Veinot v. Kerr-Addison Mines Ltd.

Veinot v. Kerr-Addison Mines Ltd.
Collection
Supreme Court Judgments
Date
1974-10-01
Report
[1975] 2 SCR 311
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Ontario
Subjects
Torts
Decision Content
Supreme Court of Canada
Veinot v. Kerr-Addison Mines Ltd., [1975] 2 S.C.R. 311
Date: 1974-10-01
Peter Veinot (Plaintiff) Appellant;
and
Kerr-Addison Mines Limited (Defendant) Respondent.
1974: January 24, 25; 1974: October 1.
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.
Negligence—Occupier’s liability—Snowmobiles—Injuries to Snowmobiler—concealed danger on private road—Duty of occupier to take reasonable care—Trespass—Implied licence.
The plaintiff, an experienced snowmobiler, with his wife as passenger accompanied by another couple on a second snowmobile, was out for an evening of recreation. The group eventually came upon a wide, hard packed, well ploughed road on which they were travelling at between 15 and 20 m.p.h. when the plaintiff on the leading snowmobile struck a rusty pipe stretched across the road at face height and sustained very serious injuries. Both snowmobiles had headlights and the plaintiff’s machine had spot fog lights to improve visibility.
The pipe was part of a gate, consisting of the pipe bar some 45 inches from the ground secured in 8 x 8 posts on either side of the roadway, erected in 1950 by the respondent company. The roadway led to a powder magazine and the gate was kept locked at all times.
There was evidence that there was a great deal of snowmobiling done in the area, much of it at night, after work, and that there were many tracks on the road leading to the ploughed road on which the accident occurred. The ploughed road seemed to be well travelled and looked like a public road.
The jury found that plaintiff was on defendant’s land with implied permission, that the plaintiff’s injuries were caused by a concealed or hidden danger or a trap of which defendant had knowledge, that defendant had failed to take reasonable care to avoid injury to persons traversing the area and that plaintiff did not fail to take reasonable care for his own safety. The trial judge dismissed a motion for a non-suit and held that the finding of the jury that plaintiff had implied permission to be on defendant’s land could be substantiated on the evidence. The Court of Appeal reached the conclusion that there was no evidence of implied licence to support the finding of the jury on that point.
Held (Martland, Judson, Ritchie and de Grandpré JJ. dissenting): The appeal should be allowed with costs.
Per Laskin C.J. and Spence and Dickson JJ.: Whether or not there is implied permission to be on the defendant’s land was a question of fact for the jury which was properly instructed and brought in a finding which should not be disturbed. The issue of the likelihood of the presence of persons being on the land and the weight of evidence of such likelihood was plainly one for the jury. Even if the appellant was a trespasser his appeal should succeed. His presence on the ploughed road could reasonably have been anticipated and the respondent owed him a duty to treat him with ordinary humanity. In permitting the continuance of what it should have recognized as a covert peril menacing the safety of anyone who came upon the road at night on a snowmobile the respondent failed in this duty.
Per Pigeon and Beetz JJ.: There was evidence to support the findings of the jury. We prefer to express no opinion on the other questions.
Per Martland, Judson, Ritchie and de Grandpré JJ., dissenting: Robert Addie & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358, should not be followed since the duty owed by an occupier is broader than as defined in Addie. However the occupier does not owe to a trespasser as high a duty as that owed to persons lawfully on his land. The extension of the scope of the duty owed to a trespasser beyond the limits defined in Addie has permitted the elimination of the theory of implied licence, a legal fiction which should no longer be used to determine the rights of a trespasser as against an occupier. An occupier who knows of the existence of a danger upon his land, which he has created or for the continued existence of which he is responsible may owe a duty to persons coming on his land if he knows that there is a substantial chance of this. The duty is limited to a duty to warn. In the case of children something more may be required. The existence of a duty depends on the special circumstances of each case. The pipe which appellant struck and the gate of which it formed part had existed for twenty years and only became a danger because of the special use of respondent’s land by appellant viz. the operation of a motor-driven vehicle at night at a speed of 15-20 m.p.h.
[Southern Portland Cement Ltd. v. Cooper, [1974] 1 All E.R. 87; Robert Addie & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358; Edwards v. Railway Executive, [1952] A.C. 737; Commissioner for Railways v. Quinlan, [1964] A.C. 1054; Commissioner for Railways (N.S.W.) v. Cardy (1960), 104 C.L.R. 274; Videan v. British Transport Commission, [1963] 2 Q.B. 650; Herrington v. British Railways Board, [1972] A.C. 877; Pannett v. McGuinness & Co. Ltd., [1972] 3 W.L.R. 387 referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a judgment of Houlden J. with a jury. Appeal allowed with costs, judgment at trial restored, Martland, Judson, Ritchie and de Grandpré JJ. dissenting.
R.B. Tuer, Q.C., for the appellant.
C.F. McKeon, Q.C., for the respondent.
