Horsley et al. v. MacLaren et al.

[1970] 2 O.R. 487-502

1970 CanLII 34 (ON CA)

ONTARIO
[COURT OF APPEAL]
SCHROEDER, McGILLIVRAY and JESSUP, JJ.A.
12th JANUARY 1970.

Negligence -- Duty of care -- Passenger falling from boat

through no fault of master -- Rescue attempt prolonged and
unsuccessful -- Second passenger diving into water and dying of
shock from extreme cold -- Whether master liable for death of
second passenger.

A passenger on a motor boat fell overboard through no fault

of the operator. In attempting to rescue him, the operator
reversed the engines and approached the passenger stern first
instead of following the recommended procedure of turning the
boat around and approaching bow on. Because the man overboard
appeared to have lost consciousness and because the boat, when
stopped, kept drifting away, the rescue attempt, using a
pikepole and a life-preserver, was unsuccessful. After three
or four minutes, a second passenger removed his trousers and
dived into the water where he died of shock as a result of the
sudden immersion in the extremely cold temperature. Held, the
operator of the boat was not liable for the death of the second
passenger. While the preferred procedure was to turn the boat
around and approach the man overboard bow on, the behaviour of
the operator of the boat in the circumstances of the emergency
which prevailed could not be considered unreasonable. Since he
had not through negligence imperiled the first passenger, it
would be improper to find negligence on his part in relation to
his rescue efforts and to treat this conduct as a basis of
liability to the second passenger.
 [Baker v. T.E. Hopkins & Son, Ltd., [1969] 1 W.L.R. 966;
Haynes v. Harwood, [1953] 1 K.B. 146; M'Allister (or Donoghue)
v. Stevenson, [1932] A.C. 562; Vanvalkenburg v. Northern
Navigation Co. (1913), 30 O.L.R. 142, 19 D.L.R. 649, refd to]

1970 CanLII 34 (ON CA)

Negligence -- Legislation and civil liability
-- Requirement that master of vessel render assistance to every
person found at sea and in danger of being lost -- Penalty for
failure to observe requirement -- No civil cause of action
thereby conferred -- Canada Shipping Act, R.S.C. 1952, c. 29,
s. 526(1).

APPEAL from a judgment of Lacourciere, J., [1969] 2 O.R. 137,

4 D.L.R. (3d) 557, awarding damages for wrongful death under
the Fatal Accidents Act, R.S.O. 1960, c. 138. B.L. Eastman,
for defendant, appellant, Kenneth W. MacLaren.

W.R. Maxwell, for plaintiffs, respondents, Astrid Horsley,

Richard J. Horsley, Lawrence A. Horsley and Micheal A. Horsley.

Schroeder, J.A.: -- This appeal raises a point of

extraordinary novelty and presents no small difficulty in its
solution since the occurrence which gives rise to the action is
one of such rarity that no helpful precedent can be found which
would afford any material assistance in determining the issue
of liability involved.

The appeal is from a judgment pronounced by Lacourciere, J.,

on February 12, 1969, whereby it was ordered and adjudged that
the widow and children of the deceased John Albert Horsely
should recover as damages under the Fatal Accidents Act, R.S.O.
1960, c. 138, against the appellant Kenneth MacLaren, the sum
of $70,300. An action brought against the appellant by the
widow and children of the late Roland Edgar Matthews, deceased,
arising out of the latter's death in which damages were
assessed at $60,000 was dismissed. An appeal taken against
such dismissal has been abandoned and the Court is now
concerned only with the appeal in the Horsley action. There
has been no appeal taken against the quantum of damages, and
liability of the appeallant is the sole issue before the Court.

There is no dispute as to the essential facts in the case as

found by the learned trial Judge which have been so clearly and

1970 CanLII 34 (ON CA)

comprehensively stated by him that it is not necessary to
restate them here in any complete sense. The appellant was the
owner of the "Ogopogo", a 5.6-ton Owens Express cabin cruiser,
30 ft. 6 in. in length powered by two 100 h.p. inboard engines
and propelled by two propellers, or twin screws. On the
afternoon of Saturday, May 27, 1962, the appellant invited some
friends at the Oakville Harbour Power Club to enjoy a cruise
with him around the harbour, and the appellant, his wife, one
Marck, Mr. and Mrs. R.J. Jones, the deceased Matthews, and the
deceased Horsley set out from the harbour at about 2:30 o'clock
in the afternoon. A carton containing 24 bottles of beer was
taken aboard, and after the boat had proceeded some distance
from the dock it was decided that the party should proceed to
the Port Credit Yacht and Power Boat Club where they arrived
about 3:30 o'clock in the afternoon. In the belief that he was
the first master of a vessel to enter the Port Credit Harbour
that season, the appellant celebrated the event by providing
four large bottles of champagne for the thirty or forty persons
present in the club.

