Barratt v. Corporation of North Vancouver, [1980] 2 SCR 418

Supreme Court of Canada

Barratt v. Corporation of North Vancouver, [1980] 2 S.C.R. 418

Date: 1980-10-07

Robert Clark Barratt (Plaintiff) Appellant;

and

The Corporation of the District of North Vancouver (Defendant) Respondent.

1980: March 19; 1980: October 7.

Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard J.J.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Negligence—Highways—Municipal corporation—Appellant injured when thrown by bicycle as its front wheel fell into pothole in thoroughfare under municipality’s jurisdiction—Municipality authorized to maintain road but under no statutory obligation to do so—Municipal Act, R.S.B.C. 1960, c. 255, s. 513(2).

The appellant was injured in October 1973, when he was thrown from his bicycle as its front wheel fell into an unmarked, rain-filled pothole on a heavily travelled thoroughfare within the respondent municipality. The road, which had not been resurfaced since 1960 when the municipality assumed responsibility for it, was being reconstructed at the time but construction in the particular block in which the accident occurred had not yet started. The municipality’s well-organized system of road inspection called for an inspection of all roads every fortnight. The pothole, which had been formed by the normal wear and tear of traffic, did not exist when the street had been inspected one week before the accident.

At trial, the municipality was held to be under a duty to institute a more or less constant inspection and to make provision for the prompt repair of potholes before they became dangerous. The Court of Appeal allowed the municipality’s appeal and held that the determination of the frequency at which inspections should be made was a matter of policy to be decided by the municipality in its discretion. Although both nuisance and negligence were alleged at trial, only the question of negligence was in issue in this Court.

Held: The appeal should be dismissed.

Under subs. 513(2) of the Municipal Act, the municipality had authority to lay out, maintain and improve highways, but was under no duty to maintain its highways. The method of exercising its power to maintain the road was a matter of policy to be determined by the municipality itself and the municipality could not be

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held to be negligent because it formulated one policy of operation rather than another. If, however, its servants had acted negligently in the implementation of its policy, causing damage, liability could have arisen. The municipality was under no duty to institute a system of continuous inspection and immediate repair to ensure that no possible damage could occur from the existence of a pothole and, in the absence of such a system, was not liable if damage did occur. As no negligence was shown in the actual performance of the municipality’s planning or policy, the appellant’s claim failed.

Anns v. London Borough of Merton, [1977] 2 All E.R. 492; Kent v. East Suffolk Rivers Catchment Board, [1940] 1 K.B. 319, rev’d [1941] A.C. 74, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of Aikins J. Appeal dismissed.

B.A. Crane, Q.C., for the plaintiff, appellant.

George S. Cumming, Q.C., and Brian Joyce, for the defendant, respondent.

The judgment of the Court was delivered by

MARTLAND J.—The appellant was injured on October 11, 1973, when he was thrown from his bicycle as its front wheel fell into an unmarked pothole on Marine Drive, a road within the respondent municipality (“the Municipality”). At trial, the appellant alleged both negligence and nuisance, however, only the question of negligence is in issue in this Court. The appellant succeeded at trial. The trial judgment was reversed by the Court of Appeal.

The circumstances surrounding the appellant’s accident were related by the trial judge as follows:

Marine Drive is a heavily travelled thoroughfare in North Vancouver. It runs generally east and west. At and near the point where the plaintiff fell, the Drive is level. At about 11:45 am., on the 11th October, 1973, the plaintiff was riding his bicycle in a westerly direction on Marine Drive. He passed through the intersection of Pemberton and Marine and then entered the 1200 block.

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The pothole into which the plaintiff rode his bicycle was about forty feet to the west of the north-west corner of the intersection through which the plaintiff had ridden. The pothole was in the travelled portion of the roadway used by vehicular traffic. It was a foot or so to the south of the north side of the travelled part of the roadway.

It was a dull day and had been raining. The road surface in the general area where the plaintiff fell was in poor condition. There were many undulations made by minor depressions in the road surface which at the time were filled with water. The pothole was oval in shape and it was a little longer than its width; it was 18 to 20 inches wide and about 12 inches deep. The long axis of the pothole ran in the same direction as the roadway… At the time the plaintiff rode into the pothole it was filled with dirty water.

I am satisfied that the pothole, filled as it was with dirty water, was indistinguishable from many other puddles in shallow depressions and undulations of the surface of the roadway, which were clearly visible as the plaintiff rode along but did not present any danger.

