O'Rourke et al. v. Schacht, [1976] 1 SCR 53

Supreme Court of Canada

O’Rourke et al. v. Schacht, [1976] 1 S.C.R. 53

Date: 1974-12-19

Glenn O’Rourke, J. Bruce Johnston, Thomas Boyd and Eric Silk (Defendants) Appellants;

and

Cammie Irvin Schacht (Plaintiff) Respondent.

1974: February 7; 1974: December 19.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Motor vehicle—Highway accident—Statutory duty of police to ensure safety of public after a previous accident—Liability of police officer in damages—Vicarious liability of Commissioner—The Police Act, R.S.O. 1970, c. 351, ss. 3(3)(a), 46, 47.

Police—Duty of care after highway accident—Statutory duty—Failure to take adequate precautions to warn traffic of hazard—Failure to notify Highway Department timeously—The Police Act, R.S.O. 1970, c. 351, ss. 3(3)(a), 46, 47.

The Department of Highways, acting through a construction firm, had constructed a large cement culvert and the excavation across the highway in which the pipe had been laid was still open. A detour had been provided to the west of the highway and a “Road Under Construction” sign erected. There were five further signs on the road shoulder viz. a Project sign, a large black sign three feet by six feet in size with, in black on yellow reflectorized lettering, “Culvert Construction, One-half Mile Ahead”, another large black sign similar in size and design with “Culvert Construction—Quarter Mile Ahead”, a four feet by four feet sign with, in black on yellow, “Detour—1000 Feet”, and finally a sign bearing a yellow and black arrow indicating the direction of the detour above the words “Maximum 20”. The last sign had on top of it a flashing “Owl Light”. In front of the excavation, was a seven feet by seven feet sign bearing a large arrow, which sign also had a flashing light. A car knocked down the seven by seven foot sign, leaped the excavation, crashed into a similar sign on the other side, rolled over and was demolished. Some time later, after the police had cleared the accident site and departed the scene but before the Department of Highways had reinstated the signs, the respondent Schacht drove into the excavation where he was found injured in his car by

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a police officer who had returned to the accident scene to look for a camera lens cover. The first accident occurred at about 12:30 a.m., a town policeman arrived on the scene prior to 12:45 a.m., the first Provincial Police constable at 1:15 or 1:20 a.m. and Corporal Johnston at 1:44 a.m. but the Department of Highways was not notified until 2:55 a.m. or shortly thereafter. Had that Department been notified earlier it seemed that the signs would have been replaced long before the second accident. The respondent sued the Ontario Provincial Police Commissioner, Corporal Johnston and two police constables basing the action against the police officers on negligence in failing to carry out their duties. The action was dismissed at trial where Fraser J. indicated that had there been liability he would have assessed fifty per cent negligence against the respondent, forty per cent against Corporal Johnston, ten per cent against Constable Boyd and nil against Constable O’Rourke. The Court of Appeal allowed the subsequent appeal, giving judgment for fifty per cent of the amount of the damages as found at trial but varying the responsibility as between Corporal Johnston and Constable Boyd. The Commissioner was liable for the fifty per cent adjudged against his officers.

Held (Martland, Judson and Pigeon JJ. dissenting): The appeal of Thomas Boyd should be allowed, the appeals of J. Bruce Johnston and Eric Silk should be dismissed.

Per Laskin C.J. and Ritchie, Spence, Dickson, Beetz and de Granpré JJ.: Sections 3(3) (a) and 46 of The Police Act R.S.O. 1970, c. 351, place upon Provincial Police Officers certain duties owed, by judicial interpretation, not only to their superior officers and the Commissioner but to members of the public. Section 3(3) (a) imposes on a Provincial Police Officer the duty to attempt to make the road safe for traffic and the proper notification of possible road users of a danger arising from a previous accident and creating an unreasonable risk of harm. Corporal Johnston failed to secure the relocation of the warning signs and to notify timeously the Department of Highways and was rightly found liable. The subordinate officer was in a different position

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and should not be faulted for leaving to his superior the task of taking the necessary steps to protect traffic.

Per Martland, Judson and Pigeon JJ. dissenting: The circumstances of this case did not disclose a breach of statutory duty by Corporal Johnston. The duty of members of the Ontario Provincial Police Force are defined in s. 46 of The Police Act and the suggestion that there was a breach of the duty defined in para, (d) of s. 46(1) “generally to perform such duties as are from time to time assigned…” must fail because there was no evidence that Corporal Johnston had been assigned the duty of maintaining a highway or traffic patrol. There is in any event nothing in The Police Act to indicate an intention on the part of the Legislature to impose a liability on a member of the Force who fails to carry out a duty assigned to him under the statute. The Commissioner is only made vicariously liable for a tort committed by a member of the Force in the performance of his duty; the statute does not provide that the Commissioner is liable in damages if a member of the Force fails to carry out a duty assigned to him. At common law, none of the cases cited is authority for finding that Corporal Johnston in the present case owed a legal duty to the respondent.

[Dorset Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004; Haynes v. Harwood, [1935] 1 K.B. 146; Priestman v. Colangelo et al., [1959] S.C.R. 615; Dutton v. Bognor Regis Urban District Council, [1972] 1 Q.B. 373 referred to.]

APPEAL from a judgement of the Court of Appeal for Ontario[1] allowing in part an appeal from a judgment of Fraser J. at trial. Appeal of Thomas Boyd allowed, appeals of J. Bruce Johnston and Eric Silk dismissed, Martland, Judson and Pigeon JJ. dissenting.

B. Wright, and J.T. McCabe, for the appellants.

E.A. Cherniak, Q.C., for the respondent.

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The judgment of Laskin C.J. and Ritchie, Spence, Dickson, Beetz and de Grandpré was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on October 25, 1972. By that judgment, the Court of Appeal allowed in part an appeal from the judgment of Fraser J. after trial which was pronouned on December 7, 1971.

At the opening of the trial, a consent was filed for dismissal of the action without costs as against Her Majesty the Queen in right of the Province of Ontario, represented by the Minister of Highways for the Province of Ontario, and as against Cox Construction Company and Wallace Construction Company, so that these parties need not further concern us.

The action arose under the following circumstances. These require to be outlined in very considerable detail. In the fall of the year 1969, the Department of Highways for the Province of Ontario was engaged in a course of reconstruction of the culverts which ran beneath Provincial Highway No. 9 between the Town of Harriston and the Village of Teviotdale. At about 12:30 a.m. on Sunday, October 12, 1969, a motorist Blancke driving southerly on Highway No. 9 crashed into a large sign which shall be described hereafter in some detail, leaped across an excavation for a culvert under construction, crashed into a similar sign at the south side of the intersection, rolled over several times and his car was completely demolished. Blancke was very seriously injured and his passenger died as a result of the accident.