At 6:00 o'clock in the afternoon the "Ogopogo" left the

harbour at Port Credit on its return journey to Oakville.
There was a light wind blowing which rendered the water surface
choppy, and the boat was travelling at the rate of
approximately 10 or 11 knots an hour. Matthews, who had looked
after the bow line when they put off from shore, was sitting on
the port side of the front deck. He decided to go inside and
proceeded along the narrow catwalk on the port side of the
vessel with his back to the water. When he reached the
windscreen in front of the cockpit he fell overboard. Whether
he had a heart attack, or accidentally lost his footing or his
hold on the side of the vessel is unknown, but it is not
suggested that the mishap is attributable to any act or default
on the appellant's part.
 Jones, who had abserved the incident, at once exclaimed
"Roly's overboard". The craft had reached a point 40 to 50
ft. beyond Matthews, and the appellant put the motor into
reverse and backed the cruiser at once towards the man in the
water. When it was within four or five feet of Matthews the
engine was put into the neutral position, but the wind caused

1970 CanLII 34 (ON CA)

the boat to drift away towards the port side. When Matthews
was 10 ft. from the vessel the appellant again put the engine
into reverse and reached a point within three or four feet of
him and he was drifting down towards the boat. At this juncture
the passenger Marck was attempting to retrieve Matthews's body
with a pikepole, but his efforts were unsuccessful.

Matthews had been in the water for a period estimated at

approximately three to four minutes and at all times he was
motionless, his head was well above the surface of the water
and his arms were extended in front of him in a slightly
elevated position, but his eyes were glassy. A life ring or
lifejacket thrown to him went unobserved and he was not making
the slightest effort to assist himself. Marck came within one
or two feet of him with the pikepole but Matthews did not react
in any way and presented appearance of having lost
consciousness.

The appellant had no knowledge of Horsley's experience with

watercraft and in the early stages of the journey had therefore
warned him to remain in the cockpit or cabin and not to go on
deck. When Horsley observed the difficulty which was being
experienced in the effort to rescue Matthews he removed his
trousers and dived into the water, emerging from his dive
approximately 10 ft. away from Matthews who, at this time, was
three or four feet from the vessel. A few seconds after
Horsley's act of diving into the water Matthews's body sank
below the surface and under the bottom of the boat on its
starboard side near the stern. It disappeared from view and
has never been recovered. At this point of time Matthews's
body was about one foot from the side of the vessel.

On observing what had happened to Matthews, Mrs. Jones, an

experienced cold-water swimmer, plunged into the water in an
effort to keep Matthews's head above water but she never had an
opportunity to afford him this aid. Fearing for his wife's
safety Jones, who was himself an experienced boatman, took the
controls and caused the boat to describe a circle, moved it
forward and brought its starboard side alongside his wife. She
was thrashing about in the water and extended her arms towards
MacLaren and Marck who succeeded in grasping her. Jones,

1970 CanLII 34 (ON CA)

responding to a call from MacLaren and Marck, came to their
assistance and the trio succeeded in bringing her aboard.

MacLaren then resumed control of the vessel and drove it in a

forward direction towards Horsley whose body was also retrieved
from the water. He had lost consciousness and was given
artificial respiration, but no water came forth from his body.
From the moment that he reappeared after his dive into the
water, although he was known to have some ability as a swimmer,
he made no effort to help himself; his feet were down, he was
floating with his head well above the surface of the water and
his arms were extended forward, but when the rescuers reached
him his head went under the water at that precise moment. The
water of Lake Ontario is very cold in the hottest reason of the
year, but on the day in question it was bitterly cold. Mrs.
Jones described it as "paralysingly cold" and "like a vat of
ice cubes". The pathologist who examied Horsley's body found no
water in his lungs and concluded that death was caused by shock
resulting from his sudden immersion in the extremely cold water
rather than by drowning.

