Supreme Court of Canada
Grossman
et al. v. The King, [1952] 1 S.C.R. 571
Date:
1952-02-05
Irving H. Grossman And Gussun (Suppliants) Appellants;
and
His Majesty The King, (Respondent) Respondent.
1951: October 10, 11, 12, 15; 1952: February 5.
Present: Rinfret C.J. and Kerwin, Taschereau, Kellock, Estey,
Locke and Cartwright JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Airports—Operated by Crown—Duty to make safe for
aircraft—Warnings of Danger—Crown—Whether breach of duty by servant acting
within scope of his employment, renders Crown liable under s. 19(c) of the
Exchequer Court Act, R.S.C. 1927, c. 34, as amended.
On July 19, 1948, the appellant Grossman, piloting a light
aircraft approached the Saskatoon airport, operated by the Department of
Transport. Preparatory to landing he had observed workmen on the concrete
runways, and diverted his course to a grass runway. While taxiing to a stop he
suddenly noticed some distance in front an open ditch which cut across the
runway. In attempting to take-off again he was unsuccessful in avoiding the
ditch with the result that his aircraft was damaged beyond repair and his
passenger and fellow appellant, Sun, was injured. The ditch in question, was
not, in the view of the Court, sufficiently marked by a number of posts on
which red flags had been placed by one Nicholas, the airport maintenance
foreman, and they had not been seen by Grossman. The appellants' action to
recover damages under s. 19(c) of
the Exchequer Court Act as amended, was dismissed in the Exchequer Court
where the damages of Grossman were assessed at $7,003.90 and those of Sun at
$440.
Held: (Rinfret C.J. and Locke J., dissenting) that:
1. The open ditch across the grass runway constituted an
obstruction and was recognized as such by Nicholas. In failing to provide
adequate warning of the danger he failed in his duty to persons such as the
appellants, and this breach of duty was negligence for which the Crown under s.
19(c) of the Exchequer Court Act was responsible. The King
v. Canada Steamship Lines Ltd. [1927] S.C.R. 69 and The King v. Hochelaga
Shipping & Towing Co. Ltd. [1940] S.C.R. 153, followed.
2. No negligence could be attributed to Grossman.
3. As the total amount claimed by Sun was $440, the Court
under the provisions of the Exchequer Court Act, had no jurisdiction to
hear his appeal which should therefore be quashed.
Per (Rinfret C.J. and Locke J., dissenting). The claim
was not for an act of misfeasance but of alleged non-feasance. If there was
failure on the part of Nicholas to cause adequate measures to be taken to warn
aviators and such failure caused or contributed to the accident, Nicholas was
not personally liable and accordingly the action against the Crown should fail.
[Page 572]
The King v. Canada Steamship Lines, supra and The King v.
Hochelaga Shipping & Towing Co. Ltd., supra distinguished. The King v.
Anthony [1946] S.C.R. 569, Adams v. Naylor [1946] A.C. 543, Lane v. Cotton 12
Mod. 473, Perkins v. Hughes, Say. 41, Mersey Docks Trustees
v. Gibbs (1866) L.R. 1 H.L. 93, referred to : Donoghue v. Stevenson 1932 A.C.
562, distinguished. The matter was not affected by the Air Regulations enacted
under the Aeronautics Act, R.S.C. 1927, c. 3, which were not expressed as
applying to the Crown.
APPEAL from the Exchequer Court of Canada
dismissing a petition of right against the Crown with costs.
J. M. Cuelenaere K.C. for the appellants. The suppliants bring their action pursuant
to the provisions of the Exchequer Court Act, R.S.C. 1927, c. 34 and in
particular under s. 19(c) of that Act as amended by 1938 (Can.) c. 28,
and seek to recover damages suffered by them as a result of an accident as
outlined in the Statement of Facts. It is admitted in the pleadings and it was
found by the learned trial judge that the Saskatoon Airport was constructed by
the Crown as a Public Work and is being maintained and operated as a licensed
airport for the use of the public. Such maintenance and operation is under the
general supervision and direction of Earl Hickson, District Inspector of
Airways, and managed by Philip R. Nichols. Both are servants of the Crown. The
fact that the accident took place and the nature of the injuries suffered, it
is submitted, were well established.
Broadly the question to be determined is whether the loss or
damage suffered by the suppliants was due to the negligence of any officer or
servant of the Crown, while acting within the scope of his duty or employment,
so as to make the Crown liable in damages under s. 19(c).
It is submitted the trial judge was right in finding as he did
that the officers of the Crown in charge of the airport were negligent and that
the negligence consisted in the officers' failure to give or provide adequate
warning. It is submitted they were negligent in the following respects: (1)
Allowing the ditch in question to remain open after it became known that it
constituted an obstruction or hazard to flying.
2. Allowing the ditch to remain without being clearly marked.
[Page 573]
The general and accepted practice at airports and the Air
Regulations require that any obstruction existing at a landing
area be marked. (s. 12, Air Regulations.)
3. Allowing grass and weeds to grow and debris to accumulate
in the ditch, making it difficult, if not impossible, to sight the ditch from
the air.
4. Having allowed land markers visible from the air to remain
on the grass runways, and the word "Airport" to remain on a building
adjacent to such runways; failure to mark the end of such runways or to give
adequate warning of the obstruction or hazard to any person using such runways.
Each of the above enumerated particulars or two or more taken together
constituted negligence on the part of the officers or servants of the Crown.
The liability of the Crown under s. 19(c) has been
discussed in numerous cases. In Rex v. Anthony Rand J.
sets out the nature of the negligence giving rise to liability on the part of
the Crown. In the present case the acts of the officers or servants of the
Crown constitute positive conduct within the scope of their duties or
employment. The Crown and its officers or servants owed a duty to the suppliant
as user of the airport and failed to discharge that duty in such a manner as to
raise a liability on the servant for which the master (the Crown) becomes
liable. Sincenne McNaughton Line v. The King ; Yukon
Southern Air Transport v. The King ; Howard v. The
King ; The King v. Hochelaga
Shipping . In none of the above cases was the
question of invitation discussed. The liability of the Crown was based on the
use of a public work by a person lawfully on the premises. The cases cited set
out the principle relating to the liability of the Crown under s. 19(c).
In the present case the airport was a public work built by and at the expense
of the Dominion Government and maintained and operated by the officers and
servants of the Crown for the benefit of the Crown and for the use of the
public. In the light of these authorities it is submitted that the suppliants
suffered injury and that the officers or servants of the Crown were negligent,
and the trial judge should have held that the suppliants were
[Page 574]
entitled to recover. Alternatively, he erred in holding the suppliants
were licensees and in not holding that they were invitees.
The Saskatoon Airport is an airport designated as such by the
Minister of Transport. The Air Regulations, Part III s. 1, require that
no area shall be used as an airport unless it has been licensed as required by
the regulations. The airport is so licensed. It was constructed and is
maintained and operated for the purpose of providing facilities for aerial
transportation. The Air Regulations, Part III, s. 6, grants to the
operator of any licensed airport permission to charge for its use or for any
services performed, such fees as have been approved by the Ministry. The
Saskatoon Airport provides hangar facilities, repair servicing, fuel and oil.
Where an airport is operated by a public authority, such
public authority, either expressly or by implication, invite the public
requiring such facilities to use that airport, and the position of such public
authority, its officers or servants, is no different to the owner of a private
commercial landing field. As to the latter see Beck v. Wing Field .
The liability of public authorities with respect to buildings
is set out in: Arder v. Winnipeg ; Nickell v. Windsor
;
Edmondson v. Moose Jaw School District ; Blair
v. Toronto .
The trial judge ought to have found the suppliants were
invitees. If invitees, the common law imposes a duty to take reasonable care
against endangering life or property. Charlesworth, The Law of Negligence
at 154, quoting Parnaby v. Lancaster Canal Co. In Imperial
Airway Ltd. v. Flying Service Ltd. it was held that under
English law the owner of a public airport is bound: (a) To see that the
airport is safe for the use of aircraft entitled to use it, and (b) To
give proper warning of any danger of which he knows or should know. Peavey
v. City of Miami quoted by the trial judge is
distinguishable. There the pilot knew that the airport was then under
construction, and he had a blind spot in his aircraft. In the present
[Page 575]
case the danger was not reasonably foreseeable. Where the user
of the premises is an invitee it is no defence to show that the danger was open
and obvious, if in fact reasonable steps have not been taken to protect the
person coming on the premises. Knowledge of the condition may establish
contributory negligence on the part of the user, but here, there was no
knowledge. Charlesworth supra at 157, 136 and 123. In the light of the
authorities referred to and the facts of this case, the trial judge ought to
have found that the Suppliants were invitees and that there was a breach of
duty committed by the officers or servants of the Crown giving rise to
liability on the part of the Crown. In the. further alternative, even if the
suppliants were licensees, the trial judge erred in holding that the ditch in
question was an obvious danger and in not holding that the ditch was in the
nature of a trap, and in holding that Grossman failed to take reasonable care
or was guilty of negligence. The evidence discloses that Grossman acted
reasonably and diligently exercising the same care as other pilots would have
exercised under similar circumstances. In the alternative, if the finding of negligence
on the part of the suppliant Grossman is accepted, the trial judge should have
held that the damage or loss was caused by the fault of both the officers or
servants of the Crown and the suppliant, and should have determined the degree
in which each was at fault and directed that the suppliants were entitled to
recover in proportion to the degree in which the servants of the Crown were at
fault. The Contributory Negligence Act 1944 (Sask.) c. 23, ss. 2 and 3.
The liability of the Crown under s. 19(c) of the Exchequer Court Act
is not confined to cases where the negligent act of the Crown's officer or
servant is the sole cause of the injury. The Contributory Negligence Act
(Sask.) applies against the Crown. The King v. Laperriere
; The King v. Murphy ; Arial v. The King
; Blair v. Toronto, supra.
G. H. Yule K.C. and David Mundell for the
respondent. No case against the Crown was made out in the petition or on the
evidence. The Crown is not liable in tort except
[Page 576]
in so far as liability is imposed by statute. Tobin v. The Queen ;
Feather v. The Queen . The appellants must rely on s. 19(c)
of the Exchequer Court Act, as amended by 1938 (Can.) c. 28. The King
v. Anthony ; The King v. Murphy .
In para. 8 of the petition the appellants assert "that the said officers
and servants of the Crown (the said officers' refer back to the officers and
servants in para. 7 who allegedly constructed the ditch) owed a duty to the
suppliants to construct and maintain an airport fit for landing and the
suppliants say that it was the duty of the said officers and servants to see to
it that the said ditch was properly filled in, protected and adequately marked,
but failed in the performance of that duty while acting within the scope of
their employment by allowing the said ditch or excavation to remain open as
aforesaid and/or without adequate markings. The ditch was constructed under
contract with the Department of Transport by the Tomlinson Construction Co.,
relevant parts of which are to be found in the case. The ditch was designed to
be an open ditch and to be kept open for drainage purposes. The Crown does not
owe any duty as occupier to licensees coming on property that it occupies and
servants of the Crown in charge of Crown premises are not occupiers and
therefore do not owe any such duty. Adams v. Naylor .
The trial judge erred in holding that the Crown owed any duty
to the appellants and should have held that the appellants had not brought
themselves within the requirements set forth in the Anthony and Murphy
cases to prove personal negligence on the part of some officer or servant of
the Crown ; that is a breach of duty owed by an officer or servant of the Crown
to the appellants. This not having been done, it is submitted that the King
v. Hochelaga Shipping & Towing Co. case referred to by the trial
judge at p. 198 is not in point.
