Supreme Court of Canada
Freedman v. City of Côte St. Luc et al.,  S.C.R. 216
Frank Freedman (Plaintiff) Appellant;
City of Côte St. Luc and Raymond Gagné (Defendants) Respondents.
1971: March 25; 1971: May 31.
Present: Fauteux C.J. and Abbott, Martland, Hall and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Motor vehicles—Infant struck by truck—Infant running across intersection—Liability—Statutory onus on driver—Onus discharged—Highway Victims Indemnity Act, R.S.Q. 1964, c. 232, s. 3.
While running across an intersection, the plaintiff’s 6-year-old son was struck and injured by a truck owned by the defendant city and driven by its employee. The accident happened as the driver was passing a mail truck parked along the sidewalk to his right a few feet from the entrance to the intersection. There was also a hedge, five feet high, next to the sidewalks. His speed varied between 15 and 20 m.p.h. The trial judge found that the driver had not discharged the burden placed upon him by the presumption created under s. 3 of the Highway Victims Indemnity Act, R.S.Q. 1964, c. 232, to prove affirmatively that he had exercised reasonable care and was therefore not responsible for the accident. That judgment was reversed by the Court of Appeal. The plaintiff appealed to this Court.
Held (Hall J. dissenting): The appeal should be dismissed.
Per Fauteux C.J. and Abbott, Martland and Pigeon JJ.: The finding of the Court of Appeal should not be disturbed. The driver was proceeding at a legal and moderate speed in approaching the intersection and had his vehicle under such control that he was able to bring it to a stop before he had completely crossed the intersection. The driver’s conduct must be judged by the standards of normal persons and not by applying the standards of perfection.
Per Hall J., dissenting: The driver failed to keep a proper look-out. The Court of Appeal erred in
disturbing the trial judge’s finding that the driver had not discharged the burden cast on him by s. 3 of the Highway Victims Indemnity Act. There certainly was a need for the driver to be on the alert. It is not applying a standard of perfection as the Court of Appeal suggests to require a driver of any motor vehicle approaching an intersection to be fully aware of the possibility that a pedestrian, adult or child, might step out from the sidewalk in front of a truck parked in the location of the mail truck in this case.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec, reversing a judgment of Montpetit J. Appeal dismissed, Hall J. dissenting.
C.J. Borenstein, for the plaintiff, appellant.
John Bumbray, Q.C., and P. Lacoste, for the defendants, respondents.
The judgment of Fauteux C.J. and of Abbott, Martland and Pigeon JJ. was delivered by
ABBOTT J.—The appellant, both personally and as tutor to his minor son Mitchell Freedman, sued the respondents jointly and severally, to recover damages caused as a result of an accident which occurred on August 7, 1964, at the intersection of Kildare Road and Smart Avenue in the City of Côte St. Luc, when the said Mitchell Freedman, then six years old, while running across the intersection, was struck and injured by a truck owned by the City respondent and driven by its employee the respondent Gagné.
The action was maintained in the Superior Court to the extent of $11,067.40, but that judgment was reversed by a unanimous judgment of the Court of Appeal1.
The facts, as found by the learned trial judge, are concisely stated in the Court below as follows:
The evidence discloses that on August 7th, 1964 at about 3:15 p.m. a truck belonging to Cote St. Luc was being driven by its employee, Gagné, from east to west on Kildare Road. A mail truck was parked not far, short of, the northeast corner and its pres-
ence obviously obstructed Gagné’s view of the sidewalk at that corner of Kildare and Smart Avenue. In addition the property at the northeast corner was bordered by a 5 foot hedge which would have hidden the victim from sight had he been coming south oil Smart.
The trial judge who accepts Gagné’s evidence, summarises the facts in this fashion:
[TRANSLATION] “Gagné, driving a City truck, explained that as he approached the intersection of Kildare and Smart (from east to west) he observed a mail truck parked along the sidewalk to his right (on the north side of Kildare), only a few feet from the actual entrance to the intersection. In addition to this truck, which unquestionably reduced his field of vision, there was also a hedge five feet high, next to the sidewalk on both Kildare and Smart, running along the property forming the north-west corner of the intersection.
Gagné only looked to his right once, as he was about to pass the mail truck at a speed varying between fifteen and twenty miles per hour.”
By reason of the presumption created under art. 3 of the Highway Victims Indemnity Act, the burden was upon the respondents to prove affirmatively that the driver had exercised reasonable care and was therefore not responsible for the accident.
