Cotic's Estate v. Izquierdo's Estate, (1983) 51 N.R. 42 (SCC)

• Judge: Laskin, C.J.C., Ritchie, Dickson, Estey and McIntyre, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 27, 1983
• Jurisdiction: Canada (Federal)
• Citations: (1983), 51 N.R. 42 (SCC);1 DLR (4th) 187;[1983] CarswellOnt 711;1983 CanLII 57 (SCC);51 NR 42;[1983] 2 SCR 2;26 CCLT 163;2 OAC 187

Cotic Estate v. Izquierdo Estate (1983), 51 N.R. 42 (SCC)

MLB headnote and full text

Cotic's Estate v. Izquierdo's Estate

(No. 16681)

Indexed As: Cotic's Estate v. Izquierdo's Estate

Supreme Court of Canada

Laskin, C.J.C., Ritchie, Dickson, Estey and McIntyre, JJ.

September 27, 1983.

Summary:

Cotic was injured in a motor vehicle accident caused by Izquierdo's negligence. An action by Cotic against Izquierdo's estate for damages resulting from the accident was settled out of court. Cotic, who had a history of mental problems, committed suicide 16 months after the accident, partly because of guilt over the deaths of Izquierdo and Izquierdo's son in the accident. Cotic's estate brought an action for damages against Izquiredo's estate under the Fatal Accidents Act, claiming that Cotic's suicide was caused by the accident and that Izquierdo was therefore liable. Counsel agreed that the only question to be put to the jury was "Did the defendant cause or contribute to the death of the late Ned Cotic by the motor vehicle accident in question? Answer 'Yes' or 'No'." The jury answered "yes" and the trial judge awarded judgment to Cotic's estate. Izquierdo's estate appealed, submitting that the trial judge failed to instruct the jury on the issue of the foreseeability of suicide arising from the accident.

The Ontario Court of Appeal, in a judgment reported at paragraphs 8 to 111 below, dismissed the appeal, because the jury had been properly charged and there was overwhelming evidence to support their finding. Izquierdo's estate appealed.

The Supreme Court of Canada dismissed the appeal, and held that the framing of the question to the jury and the conduct of counsel at trial made it clear that the issue of foreseeability had been agreed upon before trial, leaving causation as the only issue, which the jury found was proven.

Damages - Topic 526

Limits of compensatory damages - Remoteness - Torts - General - The Ontario Court of Appeal stated that remoteness referred to the closeness of a direct and natural causal sequence between the negligent act and the damages, and damages were not necessarily too remote because they were separated from the negligent act by a period of time - See paragraph 38.

Damages - Topic 598

Limits of compensatory damages - Predisposition to damages - Limitations on recovery - The Ontario Court of Appeal held that the rule that a tortfeasor takes his victim as he finds him was qualified in that if the victim's condition was such that the damage suffered was bound to happen in any event due to a pre-existing condition, then recovery was limited to compensation for the acceleration of the inevitable damage - See paragraph 100.

Practice - Topic 5024

Conduct of trial - By counsel - Agreements by counsel - Re issues - In an action commenced under the Fatal Accidents Act counsel agreed that the only issue to be put to the jury was the question "Did the defendant cause or contribute to the death of the late Ned Cotic by the motor vehicle accident in question? Answer 'Yes' or 'No'." - The Supreme Court of Canada held that the framing of the question and counsels' conduct at trial made it clear that all issues except causation had been agreed upon, and that any other issues, such as foreseeability, could not be raised - See paragraphs 4 to 6.

Torts - Topic 51

Negligence - Causation - General principles - The Ontario Court of Appeal discussed the interwoven principles of foreseeability, the thin skull rule and novus actus interveniens as they related to the liability of a tortfeasor for the suicide death of a victim 16 months after the victim was injured in a motor vehicle accident caused by the tortfeasor's negligence.

Torts - Topic 60

Negligence - Causation - Foreseeability - The Ontario Court of Appeal held that in a negligence action only the kind, type or character of injury or damage need be foreseeable, and not the extent of the injury or damage - See paragraph 95.

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - The Ontario Court of Appeal held that if an intervening act was such that it might reasonably have been foreseen or anticipated as the natural and probable result of the original negligence, then the original negligence would be regarded as the proximate cause of the injury, notwithstanding the intervening act - See paragraph 79.

Torts - Topic 7504

Fatal accidents - General - Nature of action - A negligence action commenced after a motor vehicle accident was settled out of court - The plaintiff in the action was predisposed to mental problems and committed suicide 16 months after the accident - The plaintiff's estate commenced an action under the Fatal Accidents Act - The Ontario Court of Appeal held that the action was an original and statutory cause of action and not a derivative one barred by the settlement of the prior action - See paragraph 10.

Cases Noticed:

Overseas Tank Ship (U.K.) Ltd. v. Morts Dock And Engineering Co. Ltd. (The Wagon Mound No. 1), [1961] A.C. 388, folld. [paras. 3, 40, 52-55].

Pigney v. Pointer's Transport Services Ltd., [1957] 1 W.L.R. 1121, refd to. [para. 10].

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound No. 2), [1967] 1 A.C. 617, folld. [paras. 33, 69].

