Supreme Court of Canada
Vancouver-Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831
Date: 1974-10-23
Vancouver-Fraser Park District (Defendant) Appellant;
and
Garth Vayne Olmstead (Plaintiff) Respondent.
1974: May 23; 1974: October 23.
Present: Martland, Ritchie, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Appeal—Plaintiff injured as result of diving into dish-shaped pool in public park—Jury not acting judicially, on the evidence, in concluding park operator negligent—Verdict set aside.
After running into a dish-shaped pool or artificial lake, which was located in a public park operated by the defendant, the plaintiff dived into shallow water and struck his head on the bottom and as a result of the accident was rendered a quadriplegic. The plaintiff started proceedings against the defendant alleging that the accident was the result of the latter’s negligence. Following a trial by a judge and jury, a judgment was given against the defendant holding it partially to blame for the accident. The jury was of the opinion that the appearance of the swimming facility was sufficiently confusing that the owner should have recognized the need to clarify to any user the exact nature of the facility. The defendant appealed to the Court of Appeal without success and then appealed to this Court.
Held: The appeal should be allowed, the verdict of the jury and the judgments of the Courts below set aside and the action dismissed.
The suggestion that a verdict should be “perverse” before it is set aside was not accepted. This word implies a moral turpitude which, in the present instance, was not proven to exist. As pointed out in Metropolitan Railway Co. v. Wright (1886), 11 App. Cas. 152, the old rule which introduced the element of “perversity” has been replaced by the rule that the verdict should not be disturbed unless it appears to be not only unsatisfactory, but unreasonable and unjust.
The true cause of the accident on the evidence accepted by the jury was clearly the sole negligence of the plaintiff who took a running dive into shallow
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water. No jury acting judicially could have, on the whole of the evidence, found that the accident was the result of the defendant’s negligence. Of four points mentioned by the jury as sufficient to confuse the plaintiff, one as to a sign could not have any merit because the accident occurred at night and the other three should have been decided against the plaintiff on his own evidence which the jury did not have the right to discard. Indeed, this was a case where the Court was inclined to the view that there was no evidence to go before a jury so that the Court had the right and the duty to set aside the verdict. In the circumstances of the case, there was no obligation on the defendant to protect the respondent against his own imprudence.
Saint John Gas Light Co. v. Hatfield (1894), 23 S.C.R. 164; Jamieson v. Harris (1905), 35 S.C.R. 625; Scotland v. Canadian Cartridge Co. (1919), 59 S.C.R. 471; McConnell v. McLean, [1937] S.C.R. 341; Grey Coach Lines Ltd. v. Payne, [1945] S.C.R. 614, referred to.
APPEAL from a judgment of the Court of Appeal for British Columbia dismissing an appeal from a judgment given following a trial by a judge and jury and holding the defendant partially to blame in an action for damages for personal injuries. Appeal allowed and action dismissed.
H.T. Wheeldon and W.M. Holburn, for the defendant, appellant.
R.S. Ross and G.M. Green, for the plaintiff, respondent.
The judgment of the Court was delivered by
DE GRANDPRÉ J.—On June 26, 1970, a Friday, plaintiff respondent together with a group of friends went to Aldergrove Lake Regional Park, a public park operated by the defendant appellant. Respondent and his friends were planning to camp there for the week-end.
The park contains an artificial lake or pool described as follows in the judgment of the Court of Appeal:
The pool was some 250 feet in one dimension by some 300-odd feet in another dimension, being of an oval shape. It was dish-shaped, the pool running from the water’s edge to the centre of the pool at a uniform
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slope, apparently all the way around the pool. It reached a maximum depth of 10 feet in the centre. At each end of the pool were areas marked off by floats, with signs indicating that children ought not to venture beyond the floats.
This swimming facility is fed by a spring.
Between midnight and one o’clock, five members of the party decided to go swimming. Respondent chose to stay behind but eventually decided to join the others. What followed is described in another extract from the judgment of the Court of Appeal:
The respondent proceeded from the campsite to the edge of the pool. The findings of the jury indicate that they were satisfied that the respondent ran into the pool and, having done so, apparently dived, struck his head on the bottom and was rendered unconscious. He was rescued from the pool by his companions and ultimately revived and taken to hospital after some considerable lapse of time. He was rendered a quadriplegic as a result of the accident.
