Matthews et al v. MacLaren et al. Horsley et al. v. MacLaren et al.
[1969] 2 O.R. 137-152
ONTARIO
[HIGH COURT OF JUSTICE]
LACOURCIERE, J.
12th FEBRUARY 1969.
Negligence — Duty — Standard of care — Passenger falling from boat — Duty to rescue — Whether operator negligent in attempted rescue — Second passenger induced to dive into water to help — Whether operator liable for second death — Fatal Accidents Act.
Where a passenger on a pleasure boat falls overboard through no fault of the master the master is nevertheless under a duty to make reasonable efforts to effect a rescue. The standard to be observed is that of the reasonably prudent operator of such a boat. Where the operator’s ability is impaired by alcohol and where he goes astern and then shuts off the engines allowing the boat to drift away again before the rescue can be made instead of turning and approaching bow first to come alongside the man in the water with the boat under control, there has been a breach of duty. Where there is evidence to suggest that the passenger may have died of shock on contact with the cold water, however, it cannot be said that the death of the passenger resulted from the breach of duty.
The death of the second passenger, who is induced by the negligent rescue attempt to dive in to try to rescue the first passenger and who dies of shock from the cold water, is effectively caused by the negligence and is actionable under the Fatal Accidents Act, R.S.O. 1960, c. 138. Nor is this rescuer guilty of contributory negligence unless his actions were foolhardy. The doctrine of voluntary assumption of the risk does not apply.
[Wagner v. International Ry. Co. (1921), 133 N.E. 437; Haynes v. Harwood, [1935] 1 K.B. 146, apld; Vanvalkenburg v. Northern Navigation Co. (1913), 30 O.L.R. 142, 19 D.L.R. 649; Harris v. Pennsylvania Railroad Co. (1931), 50 F. 2d 866; The “Cappy”, Hutchinson v. Dickie, [1947] Am. Mar. Cas. 1467, 162 F. 2d 103; Silva’s Fishing Corporation (Pty.) Ltd. v. Maweza, [1957] (2) So. Afr. L.R. 256; Cork v. Kirby MacLean, Ltd., [1952] 2 All E.R. 402; M’Alister (or Donoghue) v. Stevenson, [1932] A.C. 562; Dupuis v. New Regina Trading Co. Ltd., [1943] 4 D.L.R. 275, [1943] 2 W.W.R. 593; Videan v. British Transport Commission, [1963] 2 Q.B. 650, [1963] 2 All E.R. 860, refd to]
ACTIONS for damages for wrongful death.
T.A. Beckett, for plaintiffs, Bessie Matthews, Linda Matthews, Carol Anne Matthews, Douglas Edgar Matthews, Bonnie Jane Matthews and Roland Edgar Matthews, Jr.
W.R. Maxwell, for plaintiffs, Astrid Horsley, Richard J. Horsley, Lawrence A. Horsley and Michael A. Horsley.
D.L.D. Beard, for defendant, Kenneth W. MacLaren and the “Ogopogo”.
T.P. McIver, Q.C., for defendant, Richard J. Jones.
LACOURCIERE, J.:– These two actions under the Fatal Accidents Act, R.S.O. 1960, c. 138, were tried together, and involve the claim of the widows and children respectively of the late Roland Edgar Matthews and the late John Albert Horsley, both of whom lost their lives in a tragedy on Lake Ontario on May 7, 1966. The defendant Kenneth MacLaren was at the material time the owner and operator of an Owens, Empress 30-foot six inch cabin cruiser known as the “Ogopogo” powered by two inboard 100 h.p. engines driving two propellers or twin screws. At the opening of trial, on consent, the action was discontinued against the defendant, Richard J. Jones, on terms. Any reference to the defendant hereafter will be to the defendant MacLaren only. A Halton County jury listened to the evidence during five days of the trial, and on January 24th defence counsel renewed a motion, which had been dismissed at the opening of trial, to strike out the jury notice; plaintiffs’ counsel agreed and the jury was dismissed by me with regret.
