Most Negative Treatment: Reversed
Most Recent Reversed: Rondos v. Wawrin | 1968 CarswellMan 25, 68 D.L.R. (2d) 658, 64 W.W.R. 690 | (Man. C.A., May 13, 1968)
1967 CarswellMan 68
Manitoba Court of Queen’s Bench
Rondos v. Wawrin
1967 CarswellMan 68, 62 W.W.R. 369, 66 D.L.R. (2d) 272
Rondos et al v. Wawrin and Smyrski
Bastin, J.
Judgment: December 5, 1967

Counsel: T. G. Mathers, for plaintiffs.
R. J. Scott, for first defendant.
Subject: Civil Practice and Procedure

Headnote

Actions --- Cause of action — Ex turpi causa non oritur actio
Negligence — Stolen Car Driven by Inexperienced Infant — Gratuitous Passenger Injured — Defences — Volenti Non Fit Injuria — Illegality — Contributory Negligence.
The plaintiff, a 14-year-old boy, was injured when a car in which he was riding as a gratuitous passenger, ran off the road while being driven by a 15-year-old friend of plaintiff’s. The car had been stolen by defendant who, to plaintiff’s knowledge, was an extremely inexperienced driver; prior to the upset defendant had been driving at 60 to 70 m.p.h. The circumstances were such as to justify an inference that plaintiff knew the car was stolen. Defendant relied, inter alia, on the defence of volenti, on the principle ex turpi causa non oritur actio, and raised also contributory negligence.
It was held that defendant’s driving amounted to wilful and wanton misconduct rendering him prima facie liable; it could not be said that plaintiff freely and voluntarily and with full knowledge of the nature and extent of the risk he ran, agreed to incur it, since, although he was aware of defendant’s inexperience, he could not foresee that he would drive at the excessive speed which largely caused the accident: Miller v. Decker, [1957] S.C.R. 624, 1957 Can Abr 596; Car & Gen. Insur. Corpn. v. Seymour and Maloney, [1956] S.C.R. 322, at 334, affirming (sub nom. Seymour v. Maloney) 36 M.P.R., at 360, 1956 Can Abr 587, applied.
Held further, that in order to constitute a good defence under the principle of illegality, the association of the plaintiff with the illegality must amount to wilful complicity, must be proved beyond a mere preponderance of evidence and must have some causal relationship to the damage. Knowledge of the plaintiff of the fact that the car was stolen would not make him an accomplice in the theft; he had neither control nor possession of it; furthermore the illegality of the possession of the stolen car by the infant defendant did not contribute to the accident: Foster v. Morton (1956) 38 M.P.R. 316, 4 D.L.R. (2d) 269, at 280, 1956 Can Abr 4 (N.S. C.A.); Joubert v. Toronto Gen. Trusts Corpn. (1955) 15 W.W.R. 654, 63 Man. R. 209, 8 Can Abr 40 (C.A.); Ridgeway v. Hilhorst (1967) 59 W.W.R. 309, 61 D.L.R. (2d) 398, applied.
Held further, that with his knowledge of defendant’s inexperience the plaintiff in accepting the invitation to ride as a passenger was, to the extent of 50 per cent, contributorily negligent.

Bastin, J.:

1      This is an action by an infant and his father for damages for injuries suffered by the infant when a car in which he was a gratuitous passenger ran off the road. The accident occurred late in the evening of September 17, 1964, just north of Stony Mountain Penitentiary at a curve in Highway No. 7. The infant plaintiff was then 14 years of age and was in Grade X. The driver of the car, a classmate of the infant plaintiff, was 15 years of age. He did not have a driver’s licence and had only driven on one previous occasion and then for only a few minutes.

2      In 1964, the father of the infant plaintiff was employed as a waiter in Pierre’s Restaurant on Portage Ave., Winnipeg, and while at work left his car in a parking lot across the street from his place of employment. His son had obtained a key to the car from his mother’s purse and, unknown to his father, had frequently driven his young friends around the city. It was on one of these occasions that Wawrin had been permitted to drive. The two boys, John George Rondos and Robert Wawrin, lived in the same part of the city and had been friends since they entered school. The father of the infant defendant owned a Ford car but the son had never driven it.