Respondent started proceedings against appellant alleging that the accident was the result of the latter’s negligence. Following a trial by a judge and jury, a judgment was given against appellant holding it partially to blame for the accident and ordering it to pay the total sum of $69,112.20. The amount of the damages is not in issue here.
The questions submitted to the jury and their answers relative to negligence read:
1. Was there any negligence on the part of the Defendant which caused or contributed to the occurrence?
A. Yes
2. If the answer to question No. 1 is “yes”, then state fully of what the negligence of the Defendant consisted.
A. The facility is neither a lake or a pool but rather something in between and has some features in common to both.
It is reasonable that users might assume it is a pool or a lake. Having made this assumption, users would then have their own idea as to the shape of the facility under the water.
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The appearance is sufficiently confusing that the owner should have recognized the need to clarify to any user the exact nature of the facility.
—shoreline
—floats at each end
—sign in middle of float doesn’t indicate its area of application
—water unclear.
3. If the answer to question No. 1 is “yes”, then was there any negligence on the part of the Plaintiff, Garth Olmstead, which caused or contributed to the occurrence?
A. Yes
4. If the answer to question No. 3 is “yes”, then state fully of what the negligence of the Plaintiff, Garth Olmstead, consisted.
A. The Plaintiff was negligent because he did not observe the basic rules of safe swimming such as:
a) Unknown waters
b) Dark
c) Running dive
d) had been drinking
5. If the answer to question No. 1 is “yes”, and the answer to question No. 3 is “yes”, state in percentages the degree of fault or negligence attributable to each.
A. Plaintiff—70%
Defendant—30%
Upon a motion for judgment, in accordance with the verdict, the trial judge felt obliged to accept the verdict although he had this to say:
If I had been trying this case without a jury, I would have had no difficulty in finding that there was no evidence of negligence on the part of the defendant and that the plaintiff was not misled by anyone as to the depth of the water and was, in fact, aware, or should have been aware of the depth of the water.
And after a careful review of the evidence and of the relevant authorities, he concluded:
I am of the opinion that the jury did not follow any of the principles outlined by O’Halloran, J.A. in the Faryna case (supra) but “accepted and rejected the evidence of the witnesses in whole or in part” with-
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out giving any consideration to consistency, harmony or logic. In my view, there should be, as a matter of law, some point at which this method of finding the facts should be considered wholly unreasonable and perverse and should be viewed as a means of securing a verdict for the plaintiff on sympathetic grounds. That point, in my opinion, was reached in this case.
The law appears, however, to give a complete discretion to the jury on questions of fact and the trial judge is powerless to interfere in this field, even though the trial judge would have been over-ruled if he made such findings of fact.
In the Court of Appeal, speaking for the Court, Taggart J. A., had this to say in an oral judgment:
On this appeal the appellant makes, really, one principal submission, which is divided into two parts. That submission is that the verdict of the jury was perverse, (a) because it had to pick and choose from amongst the evidence called on behalf of the respondent and (b) because there was no evidence upon which the jury could reach the conclusion that the appellant was negligent.
It is trite law that in reviewing the verdict of a jury I am not to be concerned with what conclusion I might have reached had I been the trial judge on this case. What I must do is to determine whether the jury was perverse in the sense submitted by counsel for the appellant.
I am not persuaded that there was perversity on the part of the jury. I think it was necessary for the jury, in reviewing the evidence called on behalf of the respondent, to be selective in the evidence which they utilized to reach their conclusion, both as to the negligence of the appellant and as to the negligence of the respondent. However, the fact that they had to do so does not in my view automatically mean that their verdict is perverse.
As to the second aspect of the argument advanced on behalf of the appellant, it is my view that there was evidence upon which the jury could, in the circumstances here, conclude that this defendant was negligent. I think the preliminary portion of the answer given by the jury to Question No. 2 is a clear indication of the factors which influenced the jury in their conclusion. They said:
“The facility is neither a lake or a pool but rather something in between and has some features in common to both.”