On the day of the fatal accident, the late Roland Edgar Matthews and the late John Albert Horsley were gratuitous passengers, or invited guests, of the defendant on this boat, which left Port Credit Yacht Club at approximately 6:30 p.m. for the return voyage to Oakville. The weather at that time was starting to cool and a wind, blowing from the north-west created a light chop on Lake Ontario. The “Ogopogo” with the defendant at the helm was proceeding at a speed of 10 to 12 knots; at that time Matthews, who had looked after the bow-line on leaving Port Credit, was still sitting on the port side of the foredeck: another passenger, the defendant Richard J. Jones, was in the pilot’s cockpit and the other four passengers, i.e., Horsley, one Donald Marck, and the two ladies — Mrs. MacLaren and Mrs. Jones — were in the cabin below. Jones observed Matthews get up and proceed towards the stern along the narrow catwalk on the port side of the boat, holding on to the rail, with his back to the water, and topple over backwards at the level of the windscreen. Jones immediately hollered “Roly’s overboard” and the rescue operation began.
The defendant threw the boat controls in the neutral position and on leaning back could see Matthews, floating, with head and shoulders out of the water, some 40 or 50 ft. astern to starboard: he reversed the motors and backed towards Matthews, having pinned the control wheel with his stomach and looking over his shoulder using the throttle to manoeuvre and, according to Jones, swerving a bit, until the man in the water disappeared from his view behind the transom. The defendant then shut the engines down completely to drift towards Matthews: meanwhile, Jones had gone to the stern and thrown a life ring which landed some 10 ft. in front of Matthews, and as the boat got closer Donald Marck, also at the stern, was attempting to hook Matthews with a six-foot pikepole. Matthews was still floating — arms outward with his eyes open and staring, apparently unconscious. The motors had been shut down when the stern of the boat got to within four or five feet from Matthews, who could not be hooked when the boat was blown or drifted away a distance of 10 to 20 ft. The defendant MacLaren started the engines and reversed again towards Matthews. Meanwhile, Jones had thrown a second life-jacket which had fallen on top of Matthews or under his nose. By then some three or four minutes had elapsed since Matthews had fallen overboard and the situation was getting desperate. Horsely from the stern took off his shoes and trousers and yelling “my friend, my friend!” dived in while the boat was moving, and surfaced some 10 ft. away from Matthews. Mrs. Jones then noticed Matthews’ body fall forward — face and head in the water: she then courageously jumped in, one foot away, to hold his head up but Matthews had gone under the starboard quarter and could not be helped. Jones, seeing his wife in the water, ran up to the defendant and took over the controls without argument, swung the boat around and approached his wife “bow on”, getting her on the starboard side. MacLaren and Marck grabbed her arms and pulled her out of the water. MacLaren reassumed the controls and shortly thereafter Horsley was picked up, but could not be resuscitated and was pronounced dead later at Port Credit.
Although the outside temperature had been warm and pleasant in the afternoon, with a temperature of approximately 65(DEGREES), the water was extremely cold: the only person who survived the immersion, Jean Jones, described how she felt paralysed, as if in a vat of ice cubes. The witness Burtershaw, chief operator of the Waterworks Department of the Oakville Public Utilities, gave evidence that the recorded water temperature at the intake pipe some 2,400 ft. from shore was a constant 39(DEGREES) on that day, with surface temperature probably five degrees higher.
The pathologist, Dr. D.F. Brunsdon, who examined Horsley’s body, ascribed the cause of death to cardiac failure resulting from either sudden shock on immersion or from prolonged immersion in cold water. In the latter case, unconsciousness would precede death. It was his opinion after conducting the autopsy that death was probably due to sudden shock as a result of immersion, in which case death would be immediate or extremely quick; the deceased had been perfectly healthy before and there was no evidence of heart or any other disease. The body of Matthews was never recovered and the cause of his death remains undetermined.
Because of the allegation made in both actions (among other items of negligence) that the defendant was operating his motor boat while his ability to do so was impaired by alcohol, I will summarize the events leading up to the tragic occurrence.