The physical situation prior to Blancke’s arrival was described most succinctly in the excellent reasons of Schroeder J.A. given in the Court of Appeal and I quote it hereafter:

The Department of Highways, acting through a construction firm, had constructed a large cement culvert at the point where the accident occurred and, while the culvert had been installed, the excavation across the highway in which it had been laid was still open. A detour had been provided around the culvert to the west of the highway. On highway no. 9 a “Road Under Construction” sign had been placed on the shoulder of the road just south of Harriston. South of the latter sign

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was a “Project” sign containing the name of the contractor and the contract number. Proceeding southerly on highway no. 9 there followed a large sign 3 feet by 6 feet in dimension with black lettering on a yellow reflectorized background on which were painted the words “Culvert Construction One-half Mile Ahead”. South of the lastly mentioned sign was another of the same size and similar to it in other respects, which contained the words “Culvert Construction—Quarter Mile Ahead”.

There was a fifth sign, 4 feet by 4 feet in size, containing in black lettering against a yellow background the words “Detour—1000 Feet”. Two hundred feet north of the point of commencement of the detour was a sixth sign on which was painted a yellow and black arrow indicating the direction taken by the detour. Below these words were black letters on a white background reading “Maximum 20”. On top of this sign was a small flashing light known as an “Owl Light”. All these signs were placed on the shoulder of the road.

Directly in front of the excavation on both the north and south sides thereof there had been a large sign, 7 feet by 7 feet in dimension, which had a yellow background. Around the outer edges of this sign were yellow and black twelve inch squares, and there was a large black arrow pointing due west in the direction of the detour. Mounted on top of this last sign was a flashing “Owl Light”. The shoulders of the detour itself had been marked with a number of hazard markers, 12 inches by 36 inches in size. These markers were painted yellow with diagonal black stripes and were described as being “shoulder high”.

As I have said, Blancke’s vehicle knocked down both of the large square signs which stood in the middle of the road, that at the north side of the excavation as well as that at the south. The sign which had been on the north side of the excavation, that is the one which the car driven by Blancke first struck, was knocked into the excavation and although the flasher light thereon seemed to have been still operating, it was operating down in a hole and of course could not be seen by anyone approaching. William Thackery, a constable on the Police Force of the Town of Harriston, was informed of this accident by a motorist very shortly after 12:30 a.m., or even perhaps a few moments before. Since the accident occurred on a provincial highway which was controlled by the Ontario Provincial Police, he at once relayed the message through to the answering service of the Ontario Provincial Police at Mount Forest, the

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nearest Ontario Provincial Police Depot. He received back an answer that the Ontario Provincial Police did not have a car in the immediate vicinity and suggested that he should go out to the scene of the accident. Thackery at once left for the scene driving south on Highway No. 9. It happened that his home was between the Town of Harriston and the scene of the accident so that he passed his own home and also a service station at the corner of Highway No. 9 and County Road No. 5, to which I shall make reference hereafter, arriving at the scene between 12:30 and 12:45 a.m. Thackery was the first police constable at the scene.

Thackery left his car about 150 feet north of the culvert and left his flasher light operating. In addition, he gave a light to a passing motorist and had that passing motorist go to the south of the culvert and stop the north bound traffic. The first Ontario Provincial Police constable arrived at the scene at about 1:15 or 1:20 a.m. and Corporal William Johnston, who was in charge of the police work, arrived at 1:44 a.m. Thackery remained at the scene until 2:30 a.m. and Corporal Johnston and his fellow Ontario Provincial Police constables were engaged in cleaning up the scene of the accident removing both the fatally injured passenger and the driver and in having wrecking trucks pull away the demolished automobile. Corporal Johnston did not leave the scene until 3:01 a.m. When Corporal Johnston departed, he left no constables on guard and the only lighting to indicate the occurrence of an accident was a series of small pot flares which had been placed at the scene before 3:01 a.m. and which had a maximum life of only twenty minutes.

Constable Thomas Boyd was another Provincial Police constable who had been on duty that night north of Harriston. At about 3:00 a.m. he was instructed to proceed to County Road No. 10 well south of the scene and south of Teviotdale to investigate there another accident which was described as being one entailing property damage only. Constable Boyd at once drove south on Highway No. 9 passing the scene of the construction where the accident had occurred and proceeded to investigate the other accident as he had been

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directed. Constable Boyd knew that an accident had occurred at this culvert excavation and he observed, as he drove south, that the very large sign with the flashing light which should have been immediately north of the culvert had been knocked down. He did not stop to take any steps for the further protection of the scene. On his examination for discovery, Constable Boyd was asked as to whether he had observed any flares burning but he did not make a direct reply. He was called as a witness for the defence and in cross examination, the question was put to him as to the situation when he passed:

Q. There were no cars, no persons, no lights?

A. No, sir.

Again:

Q. I put to you there was nothing to warn a person unfamiliar with the road, driving along that roadway, that when you got to the culvert there was a culvert and not a roadway?

A. Yes, that’s right.

And again:

Q. Oh well we know about the signs. There were signs that said detour and the sign with a wiggle on it but a man, the sign with the wiggle was about 200 feet back, but the man coming the last 200 feet would not have any way of knowing the road ended in a big hole would he?

A. No, sir.

I have, therefore, come to the conclusion that when Constable Boyd passed the scene southbound on the way to the other accident at 3:15 a.m., the flares had already burned themselves out and the fact that although there was construction there, that construction ended with a deep excavation all the way across the highway, was not in any way the subject of notification. I should add that Corporal Johnston notified the Department of Highways of the destruction of these two large signs for the first time at 2:55 a.m., that is six minutes before he left the scene.

The plaintiff, a young man who was living and working in London, Ontario, had intended to

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spend the weekend, it was Thanksgiving weekend, with his parents at Durham, north and east of the scene of this accident. He had broken his trip at Milverton and then gone from Milverton to Listowel with a friend to attend a dance and returned to Milverton to pick up his own automobile which he had left during the side trip to Listowel, and drive a young lady whom he had met that night to her home, which home was situated about three miles north of Harriston on Highway No. 9. The plaintiff did not know in detail the roads in the area and so he was guided by his passenger, the young lady, from Milverton through Listowel and Palmerston up to Harriston. This entailed leaving Palmerston on County Road No. 5 which ran approximately straight north and which came into Provincial Highway No. 9 a very short distance, perhaps less than a mile, south of the Town of Harriston. The plaintiff delivered the young lady to her home and spent some time sitting in conversation with her outside her home then left to return to Milverton where he intended to spend the night evidently with his friend. The young lady had warned him that he should watch for the right-hand turn from Highway No. 9 onto County Road No. 5 just south of Harriston but as he drove south on Highway No. 9 he missed the turn. The plaintiff almost immediately thereafter arrived at the scene of the construction, noticed the road was getting rough and observed only one sign, that is a sign upon which he noticed the word “Detour”. Although the plaintiff stated he did not notice it, that sign also bore the words “1000 feet” below the word “Detour”.

Realizing that he had lost his way, the plaintiff said that he cut his speed to about 30 to 40 miles an hour and was looking for a place where he could turn around and retrace his steps. His testimony continued: “And the next I recall, was waking up in the hospital.”