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When that portion of their answer is taken into account, together with their subsequent indication that the appellant should have taken measures to clarify the nature of the facility, it seems clear to me that the jury is saying that the defendant was negligent in not taking sufficient measures to warn the public, and the respondent in particular, of the fact that it was unsafe to dive into the water because the water was shallow, near the edge of the pool, in all parts of the pool. The nature of the facility as described to us, it seems to me, could lead one to the conclusion that the middle area of the pool lying outside the floats marking the area for children was deeper than the two end areas and that it would be safe to dive into the water from or near the edge of the water.
While I might very well have reached a different conclusion than the jury reached, particularly with respect to the negligence attributed by the jury to the defendant, I am not persuaded that we should set aside the jury’s verdict on the ground that it was perverse.
With respect, I am unable to share the conclusions of the Courts below. In my view, the sole cause of the accident was the negligence of respondent himself and accordingly the action should have been dismissed.
First, a word about the suggestion that a verdict should be “perverse” before it is set aside. To my mind, this word implies a moral turpitude which, in the present instance, has not been proven to exist. On this point, I would rather accept the statement of Lord Fitzgerald in Metropolitan Railway Co. v. Wright[1]:
The judgment of the noble and learned Earl who presided in the Court of Appeal imports that a verdict once found is not to be set aside unless it appears to be a verdict perverse or almost perverse. If my recollection does not mislead me, we have departed in this House, in several instances, from the old rule which introduced the element of “perversity”, and have substituted for it that the verdict should not be disturbed unless it appeared to be not only unsatisfactory, but unreasonable and unjust. The question, then, for your Lordships’ consideration is whether the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust.
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This test of reasonableness has repeatedly been stated by our Court. In 1894, in The Saint John Gas Light Company v. Hatfield[2], Gwynne J. said, at p. 169:
…the well established rule of this Court is, that upon such pure matters of fact the court cannot interfere unless it be conclusively established that the findings of the jury are so entirely wrong, and so unwarranted by the evidence, as to justify the conclusion either that the jury did not appreciate their duty or acted wilfully in violation of it.
In Jamieson v. Harris[3], Nesbitt J. said, at p. 631:
We fully recognize the principle that if the verdict could fairly be supported upon any evidence upon which reasonable men might come to a conclusion in its favour that it should not be set aside because the appellate court did not agree with the conclusions reached. We also fully agree that answers by a jury to questions should be given the fullest possible effect, and, if it is possible to support the same by any reasonable construction, they should be supported. It must, however, be borne in mind that where it is felt there has been a confusion of the issues at the trial and it is doubtful whether the attention of the jury was given to the real point in issue and the questions answered or unanswered because the jury say “can’t answer” leave the real question in controversy in doubt and ambiguity, the cause of justice is best promoted by a new trial. Unless the answers given by the jury to the questions as a whole or to one or more of the questions fairly indicate a finding that the death of the workmen was proximately caused by some specific or definite act of negligence for which the defendant is answerable he cannot be held liable. Any number of findings of want of reasonable care in providing or using proper appliances for the work the defendant was engaged in constructing, could not justify the court in entering a verdict against the defendant unless there was a direct finding, or it must be irresistibly inferred from the findings made, that this negligence or want of care was the direct and proximate cause of the accident. That is the difficulty we find here.
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The strength of the rule is evidenced by the judgment of Sir Louis Davies C.J., in Scotland v. The Canadian Cartridge Company[4], p. 477:
I say on this main and controlling issue I would as a juryman probably have found against the plaintiff. But that is not my province. I have only to determine whether in the conflict of evidence we have before us in this case, scientific and practical, we find enough to justify reasonable men in reaching the conclusion these jurymen did. After much consideration and thought I have reached the conclusion, though not without much doubt, that there is such evidence in the record and that I ought not, in view of the extreme jurisdiction which juries are permitted to have over questions of fact, to set aside their findings on mere doubts I may entertain or on my reaching on the reading of the evidence a conclusion different from that the jury reached. Now in this case the jury had the great advantage of seeing and hearing the witnesses and of judging how far and to what extent credit should be given to their statements.
Of course, the principle has been repeated in many judgments of this Court and it is sufficient at this time to refer to one other case, namely the classic decision of McCannell v. McLean[5], where Duff C.J. stated the rule that “the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.” (p. 343) And after a review of the major authorities, he continued, at p. 345:
There being some evidence for the jury, that is to say, the evidence being of such a character that the trial judge could not properly have withdrawn the issue from the jury, the question whether, in such circumstances, a jury, considering the evidence as a whole, could not reasonably arrive at a given finding may be, it is obvious, a question of not a little nicety; and the power vested in the court of appeal to set aside a verdict as against the weight of evidence in that sense is one which ought to be exercised with
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caution; it belongs, moreover, to a class of questions in the determination of which judges will naturally differ, and, as everyone knows, such differences of opinion do frequently appear.