The defendant, then a 51-year-old steel salesman, had earlier in the morning one pint of beer with a sandwich at the Oakville Club, later a hamburger and one beer at the Oakville Powerboat Club with Mr. and Mrs. Jones; the outing was improvised, and a case of 24 pints of beer put on board: the defendant and each passenger had one pint of beer on the trip to Port Credit. The arrival of the “Ogopogo” at the Port Credit Club, and the docking process there was described in great detail by various witnesses because of the incident of damage to the stanchion, a vertical member of the stainless steel pulpit, on the stern of the “Stormalong” which was slightly damaged when hit by the bow of the “Ogopogo”. I am satisfied that this was a mere mishap caused by the temporary failure of one engine of the “Ogopogo”, which can in no way reflect on the ability of the defendant who was at the helm.
The defendant, as captain of the first boat — so he claimed
— to dock at the Port Credit Yacht Club that season, arrived in jovial and exuberant mood and ordered champagne for all present. The steward of the yacht club relates that approximately forty people in the club shared four large (32 oz.) bottles of champagne. The MacLaren party was in the club between 3:30 and 6:30. The defendant admits having consumed
two glasses of champagne during that period, intermingling freely with the Port Credit members, many of whom were friends. There is no evidence that the defendant had any of the other drinks being ordered and served that afternoon. After the accident, a glass of amber coloured liquid, presumably containing whisky, was found in a glass-holder near the controls of the cockpit. The defendant disclaims any knowledge of its contents and says that it must have been pressed upon him by friends upon leaving the dock of the Port Credit Yacht Club and forgotten and untouched by him. Liability:
1. Re Matthews’ Claim
Notwithstanding the allegations pleaded that the defendant failed to ensure the safety of his passengers and particularly of the deceased Matthews by having them wear life-preservers on board, I am satisfied that in the circumstances this does not constitute actionable negligence. The only negligence argued here relates to the defendant’s condition and to his conduct following Matthews’ fall into the water. The first question therefore is whether there existed a legal duty on the part of the defendant to come to the rescue of a passenger who fell overboard by reason of his own misfortune or carelessness, and without any negligence on the part of the defendant or any person for whom the defendant would be vicariously responsible. This question, strictly a determination of law for the Court and not a question of fact for the jury, was repeatedly answered in the negative in the 19th century decisions (based on the distinction between “misfeasance” and “nonfeasance”) illustrated in Ontario by the 1913 decision of the Ontario Court of Appeal in Vanvalkenburg v. Northern Navigation Co. (1913), 30 O.L.R. 142, 19 D.L.R. 649. In that case, a seaman employed on a steamboat had fallen overboard by his own carelessness, and drowned: Mulock, C.J.Ex., speaking for the Appellate Division said at p. 146 O.L.R., p. 652 D.L.R.:
The question then arises whether the defendants were guilty of any actionable negligence in not using all reasonable means in order to rescue the drowning man. Undoubtedly such is one’s moral duty, but what legal duty did the defendants owe to the deceased to rescue him, if possible, from his position of danger, brought about, not by their, but his own, negligence?
And at p. 148 O.L.R., p. 653 D.L.R.:
His voluntary act in thus putting himself in a position of danger, from the fatal consequences of which, unfortunately, there was no escape except through the defendants’ intervention, could not create a legal obligation on the defendants’ part to stop the ship or adopt other means to save the deceased.
This decision was followed by an amendment to the Canada Shipping Act, R.S.C. 1927, c. 186, enacting [1934, c. 44, s. 519] what is now s. 526 [R.S.C. 1952, c. 29]:
526(1) The master or person in charge of a vessel shall, so far as he can do so without serious danger to his own vessel, her crew and passengers, if any, render assistance to every person, even if that person be a subject of a foreign state at war with Her Majesty, who is found at sea and in danger of being lost, and if he fails to do so he is liable to a fine not exceeding one thousand dollars. The section may not be applicable to or refer to the assistance to a passenger who falls overboard, but the shocking reluctance of the common law to recognize as a legal duty the moral obligation to assist a fellow human being in this predicament has been overcome in cases where a special relation exists, such as that of a carrier to a passenger in peril over-board, by thinly disguising the moral obligation as an “implied contract”: See Prosser on Torts, 3rd ed., c. 10, p. 336 under the heading “Duty to Aid One in Peril”; Fleming on Torts, 2nd ed., p. 166; Salmond on Torts, 14th ed., p. 57.