3      The evidence of Robert Wawrin is that on the evening of September 17, 1964, he was on his way home from visiting his girl friend and as he passed the filling station at the corner of Arlington St. and Notre Dame Ave., he noticed that the keys had been left in a 1964 Plymouth sedan. On impulse he stole this car and drove to the home of John Rondos to invite him for a ride. As the infant plaintiff was not at home, Robert Wawrin drove to the parking lot opposite Pierre’s Restaurant where he found his friend and invited him to have a ride. He could not recollect whether he told John Rondos that the car had been stolen. When John asked to be allowed to drive the car he promised to let him do so on the return journey. The infant plaintiff gave the following account of this conversation on his examination-for-discovery:
48 Q. Did he ask you to go for a ride? A. Yes.
49 Q. And did you object to going with him? A. I asked him if I could drive it.
50 Q. Why did you ask him if you could drive it? A. Because I let him drive my father’s car.

4      Robert Wawrin, with John Rondos as his passenger, then drove to the home of a friend and classmate of theirs, Denis Shewchuk, on Notre Dame Ave., but as he was not permitted to accompany them they drove along Notre Dame Ave. to Highway No. 7, which led them past Stony Mountain Penitentiary. At that point John Rondos drew the driver’s attention to car lights approaching from the rear and suggested that they might belong to a police car. Robert Wawrin’s evidence is that he looked in the rear view mirror and then turned his head to look back and in consequence failed to notice a left-hand curve in the highway. To avoid going in the ditch he swung the wheel to the left and turned too far so he turned to the right, then back to the left and again to the right and drove into the ditch on the right side of the road. This swinging of the car from side to side could have resulted from turning the steering wheel too far in each direction due to his inexperience. The car was equipped with power steering but the same result could have occurred with normal steering. Wawrin admitted that he had been driving at over 60 m.p.h. and possibly at 70 m.p.h.

5      When Robert Wawrin drove this car off the parking lot he should have known that he was not competent to drive it at even moderate speeds. His action in driving the car on the highway at over 60 m.p.h. was wilful and wanton misconduct of a most flagrant nature. For a person without many hours of practice, to drive a car at that speed would almost inevitably lead to disaster. It was the combination of inexperience and excessive speed which caused the injuries to the infant plaintiff, and I hold that Wawrin was guilty of wilful and wanton misconduct and therefore prima facie liable. It remains to consider whether, in the circumstances, liability is negatived by the defence of volenti non fit injuria or the rule ex turpi causa non oritur actio or, if the defendant is liable, whether negligence on the part of the infant plaintiff contributed to the accident.

6      The defence of volens was supported by the majority of the Supreme Court of Canada in Miller v. Decker, [1957] S.C.R. 624. But a previous decision of the court, Car & General Insur. Corpn. v. Seymour and Maloney, [1956] S.C.R. 322, affirming (sub nom. Seymour v. Maloney) 36 M.P.R., at 360, rejected this defence. In that judgment Locke, J.A. said at p. 334:
In the present matter, the question as to whether or not the respondent ‘freely and voluntarily, with full knowledge of the nature and extent of the risk’ she ran ‘impliedly agreed to incur it,’ the test approved by the Judicial Committee in Letang v. Ottawa Electric Ry., [1926] 3 W.W.R. 88, [1926] AC 725, at 731, 95 LJPC 153, 232 C.R.C. 150 was one of fact.

7      In the Privy Council judgment, the paragraph from which the learned judge quotes is as follows:
If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.

8      To apply that test it is necessary to carefully examine the peculiar facts of this case. The infant plaintiff must be taken to have known that Robert Wawrin had driven a car only once previously and was therefore quite incompetent. But there is no reason to believe that when he was invited to become a passenger in the stolen car he anticipated that his friend would accelerate to a speed of between 60 and 70 m.p.h. It was this speed, and not merely his inexperience, which caused the accident. It cannot be said, therefore, that with full knowledge of the nature and extent of the risk he impliedly agreed to accept the terrible risk created by the combination of the two elements, inexperience and great speed. I reject the defence of volens.

9      In Foster v. Morton (1956) 38 M.P.R. 316, (1956) 4 D.L.R. (2d) 269, at 280 (N.S. C.A.), MacDonald, J. discusses the rule ex turpi causa. I quote from his judgment:
The principle enshrined in the maxim ex turpi causa non oritur actio is one of public policy which denies the aid of the Court to a person who is implicated in the illegality revealed by the evidence. It has received its chief application in denying recovery in respect of contracts, and gifts and actions for the recovery of property (8 Hals., 3rd ed., p. 125 and vol. 1, p. 10) ....

10      And at p. 281:
There are, I think, weighty reasons why in principle this doctrine of illegality should not afford a general defence to civil actions of negligence arising out of automobile accidents, particularly in Canada where many kinds of conduct are prohibited by the Criminal Code and by many Provincial Acts of a penal nature.