On the facts as found by him, the trial judge held—although not without some hesitation it would appear—that the respondents had failed to discharge the statutory onus. As I have said, that judgment was reversed by a unanimous judgment of the Court of Appeal and I would not disturb that finding. Indeed I agree with it.
In the following passage in his reasons, the trial judge found the driver at fault for not approaching the intersection at a lower rate of speed:
[TRANSLATION] He obviously made no attempt to ascertain, by slowing down still further, that there was no pedestrian about to enter the intersection. If he had taken such a precaution he doubtless would have seen Mitchell Freedman on the sidewalk, running towards the said intersection. He
probably would have had the time either to stop or to swerve to his left, and thus avoid having the child run into the right corner of his truck. In other words, it seems to me that in the circumstances described above, Gagné committed a fault which, even though only slight, obliges me to uphold the effect of the presumption established by s. 3 of the Highway Victims Indemnity Act.
With respect, I do not share that view. Gagné was proceeding at a legal and moderate speed in approaching the intersection and had his car under such control that he was able to bring it to a stop before he had completely crossed the intersection.
In reaching the conclusion which he did, the trial judge also appears to have relied, to some extent, upon the judgment of this Court in Bédard v. Gauthier but, with respect, that case is clearly distinguishable on the facts. In Bédard, the driver of the car was proceeding along a one-way street in a school zone at a time when children had just been released from school. A five-year-old child, who had been playing on the sidewalk with other children, in the immediate vicinity of a parked truck, ran out suddently from in front of the said truck and was struck and injured. The driver admitted that he knew that it was a school zone and that he had not looked for children on the sidewalk who might be playing there. In these circumstances, it was held that he had failed to discharge the statutory onus. In the present case, the accident did not happen in a school zone but on a two-way through street. There was no evidence of children other than the victim, playing in the vicinity, the driver did look to his right on approaching the intersection and, as I have said, had his car under such control that he was able to stop after the accident before he had completely crossed that intersection.
As Mr. Justice Casey said in the Court below
That it is the rule of prudence that governs in cases of this type is not open to question. But it is equally clear that when asking whether Gagné contravened this rule one must not, as has been so often
stated, apply the standards of perfection. One must judge his conduct by the standards of normal persons.
I would dismiss the appeal with costs.
HALL J. (dissenting)—The infant Mitchell Freedman who was six years of age on August 6, 1964, was injured on August 7, 1964, when he collided with a truck owned by the respondent City of Cote St. Luc and being driven by the respondent Raymond Gagné. The truck was a 3‑ton G.M.C. vehicle with a box behind the cab 7 feet, 9 inches in width. The box extended some 10 inches out from each side of the cab. The accident happened at the intersection of Kildare Road and Smart Avenue in the City of Cote St. Luc. Kildare Road is 30 feet in width and Smart Avenue about the same.
The truck was proceeding in a westerly direction on Kildare Road. The infant Mitchell Freedman was proceeding from the northeast corner of the intersection to the south side of Kildare Road and appears to have been taking a diagonal course across the intersection, although the evidence on this point is not clear, depending on whether the version of the driver Gagné is taken or that of Thériault who was a passenger in the truck at the time. The boy was hit by the right front corner of the box and sustained injury to his head. The injury was relatively severe and resulted in permanent partial incapacity agreed to by all parties as 10 per cent.
Regarding the point of impact, Gagné said:
[TRANSLATION] Q. If Smart Street is divided in half by a line down the centre, you are saying that the accident took place near this line but only two (2) feet to the east?
A. Roughly, yes.
This means that the cab of the truck was west of the centre line of Smart Avenue. Thériault’s version is as follows:
[TRANSLATION] Q. According to your version, you stopped immediately, and the rear of your truck was only three (3) or four (4) feet from the mail truck, is that right?
indicating that the City truck was straddling the east limit of the intersection when stopped after the impact. The truck which Thériault refers to
in his evidence was a mail truck which was stationary on the north side of Kildare Road east of Smart Avenue opposite a mail box, the front of this truck being in line with the inside edge of the sidewalk on the east side of Smart Avenue. The sidewalk was six feet in width.