Two American decisions illustrate this trend: In Harris v. Pennsylvania Railroad Co. (1931), 50 F. 2d 866, where the evidence disclosed that a seaman on a float had fallen overboard, it was held on appeal that the negligence of the crew in failing to assist the seaman should have been left to the jury on the evidence, the Court making the following comment at pp. 868-9:
. . . it is implied in the contract that the ship shall use every reasonable means to save the life of a human being who has no other source of help. The universal custom of the sea demands as much wherever human life is in danger. The seaman’s contract of employment requires it as a matter of right.
The decision, The “Cappy”, Hutchinson v. Dickie, [1947] Am. Mar. Cas. 1467, 162 F. 2d 103, was quoted and relied upon by the defendant’s counsel. The facts of the case are somewhat similar to those of the present case, in that during the daylight hours, after the consumption of intoxicating liquor, the owner of a 38-foot cabin cruiser who was at the wheel lost an invited guest who fell overboard in Lake Erie near Cleveland. The trial Judge found that the helmsman was incapable of co-ordination due to the excessive use of alcoholic stimulants coupled with physical impairment, and was negligent in failing to turn his cruiser about instead of backing it astern. The Circuit Court of Appeal reversed the trial judgment and dismissed the case, on the basis that the decree had no substantial support in the evidence, and commenting at p. 1473:
We think if appellant erred at all in backing instead of turning the cruiser, the error was one of judgment and not of negligence. Further, we think an unsurmountable objection to the judgment in appellee’s favor is the entire lack of evidence that anything appellant did or left undone caused his efforts at rescue to fail. It does not appear that if appellant had turned the cruiser instead of backing it, Dickie would or should have been saved. The Court did not disagree, however, with the universally recognized duty of the owner to make a reasonable effort to rescue the man overboard.
In Silva’s Fishing Corporation (Pty.) Ltd. v. Maweza, [1957] (2) So. Afr. L.R. 256 at p. 263, the following appears in a discussion whether there exists a legal or a moral duty to rescue:
A duty to rescue is not special or subject to peculiarly restricted rules. It is simply a duty to act reasonably and such a duty may arise out of the circumstances of the case. It will be for the Court to decide in each case whether the circumstances are such as to give rise to a legal duty.
The learned author of Fleming on Torts, 3rd ed., discusses at p. 145 under the heading “Duty of Care”, “Duties of Affirmative Action”, the distinction above referred to, between misfeasance and nonfeasance, and compares it to the distinction, “. . . between active misconduct working positive injury to others and passive inaction, failing merely to take positive steps to benefit others or to protect them from some impending harm”. It is still in the modern law of negligence that, there is no general duty to come to the rescue of a person who finds himself in peril from a source completely unrelated to the defendant, even where little risk or effort would be involved in assisting: thus a person on a dock can with legal impunity ignore the call for help of a drowning person, even refusing to throw a life ring. The law leaves the remedy to a person’s conscience.
There is, however, in the words of Fleming, ibid., at p. 148, “. . . strong support for a duty of affirmative care, including aid and rescue, incidental to certain special relations, like that of employer and employee, carrier and passenger, and occupier and his lawful visitors”.