It is, of course, evident that the plaintiff drove his automobile into the same excavation as that into which Blancke had driven some three hours earlier. Due to the fact that the plaintiffs speed was a great deal less, the second accident, that involving the plaintiff, was not nearly so serious as

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the first. He was, however, injured and his automobile was very badly damaged. The actual moment of the occurrence of the accident of the plaintiff cannot be ascertained but Corporal Johnston had found, after he left the scene, that he had forgotten to pick up the lens cover for his camera and he returned so that he could find it. He arrived back at the scene at 3:52 a.m. to find the plaintiffs vehicle down in the excavation and the plaintiff sitting in it. No other officer had been at the scene at the time so that I think we may assume that the accident occurred at 3:52 a.m. or very shortly before that.

Constable Boyd while investigating the accident to which he had been directed on County Road No. 10, received word of the accident involving the plaintiff and went immediately to the scene of the latter accident. He arrived at 4:11 a.m. and found that two men from the Department of Highways were then present and that they had re-erected the two large signs. Since these Department of Highways employees came from Stratford, Ontario, and were only notified at 2:55 a.m. or shortly thereafter, to have arrived at the scene and had re-erected the signs by 4:11 a.m., that is, one hour and sixteen minutes, the Department’s attention to the matter was very prompt indeed. Had the Department of Highways employees been notified at 1:20 a.m., or even at 12:30 a.m. when the Ontario Provincial Police were first notified of the accident, it can be seen that one would have expected the signs to have been replaced long before the second accident, that is, the one involving the plaintiff here in this action, occurred.

On these facts, the plaintiff took action against Corporal Johnston, Constable O’Rourke (another constable in the Ontario Provincial Police who had been on the scene with Corporal Johnston), against Thomas Boyd, the constable of the Ontario Provincial Police who had passed the scene at 3:15 a.m., and against Eric Silk, Q.C., the Commissioner of the Ontario Provincial Police. The action against Commissioner Silk was taken by virtue of s. 47 of The Police Act, R.S.O. 1970, c. 351. Section 47 of the Statute reads as follows:

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47. (1) The Commissioner is liable, in respect of torts committed by members of the force in the performance or purported performance of their duties, in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and shall in respect of any such torts be treated for all purposes as a joint tortfeasor.

(2) The Treasurer of Ontario shall pay out of the Consolidated Revenue Fund,

(a) any damages awarded against the Commissioner in any proceeding brought against him by virtue of this section and any costs incurred by him in any such proceeding so far as not recovered by him in the proceedings; and

(b) subject to the approval of the Lieutenant Governor in Council, any sum required in connection with the settlement of any claim made against the Commissioner by virtue of this section.

The action against the police officers was, of course, based on allegations of negligence in failing to carry out their duties. Fraser J. reserved judgment after trial and in very careful reasons came to his conclusion. In so far as actual negligence is concerned, I quote and adopt those reasons as follows:

I will defer any discussion of the causation of the accident and of the legal responsibility of the police, but having discussed the facts to this stage I have no hesitation in finding that the police were grossly negligent in not leaving somebody at the scene or taking some active steps to protect other users of the highway. The delay in notifying the Department of Highways was also negligence on their part. Here and throughout I use negligence in its ordinary sense of failure to exercise reasonable care having regard to the circumstances. I am going to discuss later the question whether the police breached any duty owed by them to the plaintiff and are therefore liable in damages.

Fraser J., However, after an analysis of the relevant law, including the statutory provisions, came to the conclusion that neither the Provincial Police officers nor Commissioner Silk could be held liable in damages. He therefore dismissed the action against the defendants Johnston, O’Rourke, Boyd and Commissioner Silk but without costs. Had Fraser J. found there was liability, he would have assessed fifty per cent negligence against the

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plaintiff, forty against Corporal Johnston, ten per cent against Constable Boyd and nil against Constable O’Rourke.

The plaintiff appealed to the Court of Appeal and Schroeder J.A. gave the unanimous reasons for that Court. The Court of Appeal allowed the plaintiff’s appeal and gave him judgment for $5,743, that is, fifty per cent of the amount of the damages as found by the learned trial judge. Mr. Silk, as Commissioner, of course, was responsible for that full amount but as between Corporal Johnston and Constable Boyd, the Court of Appeal divided the responsibility eighty per cent to Corporal Johnston and twenty per cent to Constable Boyd. I shall refer hereafter to the special disposition as to Constable Boyd.

In his reasons, Schroeder J.A. quoted the following findings of fact which were made by the learned trial judge and which Fraser J. characterized as being abundantly supported by the evidence. I am of the same view.

(a) The large sign at the excavation was a very important one because it was erected on the road in the path of the oncoming motorists and was lighted with a flashing light.

(b) When the large sign was knocked down by the first accident neither it nor the flashing light would be visible to oncoming traffic, and when that sign was down the remaining warning signs were seriously inadequate for a hazard of the magnitude of this culvert on a Provincial Highway, leaving a very dangerous situation.

(c) When Corporal Johnston left the scene, there were no other policemen present, no arrangements were made with anyone else with respect to warning or marking the location and only 20 minute flares which were burning prior to the departure of Corporal Johnston were lit and no other special precautions were taken.

(d) When Constable Boyd passed the scene at 3:15 on his way to a non-urgent call, he saw the situation which subsisted and did nothing.

(e) The above failures of the defendants together with the delay in notifying the Dept. of Highways

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consisted of gross negligence on their part (negligence used in the non-legal sense).

(f) The Plaintiff was a very honest and frank witness who testified according to his best recollections and whose evidence was to be preferred to that of Constable Boyd.

(g) The plaintiff did not fall asleep.

(h) The plaintiff was not keeping a proper lookout and his negligence was a contributing factor to the collision.

(i) The negligence of the police officers continued to the time of the accident and was so intermixed and concurrent with that of the plaintiff that there should be an apportionment which he determined to be 50% upon the plaintiff and 40% upon the defendant Johnston and 10% upon the defendant Boyd.

As Fraser J. pointed out, there has been no authority cited either in the Court of Appeal or in this Court which has any exact application to the situation with which we are called upon to deal. There were some cases which were helpful and I shall refer to some of these and there are certain statutory provisions. Essentially, however, I adopt the words of Lord Diplock in Dorset Yacht Co. Ltd. v. Home Office[2], at p. 1058:

It will be apparent that I agree with the Master of the Rolls that what we are concerned with in this appeal “is...at bottom a matter of public policy which we, as judges, must resolve”.

The statutory enactment with which we are most concerned is The Police Act, R.S.O. 1970, c. 351. Section 3(3)(a) of that statute reads:

3. (3) The Ontario Provincial Police Force, in addition to performing the policing services prescribed in subsection 1, shall,

(a) maintain a traffic patrol,

(i) on the King’s Highway, except such portions thereof as are designated by the Minister, and

(ii) on such connecting links, within the meaning of The Highway Improvement Act, as are designated by the Minister;

Section 46 of the same statute provides:

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46. (1) It is the duty of the members of the Ontario Provincial Police Force, subject to this Act and the orders of the Commissioner,

(a) to perform all duties that are assigned to constables in relation to the preservation of the peace, the prevention of crime and of offences against the laws in force in Ontario and the criminal laws of Canada and the apprehension of criminals and offenders and others who may be lawfully taken into custody:

(b) to execute all warrants, perform all duties and services thereunder or in relation thereto that may, under the laws in force in Ontario, be lawfully executed and performed by constables;

(c) to perform all duties that may be lawfully performed by constables in relation to the escort and conveyance of convicts and other prisoners and mentally incompetent persons to and from any courts, places of punishment or confinement, hospitals or other places; and

(d) generally to perform such duties as are from time to time assigned to them by the Commissioner.