Marine Drive was at one time classified as a main or arterial highway. As such, construction and maintenance were the responsibility of the provincial Department of Highways. The Department of Highways resurfaced Marine Drive in 1960. In 1961, Marine Drive was declassified as a main highway and as a result the Municipality assumed the same responsibility for it as it had for other streets in the Municipality. The 1200 block of Marine Drive, where the pothole was located, had not been resurfaced since 1960.

The trial judge found that the pothole which caused the appellant’s accident was the product of the ordinary wear and tear of traffic. He held that it did not come into being because of any negligence on the part of the Municipality. These findings are not contested by the appellant.

At the time the appellant was injured, the Municipality had a project under way for the reconstruction of Marine Drive. An eleven block stretch of the street, which included the 1200 block, was marked with construction signs at both ends. The reconstruction project included work with storm sewers, reinstallation of some water mains, instal-

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lation of street lighting, construction of sidewalks and resurfacing the roadway itself. Work had been done both to the east and to the west of the 1200 block but no construction had yet been done in that block itself.

The 1200 block of Marine Drive was, at the time of the accident, in a poor state of repair. Mr. Harry Whitmore, the Municipality’s maintenance co-ordinator, testified that the whole of Marine Drive from MacKay Street to Capilano Road was badly in need of resurfacing. He said that potholes were forming all the time in that part of Marine Drive. Mr. Whitmore acknowledged that a pothole filled with water could be very dangerous and said that, if it had been known that there was a pothole such as the one in issue here, a warning sign would have been put up. The evidence establishes that the Municipality did not know of the existence of the particular pothole which gave rise to this case.

The Municipality had a well-organized system of road inspection. Two highway inspectors were employed and the Municipality was divided, for inspection purposes, into two districts. It was the duty of the inspectors to travel all the roads in their assigned district once in each two week period. On some roads the Municipality tried to inspect more frequently than once every two weeks. The evidence does not show that Marine Drive was one of those roads. It was the duty of the inspectors to look for any defects in road surfaces, or damage of any kind. The inspectors, on finding damage, could either report the damage by way of requisition to have the repair work done or, in the case of a pothole, they could fix it themselves with material they carried.

The area of Marine Drive in question in this appeal was inspected on October 4, 1973, one week before the appellant suffered his injuries. The appellant does not suggest that this inspection was made improperly or negligently.

Under the Municipal Act, R.S.B.C. 1960, c. 255, a municipality has power to maintain and

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repair highways but no duty to do so. The relevant provisions of the Municipal Act are reproduced below:

513. …

(2) The Council may

(a) lay out, construct, maintain, and improve highways or any portion thereof;

…

(d) clean, oil, and water highways, and provide lighting for highways, and do such other things as are necessary for the safe use and preservation of highways;

(e) authorize the Engineer or other official at his discretion to temporarily close a highway or part thereof to traffic, or to control traffic, during the time work is in progress.

The particulars of negligence alleged in the statement of claim are as follows:

(a) allowing an excavation to remain while carrying out improvement or repairs to the said highway such that if it rained the excavation would be concealed and constitute a danger to persons lawfully using the said highway and might reasonably be expected to cause serious injury if not filled in or baracaded [sic] to prevent the passage of bicycles, motor vehicles and pedestrians.

(b) leaving an excavation unguarded and failing to give warning of the dangerous condition of the said highway.

(c) failing to inspect the said highway regularly or at all and to take reasonable or any care with respect thereto.

The appellant also alleged in para. 5:

The said highway was not repaired and was at all material times in a defective and dangerous condition with the knowledge or means of knowledge of the Defendant in breach of its statutory duty to repair and keep in repair the said highway.

Dealing with paras. (a) and (b) of the particulars, the trial judge said:

Particulars (a) and (b) of the negligence alleged are to the effect that the pothole was an excavation or was caused by an excavation. In the averment of nuisance it is alleged that the “excavation constituted a nuisance”.

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The plaintiff has not proved these averments. The plaintiff has not proved that the pothole came into being because of any excavating work or any other kind of work done by the defendant. I am satisfied that the pothole developed from the ordinary wear and tear of traffic.

With respect to para. (c) of the particulars, it should be noted that the trial judge found that the Municipality had a well-organized system of road inspection, the nature of which has already been described. In the course of the following passage from his reasons, the trial judge refers to the allegation made in para. 5 of the statement of claim:

The defendant’s routine maintenance in the 1200 block undoubtedly included filling in many potholes. As will appear, potholes were forming all the time in the stretch of roadway with which I am concerned. There is no evidence to establish that the pothole into which the plaintiff tumbled was other than a pothole which came into being a short while before the plaintiff fell into it. That is to say, there is no evidence that the pothole was one of long standing which had been previously repaired by the defendant. Thus, the plaintiff's case does not rest on the proposition that the defendant municipality had repaired the pothole by filling it in and did so negligently. I am unable to find that the pothole came into being because of any negligence on the part of the defendant. However, the case against the municipality in negligence does not rest on this base.