The learned trial Judge, in a carefully reasoned judgment

[[1966] 2 O.R. 137, 4 D.L.R. (3d) 557], found the appellant
liable for Horsley's mishap on the theory which has been
applied in a series of rescue cases, in which the principle has
been enunciated that if A by his negligence causes B to be in a
position of danger, he should foresee the probability that a
third person C, "acting bravely and promptly and subjugating
any timorous over-concern for his own well-being or comfort,
may attempt a rescue": Baker v. T.E. Hopkins & Son Ltd.,
[1959] 1 W.L.R. 966, per Lord Morris at p. 976. In that
case the general principles were discussed and Haynes v.
Harwood, [1935] 1 K.B. 146, and M'Alister (or Donoghue) v.
Stevenson, [1932] A.C. 562, were considered and applied.
 It is not contended, nor is there any basis for the
contention, that Matthews was imperilled in the first instance
by any act or omission on the part of the appellant. The
respondents' theory is that in the circumstances there was a
legal duty cast upon the appellant, even if Matthews's position
of danger was brought about by Matthews's own fault or

1970 CanLII 34 (ON CA)

negligence, to use reasonable care in rescuing his passenger;
that the appellant was negligent in reversing the engine and
backing the boat towards Matthews's body rather than circling
it and proceeding bow onward into the wind and drawing the boat
alongside to a point where the body could be reached; that the
delay which ensued by reason of the alleged improper conduct of
the appellant in carrying out the rescue operation created a
desperate situation and put Matthews in such a position of
peril that the appellant should have foreseen that under the
exigency caused by his alleged misconduct Horsley, or one of
the other passengers, acting instinctively, would risk injury
or death to themselves by diving into the water to rescue
Matthews from the imminent danger created or increased by the
appellant's alleged negligence.

It becomes important to determine whether there was

negligence imputable to the appellant in these circumstances
which can be regarded as causa proxima of Horsley's death. The
learned trial Judge pointed out that at common law there was no
legal duty to come to the rescue of a passenger who fell
overboard by reason of his own misfortune or carelessness as
illustrated by the judgment of Sir William Mulock, C.J.Ex. (as
he then was), in Vanvalkenburg v. Northern Navigation Co.
(1913), 30 O.L.R. 142, 19 D.L.R. 649.

The learned Judge referred to s. 526 of the Canada Shipping

Act, R.S.C. 1952, c. 29, originally enacted in 1934 as c. 44,
s. 519. That section reads:

526(1) The master or person in charge of a vessel shall, so

far as he can do so without serious danger to his own vessel,
her crew and passengers, if any, render assistance to every
person, even if that person be a subject of a foreign state
at war with Her Majesty, who is found at sea and in danger of
being lost, and if he fails to do so he is liable to a fine
 not exceeding one thousand dollars. It cannot be said that
there was any failure to render assistance to Matthews which
put the defendant MacLaren in breach of that section,
assuming its applicability, and I would not give it the
effect of creating a legal duty to rescue a person found at
sea and to use reasonable care in the process, failure to

1970 CanLII 34 (ON CA)

observe which duty would give such person or his legal
representatives a cause of action. The learned trial Judge
declined so to treat the enactment and, in my opinion, he was
right in not doing so. It may be said that Parliament, in
enacting the section, gave expression to humanitarian
principles which should guide the consciences of civilized
men in their relations even to an enemy who was found in
peril at sea and this must have an important bearing on the
question as to whether a moral or social duty resting upon
the master of a vessel traversing navigable waters to come to
the rescue of a passenger who through his own misfortune
falls overboard can be ripened into a legal duty not only to
come to his passenger's aid, but also to exercise reasonable
care in the rescue procedure.

Matthews, as were the others, was a gratuitous passenger, but

it is well settled that the owner or master of a vessel is
nevertheless under a duty to carry such passengers with due
care. It becomes a question as to whether this duty extends to
and embraces a duty to effect a rescue of a passenger who, from
whatever cause, is cast into the water, and to use due care in
effecting his rescue, a breach of which duty may afford a basis
for establishing liability in tort. Whatever may have been the
more primitive notion of the duty of a master or owner of a
pleasure craft towards his passengers in such circumstances,
the proposition formulated by Lord Atkin which is familiar to
us as "the neighbour principle", is relevant for consideration.
That dictum, while not affording ground for disregarding
existing categories of liability, makes it plain that these
categories are never closed, and is authority for opening up
new categories. The classic statement to which I refer appears
in Lord Atkin's judgment in M'Alister (or Donoghue) v.
Stevenson, [1932] A.C. 562 at p. 580, from which I quote: --