Extending the quasi-contractual duty of a carrier to his passenger in peril, it seems to me that the relation between the master of a pleasure boat and his invited guest should also require a legal duty to aid and rescue: Parliament reflecting the conscience of the community has seen fit to impose on the master a duty to render assistance to any stranger, including an enemy alien “found at sea and in danger of being lost” (s. 526, Canada Shipping Act); the common law can be no less solicitous for the safety of an invited guest and must impose upon the master the duty to attempt a rescue, when this can be done without imperilling the safety of the vessel, her crew and passengers. The common law must keep pace with the demands and expectations of a civilized community, the sense of social obligation, and brand as tortious negligence the failure to help a man overboard in accordance with the universal custom of the sea.
In any event, if the defendant, as he did here, affirmatively undertakes the rescue operation, he is by law regarded as assuming a duty to act, and will thereafter be liable for his negligence: Prosser on Torts (1941), pp. 194-5, puts it this way:
But further, if the defendant attempts to aid him, and takes control of the situation, he is regarded as entering voluntarily into a relation of responsibility, and hence as assuming a duty. Thereafter he will be liable for any failure to use reasonable care in dealing with him, until the emergency has ended, and particularly if he abandons him in a position of danger.
Having found a legal duty to rescue, or a voluntary assumption of duty, the next question is, is the standard of conduct applicable in the performance of such duty? Bearing in mind that the man in the street would not have any knowledge of a sea rescue operation, the test here is: what would the reasonable boat operator do in the circumstances, attributing to such person the reasonable skill and experience required of the master of a cabin cruiser who is responsible for the safety and rescue of his passengers?
Expert witnesses were called on behalf of the plaintiffs to assist the Court in setting out what such ordinary, prudent, reasonable boat operator would have done in the circumstances. The first was Captain Livingstone, Chairman of the Marine Department at George Brown Community College, Toronto, a qualified sea captain under a British certificate who recently acted as Education Vice-Commander of the Toronto Power Squadron, with considerable experience since 1925 on all ships including yachts of the “Ogopogo” type. The other expert was Captain John Kenneth Mumford, Communications Officer of the Toronto Harbour Commission, British Master’s Certificate 1957, and the author of a boating course covering all safety aspects of operating a power cruiser, and winner of every major navigation contest on Lake Ontario. These two highly qualified seamen agree that there are no statutory regulations or guidelines covering the rescue procedure in a “man overboard” situation, and that none is mentioned in the well-known Canadian booklet “Safety Afloat”. This situation, according to them, is a common emergency calling for the common sense of every prudent seaman who should be prepared to react quickly and instinctively, so to speak automatically. The following should be the procedure followed: having ascertained on which side the man fell, the master first turns his boat towards the same side to clear the propellers and leaves the engine in neutral unless the man overboard is astern and in no danger from them. A life ring is cast, and the master then turns around to approach the man against the wind, allowing him to come on the leeward side where passengers or crewmen can grasp him and haul him in at the lowest point of the boat. The maximum time involved would be one to two minutes or slightly more. Both experts emphasized many reasons why the procedure of reversing the engines and backing should never be adopted, unless in a confined area where the boat cannot be turned around: in addition to loss of control and manoeuvrability, there is the impossibility of keeping sight of the man astern when approaching, the danger of the propellers, and complete loss of control, at the mercy of wind and wave, on shutting down the engines. In the opinion of Captain Mumford, the bearing down stern first here adopted by the defendant was the sign of an incompetent operator: the average prudent owner of a 30-foot boat according to both experts should be competent in the rescue procedure described, and if not should not undertake to operate his boat. It is the procedure taught to students, and one in fact known by the defendant and practised by him on many previous occasions.
I can only conclude that the defendant’s adoption of the wrong procedure in the circumstances was negligent, being a failure to exercise the reasonable care that the ordinary, prudent, reasonable operator would have shown in effecting the “man overboard” rescue. The defendant in his evidence admitted that he made what he described as an error of judgment and did not attempt to justify the rescue procedure adopted.