If the appellants were licensees on Crown property, and if
either the Crown or any officer or servant of the Crown, as occupier, owed any
duty to the appellants as licensees, the only duty owed by the Crown or any
such officer or
[Page 577]
servant would be to warn the licensees of
any concealed danger or a trap. The petition does not allege a breach of any
such duty nor does the evidence disclose any which would bring on him personal
responsibility to the appellants. The only person on the
evidence who was personally in charge of the airport was Nicholas, who is
described as "Air Port Maintenance Foreman". Could Grossman have
successfully asserted personal negligence by Nicholas? It is submitted not. The
trial judge erred in holding that the appellants were licensees on that part of
the property of the Crown where the accident took place. A licensee is one who
comes on the property by permission, express or implied, for his own purposes.
It is doubtful if on the allegation in the petition the appellants are entitled
to assert that they were licensees on the area where the accident took place
but in any event it is submitted that they were not licensees. That area was
formerly a landing field for the R.C.A.F. When the department took over and
built the new runways, that area was not maintained by the Crown.
It is conceded that Grossman would have been a licensee of the
Crown in landing on the hard-surfaced runways. The onus is on him to establish
permission to land where he did. He must bring himself within the area of
permission, the same as the invitee must bring himself within the area of
invitation. There is no evidence that would establish permission to land where he
did. The simple fact is that Grossman decided not to land on any of the four
serviceable hard-surface runways but picked out the grassy area because he
thought it looked like a good place to make a landing. His case appears to be
that he has the right to dictate to the Crown where he shall land and that the
Crown has no control over the situation at all. Exhibit 2, a diagram of the
Saskatoon airport, shows a portion described as "Dotted area is abandoned
airdrome". This is the area in which the accident took place. This
exhibit, on which the Attorney General relies strongly, is an official
publication obtainable from the Department of Natural Resources, Engineering
Division, and can be had for the asking. Grossman had in his possession a map
prepared in 1941, before the Saskatoon Airport was constructed and he never
applied for any other information, maps or any other material before he decided
[Page 578]
to come to an airport of which he knew nothing. The per mission, held out by the Department of
Transport is the permission indicated by Exhibit 2, and if he had asked for a
copy of this, the area of permission would have been plain. How can he be heard
to say when he did not take the elementary precaution to get such a document
from the department that he has the right to dictate the area of permission? If
he had he would have seen detail as to the radio range and how to contact it,
and would have been told where to land and to keep away from the area where he
was hurt.
The appellants contend that because the grassy area on which
Grossman landed was so used by other aircraft, that that would imply permission
by conduct for him to land on the same area. This is not so. In order to
establish such permission (1) There would have to be much more evidence than there
was here to establish the circumstances regarding the use of this area by other
craft. (2) If this craft was using the area by tolerance, to establish
permission on the part of the Crown it would have to be shown that responsible
officers knew of such use. (3) In any event Grossman would have to show that he
relied on previous use as implied permission.
On the first point, there was no evidence under what
circumstances or arrangements, if any, between Saskatoon Flying Club and the
department this area was used by the club. It is to be assumed there must have
been some contractual relationship. It is a fair assumption that other light
aircraft landing on the area might have been doing so under some arrangement
with the Flying Club, or without permission. The building marked
"airport" is a C.P.R. building. If C.P.R. light aircraft were using
the area, surely it would be with some contractual arrangement with the
department and not by leave and licence or tolerance amounting thereto. On the
second point, in order to establish leave and licence of the Crown, it would
have to be shown that responsible officers of the department knew of such use. Jenkins
v. Great Western Ry. ; Pianosi v. C.P.R. .
On the third point, assuming responsible officers of the department knew that
light aircraft had been landing on the area for some time, Grossman,
[Page 579]
to establish leave and licence to him, would have to show that
he was aware of such licence. Clark & Linsell, Ed. 10, p. 653; Lowrey
v. Walker .
In all these cases the injured party asserting leave and
licence because of prior use by others, knew of the prior use and assumed that
it would be in order for him to enter as the public had been doing. Here,
Grossman had no such knowledge. Coleshill v. Manchester Corporation
; Jenkins v. Great Western Ry. . It is submitted that
the appellants would have to establish permission to land on the area. Assuming
Grossman had been invited to land on the new runways and being an invitee was
entitled to a higher degree of duty than a licensee, it is submitted that he
would be outside the extent of the invitation if he landed where he did, or, in
any event, would have to prove that the area was within the area of invitation.
23 Halsbury, 606, para. 855; London Graving Dock Co. v. Horton .
If Grossman used this area by leave and licence of the Crown,
then the reasons of the trial judge are relied on, holding that there was no
breach of duty on the part of the Crown to Grossman and his unfortunate
accident was entirely due to his fundamental failure to use care for his own
safety on strange territory. Hounsell v. Smyth ; Mersey
Dock & Harbour Board v. Procter ; Bay
Front Garage Ltd, v. Evers .
The judgment of the Chief Justice and Locke J. (dissenting)
was delivered by:—
Locke J.:—The
claim of the appellants against the Crown as pleaded is for damage sustained by
an aeroplane, the property of the appellant Grossman, and personal injuries by
the appellant Sun when an airplane, the property of and piloted by the former,
landed at an airport near Saskatoon owned by the Crown and operated by the
department. On the day in question the appellants had flown from Prince Albert
to Saskatoon and they allege that when they arrived at the airport at the
latter place they saw a building on which the word "airport" was
legibly
[Page 580]
painted and observed landing strips and some other
buildings, whereupon they proceeded to land, when the plane ran into a ditch
which crossed part of the airport causing the damage and injuries complained
of. Other than the fact that the word "airport" thus appeared, no
invitation or permission to use the facilities of the airport is alleged.
The exact nature of the claims as pleaded is to be noted :
after alleging that the ditch was not marked by clearly visible markings and
was not "detectable" from the air, the appellants asserted that the
ditch was made by officers and servants of the Crown "while acting within
the scope of their duties of employment and in the course of establishing and
constructing the said airport the said officers and servants allowed the ditch
or excavation to remain open in such a manner as to provide a danger or hazard
to aircraft landing at the said airport," and again:—
the said officers and servants of the Crown owed a duty to
the suppliant to construct and maintain an airport fit for landing, and the
suppliants say that it was the duty of the said officers and servants to see to
it that the said ditch was properly filled and protected and adequately marked,
but failed in the performance of that duty while acting within the scope of
their employment by allowing the said ditch or excavation to remain open as
aforesaid and without adequate markings.
The appellants did not plead that there was any duty owing
to them by the Crown but, showing a proper appreciation of their legal
position, founded their claims on the alleged negligence of officers or
servants of the Crown under subsection (c) of section 19 of the
Exchequer Court Act.
While the claims as thus pleaded appear to be directed to
the acts and defaults of the officers and servants of the Crown who, it was
contended, caused the ditch to be excavated, and allege apparently a continuing
duty on their part after its construction to see that it was protected and
adequately marked, and are not directed to those of the officers or servants
who were in charge of the airport at the time of the accident, I think, in view
of the course of the trial in which inquiry was made without objection as to
the identity and duties of various officers and employees of the Department of
Transport at the time of the accident, that they should be considered as if a
duty on the part of some or more of these persons towards the plaintiff had
been pleaded and put in issue.
[Page 581]
The action was tried before Mr. Justice Cameron and
dismissed on the ground that the proximate cause of the accident was the
negligence of the appellant Grossman. In arriving at this conclusion, the
learned trial judge considered that the legal relationship existing between the
Crown and Grossman was that of licensor and licensee and that the respective
obligations of the parties were defined by cases such as Fairman
v. Perpetual Building Society , and Mersey Docks v. Procter
. Accordingly, on the footing that the
Crown owed a duty to warn Grossman of the danger from the open ditch, only if
it was not known to him or obvious if he had used reasonable care, and that he
had failed to use such care, the action failed. With great respect for the
opinion of the learned trial judge, I do not think the issues in the present
case are to be determined on the basis that the Crown owed the appellants any
such duty. The Crown owes no duty to the subject qua owner or occupier
of property and it will be noted that no such claim is advanced in the petition
of right. The matter must be decided, in my humble opinion, upon other
principles.
The jurisdiction of the Exchequer Court to hear and
determine claims against the Crown for injury to the person or to property,
resulting from the negligence of any officer or servant of the Crown while
acting within the scope of his duties or employment, and the right of the
subject to recover damages for loss so occasioned were established in Canada by
section 16(c) of c. 16 of the Statutes of 1887. The history of this
enactment has been traced by Duff C.J. in The King v. Dubois .
In the form in which it now appears after the amendment made by s. 1 of c. 28
of the Statutes of 1938, it is s. 19(c) of the Exchequer Court Act (c.
34, R.S.C. 1927). Prior to the Act of 1887 it had been decided by this Court in
The Queen v. McFarlane , following Canterbury v. The
Attorney General and Tobin v. The Queen , that the Crown was not liable for
injuries occasioned by the negligence of its servants or officers and that the
rule respondeat superior did not apply in respect of the wrongful or negligent
acts of those
[Page 582]
engaged in the public service. Of the many cases in which the
effect of the section, in so far as it touches the present matter, is concerned,
it is only necessary, in my opinion, to refer to three.
In The King v. Canada Steamship Lines ,
the steamship company claimed to recover for loss sustained in consequence of
the collapse of a landing slip on a government wharf at Tadoussac. The pleadings
alleged negligence on the part of various persons in the employ of the
Department of Public Works. One Brunet, an assistant government engineer in the
Quebec office of the department, whose duties required him from time to time to
make inspections of Dominion government properties, had, some three days prior
to the accident, landed at the wharf in company with a number of passengers
from a vessel of the steamship company, and he said that the condition of the
slip aroused apprehension in his mind for the safety of the passengers. On the
following morning, he made what Anglin C.J. described, in delivering the
judgment of the court, as a casual and perfunctory examination of the wharf,
and, after requesting one Imbeau to examine the slip and
make a written report, left Tadoussac. Imbeau who, it
appears, was engaged as a foreman by the department, whenever government work
was done at Tadoussac, but was not a regular employee, made an examination of
the wharf and reported to the district engineer on July 7th that he had found
the slip was in a very dangerous condition. On the same date the accident which
gave rise to the claims occurred. The judgment in this Court found liability in
the Crown. After saying that, had Imbeau been in the
employ of the government when he inspected the slip on the 6th of July, his
failure either to bar access to the slip or, if he had not authority to do so,
to advise the department by telegram of the imminent danger, or at least to
warn the responsible officers of the Canada Steamship Lines against making
further use of the slip until it had been put in a safe condition, would have
amounted to negligence which would have imposed liability upon the Crown, it
was said that the evidence did not sufficiently establish that Imbeau
was an officer or servant of the Crown, within the meaning
[Page 583]
of section 20(c) (now 19(c)) of the Exchequer
Court Act. The fault of Brunet which imposed the liability was thus described:—
The case of Brunet is quite different. He was undoubtedly an
officer or servant of the Crown. He came to Tadoussac in the discharge of his
duties or employment. He saw the use that was being made of the slip which
afterwards collapsed and immediately realized that its condition was dubious
and had reason, as he says, to "fear" for its safety. He was told by Imbeau that there should be an inspection "comme
il faut" of the slip because it might be "endommagé"—to
see if it were not also in bad condition. Instead of clearing up his suspicions
by an immediate personal inspection, or at least promptly reporting his fears
to Quebec, or warning the officers of the steamship company of the probable
danger of using the slip in its then condition, he contented himself with
asking Imbeau to make an inspection and to report the
result in writing to Quebec. In taking the risk of allowing the continued use
of the wharf pending such report and in failing to give any warning to the
officers of the steamship company Brunet was in my opinion guilty of a
dereliction of duty amounting to negligence on his part as an officer or
servant of the Crown while acting within the scope of his duties or employment
upon a public work.