At present I content myself with pointing out that in

 English law there must be, and is, some general conception of
relations giving rise to a duty of care, of which the
particular cases found in the books are but instances. The
liability for negligence, whether you style it such or treat
it as in other systems as species of "culpa," is no doubt
based upon a general public sentiment of moral wrongdoing for

1970 CanLII 34 (ON CA)

which the offender must pay. But acts or omissions which any
moral code would censure cannot in a practical world be
treated so as to give a right to every person injured by them
to demand relief. In this way rules of law arise which limit
the range of complainants and the extent of their remedy.
The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour; and the lawyer's
question, Who is my neighbour? receives a restricted reply.
You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour? Who, then, in law is my neighbour? The
answer seems to be -- persons who are so closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question.

That declaration, which was hailed as a new point of

departure in our law of tort, is not to be given too broad an
interpretation or application, and jurists should not treat it
as an open invitation to them to depart from their traditional
function as expounders and interpreters of the law and to
assume the function of legislators. Nevertheless, the law must
ever continue to be a living force to achieve its true ends,
and Judges have not shrunk from the task of moulding the law to
keep pace with changing mores as civilization progresses. Here
the defendant was not at fault for the plight in which Matthews
found himself, but by every social and moral standard the
relationship between him and his passengers was one which would
impose upon him an obligation at least to make a reasonable
effort to rescue him. It is immaterial in the present case
whether or not it be treated as a legal duty since MacLaren
recognized that obligation and took the steps above outlined,
but it is contended that he did not act in the emergency as a
reasonable and prudent master would have acted.
 To establish a breach of duty on the defendant's part the
plaintiff relied on the evidence of two expert witnesses,
Captain Livingstone and Captain Mumford. They testified as to
the proper rescue procedures to be followed in case a man fell
overboard. They both agreed that the procedure of reversing
the engines and backing toward the man in the water should

1970 CanLII 34 (ON CA)

never be adopted except in a confined area where the boat could
not be turned around. They stated that this procedure should
be automatic and ought to be known to every person who
undertakes the operation of a boat such as the "Ogopogo"; that
the man in the water should be approached "bow on", and that to
bear down upon him stern first was evidence of incompetence.
The defendant MacLaren admitted that this was recognized by him
as the correct procedure, but maintained that on the spur of
the moment and in the emergency which presented itself he had
done what he thought would be most conducive to an early
rescue. Captain Mumford would not state that there was no
reasonable chance of picking up a person in the water by
backing the boat, but stated that there was a better chance of
doing it by the method which he proposed, adding that it was a
matter for the master to decide. Captain Livingstone stated
that it was inadvisable for a person to remove his clothing
before entering very cold water. In fact, he disapproved of
anyone jumping into the water in the course of a rescue
operation since one would be "compounding the situation by
having two persons in the water instead of one".

In my respectful opinion the evidence of the two experts

spells out a standard of text-book perfection given at a time
when all the evidence had been sifted and all the facts
ascertained in the calm and deliberate atmosphere of a judicial
investigation. It is ever so easy to be wise after the event
and to state ex post facto that the conduct of the appellant,
who had to rely upon the co-operation of the other passengers
in effecting the rescue of Matthews, fell short of the standard
of reasonableness. He is surely entitled to be judged in the
light of the situation as it appeared to him at the time and in
the context of immediate and pressing emergency, even if a duty
of using reasonable care in effecting the rescue of Matthews
was properly cast upon him. The learned trial Judge excused
the conduct of Horsley in the light of the emergency but failed
to apply the same test to the appellant whose problems and
responsibilities were much greater and more complex. The
excitement created by the cry "Roly's overboard", the fact that
the appellant had to act immediately, the confusion attendant
upon the suddenness of the tragic occurrence, the lack of time
and opportunity for mature consideration, all these

1970 CanLII 34 (ON CA)

circumstances must be taken into account in approaching a
determination of whether the appellant was guilty of negligence
in backing the vessel towards Matthews instead of proceeding
towards him "bow on", assuming that the standard contended for
is applicable.