(2) Except under an agreement entered into under section 62, the Ontario Police Force shall not be charged with any duties under or in connection with any municipal by-laws.

I emphasize particularly para. (d) of the said s. 46.

It is, I think, apparent, that those two sections do place upon the Provincial Police officers certain specific duties. The question which remains is are those duties alone to their superior officers, the Commissioner, and to the Crown, or are they duties to citizens who might be injured by the non-performance or the negligent performance of those duties.

Schroeder J.A. approached the problem with what I may, with respect, characterize as a forthright and enlightened manner, when he said:

Police forces exist in municipal, provincial, and federal jursidictions to exercise powers designed to promote the order, safety, health, morals, and general welfare of society. It is not only impossible but inadvisable to attempt to frame a definition which will set definite limits to the powers and duties of police officers appointed to carry out the powers of the state in relation to individuals who come within its jurisdiction and protec-

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tion. The duties imposed on them by statute are by no means exhaustive. It is infinitely better that the courts should decide as each case arises whether, having regard to the necessities of the case and the safeguards required in the public interest, the police are under a legal duty in the particular circumstances.

and then concluded, after reference to certain cases, to the statutory provisions and to the evidence:

Looked upon superficially the passivity of these two officers in the face of the manifest dangers inherent in the inadequately guarded depression across the highway may appear to be nothing more than non-feasance, but in the case of public servants subject not to a mere social obligation, but to what I feel bound to regard as a legal obligation, it was non-feasance amounting to mis-feasance. Traffic officers are subject to all the duties and responsibilities belonging to constables. The duties which I would lay upon them stem not only from the relevant statutes to which reference has been made, but from the common law, which recognizes the existence of a broad conventional or customary duty in the established constabulary as an arm of the State to protect the life, limb and property of the subject.

In Haynes v. Harwood[3], the Court of Appeal in England allowed recovery by a constable for injuries suffered when he endeavoured to stop runaway horses owned by the defendants and which had run away due to the negligence of the defendants. It was held that the constable was not a mere volunteer and therefore not subject to the limitations on his right of recovery which would apply to a mere volunteer. At p. 162, Maugham L.J. said, speaking of the police:

In my opinion, they are not mere lookers-on when an accident takes place, or seems likely to take place; they have, I think, a discretionary duty to prevent an accident arising from the presence of uncontrolled forces in the street, if they are in a position to do so.

In Priestman v. Colangelo and another[4], this Court was concerned with the liability of a police officer who, in attempting to stop a thief fleeing in

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a stolen car shot at the tire of that car with the result that the bullet hit the fleeing driver rendering him unconscious and causing the stolen car to go out of control so that two pedestrians on the sidewalk were killed. Locke J., giving the judgment for the majority of the Court, said at p. 627:

In my opinion, the action of the appellant in the present matter was reasonably necessary in the circumstances and no more than was reasonably necessary, both to prevent the escape and to protect those persons whose safety might have been endangered if the escaping car reached the intersection with Pape Avenue. So far as Priestman was concerned, the fact that the bullet struck Smythson was, in my opinion, simply an accident. As to the loss occasioned by this lamentable occurrence, I consider that no cause of action is disclosed as against the appellant.

In these words, Locke J. enunciated a duty not only to the police officers’ superiors to capture the fleeing thief but a duty to persons on the highway to protect them from a well-nigh inevitable tragedy had the fleeing car thief not been stopped.

Cartwright J., as he then was, dissenting, found that the admitted duties of the policeman had been carried out carelessly with regard to the safety of other persons in the area.

I have already referred to Dorset Yacht Club v. Home Office[5]. There the Court was concerned with a situation where three officers had been placed in charge of some inmates of a Borstal institution who were on on an island nearby a yacht anchorage. The officers retired leaving the inmates unguarded. Seven of them broke out, took a yacht from the basin, damaged it and then collided with another yacht causing it very considerable damage in the collision. It was held, affirming the Court of Appeal, that the Borstal officers owed to the plaintiff yacht owners a duty to take such care as was reasonable in all the circumstances with a view to preventing the boys under their control causing damage to the plaintiffs’

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property if that was a happening of which there was a manifest risk if they neglected that duty. In that appeal, the House of Lords was much concerned with the issue arising from the intervening conduct of the boys, intervening in the sense that it operated in time between the negligence of the custodial officers and the damage to the yachts. With that subject, we are not here concerned as we are dealing with negligence of the officers which resulted directly in injury to the plaintiff. There are, however, some portions of the judgment of particular interest and I quote Lord Reid from pp. 1026 and 1027:

The first would at one time have been a strong argument. About the begining of this century most eminent lawyers thought that there were a number of separate torts involving negligence, each with its own rules, and they were most unwilling to add more. They were of course aware from a number of leading cases that in the past the courts had from time to time recognized new duties and new grounds of action. But the heroic age was over; it was time to cultivate certainty and security in the law; the categories of negligence were virtually closed. The Attorney General invited us to return to those halcyon days, but attractive though it may be, I cannot accede to his invitation.

In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v. Stevenson [1932] A.C. 562, may be regarded as a milestone, and the well-known passage in Lord Atkin’s speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.

…

But I can see nothing to prevent our approaching the present case with Lord Atkin’s principles in mind.

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Even so, it is said that the respondents must fail because there is a general principle that no person can be responsible for the acts of another who is not his servant or acting on his behalf. But here the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind.

The situation where the plaintiff was damnified by the negligent performance by an officer of a duty cast upon him by statute or, in fact, by non-performance of it, was also considered in the Court of Appeal in England in Dutton v. Bognor Regis Urban District Council[6]. There, it was a duty of a building inspector under the relevant by-laws to inspect, inter alia, the foundations for a new house. The inspector, when notified that the trenches were ready, came and he passed the trenches. As it turned out later, the foundation was so defective that the building sank and the owner, who had purchased from the builder, suffered very serious damages. The owner sued the builder and also the Bognor Regis Council. Lord Denning said at p. 392:

In my opinion, the control thus entrusted to the local authority is so extensive that it carries with it a duty. It puts on the council the responsibility of exercising that control properly and with reasonable care. The common law has always held that a right of control over the doing of work carries with it a degree of responsibility in respect of the work.