At the trial both Gagné and Thériault testified that neither actually saw the boy before the impact, being aware only of a “shadow” which Gagné did not recognize as being a man or a boy. Thériault who was sitting on the right side of the cab did not see any more. This evidence was given more than three years after the accident, and it is very significant that on the day of the accident Gagné gave a statement to a police officer, Constable Henderson, who arrived at the scene within ten minutes after the boy was injured as follows:
I was travelling on Kildare Rd. from East to West when at the corner of Kildare and Smart I saw a child running in front of the truck parked there. I pulled to the left as much as possible but could not avoid him and hit him with my right side box. (Emphasis added)
The constable made some observations and measurements which were incorporated in a plan P-3 tendered in evidence at the trial. It shows the position of the mail truck on the north side of Kildare Road and in line with the property side of the sidewalk on Smart Avenue. It also shows that the City’s truck came to rest in the southwest quadrant of the intersection and not where Thériault said it did. The rear end of the truck was 32 feet from the northeast corner of Kildare and Smart and the front of the truck was seven feet from the southwest corner of the intersection. Constable Henderson observed blood stains on the street below the right front corner of the truck box.
Gagné said he was travelling at from 15 to 20 miles an hour as he approached the intersection and he left a clearance of from three to four feet between the south side of the mail truck and the right side of his truck and he placed the left wheels of his truck to the south of the centre of Kildare Road. Seated behind the wheel, Gagné was actually, from the standpoint of visibility, proceeding toward the intersection on or very near the centre
of Kildare Road and roughly 15 feet out from the north curb, and the driver’s seat in the truck cab being higher than in a passenger vehicle, he had a better than usual view of what was ahead of him as he approached the intersection. There was no other traffic moving on either street within his vision at the time. On any basis, the boy was a minimum of from 14 to 18 feet out from the sidewalk on the north side of Kildare to as much as 40 feet if the blood stains on the pavement indicate the point of impact when he was hit.
There can be no question but that Gagné had a clear view of anybody leaving the sidewalk on the east side of Smart Avenue as he passed the rear of the mail truck and he was then some 25 feet from the intersection. The plan P-3 demonstrates this. He was going from 15 to 20 miles an hour or from 22 to 30 feet a second. He says the boy ran out. The six-year old boy could not run at a speed of more than 5 to 6 miles an hour. It would take the boy from 2 to 4 seconds to arrive at the point where he was struck according to Gagné. Thériault’s evidence as to the point of impact is clearly wrong. The truck did not stop where he said it did. I can see no reason why the boy was not seen by Gagné if Gagné had been keeping a proper lookout. In a 2-second interval the truck would have travelled a minimum of 44 to 60 feet, the boy from 14 to 18 feet. If the boy was struck at or near the point where the blood was seen on the pavement he must have been within the intersection on his diagonal course a minimum of three seconds in which time the truck travelled from 66 to 90 feet, and he from 21 to 24 feet.
Gagné’s visibility of the intersection was not obstructed as he proceeded westward with his vehicle partly over the centre line of Kildare Road. The mail truck which was on the north side of Kildare Road may have hidden the sidewalk at the corner when Gagné was at or opposite the rear of the mail truck, but no part of the intersection itself was invisible to Gagné at that point had he looked, and the fact that he did not see the boy sooner can be attributed only to his failure to keep
a proper lookout. This was not a case of a child running out from between parked vehicles or at a location where pedestrian traffic was not to be expected, but it was at an intersection in a residential area where children might be expected to be crossing from one side of the street to the other.
Gagné said on discovery that as he came towards the intersection he was watching the man from the mail truck getting something from the mail box and that would appear to account for his failure to see the boy sooner or in fact anything except what he calls a “shadow”. His evidence on discovery was:
[TRANSLATION] Q. When did you notice for the first time that there was a child in the street?
A. Driving along, I passed beside the truck and saw through the right-hand window that there was someone coming. I put on the brakes, I swung as far to the left as I could. I stopped and started running, I was behind the truck, I saw the little kid, he was holding his head. He ran home and I went with him to see where he lived; it was not far from the corner where the accident took place.
Q. How far away was the truck, before reaching the intersection, when you first noticed there was a child in front of you?
A. I noticed it when I was in the intersection.
Q. After that, you swung to the left?
A. Yes, I turned as far left as possible to avoid whoever was coming. I didn’t know whether it was a child. All I saw, you might say, was a shadow.
Q. Did you think it was a man?
A. I really didn’t know what it was, but I braked and swung to the left.
Constable Henderson saw no brake or tire marks indicating the sudden application of brakes.
The law applicable to a situation of this kind is covered by s. 3 of the Highway Victims Indemnity Act, R.S.Q. 1964, c. 232, which reads as follows:
3. The owner of an automobile is responsible for all damage caused by such automobile or by the use thereof, unless he proves
(a) that the damage is not imputable to any fault on his part or on the part of a person in the automobile or of the driver thereof, or
(b) not applicable;
(c) not applicable.