Detective Sergeant John Brooks of the Town of Port Credit Police, who had ample opportunity to observe the defendant at the yacht club, and at the Police Station after the accident, formed the opinion that MacLaren’s ability to drive an automobile or operate a vessel was impaired by alcohol, and he would have recommended the laying of criminal charges to the Crown Attorney. The admitted consumption by the defendant and the necessary inferences from surrounding circumstances, plus the extraordinary conduct of the defendant during the rescue attempt, force me to the conclusion that the defendant was unable to exercise proper judgment in the emergency created because of his excessive consumption of alcohol.
It is trite law that liability does not follow a finding of negligence, even where there exists a legally recognized duty, unless the defendant’s conduct is the effective cause of the loss: Cork v. Kirby MacLean, Ltd., [1952] 2 All. E.R. 402 at p. 407, per Denning, L.J.:
Subject to the question of remoteness, causation is, I think, a question of fact. If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage.
In the present case the burden is on the plaintiff to prove by a preponderance of evidence that the defendant’s negligence was the effective cause of Matthews’ death. Obviously the defendant is not responsible for Matthews’ fall overboard.
There is no evidence in the present case that Matthews was ever alive after falling in the water: all witnesses agree that he was motionless and staring. Bearing in mind that Horsley, a younger man than Matthews, in the opinion of the pathologist probably died of shock immediately or shortly after his immersion, it is reasonable to think that Matthews, 16 years older, did not survive longer, and after he hit the water there never was a sign of life or consciousness. It was impossible in the present case to discharge this burden by a pathologist’s report; in the case of a missing body, witnesses’ evidence of some struggle or sign of life on the part of the deceased during rescue operations would be required. I am reluctantly forced to the conclusion that, on the balance of probabilities, it has not been shown that Matthews’ life could have been saved. The defendant’s negligence therefore was not the cause of Matthews’ death and there can be no liability.
2. Re Horsley’s Claim
I turn now to the claim made on behalf of the deceased Horsley, which rests on different legal considerations: Horsley, who was at the stern and witness to the abortive rescue attempts, voluntarily dived in to assist his friend Matthews. The question is whether Horsley’s generous impulse was the natural and probable result of the defendant’s negligence in effecting Matthews’ rescue, or in other words, was Horsley’s voluntary rescue attempt within the ambit of risk created by the defendant’s negligence, in a reasonably foreseeable way? M’Alister (or Donoghue) v. Stevenson, [1932]
A.C. 562, where Lord Atkin said at p. 580: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
The leading decision which comes to mind is the one of the Court of Appeals of New York in Wagner v. International Ry. Co. (1921), 133 N.E. 437. In that case the plaintiff had fallen off a bridge in attempting the rescue of a fellow passenger who had fallen overboard off an electric railway car. The Court decided that the question of the defendant’s negligence toward the rescuer was a question for the jury. The oft-quoted words of Cardozo, J., speaking for the Court, appear at pp. 437-8:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a
wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. . . . The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path . . . . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer.
He is accountable as if he had.
The decision quoted, while not binding on this Court, sets out a principle which has been accepted by English and Canadian Courts: Haynes v. Harwood, [1935] 1 K.B. 146; Dupuis v. New Regina Trading Co. Ltd., [1943] 4 D.L.R. 275, [1943] 2 W.W.R. 593; Videan v. British Transport Commission, [1963] 2 Q.B. 650 at p. 669, [1963] 2 All E.R. 860, where Lord Denning, M.R., said:
It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the ones whose fault has been the cause of it.
The duty to the rescuer was recognized in England, the leading cases being collected and discussed in Salmond on Torts, 14th ed., p. 58, where the following principles are deduced:
The principle is that if one person by his negligence causes another to be in a position of danger, he should have regard to the probability that a third person, acting bravely and promptly and subjugating any timorous over-concern for his own well-being or comfort, may attempt a rescue. In some cases it may be argued that a plaintiff who has shown supreme courage has been “unreasonably brave,” but the courts do not favour such a plea.
See also the helpful comment on Dupuis v. New Regina Trading Co. Ltd., supra, by Dr. C.A. Wright in 21 Can. Bar Rev. 758 (1943). See also Fleming on Torts, 3rd ed., p. 165, and Pollock on Torts, 13th ed., p. 498:
The law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able-bodied person should expose himself to the same danger to effect a rescue.