In The King v. Hochelaga Shipping and Towing
Company, Limited , the owner of a towboat claimed
damages from the Crown for injuries sustained by the vessel in striking a
portion of the outer cribwork and rock ballast of a jetty projecting from the
Dominion government breakwater at Port Morien, Nova Scotia. While the jetty was
under construction a portion of it had been swept away by a storm and, in the
result, the cribwork and ballast referred to were submerged, their presence
being apparently unknown to those in charge of the towboat. At the trial in the
Exchequer Court the Crown was held liable. Angers J. found liability in the
Crown under section 19(c) in the following terms:—
After a careful perusal of the evidence I have come to the
conclusion that the accident is attributable to the negligence of officers or
servants of the Crown, namely the district engineer and the assistant engineer
under whose supervision the construction of the jetty and its reparation after the
top part of the outer end thereof had been partially washed away were effected,
acting within the scope of their duties or employment upon a public work.
On the appeal to this Court, Duff C.J. said: (p. 155)—
I agree with the learned trial judge that the submerged
cribwork which, after the superstructure of the jetty had been carried away,
was left with nothing to warn navigators of its presence, constituted a dangerous
menace to navigation; and that in leaving this obstruction without providing
any
[Page 584]
such warning the officials concerned are chargeable with
negligence for which the Crown is responsible by force of section 19(c)
of the Exchequer Court Act.
Crocket J., with whom Rinfret J. (as he then was) and Kerwin
J. agreed, after referring to the finding of negligence made at the trial, said
that he agreed that the collision: (p. 163)—
was attributable to such negligence on the part of officers
and servants of the Crown, while acting within the scope of their duties or
employment upon a public work as rendered the Crown responsible therefor under
the provisions of s. 19(c) of the Exchequer Court Act. It was not a case
of mere non-repair or non-feasance, but of the actual creation of a hidden
menace to navigation by a Department of the Government through its fully
authorized officers and servants in the construction of a public work.
Davis J. said in part: (p. 170)—
What is contended for by the Crown is that the Exchequer
Court had no jurisdiction because there could be no duty on the Crown to remove
the submerged pile of balast ; consequently no duty on any officers or servants
of the Crown to remove it and a fortiori no negligence on the part of officers
or servants of the Crown in not removing it. But I agree with the view taken by
the learned trial judge on the evidence, that is, that in the restoration and
changes made in the jetty, there was negligence on the part of the officers or
servants of the Crown while acting within the scope of their duties or
employment upon the public work.
In The King v. Anthony , the
claim advanced against the Crown was for a loss from fire started by a tracer
bullet fired through the window of a barn by a private soldier. It was shown
that at the time of the occurrence this man, in company with two
non-commissioned officers, was driving along a road, the men being under orders
not to fire except upon the command of a superior officer. The man whose act
caused the damage had, at least once before he came to Anthony's property,
fired live ammunition, and the contention of the suppliant was that the failure
of the noncommissioned officers to prevent him from firing was negligence of
the nature referred to in section 19(c) and imposed liability. The
suppliant succeeded at the trial but this judgment was reversed and the action
dismissed on the appeal to this Court. Rand J., with whose judgment Rinfret
C.J. and Hudson J. agreed, in dealing with the liability imposed by the subsection,
said in part: (p. 571)—
I think it must be taken that what paragraph (c) does
is to create a liability against the Crown through negligence under the rule of
respondeat superior, and not to impose duties on the Crown in favour
[Page 585]
of subjects: The King v. Dubois
at 394 and 398; Salmo Investments Ltd. v. The King ,
at 272 and 273. It is a vicarious liability based upon a tortious act of
negligence committed by a servant while acting within the scope of his
employment; and its condition is that the servant shall have drawn upon himself
a personal liability to the third person.
After saying that if the liability were placed merely on the
negligent failure to carry out a duty to the Crown and not on a violation of a
duty to the injured person, there would be imposed on the Crown a greater
responsibility in relation to a servant than rests on a private citizen, Rand
J. said further (p. 572) :
This raises the distinction between duties and between duty
and liability. There may be a direct duty on the master toward the third
person, with the servant the instrument for its performance. The failure on the
part of the servant constitutes a breach of the master's duty for which he must
answer as for his own wrong; but it may also raise a liability on the servant
toward the third person by reason of which the master becomes responsible in a
new aspect. The latter would result from the rule of respondeat superior;
the former does not.
The majority of the Court considered that the
non-commissioned officers owed no such duty towards the suppliant, as was
contended for. Kerwin and Estey JJ. dissented, they both being of the opinion
that one of these non-commissioned officers, one Williams, a sergeant major,
owed a duty to the suppliant to prevent the men under his charge from firing
and that, accordingly, the Crown was liable. In the Canada Steamship's
case the evidence as to the scope of Brunet's duty was meagre and whether he
was vested with authority to prevent the further use of the wharf for the
purpose of landing passengers until it was rendered safe for use does not
appear and, whether the "dereliction of duty" referred to in the
passage from the judgment of Anglin C.J., above referred to, was of a duty owed
to the Crown as his employer, or one which he owed to the steamship company or
other persons who might utilize the wharf as a place to land, is not stated.
Neither the various judgments written nor the written arguments filed by the
parties in that case or in the Hochelaga case indicate that the question as to
whether any officer or servant of the Crown had incurred personal liability was
argued.
Some two years before this accident, extensive improvements
and additions to this airport were made at the instance of the Department of
Reconstruction and Supply
[Page 586]
of Canada. Under a contract dated June 25, 1946, made between
His Majesty, represented by the minister of that department, and Tomlinson
Construction Company, Ltd., a contractor, the latter undertook, inter alia,
the construction of two concrete landing strips, each something more than a
mile in length, and the excavation of the open ditches for the purpose of
draining water from these strips, this being effected by a system of buried
pipes draining into the ditches. Mr. Edward F. Cook, the district airways
engineer of the Department of Transport at Winnipeg, supervised the
construction of these and other works necessary for the operation of an airport
by the contractor. The plan of having these open ditches which were some 48 ft.
in width and varied from 7 to 11 ft. in depth was no doubt that of the
professional advisers of the Department and was obviously approved and adopted
on behalf of the Crown by the minister. Such open ditches situate some 600 ft.
from the hard-surface runways as a means of drainage were adopted at other
airports constructed for the department at The Pas, Weyburn, Brandon, Portage
la Prairie and Winnipeg. It is not suggested that Cook was himself responsible
for the opening of these great ditches, nor charged with any duty in respect of
them other than to see that the work was properly done by the contractor, nor
that he had any continuing duty in regard to them afterwards. The work was not
done by any officer or servant of the Crown but by an independent contractor under
the terms of this contract. There was, however, at the airport an employee of
the department by the name of Nicholas who was described as the airport
maintenance foreman, a position which he had occupied for some time prior to
1946. In giving evidence he said that his duty was to supervise the airport and
maintain it in good condition and, if it was necessary, to put up any markings
to give instructions for this to be done. According to him, he had caused to be
placed 18 or 20 red woolen flags approximately 2 ft. by 3 ft. in area on posts
in the vicinity of the open ditches to indicate their presence. In paragraphs 7
and 8 of the petition of right which, for the reasons above indicated, I think
should be taken as directed to the conduct of Nicholas, it is alleged that he
owed a duty to the suppliants to properly fill in, protect
[Page 587]
and adequately mark the ditches. There was apparently no
officer of the Department of Transport, senior to Nicholas at Saskatoon,
concerned with the operation of the airport, but it cannot be seriously
suggested that he could have directed that the ditch, constructed under the
direction of the Minister for these purposes, be filled in. I do not understand
what is meant by the allegation that it was his duty to see that the ditch was
properly "protected." The suppliants' claims must, therefore, be
based upon the contention that Nicholas owed a duty to them and to other people
who might resort with their planes to the airport to warn them of the presence
of the ditch, and that the damages claimed resulted from a breach of this duty.
The question as to the liability of a servant of the Crown
occupying a position such as that of Nicholas is not, I think, decided by the
judgments of this Court in the Canada Steamship and Hochelaga cases,
where the question of the personal liability of such officers or servants was
not argued or, so far as the judgments rendered indicate, considered. Since the
claims are based upon the alleged negligence of Nicholas, the appellants must
establish that he owed a duty to them to warn them of the presence of the
ditch. It is, of course, not sufficient that under his contract of employment
with the Crown it was his duty to see that any dangers, obstacles or
obstructions on the airport be marked, so as to warn aviators of their
presence. Nicholas was neither the owner, occupant or operator of the airport
and no liability in any such capacity can be asserted against him. The claim,
therefore, is clearly not for an act of misfeasance but of alleged non-feasance.
In Adams v. Naylor , which
was decided in the House of Lords a few weeks earlier than the decision of this
Court in Anthony's case, a claim was advanced against an officer of the
Royal Engineers for injuries sustained by children in a mine field laid by the
military authorities as a measure for the defence of the country. It was the
practice in England, under such circumstances when a Crown servant might be
involved, for the Crown on request to supply the name, for example, of the
driver of a Crown vehicle or the navigating officer of a Crown ship at the time
of an accident,
[Page 588]
and in this matter the Crown, when appealed to by the
plaintiffs to furnish the name of the Crown servant who was in charge of the
mine field and responsible for its maintenance, gave the name of Captain
Naylor. In the Court of Appeal , in addition to considering the effect
of the Personal Injuries (Emergency Provisions) Act 1939, which the Crown
contended was an answer to the action, there was a lengthy discussion as to
whether the children who had gone into the mine field without permission were
trespassers and, if so, the nature of the duty owed to them as such. In the
House of Lords Viscount Simon, after saying that, in his opinion, the action
was barred by the provisions of the statute, pointed out that apart from that
question the issues were not really issues between the plaintiffs and the
Crown, the point being as to whether there was personal liability on the part
of Captain Naylor. As to this he said in part (p. 550) :
The courts before whom such a case as this comes have to
decide it as between the parties before them and have nothing to do with the
fact that the Crown stands behind the defendant. For the plaintiffs to succeed,
apart from the statute, they must prove that the defendant himself owed a duty
of care to the plaintiffs and has failed in discharging that duty. Whether the
plaintiffs in the present case would succeed in doing this it is superfluous to
inquire, since the decision goes against them on other grounds; but it may be
useful to put on record, in passing, that the success of the plaintiffs would
depend on establishing the personal liability of the defendant to them, as the
Crown is not in any sense a party to the action.
Lord Simonds, who stated his agreement with Viscount Simon,
said in part (p. 553) :
I must confess that, had it not been for the fact that the
Act under consideration afforded a defence to the action, I should myself have
had great difficulty in understanding what was the duty alleged to be due from
the defendant, an officer of His Majesty's army, to a member of the public in
respect of acts done or omitted to be done in course of his military service.
Lord Uthwatt pointed out that the case had been treated in
the Court of Appeal as if the defendant was the occupier of the land and that
it was not open to the parties to the suit by agreement to have the matter
dealt with on what was shown to be a false footing. The allegation made in the
statement of claim as to Naylor's connection with the matter was that he was
the officer of the Royal Engineers
[Page 589]
"in control and responsible for the maintenance and
safeguarding of the mine field", but the case pleaded had not been dealt
with.
There is no statute in England corresponding to section 19(c)
of the Exchequer Court Act imposing liability upon the Crown and apart from the
issue as to the application of the Personal Injuries Act the question to be
determined was the same as in the present case. Where the claim advanced
against an officer or servant of an employer is for misfeasance, the issue of
liability does not, of course, depend upon the existence of that relationship:
it is the commission of the tortious act which gives the right of action. In Lane
v. Cotton , the action was brought against the
Postmaster General for the recovery of certain Exchequer bills which had been
contained in a letter delivered to a clerk at the post office and lost. Holt
C.J., who disagreed with the majority, he being of the opinion that the Postmaster
General was liable, in referring to the liability of the clerk and officer of
the post office appointed "to take in and deliver out" letters at the
London Post Office, said in part (p. 489) :
It was objected at the bar that they have this remedy against
Breese. I agree, if they could prove that he took out the bills they might sue
him for it; so they might any body else on whom they could fix that fact; but
for a neglect in him they can have no remedy against him; for they must
consider him only as a servant; and then his neglect is only chargeable on his
master, or principal; for a servant or deputy, quatenus such cannot be charged
for neglect, but the principal only shall be charged for it; but for a
misfeasance an action will lie against a servant or deputy, but not quatenus a
deputy or servant, but as a wrong-doer. As if a bailiff, who has a warrant from
the sheriff to execute a writ, suffer his prisoner by neglect to escape, the
sheriff shall be charged for it, and not the bailiff; but if the bailiff turn
the prisoner loose, the action may be brought against the bailiff himself, for
then he is a kind of wrong-doer or refuser.
