Harvey and Storey v. Tarala, Tarala and Gold Crest Sales and Service Ltd., (1979) 6 Sask.R. 70 (CA)

• Judge: Woods, Brownridge and Bayda, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 27, 1979
• Jurisdiction: Saskatchewan
• Citations: (1979), 6 Sask.R. 70 (CA)

Harvey v. Tarala (1979), 6 Sask.R. 70 (CA)

MLB headnote and full text

Harvey and Storey v. Tarala and Tarala (defendants) and Gold Crest Sales and Service Ltd. (third party)

(No. 6892)

Indexed As: Harvey and Storey v. Tarala, Tarala and Gold Crest Sales and Service Ltd.

Saskatchewan Court of Appeal

Woods, Brownridge and Bayda, JJ.A.

February 27, 1979.

Summary:

This case arose out of a widow's action for damages under the Fatal Accidents Act. The husband was killed in a boating collision. The retailer of the defendant's boat used bolts of the wrong size to attach the motor to the boat transom. One bolt worked loose causing the motor to flip from side to side breaking the steering mechanism and veering the boat into the side of the plaintiff's boat. The occupants of the plaintiff's boat were killed. The defendant driver did not testify whether he tried to slow the boat down prior to the collision. The defendants pleaded inevitable accident. The Saskatchewan Court of Queen's Bench, in a decision recorded in paragraphs 10 to 73 below, found the defendant boat retailer wholly responsible for the accident, because it used bolts of the wrong size to attach the motor. The Queen's Bench also held that the defendants failed to establish inevitable accident. The retailer appealed.

The Saskatchewan Court of Appeal allowed the appeal and apportioned the liability 80% to the boat retailer and 20% to the defendants.

Courts - Topic 5604

Provincial courts - Concurrent and conflicting jurisdiction - Navigation and shipping - Inland waterways - The Saskatchewan Court of Queen's Bench stated that it had concurrent jurisdiction with the Federal Court to hear actions for damages arising out of boating collisions on inland waterways within the Province of Saskatchewan - See paragraphs 10 to 13.

Damage Awards - Topic 82

Personal injuries and death - Fatal accidents - Husband - 58 years old - Good health - Past employment as carpenter, caretaker and labourer - Widow planned to remarry and testified money would not be a problem after the marriage - The Saskatchewan Court of Queen's Bench awarded the widow $11,500.00 general damages - See paragraphs 43 to 49.

Shipping and Navigation - Topic 5003

Collisions - General - Jurisdiction - Inland waterways - The Saskatchewan Court of Queen's Bench stated that it had concurrent jurisdiction with the Federal Court to hear actions for damages arising out of boating collisions on inland waterways within the Province of Saskatchewan - See paragraphs 10 to 13.

Torts - Topic 4358

Suppliers of goods - Products liability - Negligence - Retailers and wholesalers - Installation of goods sold - The Saskatchewan Court of Queen's Bench held a motor boat retailer negligent for using the wrong size bolts to attach an outboard motor to a boat, which was later involved in a boating collision, after the motor worked loose and broke the steering mechanism - See paragraphs 50 to 65.

Torts - Topic 6603

Defences - Contributory negligence - Apportionment of fault - General - The defendants, owner and driver of a motor boat, collided with the plaintiff's boat, causing death to the occupants of the plaintiff's boat - The retailer of the defendant's boat used bolts of the wrong size to attach the motor to the boat transom - One clamp worked loose causing the motor to flip from side to side breaking the steering mechanism and veering the defendant's boat into the side of the plaintiff's boat - The defendant driver did not testify whether he attempted to slow the boat down prior to the accident - The Saskatchewan Court of Appeal held the defendants 20% at fault and the third party retailer 80% at fault for the accident - See paragraphs 1 to 5.

Torts - Topic 6785

Defences - Inevitable or fortuitous accident - Evidence and proof - The defendants, owner and driver of a motor boat, collided with the plaintiff's boat, causing death to the occupants of the plaintiff's boat - The retailer of the defendant's boat used bolts of the wrong size to attach the motor to the boat transom - One bolt worked loose causing the motor to flip from side to side breaking the steering mechanism and veering the boat into the side of the plaintiff's boat - Witnesses for the defence testified that the driver had his hand on the gear box but did not say whether he tried to slow the boat down - The driver did not testify - The accident occurred within seconds of the loss of steering - A widow brought a negligence action for damages under the Fatal Accidents Act - The defendants pleaded inevitable accident - The Saskatchewan Court of Queen's Bench allowed the action and held the defendant failed to establish inevitable accident - The court held the defendants successfully proved that failure of the steering could not have been prevented by their exercise of reasonable care, but failed to prove that they could not with reasonable care, have avoided the collision - See paragraphs 28 to 41.

Cases Noticed:

Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674, refd to. [paras. 2, 29].

Edward v. Arbeau, 38 D.L.R.(2d) 319, refd to. [para. 38].

Furi v. Ryall et al., [1976] 3 W.W.R. 680, refd to. [para. 48].

Statutes Noticed:

Contributory Negligence Act, R.S.S. 1965, c. 91, sect. 3(1) [para. 3].

Authors and Works Noticed:

Linden, Canadian Negligence Law, p. 130 [para. 38].

Counsel:

D.J. Kaiser, for the appellant, Gold Crest Sales and Service Ltd.;

G.P. Wanhella, for the respondents, Harvey and Storey;

D.S. Newsham, Q.C., for the respondents, Tarala.

This appeal was heard on February 26, 1979, by WOODS, BROWNRIDGE and BAYDA, JJ.A., of the Saskatchewan Court of Appeal.

On February 27, 1979, WOODS, J.A., delivered the following judgment for the Court of Appeal.