And at p. 397, he said:

This case is entirely novel. Never before has a claim been made against a council or its surveyor for negligence in passing a house. The case itself can be brought within the words of Lord Atkin in Donoghue v. Stevenson; but it is a question whether we should apply them here. In Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, Lord Reid said, at p. 1023, that the words of Lord Atkin expressed a principle which ought to apply

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in general “unless there is some justification or valid explanation for its exclusion.” So did Lord Pearson at p. 1054. But Lord Diplock spoke differently. He said it was a guide but not a principle of universal application (p. 1060). It seems to me that it is a question of policy which we, as judges, have to decide. The time has come when, in cases of new import, we should decide them according to the reason of the thing.

And further at p. 398:

Finally I ask myself: If we permit this new action, are we opening the door too much? Will it lead to a flood of cases which neither the council nor the courts will be able to handle? Such considerations have sometimes in the past led the courts to reject novel claims. But I see no need to reject this claim on this ground. The injured person will always have his claim against the builder. He will rarely allege—and still less be able to prove—a case against the council.

Stamp L.J. said at p. 411:

Persons who might become the purchaser of a house built upon an insecure foundation are in my judgment so closely and directly affected by the act of a local authority in passing or refusing to pass the foundations as secure, that the authority ought reasonably to have them in contemplation as being affected when the local authority applies its mind to question whether it should or should not do so. It is common ground that the defects in the foundations in the instant case were, as they were bound to be, concealed: and no reasonable inspection of the property by any purchaser would disclose the defects, which could only become manifest as the foundations started to settle: and unless the local authority was carrying out an academic exercise, for what other purpose, except primarily to protect future owners of the house, was the exercise performed? And if this case does not fall precisely within any other authority, the court must have in mind what Lord Macmillan said in a much cited passage in his speech in Donoghue v. Stevenson [1932] A.C. 562, 619:

The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgement must adjust and adapt itself to the changing circum-

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stances of life. The categories of negligence are never closed.

If, in the instant case, the defendant council ought reasonably to have had one in the position of the plaintiff in contemplation, as one who might be injured by what it did, I ask the rhetorical question, why should not the local authority be liable to the plaintiff for the injury which she has suffered?

Applying these expressions of the modern view of liability to the facts of the present case, I point out that s. 3(3) of The Police Act makes it mandatory that the Ontario Provincial Police maintain a traffic patrol and, with respect, I agree with Schroeder J.A. when he said:

There is a definite purpose in requiring the police to patrol the highways under their jurisdiction, namely, to ensure that traffic laws will be obeyed, to investigate road accidents, and to assist injured persons. All this is directed to the prevention of accidents and the preservation of the safety of road users.

I have the same view as to the duty of a police officer under the provision of the said s. 3(3) of The Police Act in carrying out police traffic patrol. In my opinion, it is of the essence of that patrol that the officer attempt to make the road safe for traffic. Certainly, therefore, there should be included in that duty the proper notification of possible road users of a danger arising from a previous accident and creating an unreasonable risk of harm.

In the present case, we have a very dangerous piece of construction entailing a deep trench right across the road and that construction had been most adequately guarded by the construction companies involved by the erection of a series of signs. These signs, five in number, north of the trench across the road, culminated in a very large sign some seven feet square with a flashing light over it. That sign alone stood in the centre of the highway. All the others were off on the right hand shoulder or in the ditch. It was that sign which not only stood in the centre of the road, and to all purposes

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blocked traffic down the centre of that road but which pointed the direction which the motorists should drive in order to follow the detour. It was these two great signs, both the northerly one which faced the plaintiff as he drove south on highway No. 9 and the southerly one which, although facing away from him, must have stood high up and been very visible, which were knocked down in the first accident. It was these two signs which no police officer made any attempt to replace. Although Constable Thackery, when he first arrived, instantly and with no difficulty, guarded those on the highway from a second accident by placing his cruiser some 150 feet north of the culvert with a flashing light and having a passing motorist also flash a light stopping traffic coming north from south of the detour, and although Corporal Johnston was there from 1:44 a.m. to 3:01 a.m. surrounded by cruisers with flashing lights, and wrecking cars with flashing lights, he left the site at 3:01 a.m. and only indicated the accident and the lack of the large warning signs by a few feeble flares which had been burned out by 3:15 a.m. There were at least several officers whom Corporal Johnston could have left in place and whose cruisers with the flashing lights would have provided adequate warning for any traveller on the road. It would have taken only a few moments’ work to have stood the two large signs up on their pedestals and there would be nothing to indicate that the result would not be as good warning as before they were knocked down. Had he even chosen to notify the Highway Department when he first arrived, then, as I have already pointed out in all probability the signs would have been re-erected and in operation long before the plaintiff arrived.

It is, of course, true that the plaintiff was not without negligence himself. The learned trial judge found that he was fifty per cent at fault. That was affirmed in the Court of Appeal and there had been no cross-appeal by the respondent who simply requests that the appeal be dismissed with costs affirming the judgement of the Court of Appeal. As I have indicated, I would so dismiss the appeal as to the defendants J. Bruce Johnston and Commissioner Silk.

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In my view, however, upon the facts, Constable Thomas Boyd is in a different position. Constable Boyd had been patrolling north of Harriston when he was directed to attend the scene of an accident on County Road No. 10 at Rothsay some fourteen miles south of the scene of the accident with which we are concerned. He received such directions about 3:00 a.m. and proceeded at once south on No. 9 past the scene of the accident with which we are concerned which, of course, was also the scene of this previous Blancke accident. Constable Boyd was aware that at that site had been the serious Blancke accident and he was aware that it had been taken care of by his fellow officers. He knew he had duties to perform fourteen miles south of there, at the scene of another accident which was said to be one involving property damage only but which, in fact, turned out to be concerned with minor physical injuries. It is true that Constable Boyd noticed that the large sign was down but Boyd would have had no means of knowing that the Highway Department crew were not expected momentarily to do the repair work. He knew that his superior had been in charge of the investigation and police work at that accident and I am of the opinion that he rightly left to his superior officer the task of taking the necessary steps to protect traffic. I would dismiss the action against him under the circumstances without costs.

In the result, therefore, I would allow the appeal of Thomas Boyd without costs and dismiss the appeal of J. Bruce Johnston and Eric Silk with costs. As to the original defendant Glenn O’Rourke, the action against him was, of course, dismissed with the others by the learned trial judge.

In the Court of Appeal, paragraph 2 of the formal judgment allows judgment only against the defendant J. Bruce Johnston, Thomas Boyd and Eric Silk and therefore, the trial judgment which dismissed the action against the defendant O’Rourke remained undisturbed. No disposition of the costs in Schacht’s appeal against O’Rourke was made by the Court of Appeal for Ontario. Although the appellants in this Court purport to appeal on behalf of the defendant O’Rourke as being one of the appellants, the action having been

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dismissed against him and that dismissal confirmed in the Court of Appeal, the only subject matter of an appeal by O’Rourke could be for the failure to award costs in the Court of Appeal.

I would make no order as to the costs of O’Rourke in either this Court or the Court of Appeal for Ontario.