Prosser points out [Prosser on Torts, 3rd ed., c. 10] that

the common law has persistently refused to recognize the moral
obligation of common decency and humanity to come to the aid of
another human being in danger because of its reluctance to
countenance non-feasance as a basis of liability as contrasted
with misfeasance; but that when we cross the line into the area
of "misfeasance" (a line which is not always easy to draw)
liability is easier to find; and that if there is no duty to
come to the assistance of a person in peril or difficulty there
is at least a duty to avoid any affirmative acts which may make
his situation worse. The learned Judge held that whether there
was a duty on the appellant to rescue Matthews or not, he had
voluntarily assumed that duty; that he had entered into a
relationship which cast responsibility upon him, and hence was
liable for failure to use reasonable care in dealing with
Matthews. This reasoning, however, disregards the principle
that even if a person embarks upon a rescue and does not carry
it through, he is not under any liability to the person to
whose aid he had come so long as discontinuance of his efforts
did not leave the other in a worse condition than when he took
charge: East Suffolk River Catchment Board v. Kent, [1961]
A.C. 74, referred to in Fleming on Torts, 3rd. ed., p. 147.
Here there was no discontinuance of the appellant's efforts to
rescue Matthews, at least until he disappeared from view when
further efforts would have been futile. Applying this test by
analogy, can it be said in the light of the learned Judge's
findings that efforts as were made by the appellant, even if
they were not carried out with that standard of care which the
learned Judge considered applicable, worsened Matthews's
condition and thus induced Horsley to jump into the water to
effect his rescue? In my respectful opinion the evidence falls
far short of sustaining any such conclusion.

I am not unmindful of the learned Judge's finding that the

appellant was so affected by spirituous beverages which he had

1970 CanLII 34 (ON CA)

consumed that his judgment was affected. He bases the finding
substantially upon the evidence of a police officer who saw
MacLaren when his vessel had docked at Oakville and after he
had undergone the harrowing experience hereinbefore described.
Even if the finding as to his condition at that time be
accepted without qualification, there is nothing in the
evidence to support the view that he was incapable of proper
management and control of the cruiser at the material time. In
fact Jones, himself a competent boat operator, testified that
the appellant was not intoxicated and that he manipulated the
controls competently at all relevant times. The witnesses
Paget and Marck supported that evidence. Assuming, however,
that MacLaren was in the condition found by the learned trial
Judge, is there any conclusive evidence which impels one to the
view that had he been completely sober he would have circled
the boat and proceeded "bow on" towards Matthews instead of
proceeding towards him in reverse? Of even greater
significance is the question as to whether it has been proven
that the manoeuvre undertaken by MacLaren actually prolonged
the time within which the point was reached where a successful
rescue attempt could have been made. The manoeuvre recommended
by the experts would have taken two minutes or more, whereas
the approximate time from the moment that Matthews fell
overboard until his body disappeared beneath the boat was three
or four minutes. Whatever may be said in criticism of
MacLaren's conduct, his efforts at rescue cannot be said to
have worsened Matthews's condition. Moreover, when the boat
was first reversed and brought to a stop, a life-jacket was
thrown to Matthews who could have grasped it had he not then
lost consciousness.

This leads me to the precise ground of liability on the part

of the appellant urged by counsel for the respondents.
Assuming that the appellant's conduct in the rescue operation
was blameworthy to such a degree as to attract liability on his
part towards Matthews, can it be said that the appellant, who
was not primarily negligent and hence responsible for
Matthews's plight in the first instance, having failed to carry
out a supposed duty to rescue Matthews with due care and
promptitude, ought to have foreseen the probability that
Horsley, obeying a commendable beneficial instinct of humanity,

1970 CanLII 34 (ON CA)

would be thereby induced to jump into the water and expose
himself to the same peril as that in which Matthews was
involved? I should think that no such thought would ever have
occurred to the appellant or to any reasonable person standing
in his position especially under the conditions of emergency
that prevailed. The temperature of the water and the
continuing efforts of all on board to bring Matthews to the
safety of the vessel all militated against such an act on the
part of any of the passengers as a probability to be reasonably
anticipated. Nothing in the evidence points to Horsley's
knowledge of the proper operation of a boat in an emergency of
this kind, nor is there any evidence which suggests that he had
any valid reason for supposing that MacLaren's conduct in the
circumstances was not what it ought to be. Moreover, MacLaren
had told Horsley to confine himself to the cockpit or cabin.
It is not suggested that Horsley had made his intention known
to MacLaren, and it would scarcely be anticipated in any event
that any passenger would dive into the water without at least
taking precautions for his own safety by donning a life-jacket
or attaching a rope to himself, especially when he could see
the effect that the very cold water had had upon Matthews.