11      One reason which may be mentioned is the principle that a man should not profit from his own wrong. It would be inequitable if a tortfeasor could obtain immunity from liability by implicating the victim of his tort in his illegal act. In my opinion to constitute a defence the association of the plaintiff with the illegality must amount to wilful complicity, be proved beyond a mere preponderance of evidence, and have some causal relationship to the damages.

12      The circumstances surrounding the drive in the stolen car, including the fact that the car was a Plymouth whereas Wawrin’s father’s car was a Ford, and that the infant plaintiff suggested the headlights behind them might be those of a police car, justify the inference that the infant plaintiff knew the car had been stolen. But in my view this would not make him an accomplice in the theft of the car or in the offence of taking a car with intent to drive it. With respect to the offence of having possession of property obtained by crime, sec. 3 (4) (b) of the Criminal Code, 1953-54, ch. 51, is as follows:
3. (4) (b) Where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

13      This subsection is substantially the same as sec. 5 (2) of the old Code before its re-enactment. In Rex v. Colvin and Gladue, [1942] 3 W.W.R. 465, at 469, 58 B.C.R. 204, 78 C.C.C. 282, O’Halloran, J.A. dealt with the words “knowledge and consent” (in sec. 5 [2]) as follows:
But speaking for myself, I think ‘knowledge and consent’ in sec. 5 (2) of the Criminal Code does not include situations where the association, interest, or participation of the accused cannot reasonably be regarded as an exercise of a power of or a right to some measure of control over the subject-matter.

14      The infant plaintiff did not have any control over the stolen motor vehicle so should not be held to have had possession of it. He was therefore not involved with the defendant Wawrin in any offence arising out of theft of the car.

15      Dealing with the other aspect of the defence based on illegality, liability in an action founded on negligence depends upon cause and effect. It can only arise from the commission of a tort and the resulting damages. The illegality of the possession of the stolen automobile by the infant defendant did not contribute to the accident. It could have occurred if he had been driving his father’s car with his father’s consent. I hold that the defence of ex turpi causa is not available to the defendant. Adamson, C.J.M. applied this principle in Joubert v. Toronto Gen. Trusts Corpn. (1955) 15 W.W.R. 654, 63 Man. R. 209, where the plaintiff participated in the offence of drinking liquor in a motor vehicle and the ensuing intoxication of the defendant was the cause of the accident. In that case the illegality led directly to the accident which occasioned the damages.

16      In the only other Manitoba case I have found, in which the principle of illegality was applied as a defence to an action for damages in tort, namely, Ridgeway v. Hilhorst (1967) 59 W.W.R. 309, 61 D.L.R. (2d) 398, the injuries which gave rise to the action were the direct result of the illegality in which the plaintiff participated. The facts were that the plaintiff was a gratuitous passenger in the car involved in the accident that caused his injuries, which car was at the time racing with another car with the plaintiff’s active complicity. His action was dismissed on the ground of his criminality.

17      The plaintiffs have filed reports of the infant plaintiff’s teachers made prior to the accident, in order to show the extent of his brain damage. From these reports it appears that he was of normal intelligence for his age. Admittedly Robert Wawrin had only driven on one occasion prior to his theft of the car and I am convinced the infant plaintiff would know that Robert Wawrin was not competent to drive and that anyone driving with him would incur a serious risk. I therefore hold that the infant plaintiff was negligent in accepting the invitation to be a passenger in the stolen car. Since it is impossible to determine the degree of fault, I hold, in accordance with sec. 4 (3) of The Tortfeasors and Contributory Negligence Act, RSM, 1954, ch. 266, that his negligence reduces the liability of the defendant by 50 per cent.

18      I am satisfied from the medical evidence, and his demeanour and responses to questions, that John Rondos suffered more than moderate brain damage. I believe it is unlikely that if he had not been injured he would have had the intellect and character to surmount the difficulties involved in entering a profession. It is probable, however, that he would have earned a good income in business or in a trade. Unquestionably the injury to his brain will substantially reduce his earning capacity. But at age 14 there are many factors which can affect a boy’s career, such as illness, accident and other eventualities. My estimate of his probable loss of income due to his impaired mental ability is $30,000. This item includes pain and suffering.

19      Special damages have been fixed by counsel at $2,937.65.

20      There will be judgment for the adult plaintiff in the sum of $1,468.82 and for the infant plaintiff the sum of $15,000, together with one-half of the costs, to be taxed, including fiat for discovery.
 	
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