In Perkins v. Hughes , Lee
C.J., delivering the judgment of the Court of King's Bench, said in part (p.
41) :
In the case of; Lane v. Cotton ,
the following distinction, which, in our opinion, is well founded, was taken by
Holt C.J. namely, that where an injury arises from the neglect of a servant, an
action only lies against his master, for that a servant is not answerable,
quatenus servant, for neglect: but that where an injury arises from the
misfeasance of a servant, he is himself liable to an action, not quatenus
servant, but as being a wrong-doer.
[Page 590]
In Mersey Docks Trustees v. Gibbs ,
the House sum moned a Court of
judges consisting of Blackburn, Keating and Shee JJ. and Channell B. and Pigott
B., requesting them to answer two questions necessary to be determined in the
action. The judgment of this Court written by Blackburn J., after referring to
the judgment in Lane v. Cotton on the question as to the
liability of a public officer for the negligence of his subordinates, said in
part (p. 111) :
But these cases were decided upon the ground that the
government was the principal, and the defendant merely the servant. If an
action were brought by the owner of goods against the manager of the goods
traffic of a railway company for some injury sustained on the line, it would
fail unless it could be shewn that the particular acts which occasioned the
damage were done by his orders or directions; for the action must be brought
either against the principal, or against the immediate actors in the wrong.
and referred to Story on Agency, s. 313, as authority
for the statement.
In Smith on Master and Servant, 8th Ed. 288, the learned
author, after saying that as a general rule all persons concerned in the wrong
are liable to be charged as principals, states:
But for mere nonfeasance or omission of duty, a servant is
not liable to answer in a civil action at the suit of third persons, but only
to his own master, who, in accordance with the maxim already alluded to, "Respondeat
superior," is liable to answer for his servant's neglect. This
distinction between misfeasance and nonfeasance was thus stated by Lord Holt,
in his celebrated judgment in Lane v. Cotton.
The statement of the law by Holt C.J. in Lane v. Cotton
is referred to in Evans on Agency, 2nd Ed. 385, as the authority for the
distinction between the liability of the employees for acts of misfeasance and
of nonfeasance. In Story on Agency, 7th Ed. (1869) p. 385, the matter is dealt
with as follows:
The distinction, thus propounded, between misfeasance and
nonfeasance,—between acts of direct, positive wrong and mere neglects by agents
as to their personal liability therefor, may seem nice and artificial, and
partakes, perhaps, not a little of the subtilty and over-refinement of the old
doctrines of the common law. It seems however, to be founded upon this ground,
that no authority whatsoever from a superior can furnish to any party a just
defence for his own positive torts or trespasses; for no man can authorize
another to do a positive wrong. But in respect to nonfeasances or mere neglects
in the performance of duty, the responsibility therefor must arise from some
express or implied obligation between particular parties standing in privity of
law or
[Page 591]
contract with each other; and no man is bound to answer for
any such violations of duty or obligation, except to those to whom he has
become directly bound or amenabe for his conduct. Whether the distinction be
satisfactory or not, it is well established, although some niceties and
difficulties occasionally occur in its practical application to particular
cases.
It may be useful to illustrate each of these propositions by
some cases which have been treated as clear, or which have undergone judicial
decision. And, in the first place, as to the non-liability of agents for their
nonfeasances and omissions of duty, except to their own principals. Thus, if
the servant of a common carrier negligently loses a parcel of goods, intrusted
to him, the principal, and not the servant, is responsible to the bailor or the
owner. So, if an under-sheriff is guilty of a negligent breach of duty, an
action lies by the injured party against the high sheriff, and not against the
deputy personally, for his negligence.
In the United States courts the accuracy of the above
statement of the law in Lane v. Cotton appears to have been
generally (though not universally) accepted. Thus, in Murray v. Usher
, Andrews J., delivering the judgment
of the Court of Appeals of New York, said in part:
The general rule of respondeat superior charges the
master with liability for the servant's negligence, in the master's business,
causing injury to third persons. They may in general treat the acts of the
servant as the acts of the master. But the agent or servant is himself liable,
as well as the master, where the act producing the injury, although committed
in the master's business, is a direct trespass by the servant upon the person
or property of another, or where he directs the tortious act. In such cases the
fact that he is acting for another does not shield him from responsibility. The
distinction is between misfeasance and nonfeasance. For the former, the servant
is in general liable; for the latter, not. The servant, as between himself and
his master, is bound to serve him with fidelity, and to perform the duties
committed to him. An omission to perform them may subject third persons to
harm, and the master to damages. But the breach of the contract of service is a
matter between the master and servant alone; and the nonfeasance of the servant
causing injury to third persons is not, in general at least, a ground for a
civil action against the servant in their favour. Lane v. Cotton,
12 Mod. 488; Perkins v. Smith, 1 Wils. 328; Bennett v. Bayes, 5 Hurl. & N. 391; Smith,
Mast. & Serv. 216, and cases cited.
The same view of the law is expressed in the judgment of Martin J., where the portion of the judgment of
Andrews J. above quoted was approved and adopted. In Kelly v. Chicago
& Alton Railway Co., where a yard-master in the employ of
the railway company was joined as a party defendant, the plaintiff alleging
that he had neglected to make an inspection of the engine which had exploded
and caused injuries, Philips J., referring to the above quoted passage from
Story on Agency, held that the action did not lie.
[Page 592]
In my opinion, if there was failure on the part of Nicholas to
cause adequate measures to be taken to warn aviators resorting to the Saskatoon
Airport in their planes of the presence of the open ditch and if such failure
caused or contributed to the accident, Nicholas is not personally liable and,
accordingly, the action against the Crown should fail. The appellants' case
cannot be placed upon a higher plane than it would be if Nicholas had been in
the employ of a private person or a corporation, and in neither event would he,
in my judgment, be personally liable, though the owner, occupant or operator of
the airport might be. The appellants' difficulties are increased by the fact
that the employer of Nicholas owed no such duty, as is asserted, against him to
the appellants, but it appears to be unnecessary to deal with this aspect of
the matter. For the contrary view, it may be said that aviators resorting to
government aerodromes where they are at least permitted, if not invited, to
land, are entitled to assume that some officer or servant employed by the
government will take such steps as are necessary to warn them of danger from
obstacles upon an airport and that this imposes liability on those employees of
the Crown charged by it with that duty. I do not know how far it would be
suggested that this liability should extend. Presumably, the officers of the
Department of Transport whose duties would include that of seeing that Nicholas
properly discharged his duties of maintenance at the airport and the government
inspectors, if there were such, who inspected the airport facilities from time
to time and who may have observed the warning flags exhibited and failed to do
anything to remedy their inadequacy, if they were inadequate, would be involved
in liability. Such a contention is not supported by authority, in my opinion.
With deference to contrary opinions, I do not think the
point in this matter is affected by the decision in Donoghue v. Stevenson
. In that case a shop assistant sought
to recover damages from a manufacturer of aerated waters for injuries suffered
as a result of consuming part of the contents of a bottle of ginger beer which
had been manufactured by the respondent and which contained the decomposed
remains of a snail. There was no claim against
[Page 593]
any employee of the manufacturer and the only point decided
was as to the duty which the latter owed to the ultimate consumer of his
product. While Lord Atkin, in dealing generally with the law of negligence,
said in part:
You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour.
this, standing alone, is insufficient as a guide since
there remains to be determined who is my neighbour. I am unable to believe that
either this language or anything else said by Lord Atkin or by any of the other
Law Lords who gave the majority decision in that case was intended to change
the law as to the personal liability of an employee towards third persons
injured by some failure on his part to perform a duty imposed upon him by his
contract of employment. No such question arose for decision and the matter was
not discussed either in the judgments or in the argument. There has been much
discussion as to the exact point decided in the judgment of the majority of the
court in Donoghue's case. There is an interesting discussion of the
subject in the 14th edition of Pollock on Torts, pp. 344-5-6. I agree with the
learned author that Lord Wright's statement as to this in Grant v. Australian
Knitting Mills Ltd. , should be accepted, where, after
referring to the decision in Donoghue's case and saying that their
Lordships, like the judges in the courts of Australia, would follow it, said in
part:
The only question here can be what that authority decides
and whether this case comes within its principles * * * Their Lordships think
that the principle of the decision is summed up in the words of Lord Atkin:
"A manufacturer of products,
which he sells in such a form as to show that he intends them to reach the
ultimate consumer in the form in which they left him with no reasonable possibility
of intermediate examination, and with the knowledge that the absence of
reasonable care in the preparation or putting up of the products will result in
an injury to the consumer's life or property, owes a duty to the consumer to
take that reasonable care."
The decision so summarized does not touch the point in the
present case.
In the course of the able argument of Mr. Cuelenaere for the
appellants, he referred to the Air Regulations enacted under the provisions of
the Aeronautics Act, c. 3, R.S.C. 1927, which, inter alia,
prescribe certain ground markings
[Page 594]
to be exhibited on public aerodromes open to public use. These
regulations cannot, in my opinion, affect the matter, since the aerodrome in
question was operated by the Crown. Section 15 of the Interpretation Act,
c. 1, R.S.C. 1927, declares that no provision or enactment in any. Act shall
affect, in any manner whatsoever the rights of His Majesty, his heirs or
successors, unless it is expressly stated therein that His Majesty shall be bound
thereby. The Aeronautics Act contains no such provision and while the
regulations are declared to apply to state aircraft they do not assume to deal
with the manner in which aerodromes operated by the Crown are to be marked.
The appeal should be dismissed with costs.
Kerwin J.:—The
appellants' claim to recover against the Crown is based upon section 19(c)
of the Exchequer Court Act as amended, by which that Court has jurisdiction to
hear and determine a claim against the Crown arising out of any death or injury
to the person or to the property resulting from the negligence of any officer
or servant of the Crown while acting within the scope of his duties or
employment. It must now be taken as settled by this Court in Anthony v. The
King , that the Crown's officer or servant
must owe a duty to the third person, the breach of which would make him liable
to that third party before the Crown's responsibility could attach under the
section ; that is, the rule respondeat superior applies. Philip R.
Nicholas was the airport maintenance foreman and that in doing what he did, at
the Saskatoon Airport, he was acting within the scope of his duties or
employment does not, I think admit of doubt, and in my view he owed a duty to
Grossman not to leave the ditch across the grass runways undesignated by
something observable from the air that would give an intending user of the
field warning of the danger.
The Saskatoon Airport did not have tower control and it
should, therefore, have been within the contemplation of Nicholas that a flier,
intending to alight on a public airport, such as that at Saskatoon, would use
the grasss landing strip while the cement one was being repaired. The
[Page 595]
decision of the House of Lords in Bolton v. Stone ,
must be taken as a decision on its own particular facts. This was a case where
Miss Stone, while on a highway abutting a cricket ground, was injured by a ball
hit by a player thereon. The House of Lords reversed the decision of the Court
of Appeal and restored the judgment at the trial on the ground that although
the possibility of the ball being hit on the highway might reasonably have been
foreseen, that was not sufficient, as the risk of injury to anyone in such a
place was so remote that a reasonable person would not have anticipated it.
While the result to the unfortunate plaintiff was disastrous, there is nothing
to indicate that the well-known rule as exemplified in Donoghue v. Stevenson
, was departed from, viz., that you
must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be liable to injure your neighbour. In my opinion the present
case falls within that rule.