No case has been cited to us in which a defendant was held

liable to a rescuer in a case in which the defendant's
negligence had not imperilled the person whose rescue the
plaintiff attempted. To find negligence on the part of the
defendant in relation to his rescue efforts with respect to
Matthews and to treat his conduct as a basis of liability to
Horsley would involve an unwarranted extension of the
principles laid down in any of the known rescue cases. The
evidence does not support a finding that anything done or left
undone by the defendant caused his rescue efforts to fail.
Furthermore, if the appellant erred in backing instead of
turning the cruiser and proceeding towards Matthews "bow on",
the error was one of judgment and not negligence, and in the
existing circumstances of emergency ought fairly to be excused.

For the reasons stated I have reached the conclusion that the
appeal should be allowed with costs (if demanded) and the
action dismissed with costs (if demanded). Having come to this
decision I find it unnecessary to deal with the appellant's

1970 CanLII 34 (ON CA)

argument as to limitation of his liability under the provisions
of the Canada Shipping Act and I refrain from expressing any
opinion thereon.

McGillivray, J.A., concurs with Schroeder, J.A.

Jessup, J.A.: -- This unique case, the facts of which might

have been contrived for a bar examination, raises several
questions of first instance.

The facts are fully and fairly set forth in the admirable
judgment at trial of Lacourciere, J., and are reviewed in some
detail in the judgment of my learned brother Schroeder so that
I will give only such brief summary of them as is necessary to
bring the issues on appeal into perspective.

On an evening in early May the defendant MacLaren, operating

a 30-foot six inch, twin-engined, twin screwed cabin cruiser,
and while impaired in judgment by the consumption of drink,
embarked on a voyage on the icy cold waters of Lake Ontario
accompanied by six guests. Since the entire company had been
partying most of the afternoon, it is perhaps not surprising
that one of them, Matthews, fell overboard. However, there is
no eivdence as to what caused the mishap except that it
occurred without any fault of MacLaren.

The uncontradicted evidence of two marine experts was that

the emergent situation of "man overboard" is a common one which
a competent and prudent seaman would instantly cope with by
turning his boat about, approaching bow on with the boat under
control of propeller and rudder, and coming alongside the
victim so that he could then be reached by a pikepole and
hauled in by passengers or crew. Instead of implementing that
drill, and although the boat was then 40' to 50' beyond
Matthews, MacLaren backed towards him. Because the height of
the rear transom obscured his vision and for fear of fouling
Matthews in the propellers, MacLaren had to put the engines in
neutral and halt the progress of his boat when it was too
distant for Matthews to be reached by a pikepole being manned
by one of the passengers. The boat being without control by
engines or rudder then drifted still further away. At least

1970 CanLII 34 (ON CA)

once more MacLaren attempted to approach nearer to Matthews by
backing the boat, but with the same frustrating result.

Matthews was meanwhile head up in the water but obviously

unconscious. He made no effort to grasp a life-jacket thrown
immediately in front of him by one of the passengers. In this
situation of increasing desperateness Horsley, one of the
passengers, dived overboard to the rescue. Almost immediately
following Horsley, Matthews's body having toppled face forward
into the water, Mrs. Jones, another of the passengers, also
leaped to the rescue but Matthews sank and disappeared under
the boat.

Upon seeing his wife in the water, Mr. Jones, also a

passenger, took over the controls of the boat from MacLaren
and, approaching her with the boat bow on, her rescue was
effected without event. MacLaren then resumed control of the
boat but this time adopted the bow on procedure and Horsley's
body was recovered.

The evidence is that Horsley must have died from shock almost
immediately upon his immersion in the intensely cold water. It
is therefore of no casual effect that he failed to attach a
line to himself or to don a life-jacket. He had removed his
trousers but there is no evidence they would have prolonged his
life.