Before fastening liability on the defendant, this Court must decide whether Horsley’s action was a “futile sacrifice” or a “wanton exposure to danger that was useless” to use the words in Wagner v. International Ry. Co., 133 N.E. 437. Again, quoting the words of Cardozo, J., in meeting this defence, at p. 438:
Rescue could not charge the company with liability if rescue was condemned by reason. “Errors of judgment,” however, would not count against him if they resulted “from the excitement and confusion of the moment.”
In the excitement of the emergency, I am of opinion that Horsley’s conduct9 was not futile, reckless, rash, wanton or foolhardy; that Horsley was not guilty of contributory negligence, and that the plaintiffs are not debarred because, in the light of present knowledge, it is doubtful if Matthews could be helped. “… a rescuer is not condemned of contributory negligence, unless his attempt was utterly foolhardy”: Fleming on Torts, 3rd ed., p. 167, quoting Baker v. Hopkins, [1959] 3 All E.R. 225; Morgan v. Aylen, [1942] 1 All E.R. 489.
The following allegations of negligence were made against Horsley in the statement of defence:
6. This Defendant states that the unfortunate death of the said John Horsley, deceased, was caused solely by reason of his own negligence, particulars of which negligent acts are as follows:
(a) He voluntarily assumed the risk of injury to himself in diving into the water under the circumstances which existed at that time which made his own rescue improbable;
(b) He failed to seek permission from this Defendant, the master of the vessel, before entering the water; (c) He took an extremely imprudent and unseamanlike course under the circumstances at that time;
(d) He failed to take proper precautions for his own safety in wearing a life jacket or securing himself to the vessel by a rope or by having others on the vessel stand by him;
(e) When he saw that the deceased, Roland Edgar Matthews, was in difficulty in the water he placed himself in the same position as the said deceased, Matthews, by entering the water which was so cold which would render his presence useless in the water.
Wearing a life-jacket or securing himself to a lifeline would indeed have been more prudent, but Horsley’s impulsive act without such precautions was the result of the excitement, haste and confusion of the moment, and cannot be said to constitute contributory negligence.
I find also that the defence based on volenti non fit injuria, or voluntary assumption of risk, cannot prevail: although it was suggested in argument, it is not pleaded (for obvious reasons) that the deceased Horsley, knowing that the defendant was under the influence of liquor, voluntarily assumed the risk attendant upon his operation of the boat, and even if pleaded, I would not be prepared to find that “the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it'” (in the words of Wills, J., in Osborne v. London & North Western R. Co. (1888), 21 Q.B.D. 220 at pp. 223-4, quoted and adopted as the proper test by the Supreme Court of Canada in Car & General Ins. Corp. Ltd. v. Seymour and Maloney, [1956]S.C.R. 322 at p. 331, 2 D.L.R. (2d) 369 at p. 378). This defence is met by the decision of Haynes v. Harwood, [1935] 1 K.B. 146, where Greer, L.J., quotes with approval at pp. 156-7 an article of Professor Goodhart [“Rescue and Voluntary Assumption of Risk”, Cambridge Law Journal, vol. v, p. 192]:
“The American rule is that the doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no such special duty.” In my judgment that passage not only represents the law of the United States, but I think it also accurately represents the law of this country.
I hold therefore that the defendant’s negligence in effecting Matthews’ rescue induced Horsley to come to the rescue and that this was within the risk created by the defendant’s negligent conduct, and I must hold that such negligence was the effective cause of Horsley’s death.
Damages:
The defendant also pleads s. 657 of the Canada Shipping Act, R.S.C. 1952, c. 29, as amended by 1960-61, c. 32, s. 32, which limits the liability of an owner of a ship as defined (which definition appears to be broad enough to cover the “Ogopogo”) as follows:
657(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:
(a) where any loss of life or personal injury is caused to any person on board that ship;
(e) in respect of any loss of life or personal injury, either alone or together with any loss or damage to property . . . an aggregate amount equivalent to 3,100 gold francs for each ton of that ship’s tonnage;
I am of opinion that the limitation of liability so expressed cannot benefit the defendant as owner herein, in view of the finding that the loss of life was caused by his personal negligence, and obviously not without his “fault or privity”.