Dulieu v. White & Sons, [1901] 2 K.B. 669, consd. [para. 35].

Re Polemis and Furness, Withy and Company Ltd., [1921] 3 K.B. 560, not folld. [para. 39].

Murdoch v. British Israel World Federation, [1942] N.Z.L.R. 600, refd to. [paras. 40-45].

McFarland v. Stewart (1900), 19 N.Z.L.R. 22, refd to. [para. 43].

Coulter v. Coltness Iron Co. Ltd., [1938] S.C. 720, refd to. [para. 45].

Smith v. Leech Brain & Co. Ltd., [1962] 2 Q.B. 405, consd. [paras. 56-61].

Haber v. Walker, [1963] V.R. 339, consd. [paras. 62-67].

Withers v. London, Brighton, and South-Coast Railway Co., [1916] 2 K.B. 772, refd to. [para. 67].

Marriott v. Maltby Main Colliery Co. (1920), 90 L.J.K.B. 349, refd to. [para. 67].

Richters v. Motor Tyre Service Pty. Ltd., [1972] Qd.R. 9, refd to. [paras. 70-75].

Duwyn v. Kaprielian (1978), 7 C.C.L.T. 121, refd to. [para. 76].

Swami v. Lo, 11 C.C.L.T. 210, refd to. [para. 77].

Hughes v. Lord Advocate, [1963] A.C. 837; [1963] 1 All E.R. 705, refd to. [para. 77].

Sheffer v. Railroad Company (1881), 105 U.S. 249, refd to. [para. 77].

Daniels v. New York, N.H. & H.R. Co. (1903), 67 N.E. 424, refd to. [para. 77].

Salsedo v. Palmer (1921), 278 Fed. 92; 23 A.L.R. 1262, refd to. [para. 77].

Anns v. Merton London Borough Council, [1978] A.C. 728, refd to. [para. 82].

R. v. Cote (1974), 51 D.L.R.(3d) 244, folld. [para. 83].

Hoffer v. School Division of Assiniboine South, No. 3 (1971), 21 D.L.R. (3d) 608; aff'd 40 D.L.R.(3d) 480, refd to. [para. 84].

Malcolm v. Broadhurst, [1970] 3 All E.R. 508, refd to. [para. 86].

Love v. Port of London Authority, [1959] 2 Lloyd's Rep. 541, refd to. [para. 86].

Corrie v. Gilbert, [1965] S.C.R. 457, refd to. [para. 95].

Marcroft v. Scruttons, Ltd., [1954] 1 Lloyd's Rep. 395, refd to. [para. 95].

Wieland v. Cyril Lord Carpets, Ltd., [1969] 3 All E.R. 1006, refd to. [para. 99].

Negretto v. Sayers, [1963] S.A.S.R. 313, refd to. [para. 100].

Sayers v. Perrin (No. 3), [1966] QD.R. 89, refd to. [see appendix].

Bates v. Fraser et al., [1963] 1 O.R. 539, refd to. [see appendix].

Marconato and Marconato v. Franklin, [1974] 6 W.W.R. 676, refd to. [see appendix].

Winteringham v. Rae, [1966] 1 O.R. 727, refd to. [see appendix].

Malcolm v. Broadhurst, [1970] 3 All E.R. 508, refd to. [see appendix].

Robinson v. Post Office, [1974] 1 W.L.R. 1176, refd to. [see appendix].

Tremain v. Pike, [1969] 3 All E.R. 1303, refd to. [see appendix].

Warren v. Scruttons, Ltd., [1962] 1 Lloyd's Rep. 497, refd to. [see appendix].

Burke v. John Paul & Co. Ltd., [1967] I.R. 277, refd to. [see appendix].

Stephenson v. Waite Tileman Ltd., [1973] 1 N.Z.L.R. 152, refd to. [see appendix].

McKillen v. Barclay Curle & Co. Ltd., [1967] S.L.T. 41, refd to. [see appendix].

Oman v. McIntyre, [1962] S.L.T. 168, refd to. [see appendix].

Wilson v. Birt (PTY.) Ltd., [1963] 2 S.A. 508, refd to. [see appendix].

Statutes Noticed:

Fatal Accidents Act, R.S.O. 1970, c. 164, sect. 2 [para. 30].

Authors and Works Noticed:

Fleming, Law of Torts (5th Ed.), pp. 203-204 [para. 32]; 212-213 [para. 78].

Rowe, The Demise of the Thin Skull Rule? (1970), 40 M.L.R. 377 [para. 97].

Linden, Down With Foreseeability! Of Thin Skulls and Rescuers (1969), 47 Can. Bar Rev. 545 [para. 98].

Smith, Negligence - Foreseeability of Injury - The Passing of Wagon Mound (1967), 45 Can. Bar Rev. 336.

Counsel:

Ian Scott, Q.C., and Paul Lee, Q.C., for the appellant;

Bruce Thomas, Q.C., and Robert Kligman, for the respondent.

This appeal was heard at Ottawa, Ontario, on May 18, 1983, before Laskin, C.J.C., Ritchie, Dickson, Estey and McIntyre, JJ., of the Supreme Court of Canada.

On September 27, 1983, McIntyre, J., delivered the following judgment for the Supreme Court of Canada.