Sabourin et al. v. Watterodt et al., (2005) 213 B.C.A.C. 301 (CA)

• Judge: Lambert, Hall and Mackenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 22, 2005
• Jurisdiction: British Columbia
• Citations: (2005), 213 B.C.A.C. 301 (CA);2005 BCCA 348

Sabourin v. Watterodt (2005), 213 B.C.A.C. 301 (CA);

    352 W.A.C. 301

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. JL.002

Terence P. Manders and Patrick A. Manders (respondents/plaintiffs) v. Darcey R. Watterodt, as the Administratrix of the Estate of Thorsten Watterodt, Deceased (appellant/defendant) and Nav Canada (respondent/defendant) and Darcey Renee Watterodt, as the Administratrix of the Estate of Thorsten Watterodt, Deceased (appellant/third party) and Nav Canada and Colleen Elizabeth Sabourin, as the Executrix and Trustee for the Deceased, Terrence Joseph Sabourin (respondents/third parties)

(CA031728)

Colleen Elizabeth Lee Sabourin, as the Executrix and Trustee for the Deceased Terrence Joseph Sabourin, the said Colleen Elizabeth Lee Sabourin, George Stanley Sabourin, Christena Elizabeth Beaulac and Theresa Colleen Sabourin (respondents/plaintiffs) v. Darcey Watterodt, as the Administratrix of the Deceased, Thorsten Watterodt (appellant/defendant) and Nav Canada (respondent/defendant) and Nav Canada and Colleen Elizabeth Sabourin, as the Executrix and Trustee for the Deceased, Terrence Joseph Sabourin (respondents/third parties) and Darcey Watterodt, as the Administratrix of the Deceased Thorsten Watterodt (appellant/third party)

(CA031732)

Darcey Renee Watterodt as the Administratrix of the Estate of Thorsten Watterodt, and as Administratrix of the Estate of Austin Riley Watterodt, the said Darcey Renee Watterodt, and Patricia Grace Sophia Watterodt by her Guardian ad Litem Darcey Renee Watterodt (appellants/plaintiffs) v. Colleen Elizabeth Lee Sabourin as the Executrix and Trustee for Terrence Joseph Sabourin, Nav Canada and Terence Manders (respondents/defendants) and Colleen Elizabeth Lee Sabourin as the Executrix and Trustee for the Deceased Terrence Joseph Sabourin, Nav Canada (respondents/third parties)

(CA031736)

(2005 BCCA 348)

Indexed As: Sabourin et al. v. Watterodt et al.

British Columbia Court of Appeal

Lambert, Hall and Mackenzie, JJ.A.

June 23, 2005.

Summary:

Pilots were required to tune their radios to the Penticton mandatory frequency when they were within a five mile radius of the Penticton Airport look-out building. Watterodt entered the mandatory frequency area piloting a Mooney airplane. He reported that he was inbound for landing, which was acknowledged by the Flight Service Specialist (FSS). About seven minutes later, Watterodt informed the FSS of his position. He asked if there was any traffic in the area and was told by the FSS that there was not. Within the next minute, the pilot of a Cessna aircraft (Sabourin) made two communications to the FSS on the mandatory frequency, the first advising that the Cessna was ready to take off and the second stating that it was rolling. Watterodt flew at a low altitude across the line of the extension of the runway and collided with the Cessna. Watterodt, Sabourin and three others were killed. Various actions were brought arising from the collision.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 243, held that Watterodt was negligent where he abandoned accepted practice and flew his aircraft at a low altitude across the take-off end of an active runway. The court did not find any negligence on the part of Sabourin. The court found that the FSS breached his duty by failing to inform Sabourin that there was traffic to the west and in failing to inform Watterodt that the Cessna was taking off. However, the court concluded that a causal connection between the FSS's breach of duty and the collision had not been proven. Watterodt's estate appealed from the finding that there was no causal connection between the FSS's breach of duty and the collision.

The British Columbia Court of Appeal, Lambert, J.A., dissenting, dismissed the appeal.

Aeronautics - Topic 2522

Air traffic controllers - Negligence - [See Torts - Topic 61 ].

Torts - Topic 61

Negligence - Causation - Causal connection - Pilots were required to tune their radios to the Penticton mandatory frequency when they were within a five mile radius of the Penticton Airport look-out building - Watterodt entered the mandatory frequency area piloting a Mooney airplane - He reported that he was inbound for landing, which was acknowledged by the Flight Service Specialist (FSS) - About seven minutes later, Watterodt informed the FSS of his position - He asked if there was any traffic in the area and was told by the FSS that there was not - Within the next minute, the pilot of a Cessna aircraft (Sabourin) made two communications to the FSS on the mandatory frequency, the first advising that the Cessna was ready to take off and the second stating that it was rolling - Watterodt flew at a low altitude across the line of the extension of the runway and collided with the Cessna - Watterodt, Sabourin and three others were killed - The trial judge held that while the FSS breached his duty in failing to advise Watterodt that the Cessna was taking off, he was not satisfied on a balance of probabilities that Watterodt would have altered his course if the FSS had done so - A causal connection between the FSS's breach of duty and the collision had therefore not been proven - The British Columbia Court of Appeal dismissed an appeal - It was open to the trial judge to conclude that Watterodt probably heard the Cessna communications on the mandatory frequency, and it was speculative to infer that a further communication of the same information by the FSS would have prompted Watterodt to alter his course.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 5].

Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 58 B.C.L.R.(3d) 305; 1999 BCCA 6, refd to. [para. 6].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 35].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 35].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 36].

Authors and Works Noticed:

Black and Gibson, The Temporal Element of Informed Consent (2004), 13 Health L. Rev. No. 1, pp. 36 to 43 [para. 37].

McInnes, Causation in Tort Law: A Decade in the Supreme Court of Canada (2000), 63 Sask. L. Rev. 445, generally [para. 37].

Nelson and Caulfield, You Can't Get There From Here: A Case Comment on Arndt v. Smith (1998), 32 U.B.C.L. Rev. 353, generally [para. 37].

Counsel:

A.M. Mersey and M.A. Dery, for the appellants, Darcey Renee Watterodt and others;

R.J. Fenn and D.J. Sutherland, for the respondent, Nav Canada.

This appeal was heard on April 22, 2005, at Vancouver, British Columbia, before Lambert, Hall and Mackenzie, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on June 23, 2005, including the following opinions:

Lambert, J.A., dissenting - see paragraphs 1 to 46;

Mackenzie, J.A. (Hall, J.A., concurring) - see paragraphs 47 to 59.