Auffrey v. Province of New Brunswick, [1977] 1 SCR 509

Supreme Court of Canada

Auffrey v. Province of New Brunswick, [1977] 1 S.C.R. 509

Date: 1976-05-31

Francis Auffrey (Plaintiff) Appellant;

and

The Province of New Brunswick (Defendant) Respondent.

1976: February 14; 1976: May 31.

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

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Negligence—Occupiers’ liability—Cable across roadway—Concealed danger—Duty of Department of Highways—Occupier and licensee.

The plaintiff suffered serious personal injuries when his jeep collided with a rusty cable stretched across a public road leading to and from a dump owned and operated by the respondent. The plaintiff had entered the dump in daylight and was leaving at dusk when the accident occurred. The dump was available for the use of the citizenry of the neighbouring communities whose only access to it was by means of the roadway in question. In 1968 the provincial Department of Highways caused two posts to be erected one on each side of the road some distance from an intersection with another road and provided a cable (1/2-3/4” diameter) which was secured to one post and could be secured to the other and padlocked to bar access to the dump road. A red cloth some twelve inches in diameter was tied to the cable and a small sign “Dump closed after dark” also erected. There were concurrent findings of fact in the Courts below that the cable thus placed constituted a trap. On the night in question an industrial park commissionaire who occupied a nearby guard house placed the cable across the entrance as was, to the knowledge of the Province, one of his nightly duties. The Appeal Division set aside the judgment rendered at trial in favour of the plaintiff on the bases that plaintiff had failed to prove that he entered the roadway as a licensee of the Province and that the Province was relieved of liability as the commissionaire was not its servant or agent.

Held: The appeal should be allowed.

The dump road was a public facility maintained for local inhabitants such as the plaintiff and the Province had a duty at least to warn such users against hidden

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dangers or traps. The right to use the road was not so limited as to exclude from its use members of the public who were not using it for disposing of garbage and waste. However, even if the Province’s invitation to use the road was so limited the Province knew of the danger, had facilitated its erection and must be taken to have known that the road was likely to be used by members of the public other than for disposing of garbage.

In view of the seriousness of the injuries suffered by plaintiff (serious permanent brain damage, fractured ribs, punctured and collapsed lung and eye injuries) the general damages awarded at trial should be increased from $15,000 to $45,000.

Jackson v. Missaien, [1967] S.C.R. 166 followed.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], setting aside a judgment of Cormier CJ.Q.B. at trial and dismissing a claim for damages. Appeal allowed; general damages at trial varied.

Mark Yeoman, Q.C., for the plaintiff, appellant.

David M. Norman and J.T. Keith McCormick, for the defendant, respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal from a judgment of the Supreme Court of New Brunswick, Appeal Division, setting aside the judgment rendered at trial by Cormier C.J.Q.B., and dismissing the appellant’s claim for damages in respect of his serious personal injuries which he suffered when his jeep which he was driving collided with a rusty cable which was stretched across a public road leading to and from a dump owned and operated by the respondent which the appellant was leaving at dusk after having entered in daylight. The road led from the provincially owned dump to the so-called “airport road” which in turn ran from the main highway to a former airport property at one time owned by the New Brunswick Development Corporation but operated at the time of the

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accident as an industrial park under the management of a committee composed of the various businesses which had acquired property in the park and including a representative of the provincial Development Corporation.

The dump road, to which I have referred, intersected the “airport road” at right angles at a short distance from the main highway and the dump itself was available for the use of citizens of the neighbouring communities whose only means of ingress and egress to and from this facility was by means of the airport and dump roads, both of which were maintained by the Province. The “dump road” was approximately 1/10th of a mile in length and sometime in the year 1968 the provincial Department of Highways had caused two posts to be erected, one on each side of the road and each set back a number of feet from the intersection with the “airport road”. At the same time the Department provided a cable about one-half to three‑quarters of an inch in diameter which was secured to one post while a hook was placed on the other so that the cable could be strung up, hooked and padlocked thus barring access to the dump road. A red cloth about twelve inches in diameter was tied to the cable and a small sign bearing the words “Dump closed after dark” was also erected by the Department of Highways.

These conditions had existed since 1968 to the knowledge of the respondent and whatever warning they may have afforded to users of the public road when they were first erected, there are concurrent findings of fact both at trial and on appeal that by August 12, 1970, when the present accident occurred, the cable placed in the manner which I have described constituted a trap to the users of a public road.

In this regard I agree with the following comments made by the learned trial judge in the course of his reasons for judgment:

I have no doubt that this cable across the “dump road” on the night in question created a very dangerous obstruction, a trap. The sign indicating that the dump closed after dark gave no notice that the road was closed or that a cable would be up across the road. There

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should have been adequate warning of this obstruction which was a concealed danger.

A rusty cable with a bit of a dusty rag tied to it would be very difficult, if not impossible, to detect at night by an operator of a vehicle.

On the evening in question the cable had been placed across the entrance to the road at dusk by a commissionaire who occupied a guard house nearby and was employed by the industrial park committee above referred to. To the knowledge of the Province it was one of this man’s duties to come to the juncture of the two roads at nightfall and stretch the cable across from post to post.

The Appeal Division appears to have dismissed this action on two grounds, namely: (1) that the appellant “failed to prove that he entered the roadway on which he was injured as a licensee of the Province” and (2) that in any event the Province was relieved of liability because the commissionaire was not its servant or agent. In this latter regard the following paragraph from the reasons for judgment of Chief Justice Hughes is significant:

Although I think there was an absence of reasonable care on the part of the Department of Highways in permitting the cable to be used unless it was provided with reflectors or night-time signs for the protection of motorists approaching the cable there is nothing in the evidence to indicate a wilful or reckless disregard by the servants or agents of the Province of ordinary humanity. [The italics are my own].