The judgment of Martland, Judson and Pigeon JJ. was delivered by

MARTLAND J. (dissenting)—The respondent, who is the plaintiff in this action, claimed damages in respect of personal injuries which he sustained as a result of an accident which occurred while he was driving his automobile in a southerly direction on Ontario Highway No. 9, at about 3:45 a.m., on Sunday, October 12, 1969, about a mile or two south of Harriston. At that point there was an excavation across the highway where a culvert was being installed. Traffic was diverted by way of a detour around the excavation, which, for south bound traffic, involved a gradual curve to the right so as to skirt the excavation.

The respondent sued Her Majesty The Queen, in the right of the Province of Ontario, represented by the Minister of Highways, Cox Construction Limited, the contractor which was installing the culvert, Glenn O’Rourke, J. Bruce Johnston and Thomas Boyd, three members of the Ontario Provincial Police, and Eric Silk, the Commissioner of the Ontario Provincial Police. Third party proceedings were taken as against Cox Construction Limited and Wallace Construction Limited. The action against all defendants, save those connected with the Ontario Provincial Police, and the third party proceedings were dismissed by consent at the commencement of the trial.

At the time of the accident it was dark, but visibility was not impaired by rain, snow or fog. The road surface was dry. After leaving Harriston the respondent had to pass the following signs located on the right shoulder of the road:

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(1) a sign located just outside Harriston which indicated that the road ahead was under construction, followed by a “project sign” giving the name of the contractor and the contract number;

(2) a sign which read, in black lettering on a yellow reflectorized background, “CULVERT UNDER CONSTRUCTION ½ MILE AHEAD” and which measured three feet by six feet;

(3) a sign which read, in black lettering on a yellow reflectorized background, “CULVERT UNDER CONSTRUCTION ¼ MILE AHEAD” and which measured three feet by six feet;

(4) a sign which read, in black lettering on a yellow reflectorized background, “DETOUR 1000 FT.” and which measured four feet by four feet;

(5) a sign with a flashing light attached to it, located approximately 150 feet from the beginning of the detour around the construction site, part of which sign indicated the direction of the detour by means of a black arrow on a yellow background, and part of which indicated the maximum speed allowed and read, in black letters on a white background, “MAXIMUM 20”.

Around the excavation in the road, on the left hand side of the detour, hazard markers had been placed beginning immediately north of the excavation. An examination of the photograph, Ex. 3C, indicates that the first of these is in line with the line of the right hand side of the road prior to the commencement of the detour. These markers consisted of one foot by three foot plates upon which were painted diagonal stripes. These markers were placed on stands and are described as being “shoulder high”.

Notwithstanding the existence of all these various warnings as to the presence of the culvert, the respondent failed to turn on to the detour and

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drove directly into the excavation. In so doing he must have driven to the left of the hazard markers mentioned above.

Prior to the occurrence of the respondent’s accident, on the night in question, there had been placed at each end of the excavation, facing north and south respectively, two additional signs, seven feet by seven feet, in the middle of the road and adjacent to the excavation, consisting of a yellow background alternating yellow and black twelve-inch squares with a black arrow, which, in the case of the sign facing north, pointed to the west side of the road. Each sign had a flashing light attached to the top. Both of these signs had been knocked down and damaged, at about 12:30 a.m. on October 12, by a south bound vehicle driven by one Blancke. They had not been repaired and replaced at the time the respondent’s accident occurred.

The learned trial judge, while dismissing the action as against the remaining defendants, also found that, if there had been a duty of care owed by the police officers, he would have apportioned the responsibility as to 50 per cent to the respondent, 40 per cent to the appellant Johnston, 10 per cent to the appellant Boyd, and nil to Constable O’Rourke. He would have held the appellant Silk liable for the negligence of Johnston and Boyd.

The legal responsibility of the appellant Silk is defined in s. 47 of The Police Act, R.S.O. 1970, c. 351, which provides:

47. (1) The Commissioner is liable, in respect of torts committed by members of the force in the performance or purported performance of their duties, in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and shall in respect of any such torts be treated for all purposes as a joint tortfeasor.

(2) The Treasurer of Ontario shall pay out of the Consolidated Revenue Fund,

(a) any damages awarded against the Commissioner in any proceeding brought against him by virtue of this section and any costs incurred by him in any such proceeding so far as not recovered by him in the proceedings; and

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(b) subject to the approval of the Lieutenant Governor in Council, any sum required in connection with the settlement of any claim made against the Commissioner by virtue of this section.

The Court of Appeal found the appellants Johnston, Boyd and Silk responsible to the respondent and in the proportions indicated by the trial judge. From that judgment these appellants and O’Rourke appealed to this Court. There was no cross-appeal by the respondent in respect of the liability of O’Rourke.

I agree with my brother Spence in finding there was no liability on the part of the appellant Boyd. Accordingly, I need consider only the liability of the appellant Johnston. The liability of the appellant Silk depends upon whether or not Johnston is held to be liable as having committed a tort against the respondent.

Liability is sought to be imposed upon the appellant Johnston in light of the following circumstances. He had completed his day’s shift on Saturday, October 11, at midnight. He was called out from his residence on the Sunday morning at 1:20 to attend at the scene of the Blancke accident, and arrived there about 1:44 a.m. When he arrived Constable O’Rourke and another member of the Ontario Provincial Police were present and, also, two policemen from Harriston. He supervised the investigation of the accident, took photographs and assisted in taking measurements. He observed the signs which had been knocked down and saw that they were damaged. He remained until about 3:01 a.m., when the Blancke vehicle was towed away. O’Rourke left the scene of the accident before he did. O’Rourke, before departing, on Johnston’s instructions, notified his detachment office that the signs were down. Johnston, before departure, left flares burning at each end of the culvert site, but these would only burn for about 15 minutes.

Corporal Johnston returned to the scene of the accident at about 3:52 a.m. to look for the lens cap of his camera, which he had lost. He then discovered the respondent, in his vehicle, which was in the culvert site. He took the respondent to hospital.

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Employees of the Department of Highways, in response to the information they had received; attended at the culvert site and had re-erected the two large signs by 4:11 a.m.

Johnston’s conduct was severely criticized by the courts below. It has been suggested that he should have notified his detachment more promptly than he did about the fact that the two signs were down; that he might have placed the large signs back in position; and that he should have had somebody remain at the scene of the accident until the signs were re‑erected so as to warn motorists of the hazard on the road. With respect, I feel that these criticisms have been largely based upon hindsight, with knowledge that an accident did occur after Johnston’s departure. It seems to have been assumed that the absence of the large sign adjacent to the culvert deprived the respondent of reasonable warning of the existence of the excavation for the culvert, yet it is implicit in the finding of negligence on the part of the respondent for failure to keep a proper lookout that he did have reasonable warning which he failed to observe.

Johnston’s conduct has to be considered in light of the fact that he had been called out to investigate an accident (the Blancke accident) which had resulted in the death of the passenger in that vehicle. It is not unnatural that his first concern was with that accident. He did cause his detachment to be notified regarding the signs before his departure.

There is no evidence that the signs could have been placed back in position. The evidence of Thackeray, the policeman from Harriston, who arrived first after the Blancke accident, and who was a witness for the respondent, is that the sign in question was “laying in pieces”.