All of the relevant cases make it abundantly clear that jury verdicts must be treated with considerable respect and must be accorded great weight. This does not mean however that they should be regarded with awe. In the case at bar, the evidence examined as a whole, in my view, did not permit a jury acting judicially to reach the conclusion that the appellant was negligent.
There is no doubt that the jury are entitled to believe certain witnesses and disbelieve others. They also have the right to choose only part of the evidence of any witness. These rights belonging to the jury permit them to discard plaintiff’s own evidence on facts, about which other relevant evidence is adduced, at variance with his own. However, these rights do not extend to that area where only plaintiff is in a position to testify, e.g., what he knew of the area where the accident took place and what he expected to find at that location.
In the present instance, the jury, therefore, had the right to conclude as they did that plaintiff took a running dive into the water and did not do a standing dive when at the edge of the water as he repeatedly maintained during his evidence. On that point, the jury could rely as they did on the evidence of one of plaintiff’s companions, namely Chase, who stated that he heard plaintiff run into the water and take a splash, a point which he enlarged as follows in his cross-examination:
Q. You say you heard him run in and splash?
A. Yes.
Q. Did you hear him running through the water?
A. Yes.
Q. Do you know how many paces?
A. Five or six.
Q. Five or six paces into the water?
A. Yes.
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When the jury however came to give their reasons for their conclusion that plaintiff had been confused, they had no right to go beyond plaintiff’s own evidence because he was the only one who could testify as to whether or not he had been confused by the situation. On the four reasons given by the jury on the point, the following comments are in order:
Shoreline
The evidence of plaintiff in cross-examination is as follows:
Q. Is it not correct that the slope of the sand down to the water is a very gradual slope?
A. From what point to the water?
Q. From the top of the sand down to the water?
A. A gradual slope?
Q. Yes.
A. A short slope.
A short distance from the peak to the water. How gradual—like, the angle, I don’t know. It is quite steep.
Q. Steep? I must refer you again to Examination for Discovery. Questions 174, 178 and 181, my lord. 174; this is the question, Mr Olmstead:
Q. As you walk towards the edge of the water you were walking slightly downgrade?
A. That’s correct.
Q. Do you remember being asked that question?
A. Would you repeat it, please?
Q. Certainly:
Q. As you walk towards the edge of the water you were walking slightly downgrade?
A. That’s correct.
A. From the peak, yes.
Q. Down to the water?
A. Yes.
Q. Slightly downgrade?
A. That’s right.
Q. You said just a moment ago that it was steep, did you not?
A. Well, it was a short, short distance to the water.
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Q. But we are talking about the grade now, not the distance.
A. All right.
Q. And you now agree that it was a gradual slope?
A. Yes.
Floats at each end
Again, plaintiff’s evidence should be looked at:
Q. You did say in evidence that the reason you dove rather than waded into this pool was because there were floats at either end. Did I understand you correctly then?
A. Partially that, yes.
Q. But you would agree that the floats at either end didn’t tell you anything about the middle portion?
A. No—could you repeat the question, please?
Q. I am asking you whether you agree that the fact that there were floats at either end didn’t tell you anything about the depth in between those floats?
A. No. The signs didn’t indicate any depth to me.
Q. The signs didn’t—
A. The signs on the floats didn’t indicate the depth in the middle, no.
Q. And even the fact that there were floats at either end didn’t indicate anything about depth in the middle?
A. No, they didn’t.
Sign in middle of float
Surely, this cannot be relevant, the accident having occurred between midnight and one a.m. on a dark night.
Water unclear
This condition was certainly known to plaintiff. Here again his evidence should be quoted:
Q. On the earlier occasion on which you went to the lake, was the water clear?
A. Clear in the sense that you could see the bottom?
Q. That you could see through it at all?
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A. No.