By paragraph 5 of the statement of claim, it is alleged that the defendant municipality was subject to a statutory duty to repair. In my view, it was under no such duty. Under the Municipal Act (R.S.B.C. 1960 c. 255) a municipality has power to maintain and repair highways but no duty to do so is imposed.

Notwithstanding these findings, the trial judge held that the Municipality was liable to the appellant on the grounds of negligence. The basis for this conclusion is found in the following passage from his reasons:

The plaintiff’s case does not depend on the municipality being subject to a duty, statutory or otherwise, to keep its streets in repair. The duty invoked is that the defendant, in view of its knowledge of the danger inherent in the situation, should have taken some steps to ensure that drivers and riders of vehicles using Marine

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Drive were not injured because of any of the potholes which were forming all the time and which constituted dangerous traps when filled with water. Granted the municipality was under the duty which I have just stated, then that duty was not discharged by its inspection system because under that system the frequency of inspection was not sufficient to cope with the known risk. Again, granted the duty stated, the plaintiff’s case is that there were a number of quite reasonable steps which the municipality could have taken in the exercise of its powers to protect users of Marine Drive from injury. One such step, of course, would be for the municipality to have instituted a more or less constant inspection in the 1200 block on Marine Drive and to have made provision for prompt repair of potholes before they became dangerous. Short of this, there being no absolute duty to repair, a much more frequent system of inspection, coupled with a system of marking dangerous potholes in some way by a sign, red flag, or a barricade, might well have sufficed to protect users of Marine Drive from the known danger. The inspectors to whom I have referred in fact put warning signs out to protect the public in respect to defects that they could not immediately repair.

He said, in a later passage:

In the present case, the defendant municipality must be taken to have known of the actual danger because it new that potholes were forming all the time in the 1200 block on Marine Drive and that in wet weather those potholes could be dangerous.

In substance, the finding of the trial judge is that the inspection system adopted by the Municipality was inadequate because it did not discover the pothole which actually caused the accident in time to permit the institution of safeguards which would have prevented the accident. This conclusion is reached, despite the fact that, as already mentioned:

(1) The trial judge found that the Municipality had a well-organized system of road inspection.

(2) The trial judge found that “There is no evidence to establish that the pothole into which the plaintiff tumbled was other than a pothole

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which came into being a short while before the plaintiff fell into it”.

(3) The evidence established that the area of Marine Drive in question had been inspected on October 4, 1973, one week before the appellant’s accident.

(4) There was no suggestion that the inspection was made improperly or negligently.

The duty imposed on the Municipality was, therefore, as described by the trial judge, “to have instituted a more or less constant inspection in the 1200 block on Marine Drive and to have made provision for the prompt repair of potholes before they became dangerous”.

The Court of Appeal did not agree with the trial judge’s view that the Municipality must be taken to have known of the actual danger which caused the accident simply because it knew that potholes were forming on Marine Drive in the 1200 block. Robertson J.A., who delivered the reasons of the Court, said:

The fact that potholes were forming all the time did not itself constitute an “actual danger”. For several blocks and over a considerable period of time the road had been dotted with countless depressions that represented potential potholes, and from time to time potholes did develop; but there is a complete lack of evidence that before 11th October 1973 any injury to anyone, motorist or bicyclist, had resulted from the formation of a pothole, even though the road was heavily travelled. The actual danger here was the unusually large pothole filled with rainwater that caused the plaintiffs mishap. If the Municipality is to be held liable here, it cannot be because it knew that dangerous potholes could develop, or because it knew that the pothole in question had developed—Aikins, J.… held that the defendant did not know of the existence of that pothole. Liability can arise only if the Municipality should have known of its existence.

The Municipality should have known of the existence of the pothole only if it should have made more frequent inspections of the road than it did.

Relying upon the principles stated in the judgment of the House of Lords in Anns v. London

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Borough of Merton[2], Robertson J.A. held that the determination of the frequency at which inspections should be made was a matter of policy to be decided by the Municipality in its discretion. Acting within the power given to it by subs. 513(2) of the Municipal Act, the Municipality had exercised its discretion to inaugurate a system of road inspection and to determine the extent of such inspection. Whether the authorities in so exercising their discretion struck a sound balance between the claims of efficiency and thrift was not a question for the court to decide. Robertson J.A. therefore concluded that the appeal of the Municipality should be allowed.