The Appeal Division was apparently of opinion that there was such “wilful or reckless disregard” by the commissionaire but that as he was not employed and “wholly” paid by the Province, no liability could attach to it by reason of the provisions of s. 3 and 4 of The Proceedings Against the Crown Act, R.S.N.B. 1952, c. 176. This is made manifest in the following excerpt from the reasons for judgment:

Had the evidence established the commissionaire was a servant of the Crown and at the material time was paid in respect of his duties as such servant wholly by the Crown, the Province would have been liable for his tortious acts.

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For my part I do not think that the question of whether or not the Province is vicariously liable for the acts of the commissionaire is decisive of this case. In my view the liability of the respondent rests upon the broader ground that the “dump road” was a public facility maintained by the Province for the use and benefit of the local inhabitants of whom the appellant was one. The Province had occupied the road for at least two years during all of which period it had accorded a right of use to the public and, like any other occupier of land permitting its use by the public, it was under a duty at least to warn such users against hidden dangers or traps.

The matter was, in my opinion, accurately stated by the learned trial judge when he said:

So I believe it is reasonable to conclude that the highway authorities caused this obstruction to be erected. Furthermore, there appears to me to be no doubt that the highway department maintained and inspected this ‘dump road’. They were responsible for its safety. It was a road used by the public. They knew that this obstruction was up every night and should have given adequate warning of this hidden peril by lighting the area or placing reflectors or other proper warning.

The Appeal Division took the view that the respondent’s duty as an occupier was limited to “persons lawfully using the roadway for the purpose of disposing of garbage and waste on the dump” and proceeded to draw the inference from the evidence on the occasion in question that the appellant:

…visited the dump for the purpose of taking anything which he might find of value to himself and not for the purpose for which the dump was operated by the Province and that he cannot claim to be a licensee.

With the greatest respect for the view so expressed on behalf of the Appeal Division, I cannot agree that the right to use this public road was so limited as to exclude from its use all members of the public who were not using it for the purpose of “disposing of garbage and waste on the dump”.

Furthermore I am unable to draw the inference that the appellant was visiting the dump for the

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purpose of scavenging, based as it is on evidence that there were some little slats and scrap wood in his jeep after the accident. There was no evidence as to what, if anything, he had in the jeep when Auffrey started out for the dump, and the fact that he had been there earlier in the day does not necessarily mean that he was not carrying more garbage on his evening visit.

Even if it were to be held that the Province’s invitation to use the dump road was limited in the manner suggested and that the appellant should be considered as a scavenger because of the presence of some small slats of wood in his jeep, the fact remains that the respondent knew of the danger existing on a public road and had facilitated its erection in the first place and although it did not know of the appellant’s presence on the road at the time of the accident, it must be taken to have known that the road was likely to be used by members of the public who were not necessarily using it for disposing of garbage and waste on the dump.

In my opinion the evidence in the present case establishes that a relationship of occupier and licensee existed between the respondent and the appellant at the time of this accident and that the respondent was in breach of the duty of care to which that relationship gave rise and is responsible for the resulting damage sustained by the appellant. It follows that I would allow this appeal as to the merits.

The appellant also appeals from the assessment of general damages by the learned trial judge in the amount of $15,000 and in this regard I think the injuries sustained by the appellant are well described in the judgment of the learned trial judge who summarized his findings in the penultimate paragraph of his judgment by saying:

This man undoubtedly sustained serious permanent brain damage and his enjoyment of life has been greatly curtailed. I would allow $15,000.00 by way of general damages.

In addition to the brain damage the appellant sustained three fractured ribs, punctured and col-

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lapsed left lung and two nerves leading to the right eye were injured, one of which still causes trouble so that when the eye is moved to the extreme sides, he sees double.

The learned trial judge must I think have been unduly influenced by the fact that the appellant’s employer had retained his services and placed him in a supervisory capacity where the work is lighter but the salary somewhat greater. When it is considered that as a result of this accident a man of forty-one years of age will have to live out his life with “serious permanent brain damage” involving great curtailment of enjoyment due to diminished intellect, it appears to me to be unrealistic to measure his disability in terms of $15,000. I would accordingly adopt as applicable to the present case the observations made by Cartwright J., as he then was, in the case of Jackson et al. v. Missiaen et al.[2], at p. 171 where he said:

In these circumstances, it appears to me that the amount at which the general damages were assessed is so inordinately low as to be a wholly erroneous estimate. The proper amount is not susceptible of precise calculation. It is, I think, our duty to endeavour to deal with the matter as would a properly instructed jury acting reasonably, not attempting to award ‘a perfect compensation’ but seeking to fix an amount reasonably proportionate to the gravity of the injuries suffered.

Applying this passage to the present case, I have reached the opinion that the general damages should be increased by $30,000.

Special damages were allowed at $6,351.45 and I would not disturb this award. There will accordingly be judgment for $51,351.45.

In the result the appeal is allowed and the judgment of the Appeal Division of the Supreme Court of New Brunswick is set aside and the judgment of the learned trial judge is varied in the manner aforesaid. The appellant is entitled to his costs in this Court and in the Appeal Division of the Supreme Court of New Brunswick.

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Appeal allowed with costs; general damages at trial varied.

Solicitors for the respondent: Léger, Yeoman, Creaghan, Savoie & LeBlanc, Moncton.

Solicitor for the appellant: David M. Norman, Fredericton.