The failure to have someone remain at the site of the accident must be judged in light of the fact that even with the large sign gone a south bound motorist on the highway was given repeated warnings of the existence of the culvert construction and was told, when about 150 feet away from the

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culvert, by a sign equipped with a flashing light, about the route of the detour and that speed should be cut to 20 miles an hour. Ahead of such a motorist, at the site of the culvert, were the markers indicating the left hand boundary of the detour. Any south bound motorist, exercising reasonable care in the control of his vehicle, would not have been placed in a position of peril because the large sign was not in position.

The learned trial judge, while holding that the police had failed to exercise reasonable care in the circumstances, went on to hold that this did not involve liability on their part because they owed no legal duty of care to the respondent. He pointed out that no case had been cited to him which held that a police officer could be made liable for negligent failure to perform a duty entrusted to him, other than the case of Millette et al. v. Cote et al.[7], in which a police constable, and, through him, the Commissioner of the Ontario Provincial Police, had been held liable. Subsequent to the judgment of the trial judge in the present case, the constable and the Commissioner in the Millette case appealed successfully to the Court of Appeal, which held that no causal connection between the acts complained of and the happening of the accident had been established ([1972] 3 O.R. 224). The Court specifically refrained from determining whether or not a legal duty existed. That case was appealed to this Court and the judgment of the Court of Appeal on this point was affirmed.

The Court of Appeal in the present case found that there was a statutory duty resting upon the police officers to maintain a traffic patrol by virtue of s. 3(3) of The Police Act. That subsection provides as follows:

(3) The Ontario Provincial Police Force, in addition to performing the policing services prescribed in subsection 1, shall,

(a) maintain a traffic patrol,

(i) on the King’s Highway, except such portions thereof as are designated by the Minister, and

(ii) on such connecting links, within the meaning of The Highway Improvement Act, as are designated by the Minister;

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(b) subject to any agreement in force under The Liquor Licence Act, enforce The Liquor Licence Act, The Liquor Control Act and the regulations thereunder and any other laws designated by the Minister; and

(c) maintain a criminal investigation branch which shall be used to assist municipal police forces on the direction of the Minister or at the request of the Crown attorney.

This subsection appears in Part I of the Act, which is entitled “Division of Responsibility”. This Part deals with the division of responsibility between the Ontario Provincial Police Force and municipal police forces.

The subsection, by its terms, defines certain duties which are to be performed by the Ontario Provincial Police Force; i.e., the Force as a whole. It does not impose such duties upon each individual member of that Force. A reference to para. (c) shows that this is so. It could not be contended that each police officer must maintain a criminal investigation branch.

The judgment in the Court of Appeal also referred to s. 46 of The Police Act, which defines the duty of members of the Ontario Provincial Police Force:

46. (1) It is the duty of the members of the Ontario Provincial Police Force, subject to this Act and the orders of the Commissioner,

(a) to perform all duties that are assigned to constables in relation to the preservation of the peace, the prevention of crime and of offences against the laws in force in Ontario and the criminal laws of Canada and the apprehension of criminals and offenders and others who may be lawfully taken into custody;

(b) to execute all warrants, perform all duties and services thereunder or in relation thereto that may, under the laws in force in Ontario, be lawfully executed and performed by constables;

(c) to perform all duties that may be lawfully performed by constables in relation to the escort and conveyance of convicts and other prisoners and mentally incompetent persons to and from any courts, places of punishment or confinement, hospitals or other places; and

(d) generally to perform such duties as are from time to time assigned to them by the Commissioner.

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The circumstances of this case do not disclose a breach of any of these duties. It is suggested that, in some way, there was a breach of the duty defined in para. (d), but there is no evidence that any duty was assigned to Johnston on the night in question other than the investigation of the Blancke accident, which had resulted in a death. There is no evidence that he had been assigned the duty of maintaining a highway or traffic patrol.

In addition to this, it appears to me that the purpose of The Police Act was to provide for the existence and the organization of police forces in Ontario. As already noted, s. 3 appears in Part I of the Act, which is concerned with the division of responsibility between the provincial police force and municipal police forces. Section 46 is contained in Part IV of the Act, which deals with the constitution of the Ontario Provincial Police Force and with the duties assigned to members of that Force. I find nothing in the Act to indicate an intention on the part of the Legislature to impose a liability upon a member of that Force who fails to carry out a duty assigned to him under the statute.

The section immediately following s. 46, which I quoted earlier in respect of the legal responsibility of the Commissioner of the Ontario Provincial Police Force, does not make him legally responsible for the failure of members of the Force to perform their duties as members of the Force. He is made liable “in respect of torts committed by members of the force in the performance or purported performance of their duties, in like manner as a master is liable in respect of torts committed by his servants in the course of their employment”. This is a vicarious liability for a tort committed by a member of the Force in the course of his employment. It does not provide that the Commissioner is liable in damages if a member of the Force fails to carry out a duty assigned to him.

Having reached the conclusion that the respondent did not have a claim against Johnston for breach of a statutory duty, the next question is as to whether the respondent can found a claim in

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respect of the breach of a common law duty. This raises the question as to whether a police officer can be made responsible in damages, not because of some active conduct on his part, e.g., the negligent operation of a police vehicle, or the commission of an assault, but because he failed to do something which, if done, might have prevented the plaintiff from sustaining damage. As previously mentioned, the learned trial judge held that no such duty existed in law, and stated that no authority for this proposition had been submitted to him other than the Millette case.

The Court of Appeal, in finding that such a duty did exist, relied upon two authorities. The first was Haynes v. Harwood[8], in which a police officer successfully claimed damages sustained when he attempted to stop the defendants’ runaway horses. It was held that the defendants ought to have contemplated that someone might attempt to stop the horses in an endeavour to prevent injury to life and limb, and, as the police were under a general duty to protect life and property, the plaintiffs act and resulting injuries were the natural and probable consequences of the defendants’ negligence.

It was not suggested in that case that the general duty referred to is owed to anyone other than the public at large. It was stated that the police officer was under no positive duty to act as he did. He had a discretionary duty to prevent an accident. It is quite clear that had the police officer failed to attempt to stop the horses he could not have been sued by someone who had been run down by them.

The second case, Priestman v. Colangelo et al.[9], is not in any way analogous to the present case. There a police officer who was a passenger in a police vehicle, the driver of which was pursuing the driver of a stolen car, sought to stop the vehicle

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ahead by firing his pistol at the left rear tire of that car. The police car struck a bump just as he fired and the bullet struck the driver. The car which he was driving went out of control, mounted the curb and struck and killed two persons who were standing on the sidewalk. The issue was as to whether the action of the police officer was negligent in view of his duty to preserve the peace, to prevent crimes and to apprehend offenders. The majority of the Court held that his conduct was not negligent.

