Thursday, January 9, 2014

Date: 2006-01-12 Docket: CA33447 Parallel citations: 262 DLR (4th) 681; 49 BCLR (4th) 82 URL: Citation: Radke v. M.S. et al, 2006 BCCA 12 (CanLII), retrieved on 2014-01-09

Date: 2006-01-12
Docket: CA33447
Parallel citations: 262 DLR (4th) 681; 49 BCLR (4th) 82
Citation: Radke v. M.S. et al, 2006 BCCA 12 (CanLII), <> retrieved on 2014-01-09
Share: Share
Print: PDF Format
Noteup: Search for decisions citing this decision
Reflex Record Related decisions, legislation cited and decisions cited



Radke v. M.S. et al,

2006 BCCA 12

Date: 20060112

Docket: CA33447


Christopher Radke




M.S., an infant by his litigation guardian J.S.,

Malik Rama, and Insurance Corporation of British Columbia




Robert Kurtz, Her Majesty the Queen in Right of the Province of
British Columbia, Attorney General of British Columbia,
and Attorney General of Canada




Her Majesty the Queen in Right of the Province of

British Columbia, Attorney General of British Columbia,

and Attorney General of Canada


(Third Parties)


The Honourable Chief Justice Finch

The Honourable Madam Justice Rowles

The Honourable Mr. Justice Low

H.J. Roberts

Counsel for all Appellants

Place and Date of Hearing:

Vancouver, British Columbia

November 28, 2005

Place and Date of Judgment:

Vancouver, British Columbia

January 12, 2006

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Rowles

The Honourable Mr. Justice Low

Reasons for Judgment of the Honourable Chief Justice Finch:


[1] The issue raised on this application is whether a judgment that decides only liability issues, but not damages, is a final order for which leave to appeal is not required, or an interlocutory order within Section 7(2)(a) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, for which leave to appeal is required.

[2] At the conclusion of the oral hearing, we held that the order was final and that leave to appeal was not required with written reasons to follow. These are those reasons.


[3] The plaintiff Radke claims damages for injuries suffered in a motor vehicle accident on 16 February 2003. His vehicle was struck in an intersection by a stolen vehicle driven by a young offender, M.S., who failed to stop at a stop sign. The stolen vehicle was being pursued by Constable Kurtz, an R.C.M.P. officer driving a police vehicle.

[4] A consent order was made that the issues of fault or liability be tried separately and in advance of the issues on damages.

[5] Madam Justice Bennett heard the trial on liability. She pronounced judgment on 27 September 2005. All parties conceded that M.S. was primarily at fault for the accident. The issues at trial were the liability of Constable Kurtz, and of the provincial and federal governments.

[6] The trial judge held that Constable Kurtz was negligent in the operation of his vehicle, and that his negligence contributed to the plaintiff’s injuries. It was not disputed that if Constable Kurtz was held to be negligent, the province was jointly and severally liable with him.

[7] The judge also held that Constable Kurtz was not grossly negligent. Therefore, applying the provisions of Section 21 of the Police Act, R.S.B.C. 1996, c. 367, he was not personally liable. The parties agreed that if Constable Kurtz was not personally liable, the Government of Canada was not liable.

[8] The action against I.C.B.C. was dismissed. The judge held that the plaintiff Radke was not negligent in the operation of his vehicle.

[9] Counsel from the Department of Justice applied in chambers for directions as to whether leave to appeal was required. In accordance with current practice, she filed both a notice of appeal and a notice of application for leave to appeal. Both documents name Constable Kurtz, the Crown in Right of the Province of British Columbia, the Attorney General for British Columbia, and the Attorney General for Canada as appellants, or applicants. The chambers judge referred the motion for directions to a division of this Court.


[10] The relevant provisions of the Court of Appeal Act are:

6(1) An appeal lies to the court

(a) from an order of the Supreme Court or an order of a judge of that court, and

7(2) Despite, section 6(1), an appeal does not lie to the court from

(a) an interlocutory order,

without leave of a justice.

[11] The Court of Appeal Act does not define “interlocutory order”. For many years this Court has applied, or attempted to apply, the test stated by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547 at 548-49 (C.A.) to determine what is, or is not, interlocutory:

It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.

[Emphasis added.]

[12] Application of this test has become increasingly difficult because of the number of cases where the trial is “split” with liability being decided separately from, and in advance of, damage issues, as was done in this case. Difficulties also arise from the large number of cases now decided under Rule 18A which provides in subrule 18A(11) that:

On the hearing of an application under subrule (1), the court may

(a) grant judgment in favour of any party either on an issue, or generally …

[13] The difficulties in applying the Bozson test, and the sometimes inconsistent results, are referred to in H.A. Brinton, Civil Appeal Handbook, looseleaf (Vancouver: Continuing Legal Education, 2002) at ss. 3.4, 3.7 and 3.8.

[14] Under the Bozson test, it is the “judgment or order, as made” which determines whether it is a final or interlocutory order. Applied in this case, the order would be seen as interlocutory because damages have not been assessed, and the order therefore does not finally dispose of the parties’ rights. Only if the action had been dismissed against all defendants who contested liability would the order be final under the Bozson test.

[15] It is to be remembered that in Bozson itself the judge had held there to be no binding contract, and made an order dismissing the action. It was on appeal from that order that the Court of Appeal laid down the test as expressed by Lord Alverstone. The Court did not have before it a case in which liability had been found and damages remained to be assessed.

[16] Such a case was before a division of this Court in Boslund v. Abbotsford Lumber, Mining & Development Co. Ltd. (1925), 36 B.C.R. 386 (B.C.C.A.). There the trial judge held the defendants liable for negligence in allowing fires to spread to the plaintiff’s lands. He referred the assessment of damages to the Registrar.