It is said that a mere act of omission by Nicholas would not
be sufficient, and reference is made to the dissenting judgment of Lord Holt in
Lane v. Cotton , where he states: "but for a
neglect in him (a servant) they can have no remedy against him; for they must
consider him only as a servant and then his negligence is only chargeable on
his master or principal; for a servant or deputy, quatenus such, cannot be
charged for negligence but the principal only shall be charged for it."
This distinction sometimes referred to as the difference between misfeasance
and nonfeasance has been generally recognized both in England and in the United
States although not without some exceptions in the courts of the latter. The
true rule, however, is I think that which distinguishes those cases where an
agent is not liable in tort to third persons who have suffered a loss because
of the agent's failure to perform some duty which he owed to his principal
alone, from those cases where, in addition to a duty owing to the principal,
the agent owed a duty to the third party. As Viscount Simon stated in Adams
v. Naylor , the question whether the defendant in
that case was personally liable was, of course, a question for the Court on the
evidence.
[Page 596]
In view of the basis of liability according to modern concepts
in actions for tort, it should be held in the present case that Nicholas in either
placing the flags, or permitting them to be placed or to remain in place,
committed a negli gent act for which he could be held liable at the suit of
Grossman. That, I think, is consonant with the judgment of this Court delivered
by Chief Justice Anglin in The King v. Canada Steamships Lines Ltd. ,
where it is stated: "In taking the risk of allowing the continued use of
the wharf pending such report, and in failing to give any warning to the
officers of the steamship company, Brunet was in my opinion guilty of a
dereliction of duty amounting to negligence on his part." Leave to appeal
to the Judicial Committee was refused. The view I have expressed is also
consistent with the decision in The King v. Hochelaga Shipping and
Towing Company, Limited . In the reasons of the majority,
delivered by Crocket J., it is stated that the collision that had occurred
"was not a case of mere nonrepair or nonfeasance but of the actual
creation of a hidden menace to navigation by a department of the government through
its fully authorized officers and servants in the construction of a public
work."
I quite agree that in these two cases the point now under
discussion was apparently not raised acutely but those decisions may, I think,
be justified on the ground I have suggested.
As to what Grossman did, I am content to adopt the reasons
of my brother Taschereau but I might emphasize that while the trial judge had a
view of the airport, conditions had changed since the day of the occurrence,
and, in any event, he had only such evidence as was given before him as to
what, on the day in question, was observable from the air. My brother
Taschereau has also dealt with that aspect of the matter and I agree with what
he has said.
I would allow Grossman's appeal and direct judgment to be
entered in his favour for $7,003.90, the amount of his damages fixed by the
trial judge. Grossman is entitled to his costs of the action and appeal. As the
total amounts
[Page 597]
claimed by Sun is $440, this Court has no jurisdiction under
the provisions of the Exchequer Court Act to hear his appeal which should be
quashed without costs.
Taschereau J.
:—The suppliants in their petition allege that on the 19th of July, 1948, they
took off from the airport at the city of Prince Albert, province of Saskatchewan,
to fly to the city of Saskatoon, and that on arriving at the said airport, they
ran into a ditch or excavation running across the used portion of the airport.
As a result, Grossman's aircraft was demolished and Sun, the passenger,
suffered bodily injuries.
Grossman claimed from His Majesty the King, in the rights of
the Dominion of Canada, owner of the airport, the value of the plane, plus $785
for expenses, making a total of $7,705. Sun's claim amounted to $440 for
personal injury. The Exchequer Court dismissed both claims with costs, hence
the present appeal.
Grossman, who is a resident of DesMoines, Iowa, U.S.A., was
the owner of the craft, a Stinson Station Wagon, registered under No. N.C.
893C, with the Civil Aeronautics Administration, and on the date of the mishap,
was the holder of a pilot's license, since May, 1946. He was an experienced
pilot, having flown previously approximately 450 hours. On this particular
occasion, he had entered Canada from the United States at Winnipeg and had stopped
at Lethbridge, Calgary, Bienfait, before leaving Prince
Albert to go to Saskatoon. He left Prince Albert at about 2:30 p.m. when the
flying conditions were good; the wind was blowing lightly from the southeast,
and as he says in his evidence, the ceiling was "ideal".
He flew at a level of 3,000 feet above the ground, and of
about 4,500 to 5,000 feet above sea level. He was in possession of a map
previously obtained from a Canadian Airport at Melfort, called "The
Saskatoon-Prince Albert-Saskatchewan-Area", which indicated that the
Saskatoon airport was a public airport. At a distance of approximately
15 miles from Saskatoon, Grossman started to reduce his altitude to 2,500 feet,
and as he reached the airport he flew at 1,500 feet. As the airplane was equipped
with a two-way radio, he tuned into tower frequency 275 K.O.L. which is the
universal control frequency, but as there was no
[Page 598]
tower control in operation at Saskatoon, he received no answer.
He had no trouble in finding the airport even from a great distance, as the
visibility was very good. He was aware that new runways had been built
recently, and he states that he could see them very well from the air. One runs
northwest, southeast, and the other approximately east-west. They extend for a
distance of over 3,000 feet, and are hard surfaced strips capable of being used
by the heaviest planes. To the east of these new strips are the old R.C.A.F.
runways, north of which, in the northeast corner of the airport, is a grass
landing strip running north-south, and a small building on the east, owned by
the Canadian Pacific Air Lines. This grass air field is used by the Saskatoon
Flying Club, the Saskatchewan Air Lines, and some other light planes which
frequently land at that particular place. It is to be noticed that the boundary
markings used on that grass landing ground were still there at the date of the
accident.
When Grossman spotted the airport, he made what is called a
"pass over the field." He looked at the windsock, and made a turn and
planned to land on one of the new runways, but as he saw men at work, he
regained altitude and continued his flight, proceeded east and then north, when
he observed a building with the word "Airport" printed in large
letters on the roof, and to the west of this building, that part of the grass
surface of the airport used as runways. Continuing north, he then turned
towards the west and then to the south, and made his landing well down on the
north-south strip, and he testifies that he gave himself more than adequate
space to complete his landing before arriving at the building, where he
intended to bring his plane to a stop. The evidence reveals that he made a
3-point stall landing at 55 miles per hour, and was rolling along the grass
runways, when he suddenly realized that there was an obstruction in front of
him. He decided to attempt a take-off, but did not succeed in lifting his
craft, and his under-carriage caught the south side of a ditch and his plane
crashed into the ground.
This airport was originally operated by the Royal Canadian
Air Force, but after the last war, was taken over by the Department of
Transport, when it was decided to build the two new hard surfaced strips, which
were in use
[Page 599]
long before the date of the accident. It was then deemed
necessary to provide for adequate drainage, and a sum of approximately one
million dollars was expended. large open ditch was dug about 2,000 feet in
length, 48 feet wide, and varying in depth from 7 to 11 feet, intersecting
the old gras strip at right angles, at 2,800
feet from the north limit of the airport, but, it was found too expensive to
fill it. It is in evidence that those in charge, allowed grass and weeds to
grow on both sides of the ditch, making it harder to detect its location from
the air; approximately 17 to 18 flags were placed on each side of the ditch to
indicate an actual danger, known to those in charge of the field, but which
oncoming pilots could not easily ascertain, unless sufficiently informed.
The suppliants contend that the warning was insufficient,
and with this submission I agree. Philip R. Nicholas, the airport maintenance
foreman, admitted in his evidence that the danger resulting from the presence
of the ditch was discussed and that complaints had been received with respect
thereto. As to the flags which he placed in 1946, in order to warn oncoming
planes, he is "not just too sure as to how distinguishable they
were". He admitted, after comparing the exhibits, which were photographs
of the ditch and of the flags, that the flags and posts present at the time of
the trial, were considerably more numerous than those which existed in July,
1948, the month in which the accident happened. Many witnesses were called on
behalf of the appellant and of the respondent as to the visibility of these
flags and of the ditch from the air. Some say that they were hardly visible,
that the ditch could be mistaken for a roadway; some others, that it is
possible to detect it, flying at a height of 600 to 800 feet. As to the
appellant Grossman, he is very emphatic in his evidence that he did not see the
flags or the ditch.
It is undisputable that a public airport, as this one
was, must offer a standard of security, at least equal to the one required by
the regulations enacted by the competent authorities. (P.C. 2129). Air
Regulations provide:
12. At every land aerodrome open to public use, the
boundaries of the landing area shall, by means of suitable markings, be
rendered clearly visible both to aircraft in the air and to aircraft
manoeuvring on the landing area. In addition, a circle marking may be placed on
the landing area. All obstructions existing on a landing area shall be
clearly marked.
[Page 600]
In case part of the marked landing area should become unfit
for use, this part shall be delimited by clearly visible markings or flags, and
may, in addition be indicated by one or more clearly visible crosses.
Air Regulation 13 says:—
13. (d) (1) When special circumstances call for a
prohibition to land liable to be prolonged, use shall be made of a red
square panel, placed horizontally, each side of which measures at least 10
feet and the diagonals of which are covered by yellow strips at least 20 inches
in width, arranged in the form of an X;
(2) When the bad state of the landing area or any other reason
calls for the observance of certain precautions in landing, use may be made
of a red square panel, placed horizontally, each side of which measures at
least 10 feet and one of the diagonals of which is covered by a yellow strip at
least 20 inches in width;
These requirements were surely not fulfilled in the present
case, and I have reached the conclusion, that the obstruction on the landing
field was not sufficiently clearly indicated. These small flags were most
probably visible from the ground, and could serve as a warning for a take-off,
but it is common knowledge, and the preponderance of evidence so reveals, that
from the air, placed as they were on perpendicular posts, their efficacy was
practically nil. Leslie Deane, superintendent of maintenance and operations for
the Saskatchewan Government Airways, flew the day after the accident to the
Saskatoon Airport, and he testifies that he could not see the flags, nor detect
the ditch. I quite agree that a pilot familiar with that airport, and consequently
aware of the existence of this obstruction, could from the air realize the
obviousness of the danger, but it was Grossman's first attempt to land on that
field, which he could expect to find in a safe condition, unless otherwise
properly and efficiently cautioned. Airfields must offer sufficient safety not
merely to those who have knowledge of the actual danger they may present, but
also to those who, unaware of an existing and insufficiently made known peril,
use their facilities for the first time. In Imperial Airways Limited v. National
Flying Services, which is an English case but reported in U.S. Aviation
Reports, 1933, at page 50, an aircraft was damaged falling through the cover
over a concealed stream running across the middle of an aerodrome. It was held
by Lord Hewart that the proprietors of an aerodrome, are under obligation to
see that the aerodrome is safe for use by such aircraft as
[Page 601]
are entitled to use it, and that a proper warning of
any danger of which they knew or ought to have known must be given.
It is said on behalf of the Crown that if Grossman had
dragged the field or made what has been called a "dummy run", he
would have seen the obstruction, and avoided the accident. After having
unsuccessfully attempted to land on the hard surfaced strip, on account of men
being at work, the appellant made a circuit to reach the grass landing field.
If, as suggested, making a "dummy run" means flying at a low level,
all across the field, to find possible obstructions, this would amount to a
violation of Air Regulations 41 and 42 which read as follows:
41. If an aerodyne starting from or about to land on an
aerodrome makes a circuit or partial circuit, the turning must be made clear
of the landing area and must be left-handed (anti-clockwise), so that
during such circuit the landing area shall always be on its left.
42. (b) Landings shall be preceded by a descent in a
straight line, commenced at least 3,000 feet outside the perimeter of the
landing area;
The appellant followed, I think, the recognized and proper
method in landing. He made an anti-clockwise circuit of the field, and
descended in a straight line towards what appeared to be a safe marked grass
strip, made a successful landing and was rolling on the ground towards the
hangars when the accident happened. What he did was in accordance with the
regulations, and I cannot see that any negligence may be attributed to him. Mr.
