under the law applicable on the date of the accident, I do not think there are any grounds for awarding interest on this unliquidated amount from that date.

However, the interest provisions of the Judicature Act, R.S.O. 1970, c. 228, were amended in 1977 [c. 51, s. 3(1)] to take effect on November 25, 1977, the relevant subsections providing as follows:. . . . .

38(3) Subject to subsection 6, a person who is entitled to a judgment for the payment of money is entitled to claim and have included in the judgment an award of interest thereon,

        1. at the prime rate existing for the month preceding the month on which the action was commenced; and

        1. calculated,

          1. where the judgment is given upon a liquidated claim, from the date the cause of action arose to the date of judgment, or

          1. where the judgment is given upon an unliquidated claim, from the date the person entitled gave notice in writing of his claim to the person liable therefor to the date of judgment.

. . . . .

(6) The judge may, where he considers it to be just to do so in all the circumstances,

  1. disallow interest under this section;

  1. fix a rate of interest higher or lower than the prime rate;

  1. allow interest under this section for a period other than that provided,

in respect of the whole or any part of the amount for which judgment is given.

(Emphasis added.)

In my view, entitlement to interest on an unliquidated claim arises when written notice of the substantive claim is given. An examination of subcl. (ii) of s. 38(3)(b) reveals that the first time the word “claim” appears it is qualified by the word “unliquidated”. The second reference in the same subclause

to the notice in writing of “his claim” must, by the applicable rules of statutory interpretation, mean the “unliquidated claim” mentioned earlier in the subclause. If it were intended that the word “claim” should denote two different kinds of claim in the same subclause, the parliamentary draftsmen need only have added the words “for interest” after the second use of the word “claim”. This interpretation is also consistent with the effect of s. 38(3)(b)(i) dealing with interest on liquidated claims. In the instant case, notice was given when the writ was served which service was well before November 25, 1977. When s. 38(3)(b)(ii) came into force on that date it established the right to interest on unliquidated claims of which written notice had been given, including, of course, such claims made by writs which had already been served. I may say that my interpretation of the subclause accords with the majority of trial judgments given on the point.

The appellant established that as a result of the loss suffered by him on November 12, 1976, he, subsequently, had to pay 113/4% interest to his bank and 12% interest on moneys owing to his feed supplier. In my view, under those circumstances the appellant should have interest at 113/4% on the judgment from November 25, 1977 to December 5, 1978, the date of the trial judgment.

In the result the appeal is allowed with costs and the judgment below is varied so that the award of damages to the plaintiff is increased to $23,625 plus interest at 113/4% from November 25, 1977 to December 5, 1978. In view of the fact that the amount awarded exceeds the amount paid into Court, the plaintiff will have his costs of the action.

Appeal allowed in part; judgment for plaintiff for 75% of his damages.