[17] On the defendant’s appeal from the finding of liability, the respondents raised the preliminary objection that the appeal was interlocutory and therefore out of time. This Court overruled the objection and held that:

[9] … when the Court decides the substantial question of liability and merely refers the assessment of damages to a referee reserving nothing to itself, the judgment ought to be regarded as a final judgment for the purposes of appeal.

[18] It is evident that if the trial judge had held there to be no liability and dismissed the plaintiff’s action, the order would have been seen as final. So in that case, characterization of the order as final did not depend upon “the judgment or order, as made”, to use the language ofBozson. The case may be seen as one where the order would have been characterized as final for the purposes of appeal no matter which way the judge decided the issue of liability.

[19] This approach to the issue of “final or interlocutory” has sometimes been called the “application approach”. Rather than look to the order “as made”, one looks to the application that gave rise to the order. On this approach, a final order is one made on such an application or proceeding that, no matter who succeeds, the order will, if sustained, finally determine the matter in litigation. Examples of this approach go back at least to Salaman v. Warner [1891] 1 Q.B. 734.

[20] The application approach has now been clearly embraced by the English Court of Appeal in White v. Brunton [1984] 2 All E.R. 606. There, the plaintiff brought an action against the defendant for damages for breach of contract and for a declaration that, by an agreement, the defendant had agreed to contribute to the costs associated with construction of an access road. The district registrar ordered that a preliminary issue be tried, namely whether the defendant was liable under the contract for construction costs associated with the access road. The preliminary issue was determined in favour of the defendant and the plaintiff sought leave to appeal. Sir John Donaldson M.R. held that the plaintiff did not need leave to appeal. He said at 608:

The court is now clearly committed to the application approach as a general rule and Bozson’s case can no longer be regarded as any authority for applying the order approach. However, the decision in Bozson’s case, as distinct from the reasoning, can be upheld on a different ground as an exception to the general rule. It was a case of a ‘split trial’, all questions of liability and breach of contract being tried before and separately from any issues as to damages. If the two parts of the final hearing of the case had been tried together, there would have been an unfettered right of appeal, even if the judgment had been that there was no liability and that accordingly no question arose as to damages. It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter on the ability of the court to order split trials. I would therefore hold that, where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against such an order without leave if both parts had been heard together and the order had been made at the end of the complete hearing.

[Emphasis added.]

[21] The application approach was again adopted by the English Court of Appeal in Holmes v. Bangladesh Biman Corporation [1988] 2 Lloyd’s Rep. 120. There, after citing White with approval, Lord Justice Bingham (as he then was) said:

Order 33, r. 3 gives the Court a wide discretion to order the separate trial of different issues in appropriate cases and a decision is not to be regarded as interlocutory simply because it will not be finally determinative of the action which ever way it goes. Instead, a broad common sense test should be applied, asking whether (if not tried separately) the issue would have formed a substantive part of the final trial. Judged by that test this judgment was plainly final, even though it did not give the plaintiff a money judgment and would not, even if in the airline’s favour, have ended the action.

See also Dale v. British Coal Corp. [1992] E.W.J. No. 351 (QL) and Webb v. Webb [1996] E.W.J. No. 141 (QL).

[22] More recently in Roerig v. Valiant Trawlers Ltd. [2002] 1 W.L.R. 2304, [2002] 1 All E.R. 961, [2002] 1 Lloyd’s Rep. 681, after referring toWhite v. Brunton and the broad common sense test expressed by Lord Justice Bingham in Holmes v. Bangladesh, Lord Justice Waller said this:

[46] If one poses the question-if no preliminary issue had been ordered would the decision as to the appropriate law have formed a substantive part of the final decision on damages?-the answer would undoubtedly be that it would, and that an appeal would have lain to the Court of Appeal against that final decision. The fact that the issue is sensibly taken separately should not deprive a party of their right to go to the Court of Appeal, and furthermore it would be an active discouragement to parties to support the trial of preliminary issues if the result was to so deprive them. That is the principle that the new rules in my view seek to uphold.

[23] In my view, the time has now come to restate the principle expressed by this Court in Boslund v. Abbotsford, and to adopt the approach of the English Court of Appeal in White v. Brunton and the subsequent English cases referred to above. If liability had not been tried separately, it would have been tried as part of a single trial. The parties would have had the right of appeal no matter what the outcome. If the action had been dismissed on liability, the plaintiff would have had a right of appeal. It is unfair that the defendant should not have a right of appeal when liability has been found.

[24] There are practical advantages to split trials. If the defendant is not liable, there is no need to try damages. That will save the parties time and expense. If liability is found, the parties may be able to resolve the damage issues without a trial. If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories. A right of appeal from a decision on liability alone will facilitate all of these practical goals.

[25] Applying the broad common sense test expressed in the English authorities, the question to be asked in this case is whether the issue decided by the trial judge, if it had not been tried separately, would have formed a substantive part of the final trial. It is clear that the trial judge’s disposition of the liability issues would have been such a substantive part, and that the resulting order should therefore be treated, for the purposes of appeal, as final.

[26] These are the reasons on which I would rest the order pronounced at the conclusion of the oral hearing of this appeal.

“The Honourable Chief Justice Finch”


“The Honourable Madam Justice Rowles”


“The Honourable Mr. Justice Low”

Corrigendum to the reasons of

The Honourable Chief Justice Finch – 19 April 2006

The citation at paragraph 7 for the Police Act should read R.S.B.C. 1996, c.367.