B. F. Burbridge, Inspector of the Department of Transport, Civil Aviation, who
was called as a witness by the respondent, justifies in his evidence what
Grossman has done when he attempted to land. He states that a pilot must not
cross the airfield, but must fly around the boundaries of the airport.
The only crossing allowed is to fly down the runway which is in use. He adds
that it is not necessary for a pilot to make a "dummy run" over a
particular runway if he has previously observed the field. This appears to be
in complete harmony with the Air Regulations and the occurrences in the instant
case.
It is also argued that appellant failed to obtain the
necessary information as to the landing conditions of the field where he
intended to land. Before leaving Prince Albert, he had with him an air
navigation map supplied
[Page 602]
by the Department of Mines and Resources, indicating that the
Saskatoon Airport was a public airport, which under the Air Regulations
is a centre for air traffic, containing installations necessary for such
traffic. He inquired as to the facilities of the airport, and from the
information obtained it was reasonable for him to conclude that he would not
later encounter the difficulties that he experienced with such unfortunate
results. Upon approaching Saskatoon, while flying at a height of 2,500 feet, he
attempted to contact the control tower but he received no answer. When there is
a control tower, it is from there that the aerial traffic is governed, and all
pilots are bound to comply with the instructions they receive from the
operator. But when there is none, (and there are only 5 per cent of the used
airports which are thus equipped) pilots must land after having taken the
necessary precautions that ordinary prudent men would take under similar
circumstances. There is no obligation sanctioned by law or by common practice
to contact any other station called radio range or otherwise, which is not
concerned with traffic, but mostly with weather conditions, particularly when
there is no danger reasonably foreseeable, and nothing appears abnormal.
It is by virtue of the regulations, the obligation of the airport itself to
warn by clearly marked signs of any obstructions on the field, and not
the duty of the pilot to inquire if any employee has been negligent, and if his
life is in peril by accepting the implied invitation to land. (Vide
International Civil Aviation Conference, 1944, sections 5 and 28). It would
otherwise be tantamount to a total reversal of the respective duties and
obligations imposed by law to the parties. Of course, it would be more
efficient for the pilot to do so, but the law does not require such a high
standard of care. Perfection in the actions or behaviour of men is not a
condition sine qua non, to
the right to claim damages. Motorists who drive on public highways, captains
who bring their ships into port, are entitled to expect that the road will be
in a safe condition, that there will not be any submerged object to obstruct
navigation. King v. Hochelaga Shipping .
Unless he knows of the danger, on account of its obviousness or otherwise, the
driver of the automobile, or the captain of the
[Page 603]
ship is entitled to be warned of its existence. The right of
a pilot of an aircraft, invited to land on a public airfield is identical.
The respondent further contends that even if Grossman was
not negligent, the responsibility of the Crown cannot be involved. The basis of
its liability could only be found in section 19(c) of the Exchequer
Court Act, which is as follows :—
19. The Exchequer Court shall also have original
jurisdiction to hear and determine the following matters:
(c) Every claim against
the Crown arising out of any death or injury to the person or to the property
resuting from the negligence of any officer or servant of the Crown while
acting within the scope of his duties or employment.
During a period of many years this Court has determined what
is the liability of the Crown as a result of the negligence of its employees,
in circumstances similar to those with which we are now dealing.
In The King v. Canada Steamship Lines Limited ,
it was held that an employee of the Crown in allowing continued use of a wharf
at Tadoussac, and in failing to give warning to the Steamship Company of
the dangerous condition of the premises, was guilty of negligence as an
"officer or servant of the Crown while acting within the scope of his
duties or employment", and that his neglect entailed the liability of the
Crown for consequent injuries.
In The King v. Hochelaga Shipping Company,
(cited supra) the employees of the Crown had left a submerged crib work
near a government breakwater, that had broken away during a storm, with nothing
to warn navigators of its presence. The Court decided that this obstruction
constituted a dangerous menace to navigation, and that for not providing the
necessary warning, the officials and servants of the Crown in charge of
these works, were chargeable with negligence for which the Crown is responsible
by force of section 19(c) of the Exchequer Court Act.
What this Court held in these two cases clearly indicates
that the employees of the Crown failed in their duty to third parties, that
their negligence, although arising only out of an omission to act, entailed their
personal liability, and consequently the vicarious liability of the Crown.
The
[Page 604]
Court was not merely confronted with
cases of nonfeasance of acts which should have been done by the servant, as the
result of a contract between the employer and the employee, and which would not
involve the personal liability of the latter to third persons, but with the
failure to perform a duty owed to the victims. (Halsbury, Vol. 22, page 255).
The Crown strongly relies on the more recent decision of
this Court in The King v. Anthony . In
that case, two aspects of the vicarious liability were considered. It was held
firstly, that the act of the soldier in shooting an incendiary bullet into a
barn, which eventually burnt, could, not be treated as an act of negligence
committed while acting within the scope of his duties; it was a wilful act done
for his own purpose, quite outside of the range of anything that might be
called incidental to them. Secondly, it was said that the failure of the
officer in charge of the group of soldiers, to prevent one of them from firing
the shot, did not constitute a breach of private duty to the owner of the barn,
and that the rule Respondeat Superior did not apply. His omission to
exercise his authority was a breach of military law, for which he was
accountable to his superiors, but his dereliction could not be considered as
enuring to the private benefit of other persons. There were special
circumstances which governed the Anthony case, which do not exist in the
present instance. In the former, the personal liability of the officer in
charge, an essential element to the application of the rule Respondeat
Superior, was not shown to be present, but in the case at bar, we must, I
think, necesarily be guided by the principles enunciated in The King v. Canada
Steamship Lines, and The King v. Hochelaga (cited supra),
which remained unaffected by what has been said in the Anthony case.
In these two cases, as in the present one, the negligence
was the failure to warn of an existing danger that the employees of the Crown
in the performance of their duty, knew or ought to have known, bringing into
play section 19(c) of the Exchequer Court Act. I would indeed be loath
to hold that an employee of the Crown, whose concern it is to maintain an
airfield in proper and safe condition, and to indicate by visible marks all
dangerous obstructions,
[Page 605]
would not if he failed to do so, be neglectful of his duty
to oncoming pilots whose welcome on Canadian soil has been sanctioned and
recognized by an international agreement with foreign countries. It is from him
that diligence and alertness is rightly expected. His lack of vigilance is a personal negligence, for which the "Superior" is
answerable before the courts. It follows that the Crown must be held liable for
the damage caused to the plane and for other losses incurred by plaintiff
Grossman, to the extent of $7,003.90, as assessed by the trial judge for the
purpose of the present appeal, although he dismissed the petition. The other
petitioner Sun, is exactly in the same position as Grossman, but unfortunately
his claim must be refused, as the amount involved is not sufficient to give jurisdiction
to this Court to hear his appeal, and grant the remedy to which he would
otherwise be entitled.
I would therefore allow Grossman's appeal for $7,003.90 with
costs throughout, and quash Sun's appeal without costs.
Kellock J.:—The
airport here in question was at the relevant time owned and operated by the
Crown. In what appears roughly to be its centre, two concrete strips had been
built to accommodate very large aircraft. These strips run approximately
north-west and south-east, and east and west respectively, intersecting at
their northerly limits. Older concrete strips existed on the field prior to the
making of the new strips. The new strips crossed the older ones at more than
one point. There was also in the north-east corner of the airport area a grass
landing strip running north and south, to the east of which and toward its
northerly end there was a building owned by the Canadian Pacific Airlines,
which had painted on its roof the word "Airport" clearly visible from
the air. This grass landing strip was marked by some boundary markings which at
the same time indicated to aircraft that the area further to the east and north
was unfit for landing. The grass strip was used by the majority of the smaller
and lighter types of planes. The plane of the appellant was of that type.
At the time the two new concrete strips were built in 1946,
a large open ditch had been dug running south-easterly from the easterly end of
the east-west strip for a distance of
[Page 606]
approximately 2,000 feet. This ditch was about 48 feet in
width at the top and varied in depth from 7 to 11 feet. It cut through the
grass strip at about right-angles at a point about 2,800 feet from the north
limit of the airport, and about 1,300 feet from the south limit of the strip
itself, where the hangars were situate. At the time of the accident, the raw
wound originally made in the earth by the excavation had become covered by a
growth of weeds, affecting its visibility considerably. The only marking of the
ditch consisted in a number of posts about 10 feet high on which red flags had
been placed. When originally placed, the posts were brightly painted, but at
the time of the accident they had become quite dull and many of the original
posts appear to have disappeared, the actual number in position at the time of
the accident being quite uncertain. Some of the witnesses place this number as
low as six. In the year following the accident, the posts were painted
"international orange and white", and solid panels or frameworks capable
of swinging a full circle were substituted for the flags.
The learned trial judge finds on the whole of the evidence
that, at the time of the accident, pilots knowing of the existence of the ditch
could readily locate its position, but that a pilot who did not know of its
existence would have difficulty in seeing either the ditch or the flags unless
he first flew over the field at a height of 1,000 feet or less.
The suppliant, before coming to the airport here in
question, had, on entering Canada, landed at Stevenson airfield, Winnipeg, and
had also made landings at Port Arthur, Melfort, Portage and Kenora. On an
earlier trip he had also landed at Lethbridge, Calgary, Bienfait and
Moose Jaw.
The day of the accident was bright and clear with a light,
variable wind. At the time the appellant left Prince Albert the wind was
south-easterly, and he testifies that that was still the direction as indicated
by the air sock at the airport when he arrived at Saskatoon. There was evidence
adduced by the respondent that its direction had changed to northerly, but the
wind direction is not the subject of a finding.
[Page 607]
The learned trial judge considered that the ditch in
question constituted
"an obstruction on the runway of a public
airport."
In his view, failure to give adequate warning thereof to
those lawfully using the facilities of the airport and exercising reasonable
care, would constitute negligence for which the Crown could be liable under the
provisions of s. 19(c) of the Exchequer Court Act. He then
considered the question as to the nature of the duty, if any, owed to the
appellant in the circumstances, holding that as the airport was admittedly one
open to public use, the appellant could not be considered a trespasser. He
continues,
There is no evidence as to whether any fees were charged to
the owners of airplanes which landed on the airport, or whether such services
as the supplying of gas and oil or storage were supplied by the respondent or
by tenants on the property.
In these circumstances, he was unable to find that the
appellant was
"invited into the premises by the owner or
occupier for some purpose of business or of material interest,"
and therefore came to the conclusion that the appellant
was to be considered a licensee.
The evidence which the learned trial judge thought was
lacking is, however, present. Exhibit 2 is a publication of the Department of
Mines and Resources produced by the respondent. On the argument before us it
was contended for the respondent that no part of this document had been put in
evidence except the diagram of the airport. The document, in addition to the
diagram, contains a good deal of information as to the airport, and includes
the following:
"GROUND FACILITIES
Hangars
Available
Fuel and Oil
Available"
All of this was placed in evidence by the respondent. I do
not think, therefore, that the appellant can be treated as a mere licensee. He
was an invitee. This renders inapplicable the view of the learned trial judge
on the question as to the nature of the duty owed by the respondent to
[Page 608]
the appellant, namely, that the only duty on the part of the
respondent was not to allow anything in the nature of a trap to exist.
The learned judge expressly finds, however, that it was well
known to those in charge of the airport that that part of it north of the
ditch, on which the appellant landed, was in daily use by a large number of
light planes, and that it was the duty of the airport manager to mark any
obstructions, the ditch being one.
Nicholas, who was in charge of the airport for the Crown
testified that it was left to him to take all proper precautions with respect
to the field and its markings. In 1946 he had placed the red cloth flags on the
poles. These were the only markers or warnings placed at or near the ditch, and
the fact that he did place them there indicates that he was alive to the danger
constituted by the ditch.
Nicholas himself said that he had observed the ditch from
the air after the flags had been put up, and deposed in this connection,
Q. And did you particulary observe whether they could be
seen from the air?