The driver of an automobile is responsible in like manner unless he proves that the damage is not imputable to any fault on his part
Damage caused, when the automobile is not in motion on a public highway, by apparatus incorporated therein that can be operated independently or by the use of such apparatus is not contemplated by this section. R.S. 1941, c. 142A, s. 3; 9-10 Eliz. II, c. 65, s. 1.
Applying this section, the learned trial judge held that Gagné had not discharged the burden imposed on him. He found Gagné and the City liable and awarded damages in the sum of $11,067.40. The amount awarded is not in issue here.
Montpetit J. cited and relied on the judgment in the Court of Appeal for Quebec in Libercent v. Doyon, and he quoted from p. 523 of that report as follows:
[TRANSLATION] …on the other hand, if the evidence does not produce this certainty, if it leaves some doubt in the judge’s mind as to who is at fault, the driver or the victim, then the presumption is in favour of the victim, and that presumption must be given its full force and effect; in such a case, the driver must lose, not from the weight of the evidence of his fault but by the force of the presumption; not because the facts have established his responsibility, but because they were not sufficient to overcome the presumption set up by the law;
and on the statement of Fauteux J. (as he then was) in Bédard and Lepage v. Gauthier, when he said at p. 95:
[TRANSLATION] In such circumstances, in order to prove that the damage did not arise through his negligence or improper conduct, respondent had to show that the evidence establishes (1) that at no relevant time, before the moment when the child came running in front of the truck, could the child have been seen by him if he had looked at the sidewalk before drawing close to the truck; (2) or, that if, on the contrary, the child could have been
seen, he could not, had he seen him, have avoided the accident, taking into account the possible imprudence of children and acting with all reasonable prudence as required by the situation.
In the Court of Appeal Casey J., speaking for himself, Brossard and Turgeon JJ., after reviewing the facts, said:
There was nothing here to alert Gagné who was driving normally and when he saw the child (comme un ombrage p. 81) (this Case, p. 49) it was too late.
It is clear that in arriving at this conclusion Casey J. ignored completely the statement which Gagné gave the police constable immediately following the accident in which he said in part:
…I saw a child running in front of the truck parked there.
The suggestion that it was only a shadow that Gagné saw appears for the first time in his evidence at the trial over three years later, and it should be noted that at the trial Thériault uses the same expression “a shadow”. There would appear to be no reason at all why Thériault, seated on the right side, should not have seen this boy from the time he left the sidewalk at the northeast corner of the intersection. I am accordingly of the view that the Court of Appeal erred in disturbing the finding of Montpetit J. that Gagné had not discharged the burden cast on him by the section of the Act as above quoted.
The jurisprudence of Quebec is, I think, aptly stated in the report of Bisson v. Boudreau, as follows:
The driver of an automobile who strikes a child on a public street has a heavy burden to discharge, and it is not sufficient for him to show that there was imprudence on the part of the victim. On the facts before it, the Court of Appeal hesitates to overrule the decision of the trial judge that the driver failed to prove that he was without fault.
In his reasons Casey J. also said:
He (Montpetit J.) then goes on to say that Gagné wasn’t sufficiently preoccupied with the possibility
that a pedestrian might step out in front of the mail truck, which as I read the evidence was at the northeast and not the northwest corner.
This was a misreading of the very paragraph which Casey J. quotes. Montpetit J. did not say or suggest that the mail truck was at the northwest corner. He said:
[TRANSLATION] Gagné driving a City truck, explained that as he approached the intersection of Kildare and Smart (from east to west) he observed a mail truck parked along the sidewalk to his right (on the north side of Kildare), only a few feet from the actual entrance to the intersection. (Emphasis added)
In my view Casey J. was also in error in saying: “There was nothing here to alert Gagné who was driving normally”. There certainly was a need for Gagné to be on the alert. He was coming to an intersection at which, according to his own evidence, his visibility was restricted by the mail truck and by the hedge, and in those circumstances his duty to be on the alert cannot be questioned. It is not applying a standard of perfection as Casey J. suggests to require a driver of any motor vehicle approaching an intersection to be fully aware of the possibility that a pedestrian, adult or child, might step out from the sidewalk in front of a truck parked in the location of the mail truck here.
I would, therefore, allow the appeal with costs here and in the Court of Appeal and restore the judgment of the learned trial judge.
Appeal dismissed with costs, HALL J. dissenting.
Solicitors for the plaintiff, appellant: Garvis, Borenstein & Broder, Montreal.
Solicitors for the defendants, respondents: Bum-bray, Carroll, Cardinal & Dansereau, Montreal