Against just the situation with which he had to cope,

MacLaren had practised the proper rescue procedure. He did not
attempt to justify his abortive method of attempted rescue but
claimed an error in judgment. While he was able to operate the
simple controls of a power boat, there was ample evidence to
support the trial Judge's finding that he was so affected by
drink as to be impaired in judgment; accordingly, it was
especially dangerous for him to be the master of a ship
responsible for the safety of passengers in the emergencies
inseparable from boating on navigable waters. In my view the
finding of the trial Judge that MacLaren failed to exercise the
reasonable care of an ordinary, prudent, reasonable power boat
operator was fully warranted by the evidence as was his finding
that MacLaren's failure of judgment did not excuse his

1970 CanLII 34 (ON CA)

negligence since his judgment was self-impaired.

The probabilities are that Matthews also died instantly on

his immersion in the water and the learned trial Judge
therefore dismissed the action by Matthews' dependents because
the negligence in effecting his rescue was not causative of his
death. However, he held that MacLaren was under a legal duty
to rescue Matthews and that the action of Horsley was within
the ambit of risk created by MacLaren's negligence so that he
gave judgment for Horsley's dependents.

Fundamental of course to MacLaren's liability to Horsley's

dependents is his duty to Matthews. Conceived in the forms of
action and nurtured by the individualistic philosophies of past
centuries, no principle is more deeply rooted in the common law
than there is no duty to take positive action in aid of another
no matter how helpless or perilous his position is. In this
area the civil law has shown more regard for morality. It is a
principle which is not reached by the doctrine of M'Alister (or
Donoghue) v. Stevenson, [1932] A.C. 562, since that case leaves
open only the categories of neighbours to whom there is owed a
duty not to cause harm; its ratio has not yet been extended to
enlarge the class to whom there is owed a duty to confer a
benefit. So, despite the moral outrage of the text writers, it
appears presently the law that one can, with immunity, smoke a
cigarette on the beach while one's neighbour drowns and,
without a word of warning, watch a child or blind person walk
into certain danger; and so, more than half a century ago, the
Appellate Division in Van Valkenburg v. Northern Navigation Co.
(1913), 30 O.L.R. 142, 19 D.L.R. 649, there being no
precedent save a simgle American decision, could equably hold
that the defendant had no duty to attempt the rescue of a
seaman who had fallen from its ship by reason of his own
negligence. Even the Legislatures of our collectivist society,
while readily assuming for the State the care of the
individual, have not moved often to burden him with the care of
his neighbour. Section 143a(1)(b) [enacted 1960-61, c. 34, s.
15] of the Highway Traffic Act, R.S.O. 1960, c. 172, is almost
unique. It was not until 1934 [c. 44, s. 519] that what is now
s. 526(1) of the Canada Shipping Act, R.S.C. 1952 c. 29, was
enacted:

1970 CanLII 34 (ON CA)

526(1) The master or person in charge of a vessel shall, so
far as he can do so without serious danger to his own vessel,
her crew and passengers, if any, render assistance to every
person, even if that person be a subject of a foreign state
at war with Her Majesty, who is found at sea and in danger of
being lost, and if he fails to do so he is liable to a fine
not exceeding one thousand dollars.

It is argued that the words "found at sea" are not to be given

a larger meaning than "come upon" or "discovered" so that the
section imposes no duty on the master of a ship to render
assistance to his own passengers. I cannot adopt such an
interpretation which would ascribe to Parliament a solicitude
for the lives of alien enemies at the same time denied by it to
the passengers and crews of Canadian ships.

Assuming as I do that s. 526(1) of the Canada Shipping Act,

on one or the other of the legal theories by which the Courts
attach civil consequences to the breach of a penal provision in
a statute, will support a cause of action, it is said there can
be none here because the defendant, however negligent he may
have been, did render assistance to Matthews. And that is true
because the boat was brought near enough for a life-preserver
to be thrown so close to him that he could certainly have
grasped it had he not been unconscious or dead. Certainly
negligence in the discharge of the duty imposed by the section
has at least a peripheral significance. Negligence in its
discharge would result in liability for an injury to the person
being rescued or anyone else; and negligence may be relevant to
the question as to whether there has been substantial
compliance with the section. But beyond that, the purpose of
requiring assistance to be given is to effect a rescue. Where
negligence in the performance of a duty to confer a benefit
frustrates the very purpose of the benefit, I do not think the
law can fail to regard that frustration as a damage which there
is a duty to take care to avoid. In East Suffolk River
Catchment Board v. Kent, [1941] A.C. 74, a public authority had
the power but not the duty to repair breaches in sea walls. A
sea wall protecting the plaintiff's property was breached with
resultant flooding of his lands. The board took it upon itself

