DATE: 20020913 DOCKET: C29078
COURT OF APPEAL FOR ONTARIO
RE: PAUL BRUNO, personally and as litigation guardian on behalf of infant CLAUDE DANIEL BRUNO and CARL BRUNO, personally and as representative of those entitled to claim pursuant to the provisions of the Family Law Act, R.S.O. 1990, as amended (Plaintiffs) -and- DANACA TRANSPORT LTEE, PAUL HECTOR ROSS and INDUSTRIES AUCLAIR INC. (Defendants)
AND RE: DANACA TRANSPORT LTEE. and PAUL HECTOR ROSS (Appellants) -and- INDUSTRIES AUCLAIR INC. (Respondents)
BEFORE: LABROSSE, WEILER and CHARRON JJ.A.
COUNSEL: Douglas J. Los, for the appellants
Andrew T. Graham, for the respondents
HEARD: September 05, 2002
On appeal from the judgment of Justice Ray Stortini delivered on January 30, 1998.
E N D O R S E M E N T
[1] [1] This action arises out of a motor vehicle accident that occurred on June 24, 1991 on Highway 17 in the District of Algoma. The defendant/appellant Paul Hector Ross (now deceased) was operating a transport truck equipped with a tandem trailer (two trailers attached together described as a “B-train), owned by the defendant/appellant Danaca Transport Ltee. and was transporting a load of steel coils. He was proceeding in an easterly direction from Sault Ste. Marie. The steel coils became detached from the trailer and struck a vehicle operated in a westerly direction by Monique Bruno and in which Michel Bruno was a passenger. The collision caused fatal injuries to both occupants of the vehicle.
[2] [2] The defendant/respondent Industries Auclair Inc. manufactured the trailer on which the steel coils were being transported.
[3] [3] Members of the deceased’s family brought this action against Ross, Danaca Transport and Industries Auclair. Their claim was settled before trial. The trial proceeded before Mr. Justice Stortini with a jury on the crossclaim of Danaca Transport and Ross against Industries Auclair. Danaca Transport claimed that it had been sold a defective trailer by Industries Auclair. The jury found that the accident resulted solely from the negligence of Ross and Danaca Transport. The crossclaim was dismissed with costs in accordance with the verdict of the jury. Ross and Danaca Transport appeal from this judgment.
[4] [4] The appellants raise seven grounds of appeal. We propose to address the issues in the order in which they were addressed in their factum, recognizing that the issue of the reasonableness of the verdict would, to some extent, depend on our disposition of some of the ancillary issues raised.
[5] [5] Issues 1 and 2 both relate to the reasonableness of the jury’s verdict and can be answered together.
whether the judgment was against the evidence and contrary to law
whether the findings of the jury and their answers to questions were perverse
[6] [6] The jury’s findings with respect to the negligence of the appellants were as follows:
“The driver should have heeded to the caution sign (70 km); The driver should have noticed the broken braket if he would have been diligent in his duty; Danaca was negligent in its preventing (sic) maintenance because its personnel did not repair the broken or stressed brackets; no maintenance or even maintenance check lists were presented in evidence.”
The jury found no negligence on the part of the respondent.
[7] [7] The accident occurred approximately 5.9 kilometers west of Blind River in the third curve of a series of three curves. The posted speed limit in the area is 90 km/hr. However, in entering the curves, there is a yellow advisory panel indicating 70 km/hr. The advisory signs also have arrows indicating the angles of the curve. The sign for the first curve indicated it had a forty-five degree angle and those for the second and third indicated curves of ninety degrees. There was evidence that Ross was driving at a speed of 90 km/hr. There was also evidence that while proceeding through a sharp curve, a higher rate of speed would exert a considerably greater force on the steel coils and attachment mechanism.
[8] [8] In our view, it was open to the jury on the evidence to find that the driver of the transport was driving too fast.
[9] [9] There was also evidence that part of the attachment mechanism was not properly maintained. Furthermore, there was evidence that during the course of the accident, part of the equipment attaching the steel coils to the bed of the trailer failed. It was therefore also open to the jury to conclude that the appellants were negligent in their inspection and maintenance of the trailer.
[10] [10] The findings of negligence against the appellants were amply supported by the evidence.
[11] [11] After February 1988, Industries Auclair had no control over what Danaca Transport transported on the trailer, the weight of the load, the maintenance of the trailer, the manner in which the load was secured or the manner in which the driver operated the truck and trailer. Danaca Transport purchased the trailer from Industries Auclair on February 12, 1988, and it was used continuously until the date of the accident in June of 1991. During this period of three years and four months, the trailer was driven between 160,000 and 175,000 km per year for a total of approximately 580,000 km without incident. In these circumstances, it was also open to the jury to find that there was no negligence on the part of Industries Auclair.
[12] [12] We therefore give no effect to this ground of appeal.
- whether the trial judge erred in admitting as evidence a French version and an English translation of a statement made by Paul Hector Ross.
[13] [13] On June 27, 1991, Paul Hector Ross gave his version of the facts relating to the accident in a signed statement to an insurance adjuster for the insurer of Danaca Transport.
[14] [14] The statement was produced as part of the appellants’ material for the pre-trial conference. At trial, the appellants objected unsuccessfully to the admissibility of the statement on the ground of privilege. Assuming, without deciding, that privilege could have been properly claimed, in the circumstances of this case, we are of the opinion that privilege was waived once it was produced at the pre-trial conference.
[15] [15] The appellants further objected to the admissibility of the statement on the ground that it constituted inadmissible hearsay given that its maker, although a party to the action, was now deceased. The trial judge held that the statement met the test of necessity and reliability and was therefore admissible under the general exception to the hearsay rule. We see no error in his ruling.
[16] [16] The appellants also dispute the accuracy of the translation of the statement from French to English that was filed in evidence. The appellants never took issue with the accuracy of the English translation at trial and in any event, the action was tried by a bilingual jury and the French statement itself was entered into evidence. We therefore see no merit to this argument.
- whether the trial judge erred in admitting in evidence log book entries made by Paul Hector Ross
[17] [17] The trial judge also admitted log book entries prepared by Ross under the general exception to the hearsay rule because they satisfied the twin requirements of necessity and reliability. We have not been persuaded that he erred in doing so.
- whether the trial judge erred in refusing to admit in evidence the findings of the coroner’s inquest
[18] [18] The trial judge ruled correctly in excluding the findings of the coroner’s inquest. The coroner’s jury did not hear all the same evidence as the civil jury and did not consider the same issues as those addressed in the civil trial and, consequently, its recommendations would not help the jury hearing the civil case to resolve the issue of civil liability.
[19] [19] We will deal with issues six and seven together as they both concern the judge’s instructions to the jury. They are:
whether the jury was misdirected as to the use that could be made of the evidence relating to the statement and log book entries
whether the jury was misdirected as to the law in respect of negligence, contributory negligence, and apportionment of liability when it is not practicable to do so specifically
[20] [20] In our opinion the judge adequately charged the jury on these issues. In any event, counsel for the appellants did not object to the charge to the jury at trial but, rather expressly signified his approval with its contents. The appellants’ failure to object is fatal to both of these grounds of appeal.
[21] [21] The appeal is dismissed with costs to the respondent fixed in the amount of $10,000.
“Jean-Marc Labrosse J.A.”
“Karen Weiler J.A.”
“Louise Charron J.A.”