A. I believe when they were first placed there I could see
them from the air.
Q. And later on you can't say?
A. Later on I am not just too sure as to how distinguishable
they were.
While the learned judge found that
the existence of the old boundary markers there and of the
building marked "Airport" would indicate to a pilot that there was
there a small area available for landing,
he was of opinion that the
proper practice to follow in approaching a strange landing
area and where the facilities of the control tower or radio range are not used
is that of "dragging the field," or making a "dummy run"
over the landing strip at such an altitude as would give full information as to
existing conditions thereon.
This view of the learned trial judge is, of course,
predicated upon the limited nature of the duty owed to the appellant. The duty
of an occupier, however, toward an invitee is to take reasonable care that the
premises are safe; Addie v. Dumbreck , per
Lord Hailsham at 365.
[Page 609]
It is established beyond peradventure that the strip upon
which the appellant landed was part of the area upon which the public flying
light airplanes were invited to land and did land constantly. It is admitted
also that the ditch was an obstruction and was recognized as such. The attempt
made to mark it for the danger that it was, was quite insufficient. It is
contended on the part of the respondent that the international air regulations
are not binding upon it. Accepting that point of view, the regulations are
nevertheless evidence of what measures were recognized in order to protect
against obstructions, including those of the nature here in question. Part V,
Section 2, deals with ground markings, Article 12 of which provides that
At every land aerodrome open to public use, the boundaries
of the landing area shall, by means of suitable markings, be rendered
clearly visible both to aircraft in the air and to aircraft manoeuvring on the
landing area … All obstructions existing on a landing area shall be
clearly marked. In case part of the marked landing area should become unfit for
use, this part shall be delimited by clearly visible markings or flags,
and may, in addition, be indicated by one or more clearly visible crosses.
Article 13(d) provides that
(1) When special circumstances call for a prohibition to
land liable to be prolonged, use shall be made of a red square panel,
placed horizontally, each side of which measures at least 10 feet and
the diagonals of which are covered by yellow strips at least 20 inches in
width, arranged in the form of an X;
(2) When the bad state of the landing area or any other
reason calls for the observance of certain precautions in landing, use may
be made of a red square panel, placed horizontally, each side of which measures
at least 10 feet and one of the diagonals of which is covered by a yellow strip
at least 20 inches in width;
How far short of this standard the posts and flags placed by
Nicholas and allowed to disintegrate, falls, needs no comment. After the
accident, new posts were put in on each side of the ditch and painted
"international" orange and white, which the evidence shows is a
clearly visible colour, and then, instead of cloth flags, a full panel of
plywood painted red was placed on the posts in accordance with Article 13(d)
(2). It cannot be said, in my opinion, on the evidence, that had this standard
of care been observed, the appellant would not have seen the markings.
[Page 610]
In connection with his finding that it was the duty of the
appellant to have made a "dummy" run over the landing area in which
he landed before actually landing, the learned judge relies substantially on
the evidence of the witness Burbridge, Inspector of Civil Aviation, Department
of Transport. When giving evidence in chief on behalf of the Crown, this
witness had said:
Q. In your opinion what procedure should a pilot follow when
landing on an unfamiliar airport?
A. He should first of all land on a serviceable runway. If
he is not familiar with that particular airport, if he never landed there
before, if he is not in touch with flying surely he should make a dummy
run on the landing strip on which he chooses to land.
It is plain to my mind that the witness, in his use of the
word "surely," is arguing rather than giving evidence as to an
accepted standard of care. That that is so appears very clearly from his
subsequent evidence. He continues :
Q. What do you mean by a dummy run?
A. To run over the area of the ground he intends to land on
at a low altitude.
Q. At what altitude?
A. Any safe altitude.
His Lordship: What do you mean by that? Low
enough to give him—?
A. Accurate vision.
Q. Observation of the strip?
A. Yes.
He is then referred to the experience which the appellant
had in discovering Nicholas and his workmen putting asphalt on the large
concrete strip on which he had proposed to land, and he gave the following
evidence as to what he would have done :
Q. What do you say you would have done if confronted with
the same situation?
A. Coming in I would have carried out a dummy run of the
landing strip that was into the wind, finding out those vehicles and workmen on
that strip I would have carried out another circuit over the same area at a low
altitude. After a while on the next dummy run, if the workmen and vehicles were
still on the runway I would have carried out a second dummy run, and a third
dummy run, and if they were still there if in any hurry to get out I would have
used the other runway, the grass one.
In cross-examination, however, he explains the above.
Q. Coming down to conditions in Saskatoon, assuming you were
coming in on the hard surface runway and you saw some men there, tell us what
you think the pilot should have done.
A. I have done that.
[Page 611]
Q. And you think he should have waved or signalled to the
men?
A. Yes.
Q. Now, is it true that one or two courses would be open to
him: either to signal to the men, or choose an alternative landing ground?
A. That is right.
* * *
Q. Supposing there were two strips, both in the same
direction and the pilot saw one strip he could land on, would it be ordinary
practice for him under those circumstances not to make a dummy run, but simply
just use the other runway?
A. Provided he had surveyed the other strip.
With respect to the height at which this survey should be
made, he had suggested, in chief, 100 feet from the ground. In
cross-examination he gave the following evidence :
Q. At what height should the dummy run be made?
A. It is up to the capabilities of the pilot and the
aircraft he is flying. Each pilot has his own capabilities.
Q. Let us put it this way. In light aircraft, at what height
would you say the dummy run should be made?
A. With skill a pilot can carry out a dummy run at one
hundred feet, provided there was no obstruction.
Q. But a slightly less experienced
pilot, he could do that higher, is that it?
A. Yes.
Q. Would you say that he could fly at six hundred feet or
eight hundred feet?
A. It is up to the individual pilot.
Q. It is entirely up to the individual pilot?
A. Yes.
* * *
Q. I think the regulations require a pilot to cross the
airfield, do they not?
A. No.
Q. But it is a customary practice to cross an airfield?
A. To cross an airfield?
Q. To fly across an airfield?
A. Provided he carries out a circuit, that is to say, he
flies around the boundaries of the airport.
Q. Is it customary to fly across an airfield and then make a
circuit to land?
A. Provided you are flying down the live runway which is in
use.
Q. What I am getting at is this: If a pilot sees a runway
down on an airfield when he is making the circuit and there is no obstruction
on it, would it be necessary for him to make a dummy run over that particular
runway?
A. No, provided he had surveyed from one end of the runway
to the other, so he could observe the runway from one end to the other.
* * *
[Page 612]
Q. Would you make a dummy run at one hundred feet over these
hard surface runways?
A. Not exactly one hundred. I would use my own discretion.
You can sometimes see an airport ten miles out and would more or less figure in
the air, within two miles you can more or less survey the runway. It depends on
the visibility.
Q. You can see it from quite a distance?
A. Yes, according to the visibility.
Q. Would you say it is common for people to make a dummy run
at a very low altitude over airports?
A. No, it is not common. The only time you would really get
down low would be with bad visibility.
Q. If it is good visibility you would not get down low?
A. No, definitely. It is bad practice. You survey the runway
from the altitude you think you can observe all obstructions on the ground.
This evidence speaks for itself. There is other evidence to
the same effect.
Neal, flying instructor of the Des Moines
Flying Service, deposed:
Q. Do you know what the expression "dragging the
field" means?
A. Yes.
Q. What does it mean?
A. That means to come down to a low altitude to observe the
condition of the field as to landing. It is not a common practice at a
controlled airport or municipal airport.
* * *
Q. Now, can you tell me, as an experienced pilot, when you
drag a field, or drag an area?
A. That, sir, comes in landing at any other field, other
than an airport, where you don't know the condition previously.
Q. What would you say as to the practice of dragging an
airport from the safety factor?
A. Dragging an airport from the safety factor would depend
greatly on the amount of traffic going on around it. If there is not other
traffic maybe it is safe, if there is, it is entirely unsafe.
With respect to the use of his radio, the appellant made the
recognized call on the proper frequency as he approached the airfield, but
there was no "tower" on that field and he got no reply. There was a
"radio range" in operation at the field on a different frequency, and
the witness Young, called by the Crown, who was in charge, said that if such a
call had been made it would have been intercepted and answered by radio range,
and the pilot given all information about the field. The same witness admits,
however, that at the time when the appellant arrived at the field, he himself
was working on the ground.
[Page 613]
He had an assistant who was supposed to be at the
instrument, but Young admitted that this man might have been absent at the
time. The assistant himself was not called. I see nothing, therefore, in this
evidence to contradict the evidence of the appellant, or indicating any lack of
care on his part in this respect.
The appellant approached the field at a height of 2,500 feet
and crossed the boundary at 1,500 feet. The visibility was good. He saw the new
concrete runways and observed the wind sock which indicated that the wind was
still south-easterly. He turned to the north, decreased his elevation to 600
feet, turned again to the south-east and descended to 200 feet, when he had to
abandon his intention to land owing to the presence of the workmen on the
strip. He climbed back to 600 feet and turned left, presumably after crossing
the south limit of the field, turned north and went up along the east boundary.
He saw the building marked "Airport" and "to the west of this
building a grass landing strip marked available by conventional signs, wooden
markers at the ends and at the cross points of the runways dissecting the
landing strips." He made another left turn and then landed. As already
pointed out, there was nothing in the way of adequate or recognized marking to
indicate the presence of the ditch.
In my opinion, it is clear that Nicholas, who was left in
charge of the field to place whatever markings on it good practice called for,
failed in his duty to a person such as the appellant, and that this breach of
duty was negligence for which the Crown is responsible under s. 19(c) of
the statute.
In Dubois v. The King , Sir
Lyman Duff said:
My view has always been that where you have a public work,
in the sense indicated in the course of the preceding discussion, and any
injury is caused through the negligence of some servant of the Crown in the
execution of his duties or employment in the construction, the repair, the
care, the maintenance, the working of such public work, you are not deforming
the language of the section, as amended in 1917, by holding that such an injury
comes within the scope of the statute; that is to say, that it is an injury due
to the negligence of an employee of the Crown while acting in the scope of his
duties or employment "upon a public work." I have always thought,
moreover, that the principle ought not to be applied in a niggardly way and
that it ought to extend to the negligent acts of public servants necessarily or
reasonably incidental to the construction, repair, maintenance, care, working
of public works.
[Page 614]
Illustrations of the application of
this principle in particular instances are to be found in Hochelaga v. The
King , and Canada Steamships v. The
King . Merely be cause the neglect which
produces an injury is neglect of a duty owing to a master does not preclude its
being also neglect of a duty owing to a third person. Surely the brakeman,
whose duty it is in the course of his employment to throw a switch when he sees
an on-coming train, would be liable to passengers on the train injured by his
failure to do so. As stated in Halsbury, 2nd Ed., Vol. 23,
p. 588, the distinction between nonfeasance and misfeasance has no application
to the question of liability when the duty properly to do a particular act
omitted or improperly performed has been established. It is well settled that
negligence consists in a legal duty to exercise care and a failure in the
exercise of the care necessary in the circumstances of any particular case. In
my opinion, Nicholas owed a duty to persons in the position of the appellant
who were entitled to rely on the proper discharge of that duty in the marking
of the dangerous ditch; Howard v. The King .
I would allow the appeal with costs here and below, and
direct judgment in favour of the appellant Grossman in the amount found by the
learned trial judge, namely, $7,003.90.
The appeal of Sun should be quashed without costs.
Estey J.:—This
is an appeal from a judgment of the Exchequer Court
dismissing the appellants' action for damages arising out of injuries suffered
in the course of landing an aeroplane, piloted by the appellant Grossman, at
the Saskatoon airport on July 19, 1948.
The airport at Saskatoon is owned by His Majesty in the
right of the Dominion and operated through the Department of Transport. It is a
public airport, within the meaning of the Air Regulations contained in P.C.