Q. It was really dirty, was it?
A. The bottom of the pool wasn’t visible.
Q. You mean the deepest part?
A. Any part.
Q. You mean even one inch from the water’s edge you couldn’t see the bottom?
A. Oh, one inch, perhaps.
Q. One foot?
A. No. Perhaps. I can’t honestly answer that. A foot from the edge of the water out could I see the bottom—I don’t recall seeing the bottom.
Q. But you walked right along the water’s edge right where you dove in on the 26th of June, did you not?
A. I didn’t walk along there on the 26th of June.
Q. No. You walked along that edge one month before?
A. Yes.
Q. That was the same spot you dove in?
A. Yes.
THE COURT: Q. And on that day you couldn’t see the bottom, is that right?
A. Pardon?
Q. On that day you couldn’t see the bottom?
A. No.
Of the four points mentioned by the jury as sufficient to confuse plaintiff, one cannot have any merit because the accident occurred at night and the other three should have been decided against plaintiff on his own evidence which the jury did not have the right to discard.
The true cause of the accident on the evidence accepted by the jury is clearly the sole negligence of plaintiff who took a running dive into shallow water. The evidence discloses that when plaintiff’s companions went to his rescue after the accident, the water only came above their knees which shows very clearly that when plaintiff dove in after his run into the water, the depth, to plaintiff’s knowledge, was two feet at best. This finding, read with the other finding that one does not dive into unknown waters, makes it amply clear that the sole determining
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cause of the accident was plaintiff’s own fault. Here is an extract of his testimony in cross‑examination:
Q. Is your evidence that you took off from the edge?
A. Took off? I don’t understand the question.
THE COURT: Q. NO. Did you dive from the edge?
A. Did I dive from the edge?
Q. Yes.
A. Of the water? Yes, I did.
MR. WHEELDON: Q. Were your feet in the water when you took off or were they still on the sand, can you recall?
A. At the edge, edge of the water. My toes could have been in the water.
THE COURT: Q. Did you say your toes were in the water?
A. I said they could have been. I was at the edge of the water.
MR. WHEELDON: Q. Did you run down to the edge?
A. Run down to the edge from where?
Q. Run down to the edge of the water before you dove?
A. No, I did not.
Q. Quite certain of that?
A. Yes.
Q. Do you think it is safe to run down and dive?
A. No, I don’t think it is safe to run down and dive.
THE COURT: I couldn’t hear that answer.
MR. WHEELDON: “I don’t think it would be safe to run down and dive”.
Q. Why is that, Mr. Olmstead?
A. To run and dive into a pool, why do I think it is unsafe?
Q. Yes.
A. Common sense tells you it is unsafe.
Q. Yes.
A. Common sense tells you it is unsafe.
Q. Are we talking about diving this night at Aldergrove?
A. Yes.
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Q. You say common sense would have told you that was unsafe?
A. That night or any other night.
Q. Why would it be unsafe?
A. For the simple reason of common sense. You just don’t run and dive into pools.
Q. I am asking you why not?
A. And I am telling you because of common sense.
Q. What does common sense tell you?
A. It tells me not to run and dive into it.
Q. Are you saying, Mr. Olmstead, that it would be dangerous because if you don’t know how deep the water is you might hit your head?
A. Yes, that is common sense.
Q. And I suggest to you that that applies even if you do a standing dive?
A. Yes.
Q. However, you did do a standing dive at night into water that you say you don’t know how deep it was?
A. No, I didn’t measure it. I don’t know how deep it was.
Q. And you agree that common sense would tell you that that was a dangerous thing to do?
A. It does now.
Q. Or even then?
A. Yes.
On the whole I have no hesitation to conclude that no jury acting judicially could have, on the whole of the evidence, found that the accident was the result of the appellant’s negligence. As a matter of fact, this is a case where I would be inclined to say that there was no evidence to go before a jury so that we have the right and the duty to set aside the verdict. of. Grey Coach Lines Ltd. v. Payne[6]. In the circumstances of this case, there was no obligation on appellant to protect respondent against his own imprudence.
For these reasons, I would allow the appeal, set aside the verdict of the jury and the judgments of the Courts below and dismiss the action, the whole with costs.
Appeal allowed with costs.
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Solicitors for the defendant, appellant: Alexander, Guest, Wolfe, Holburn & Beaudin, Vancouver.
Solicitor for the plaintiff, respondent: Robert Duncan Ross, Vancouver.