I agree with the conclusion reached by the Court of Appeal. The Municipality, under the provisions of subs. 513(2), had authority to lay out, construct, maintain and improve highways. Unlike the provisions of some other similar statutes, no duty was imposed upon the Municipality to maintain its highways.

The highway which is involved in these proceedings was resurfaced by the provincial Department of Highways in 1960. The Municipality decided to resurface Marine Drive. An eleven block stretch of that road, which included the 1200 block, was marked with construction signs at both ends. Work had been commenced, prior to the accident, both to the east and to the west of the 1200 block, but at that time no resurfacing had been done in the 1200 block. Traffic on Marine Drive was permitted to continue, but the Municipality conducted what the trial judge called a “well-organized system of road inspection”, which has already been described.

The trial judge reviewed the appellant’s allegations of negligence in the passage from his reasons which I have cited earlier which, although not expressly, he appears to adopt.

He says that in view of the knowledge of the Municipality “inherent in the situation”, the Municipality “should have taken some steps to ensure that drivers and riders of vehicles using Marine Drive were not injured because of any of the

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potholes which were forming all the time and which constituted dangerous traps when filled with water”. (The emphasis is mine.)

If the trial judge is here stating that the Municipality was an insurer against injury resulting from “any of the potholes”, he is defining too high a duty and the statement cannot be supported.

He says that the frequency of inspection was not sufficient to cope with the known risk and goes on to say that the Municipality could have instituted “a more or less constant inspection in the 1200 block on Marine Drive and to have made provision for the prompt repair of potholes before they became dangerous”.

As Robertson J.A. pointed out, although for several blocks and over a considerable period of time the road had been dotted with countless depressions that represented potential potholes, there was a complete lack of evidence that before October 11, 1973, any injury to anyone had resulted from the formation of a pothole even though the road was heavily travelled.

The injury to the appellant resulted from a pothole which had not been disclosed by an inspection made one week prior to the accident. In imposing a duty of constant inspection and immediate repair, the trial judge is again seeking to make the Municipality an insurer against damage resulting from the existence of a pothole.

The trial judge then goes on to say that, there being no absolute duty to repair, there should have been “a much more frequent system of inspection, coupled with a system of marking dangerous potholes—” He concedes that the Municipality’s inspectors did put warning signs in respect of defects which they could not immediately repair. His criticism of the conduct of the Municipality is therefore as to frequency of inspection. In essence, he is finding that the Municipality should have instituted a system of continuous inspection to ensure that no possible damage could occur and holds that, in the absence of such a system, if damage occurs, the Municipality must be held liable.

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In my opinion, no such duty existed. The Municipality, a public authority, exercised its power to maintain Marine Drive. It was under no statutory duty to do so. Its method of exercising its power was a matter of policy to be determined by the Municipality itself. If, in the implementation of its policy its servants acted negligently, causing damage, liability could arise, but the Municipality cannot be held to be negligent because it formulated one policy of operation rather than another.

The position of the Municipality is well stated in the judgment of du Parcq L.J. in the Court of Appeal in Kent v. East Suffolk Rivers Catchment Board[3], at p. 338:

The law would perhaps be more satisfactory, or at any rate seem more satisfactory in some hard cases, if a body which chose to exercise its powers were regarded as being in exactly the same position as one upon which an Act of Parliament imposed a duty. On the other hand, it must be remembered that when Parliament has left it to a public authority to decide which of its powers it shall exercise, and when and to what extent it shall exercise them, there would be some inconvenience in submitting to the subsequent decision of a jury, or judge of fact, the question whether the authority had acted reasonably, a question involving the consideration of matters of policy and sometimes the striking of a just balance between the rival claims of efficiency and thrift.

Du Parcq L.J. was dissenting in the Court of Appeal, but the Court of Appeal judgment was reversed in the House of Lords[4]. Favourable reference to this statement was made by Lord Wilber-force in the Anns (supra) case at p. 501.

My conclusion is that the trial judge sought to impose upon the Municipality too heavy a duty, that the determination of the method by which the Municipality decided to exercise its power to maintain the highway, including its inspection system, was a matter of policy or planning, and that, absent negligence in the actual operational performance of that plan, the appellant’s claim fails.

I would dimiss the appeal with costs.

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Appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Doig, Baily, Proceviat, McLean & Greenbank, Burnaby.

Solicitor for the defendant, respondent: Bruce E. Emerson, North Vancouver.