In that case the police officer deliberately elected to fire his weapon from a moving vehicle on a city street. It is in that context that Cartwright J., as he then was, in delivering the dissenting opinion, wrote the passages quoted in the judgment of the Court of Appeal. In my opinion they are not relevant to the issue in this case. Those passages (at p. 634) read as follows:

This duty to apprehend was not, in my opinion, an absolute one to the performance of which Priestman was bound regardless of the consequences to persons other than Smythson. Co-existent with the duty to apprehend Smythson was the fundamental duty alterum non laedere, not to do an act which a reasonable man placed in Priestman’s position should have foreseen was likely to cause injury to persons in the vicinity.

…In my opinion, Priestman’s act in firing without due regard to the probabilities mentioned was an effective cause of the fatalities and amounted to actionable negligence unless it can be said that the existence of the duty to apprehend Smythson robbed his act of the negligent character it would otherwise have had.

In answer to the view expressed by the learned trial judge that to hold the police to be liable in the circumstances of this case would be a course fraught with undesirable consequences, which the Court of Appeal felt to be bordering on a statement of public policy, the Court of Appeal cited the decision of the House of Lords in Home Office v. Dorset Yacht Co. Ltd.[10] In that case several

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Borstal boys, who were working on an island under the control and supervision of three officers employed by the Home Office, left the island at night and boarded, cast adrift and damaged a yacht of the plaintiffs which had been moored offshore.

The plaintiff sued the Home Office, alleging that, with knowledge that five of the boys had escaped previously, the defendant failed to exercise effective control and supervision over them; that the three officers, on the night in question, had retired to bed and had maintained no control over the boys; that none of the officers was on duty at the material time; that no effective arrangement existed to control the boys at night; that the defendant had failed to give adequate instructions for maintaining control over the boys at night; and that there was no effective barrier to prevent the boys gaining access to the plaintiff’s craft.

A preliminary issue of law was raised before trial which was defined by Lord Diplock, at p. 1057, as follows:

The specific question of law raised in this appeal may therefore be stated as: Is any duty of care to prevent the escape of a Borstal trainee from custody owed by the Home Office to persons whose property would be likely to be damaged by the tortious acts of the Borstal trainee if he escaped?

This issue of law was determined, with one dissent, in favour of the plaintiff. The House of Lords applied the well known dictum of Lord Atkin in Donoghue v. Stevenson[11], at p. 580, sometimes described as “the neighbour principle”.

In the Dorset Yacht case the action was brought only as against the Home Office, the employer of the guards. It was not a claim against the individual guards. Having found that the Home Office owed a duty of care with respect to the detention of persons sentenced to Borstal training, Lord

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Diplock, at p. 1071, defined the issues which would arise at the trial in this way:

If, therefore, it can be established at the trial of this action (1) that the Borstal officers in failing to take precautions to prevent the trainees from escaping were acting in breach of their instructions and not in bona fide exercise of a discretion delegated to them by the Home Office as to the degree of control to be adopted and (2) that it was reasonably foreseeable by the officers that if these particular trainees did escape they would be likely to appropriate a boat moored in the vicinity of Brownsea Island for the purpose of eluding immediate pursuit and to cause damage to it, the Borstal officers would be in breach of a duty of care owed to the plaintiff and the plaintiff would, in my view, have a cause of action against the Home Office as vicariously liable for the “negligence” of the Borstal officers.

In the present case it was not alleged that the Ontario Provincial Police Force owed a duty to the respondent to provide safeguards in respect of the excavation for the culvert. The claim against the Commissioner is not founded upon a breach of duty by the Ontario Provincial Police Force, but on the basis of a tort committed by a police officer in the performance of his duties. The Dorset Yacht case would only have been analogous if, in the absence of a finding of a legal duty owed by the Home Office, an individual guard had been sued because he failed to do something which might have prevented the boys from escaping. Furthermore, referring to the passage just quoted from Lord Diplock’s reasons, it should be noted that, in the present case, there is no evidence that, in acting as he did, Corporal Johnston acted in breach of any instructions received from a superior officer.

Counsel for the respondent cited in support of his position the case of Dutton v. Bognor Regis Urban District Council[12]. In that case the English Court of Appeal held that the Bognor Regis Urban District Council was liable to a house owner whose

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house was damaged owing to subsidence because its building inspector, who was required to approve the foundations for the purposes of the building bylaw, had improperly approved the foundations.

I have doubts as to whether this case was correctly decided, but, in any event, as in the Dorset Yacht case, the action was not brought against the building inspector, but as against the Urban District Council. A legal duty was found to exist on the part of the Council toward the plaintiff because the wide power to control all building in its area assumed by the council under The Public Health Act, 1937 (U.K.), and the by-laws made under it was exercisable for the protection and benefit of future owners and occupiers and carried with it the duty at common law to take reasonable care to see that the by-laws were complied with. No comparable duty was alleged to exist on the part of the Ontario Provincial Police Force in the present case. In fact there was no allegation of any duty owed by the Force.

In my opinion none of the cases cited is authority for finding that Johnston, in the circumstances of this case, owed a legal duty toward the respondent.

The situation in the present case is this. A danger to motorists had been created on the highway by the excavation for the culvert. It had been created by the contractors who were installing the culvert. They had, however, provided a series of warnings to motorists using the highway.

The last of the warning signs had been knocked down by the act of a third party, Blancke. He was the person responsible for the absence of that sign when the respondent drove down the road.

Johnston became aware of the fact that the sign was knocked down because he had been called out to investigate the Blancke accident. He was not then engaged on the work of highway patrol. He

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did cause his detachment to be notified that the sign was down and, as a result, the sign was later replaced.

A private individual who had become aware that the sign was down would have had no legal duty to do anything. The common law rule that there is no obligation to warn a person of impending danger to him has not been altered by “the neighbour principle”. Lord Morris of Borth-y-Gest, in the Dorset Yacht case, at p. 1034, says:

It has been generally recognised that Lord Atkin’s statement of principle cannot be applied as though his words were contained in a positive and precise legislative enactment. It cannot be, therefore, that in all circumstances where certain consequences can reasonably be foreseen a duty of care arises. A failure to take some preventive action or rescue operation does not of and by itself necessarily betoken any breach of a legal duty of care.

In the result, we find a situation in which the existence of a danger on the road has been indicated by a series of signs adequate to give warning to any motorist exercising proper care for his own safety. Johnston, who was not engaged in maintaining a highway patrol, became aware of the fact that the final warning sign had been knocked down. He caused notice of this fact to be given to his detachment. There is no evidence that he failed to perform the instructions given to him. To fix him with responsibility for the respondent’s damages is to say that because, and only because, he was a police officer he owed a special duty to take further steps to prevent a negligent driver from driving into the culvert excavation. In my opinion no such duty existed.

I would allow the appeal and restore the judgment at trial, with costs in this Court and in the Court of Appeal.

Appeal of Thomas Boyd allowed without costs, appeals of J. Bruce Johnston and Eric Silk dismissed with costs, no order as to the costs of

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Glenn O’Rourke, MARTLAND, JUDSON and PIGEON JJ. dissenting.

Solicitor for the appellants: J.D. Hilton, Toronto.

Solicitors for Plaintiff: Lerner & Associates, London.