1. In the Matthews action
The late Roland Edgar Matthews was 52 years of age at the
time of his death, and left him surviving his widow aged 50 and six children, four of whom were dependent, namely, Carol Ann, 19; Douglas Edgar, 18; Bonnie Jane, 10; and Roland Edgar, Jr.,
9. The deceased had a Grade XII education and was the salesman for a materials handling company with twenty-five years’ experience in the field. His net earnings after deductions in 1965 was over $6,200 and on the increase; $2,933 for the four months of 1966 (projected 1966 earnings $8,800); the controller of his company gave evidence that after two years his normal salary and commissions would have been between $10,000 to
$13,000 per year, depending on his efforts. Assuming on the evidence that he spent $1,000 to $1,500 per year on himself, the dependency would be between $7,000 and $9,000. He was a man of good character, in good health, well-liked in the neighbourhood, very close to his family. As calculated by the actuary, the joint life expectancy of a male 52 and a female based on the Canadian Life Tables was 19.08 years. The present value of an annuity of $1,000 at 5% for 19.08 years is $12,000. After applying to the capital sum equivalent to the deceased’s projected contribution over the years the deduction for the relevant contingencies to be considered (as reviewed recently in McColl et al. v. Osterhout, [1968] 2 O.R. 562, 70 D.L.R. (2d) 106), and bearing in mind the conservative rate of interest adopted by the actuary, I assess at $60,000 the damages under the Fatal Accidents Act, R.S.O. 1960, c. 138, to be apportioned as follows:
To the widow $25,000.00 To the children
$35,000.00 broken down as follows: Carol Ann
$3,500.00 Douglas Edgar 5,000.00 Bonnie Jane 12,500.00 Roland Edgar, Jr. 14,000.00 35,000.00
$60,000.00
No sum has been claimed by the plaintiff for the funeral expense.
2. In the Horsley action
The late John Robert Horsley was 34 years of age at his death, and he left his widow aged 34 and three sons, Richard John, 12; Lawrence Andrew, 10; and Michael, 7. He had been employed as chief accountant by Standard Refractories Ltd. in Burlington since 1966 at $7,200 per year at the time of his last salary increase. He was ambitious, hard working, with a broad interest in community activity. His income would have increased, but in the meantime he was able to supplement it by driving a cab on a part-time basis. There was a good relationship with his family. Calculating on the evidence his personal expenditures at $1,000 per year, I assess the dependency figure at $6,000 with a reasonable prospect of increasing by $2,000 within a short time.
The actuary has calculated the joint life expectancy, based on the respective age of the spouses, at 33.65 years, and the present value of an annuity of $1,000 over such period at $16,200. Again, taking into account the proper contingencies including the possibility of remarriage, and the interest rate applied, I assess the damages at the sum of $70,000 to be apportioned as follows:
To the widow $35,000.00 To the children
$35,000.00 broken down as follows:
Richard John $9,200.00
Lawrence Andrew 11,200.00
Michael 14,600.00 35,000.00
$70,000.00
In addition, Mrs. Horsley will recover $300 for funeral expenses.
In the result, there should be judgment in the Horsley action for the sum of $70,300 apportioned in the manner indicated above, with the infants’ share to be paid into Court.
Plaintiffs’ costs in the said action to be taxed and recovered from the defendant. The Matthews action should be dismissed, but in the circumstances without costs. The Matthews claim against the “Ogopogo” should also be dismissed for the above reasons and because I know of no jurisdiction in this Court for proceedings in rem against a boat. I do not think this is a proper case to indemnify the plaintiffs as to the costs payable by them to the defendant Richard J. Jones against whom the action was discontinued.
Judgment accordingly.