2129, dated the 11th day of May, 1948, and passed under the authority of the Aeronautics
Act (R.S.C. 1927, c. 3). In 1946 contractors completed two large cement
runways and, for purposes of drainage, an open ditch upon which Grossman's
aeroplane was wrecked.
[Page 615]
The appellant Grossman is an experienced pilot, licensed by
the Civil Aeronautics Administration of the United States Department of
Commerce. He owned a 1948 model Stinson Station Wagon in which he had flown
into Canada, where he had landed at a few airports, and was at Prince Albert on
July 19, 1948, when he and the appellant Sun left for the city of Saskatoon.
Grossman had never seen the airport at Saskatoon, but had obtained a map of the
Saskatoon-Prince Albert area, upon which it was noted that Saskatoon had a
"public airport with beacon." In conversation with some men at the
Prince Albert airport Grossman was told that at Saskatoon "there was a
good airport" with "two new runways." He left Prince Albert with
the intention of landing upon one of these new runways.
Grossman describes July 19, 1948, as "a beautiful
day" upon which, at about 2:30 in the afternoon, he left Prince Albert.
Approximately 15 miles from Saskatoon he commenced to reduce his altitude from
about 3,000 to 2,500 feet above ground and, as he came to the airport, he came
down to 1,500 feet. Visibility was good and he had no difficulty in locating
the airport at Saskatoon.
His only effort, through his two-way radio, to communicate
with those in charge at the airport failed. He, however, proceeded to effect a
landing upon one of the two cement runways, but, in coming down, he observed
men working thereon. He thereupon regained altitude to 600 feet and, after
making "a left turn to the east, another turn north, along that east
boundary of the field", he came down on the grass landing strip and, while
taxiing toward the hangars, he observed, but too late, the ditch here in
question and there damaged his aeroplane.
This grass area was regularly used by lighter aeroplanes,
such as Grossman's, and it is not suggested that Grossman had not a right to
land thereon. It is contended that had he used due care in his attempt to land
he would have seen the ditch, or the warning flags, and avoided the injuries
suffered.
This grass area runs from the north fence southward to near
the hangars, a distance of approximately 4,000 feet. Grossman says that, though
he observed the length of this distance, he saw neither the ditch nor the flags
and,
[Page 616]
having regard to the position of the hangars, he landed farther south of the fence than the
evidence discloses all others landed. He explained that he did so because he
would not have so far to taxi. As a consequence, before coming to a stop, he
came upon the ditch, where he suffered the damage here claimed.
This ditch was constructed as, and was intended to remain,
an open ditch. It is 2,000 feet long, 48 feet wide at the top, 7 to 11 feet in
depth, and crosses the grass area about 2,800 feet south of the north fence and
some 1,300 feet north of the hangars.
The construction of the open ditch across the grass runway
constituted not only an obstruction within the meaning of the Air Regulations,
but "special circumstances" which called "for a prohibition to
land liable to be prolonged" and, therefore, should have been marked by
"a red square panel, placed horizontally, each side of which measures at
least 10 feet and the diagonals of which are covered by yellow strips at least
20 inches in width, arranged in the form of an X;" (The Air Regulations,
Part V, para. 13(d) (1)).
Nicholas, the airport maintenance foreman or airport manager,
was and had been in charge of this airport since 1945. He occupied that
position when this open ditch was constructed and recognized it as an
obstruction upon the landing area. As a consequence, he caused flags to be
placed upon both sides of this ditch. They were red woollen flags,
approximately 24 by 36 inches, and upon wooden poles 10 to 12 feet in height,
placed on both sides about 100 feet apart, but so staggered that along the
ditch a flag appeared at every 50 feet. This he did to warn aeroplanes
approaching the airport and vehicular traffic working thereon. It is not,
however, contended that these flags, so placed, constituted a compliance with
the foregoing provision, nor, indeed, would they have been sufficient to
clearly mark this obstruction within the general provision of Part V, para. 12,
of the Air Regulations.
Grossman's failure to persist in his effort to communicate
with those in charge of the airport and his failure to make a dummy run, both
of which may be desirable and even necessary in certain circumstances, were not
such upon this occasion. It was a clear day, with visibility good, and
[Page 617]
if this ditch was not apparent there was nothing to suggest
any difficulty in the making of a landing. Grossman did not see the flags, as placed,
but, had warnings, in compliance with the Air Regulations, surrounded this
ditch, there is every reason to conclude that he, making his observations at an
altitude of 600 feet, would have seen them. These provisions in the Air
Regulations should be regarded as the minimum requirement necessary to provide
reasonable warning to pilots as they fly over or across the airport with the
intent of effecting a landing. The flags here placed as a warning constituted
but a negligent attempt to comply with the regulations and was the direct cause
of the damage here claimed.
It is, however, contended on behalf of the Crown that,
though the negligence of its agents and servants in not providing adequate
warnings was the direct cause, the Crown is not liable for the damage suffered
by Grossman, notwithstanding the provisions of s. 19(c) of the Exchequer
Court Act:
19. The Exchequer Court shall also have exclusive original
jurisdiction to hear and determine the following matters:
* * *
(c) Every claim against the Crown arising out of any
death or injury to the person or to the property resulting from the negligence
of any officer or servant of the Crown while acting within the scope of his
duties or employement;
This provision, in its original form enacted in 1887, effected
a change in the common law under which the Crown was not liable for the damage
caused by the tortious acts of its agents and servants. After the amendment of
1917, Chief Justice Duff, in The King v. Dubois at
397, interpreted this section, and the subsequent amendment of 1938 does not
affect the relevancy of his statement:
My view has always been that where you have a public work,
in the sense indicated in the course of the preceding discussion, and an injury
is caused through the negligence of some servant of the Crown in the execution
of his duties or employment in the construction, the repair, the care, the
maintenance, the working of such public work, you are not deforming the
language of the section, as amended in 1917, by holding that such an injury
comes within the scope of the statute; that is to say, that it is an injury due
to the negligence of an employee of the Crown while acting in the scope of his
duties or employment "upon a public work." I have always thought,
moreover, that the principle ought not to be applied in a niggardly way and
that it ought to extend to the negligent acts of public servants necessarily or
reasonably incidental to the construction, repair, maintenance, care, working
of public works.
[Page 618]
The purpose of this public airport is to provide for the reception
and despatch of aeroplanes—not only those operated by the citizens of Canada,
but, having regard to the international agreements and conventions to which
Canada is a party, also those operated by citizens of other countries. In these
circumstances, the maintenance foreman or manager of this airport owed a duty,
not only to the Crown, but to those who, as Grossman, properly utilized this
airport. This distinguishes the case at bar from The King v. Anthony .
Unlike the soldier who fired the bullet in that case, the maintenance foreman
at this airport was acting within the scope of his employment. Then, unlike the
superior officers in the Anthony case, of whom it was said their duties,
as fixed by the military law relative to the supervision of their subordinates,
were "not intended to enure to the private benefit of the citizen"
and that such "an officer is not within the rule of respondeat superior
for the act of one within his command," the maintenance foreman, in
supervising the placing of these flags, was acting within the scope of his
employment and performing a duty that, having regard to the permission granted
to the public, was intended "to enure" to the benefit of those
properly using the airport.
The contention that under s. 19(c) of the Exchequer
Court Act the Crown is not liable for nonfeasance on the part of its agents and
servants does not arise in this case. The conduct of the maintenance foreman or
manager constituted a misfeasance, as that term has been understood and
interpreted in this Court. Not only did he supervise the placing of these flags
in the first place, but, as he stated, "they were replaced which was done
from time to time, to our best judgment." He was maintaining and replacing
them, which he negligently believed constituted a sufficient warning, in the
course of the performance of his duties at this airport and, as he did so, was
"acting within the scope of his duties or employment", within the
meaning of s. 19(c) of the Exchequer Court Act.
It is often difficult to determine whether non-action is
properly described as nonfeasance or, more appropriately, as an omission in the
course of the discharge or execution of a duty or undertaking and, therefore,
an improper performance, rather than a mere non-performance. In this
[Page 619]
case the maintenance foreman has negligently performed his
duty to provide adequate warnings within the meaning of the regulations
covering this ditch.
In The King v. Hochelaga Shipping & Towing Co.
Ltd. , before a jetty was completed about 50
feet of the upper portion of the outward end broke away during a heavy storm,
leaving the lower portion in position, but entirely submerged. The suppliant's
towboat struck this submerged portion and the consequent damages were awarded
against the Crown. Mr. Justice Crocket, writing the judgment of the majority of
the Court, stated, at p. 163 that the collision
was attributable to such negligence on the part of officers
and servants of the Crown, while acting within the scope of their duties or
employment upon a public work as rendered the Crown responsible therefor under
the provisions of s. 19(c) of the Exchequer Court Act. It was not a case
of mere non-repair or nonfeasance, but of the actual creation of a hidden menace
to navigation by a Department of the Government through its fully authorized
officers and servants in the construction of a public work.
Chief Justice Duff, at p. 155:
* * * that the submerged cribwork which, after the
superstructure of the jetty had been carried away, was left with nothing to
warn navigators of its presence, constituted a dangerous menace to navigation;
and that in leaving this obstruction without providing any such warning the
officials concerned are chargeable with negligence for which the Crown is
responsible by force of section 19(c) of the Exchequer Court Act.
Mr. Justice Davis, at p. 169:
While in one sense the acts complained of might be regarded
as an omission, in substance the result of the acts of those in charge of the
work of restoration of the jetty constituted misfeasance.
The maintenance foreman regarded this ditch as an
obstruction and negligently performed his duty to place markings thereon,
within the meaning of the Air Regulations, and thereby permitted this
obstruction to remain without any adequate warning of its presence to those
using the airport. It was a negligent performance of work undertaken by an
agent or servant of the Crown and, as such, constituted misfeasance.
Though in The King v. Canada Steamship Lines, Limited
, misfeasance and nonfeasance are not
discussed, it is, however, significant to note that Chief Justice Anglin,
writing the judgment of the Court, stated:
In taking the risk of allowing the continued use of the
wharf pending such report and in failing to give any warning to the officers of
the steamship company Brunet was in my opinion guilty of a dereliction of duty
[Page 620]
amounting to negligence on his part as an "officer or
servant of the Crown while acting within the scope of his duties or employment
upon a public work". (The King v. Schrobounst) ,
and his neglect entailed liability of the Crown for the consequent injuries in
person and property sustained by the passengers in attempting to land on the
slip on the 7th of July.
Grossman's appeal should be allowed and judgment directed
for $7,003.90, with costs throughout. This Court has no jurisdiction to
entertain the appeal of the appellant Sun, his claim being for $440 only. It
should, therefore, be quashed, but without costs.
Cartwright J.:—I
agree with the reasons and conclusion of my brother Kerwin, subject to one
reservation.
I do not think it necessary to decide in this appeal whether
we are bound by the judgment of the majority in The King v. Anthony ,
to hold that in order to create a liability of the Crown under section 19(c)
of the Exchequer Court Act it must invariably appear that some servant of the
Crown has drawn upon himself a personal liability to the suppliant. I wish to
reserve that question for future consideration if and when it may become
necessary to determine it. It may then appear that this proposition of law was
stated in wider terms than were necessary to the actual decision. It must be
remembered that the alleged breach of duty complained of in Anthony's
case was the failure of a non-commisioned officer in the military forces to
give certain orders to men under his command in the course of manoeuvres being
carried out in time of actual war, although not in the face of the enemy. It
may well be that under such circumstances the tests of liability differ from
those applicable to cases in which the Crown is engaged in carrying on an
activity which, if operated by an individual, would be an ordinary commercial
undertaking.
I would dispose of the appeals as proposed by my brother
Kerwin.
Appeal of appellant Grossman, allowed with
costs here and below. Appeal of appellant Sun quashed without costs, the Chief
Justice and Locke J. dissenting.
Solicitors for the appellants: Diefenbaker,
Cuelenaere & Hall.
Solicitor for the respondent: F. P. Varcoe.
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