1970 CanLII 34 (ON CA)

to repair the wall but performed its undertaking so negligently
that the work took 178 days. The plaintiff claimed for damage
to his land sustained during the whole period of repair except
the first fortnight. The House of Lords dismissed the action.
I take the principle of that case to be that where a person
gratuitously and without any duty to do so undertakes to confer
a benefit upon or go to the aid of another he incurs no
liability unless what he does worsens the condition of that
other. However, if the board had been under a duty to repair
the plaintiff's wall, can it be doubted, on principle, that it
would be no answer to his claim for damages that the statutory
benefit was ultimately conferred although negligence permitted
the very result the benefit was intended to abate?

The learned trial Judge in giving judgment for Horsley's

dependents against MacLaren did not found his judgment upon s.
526(1) of the statute, but he concluded that at common law
there is a legal duty, implicit in the universal custom of the
sea and demanded by the social ethic of today, of the master of
a ship to aid his passenger who has fallen overboard. I agree
with conclusion. The trial Judge noted that in several
American jurisdictions the common law reluctance to penalize
non-feasance has yielded to a duty of affirmative care in
situations of special relationship between the plaintiff and
the defendant as employer and employee, carrier and passenger
and occupier and his lawful visitor. A passenger on a ship is
in the position of total dependence on the master and I think
that peculiar relationship must now be recognized as invoking a
duty of the master, incident to the duty to use due care in the
carriage by sea of a passenger, of aid against the perils of
the sea. Falling overboard is such a peril and in that
situation I do not think the common law can do otherwise than
to adopt the statutory duty to render assistance. I have
already expressed the view that there is a duty to avoid
frustrating rescue by negligence in rendering assistance.
 If MacLaren had a duty to render assistance to Matthews and
to use reasonable care in so doing, there remains the question
of whether Horsley's rescue attempt with consequent injury to
him was within the ambit of risk resulting from MacLaren's
negligence. Haynes v. Harwood, [1935] 1 K.B. 146; Baker v.

1970 CanLII 34 (ON CA)

T.E. Hopkins & Son Ltd., [1959] 1 W.L.R. 966, and Videan v.
British Transport Commission, [1963] 2 Q.B. 650, [1963] 2 All
E.R. 860, establish the principle that where one creates a
situation of peril through negligence it is a foreseeable
consequence that a rescuer will go to the aid of a person in
danger from the peril with resulting liability to the rescuer,
for any injury sustained by him, of the person responsible for
the peril. Here, of course, MacLaren did not create the peril
of drowning but, for all that was apparent to the actors in the
drama, his negligence prolonged Matthews' exposure to it
permitting a potential risk of death to actualize and I
consider that the principle of the cases cited logically and
properly extends to such a situation. However, while MacLaren
reasonable should have forseen the intervention of a rescue
attempt by one of his passengers as a consequence of his own
negligently mishandled effort, the evidence is he had earlier
warned Horsley to remain in the cockpit or cabin because he was
unaware if Horsley had any experience with boating. By that
command I think MacLaren, as effectively as he could, insulated
Horsley from such perils of the voyage as were eventually
encountered and put it beyond his reasonable contemplation that
Horsley in particular would engage in the intervention he in
fact undertook. On that narrow ground I would allow the
appeal.

As an alternative basis for liability the learned trial Judge

held that MacLaren, having undertaken a rescue operation, was
liable for his negligence in performing it even if he was not
under a legal duty to commence the undertaking, and
Lacourciere, J., relied on a passage from Prosser on Torts
(1941), pp. 194-5, where the learned author cites American
precedents to that effect. I think it is an unfortunate
development in the law which leaves the Good Samaritan liable
to be mulcted in damages, and apparently in the United States
it is one that has produced a market reluctance of doctors to
aid accident victims. I would prefer to follow the principle I
have mentioned enunciated by the House of Lords in East Suffolk
River Catchment Board v. Kent, supra. Baxter & Co. v. Jones
(1903), 6 O.L.R. 360, cited by the respondent, is
distinguishable as a case of mandate or gratuitous promise to
undertake the conferral of a benefit.

1970 CanLII 34 (ON CA)

I concur in Schroeder, J.A.'s disposition of the appeal.

Appeal allowed.
MVRT