The judgment of the Chief Justice and Spence and Dickson JJ. was delivered by
DICKSON J.—This is an occupier’s liability case. That branch of the law of negligence having to do with the duty owed to a visitor or an intruder by an owner or occupier of land has long been in an unsettled state, due in part to the Procrustean and often vain attempt in an infinite variety of fact situations to fit a plaintiff neatly into the category of invitee, licensee or trespasser and then allow category to be the conclusive determinant of landowner liability. It has not been found easy to reconcile the Victorian landowner’s unbridled rights with the modern law of negligence. Nowhere are the uncertainties more apparent than when one comes to consider the position in law of a trespasser, one who enters the land of another without consent or privilege. Whether the entrant is a burglar or wandering child or irreproachable wayfarer, the general principles historically applied were those expressed in Robert Addie & Sons (Collieries) v. Dumbreck[1], by Lord Hailsham L.C. at p. 365:
Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser.
These rules, of course, perpetuated the traditional nineteenth century concern for the sanctity of landed property. The general principle was that a landowner could do as he wished with his land. He owed no duty to an intruder, however accidental or inadvertent the intrusion, other than to refrain from shooting him or otherwise recklessly and wantonly doing him harm. The rigour of the rule is exemplified in such cases as Edwards v. Railway Executive[2]. As could be expected various inventions were employed from time to time to modify and ameliorate the harshness. In some of the cases the landowner’s consent was implied or imputed, particularly in “children cases”, the status of the intruder being elevated from that of trespasser, which he clearly was, to that of licensee, which he clearly was not. In other cases a generous meaning was given to the phrase “reckless disregard” or a tenuous distinction was drawn between land in a static condition and land upon which an operational activity was being conducted, productive of injury. In time, two distinct, not easy to reconcile, lines of jurisprudence emerged. One perpetuated the letter and spirit of Addie’s case (Commissioner for Railways v. Quinlan[3] is an example). The other gave effect to changing ideas of social responsibility and imposed upon the owner of land duties well beyond those in contemplation in Addie’s case. Commissioner for Railways (N.S.W.) v. Cardy[4] and Videan v. British Transport Commission[5], presaged the change which found expression in the leading case of Herrington v. British Railways Board[6]. That case was decided within the context of the Occupiers’ Liability Act, 1957 of England which imposed a “common duty of care” on occupiers towards all persons who might lawfully come on to their land, but left unaltered the existing law as to the trespassers. In Herrington’s case their Lordships exhaustively considered the nature of the duty owed by occupiers to trespassers. Lord Reid applied a subjective test. He said (p. 899):
So it appears to me that an occupier’s duty to trespassers must vary according to his knowledge, ability and resources. It has often been said that trespassers must take the land as they find it. I would rather say that they must take the occupier as they find him.
and later on the same page:
So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give any thought to their safety. He might often reasonably think, weighing the seriousness of the danger and the degree of likelihood of trespassers coming against the burden he would have to incur in preventing their entry or making his premises safe, or curtailing his own activities on his land, that he could not fairly be expected to do anything. But if he could at small trouble and expense take some effective action, again I think that most people would think it inhumane and culpable not to do that. If some such principle is adopted there will no longer be any need to strive to imply a fictitious licence.
The test of common humanity was also applied by Lord Morris of Borth-y-Gest (p. 909):
In my view, while it cannot be said that the railways board owed a common duty of care to the young boy in the present case they did owe to him at least the duty of acting with common humanity towards him.
The nature of the duty of care was described by Lord Wilberforce in these words (p. 920):
Again, it must be remembered that we are concerned with trespassers, and a compromise must be reached between the demands of humanity and the necessity to avoid placing undue burdens on occupiers. What is reasonable depends on the nature and degree of the danger. It also depends on the difficulty and expense of guarding against it. The law, in this context, takes account of the means and resources of the occupier or other person in control—what is reasonable for a railway company may be very unreasonable for a farmer, or (if this is relevant) a small contractor.
and by Lord Pearson in these words (p. 922):
It does not follow that the occupier never owes any duty to the trespasser. If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated, it is a duty to treat the trespasser with ordinary humanity.
Herrington’s case was considered by the Court of Appeal of England in Pannett v. McGuinness & Co. Ltd.[7] The following excerpt from Lord Denning’s judgment aptly expresses in my opinion the more salient points a judge should have in mind when considering intrusions upon land:
The long and short of it is that you have to take into account all the circumstances of the case and see then whether the occupier ought to have done more than he did. (1) You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it. (2) You must take into account also the character of the intrusion by the trespasser. A wandering child or a straying adult stands in a different position from a poacher or a burglar. You may expect a child when you may not expect a burglar. (3) You must also have regard to the nature of the place where the trespass occurs. An electrified railway line or a warehouse being demolished may require more precautions to be taken than a private house. (4) You must also take into account the knowledge which the defendant has, or ought to have, of the likelihood of trespassers being present. The more likely they are, the more precautions may have to be taken.
In the very recent case of Southern Portland Cement Ltd. v. Cooper[8], the Privy Council considered the duty owed to a trespasser. Their Lordships rejected the argument that an occupier only comes under a duty to potential trespassers if he estimates or ought to estimate that the arrival of one or more trespassers on his land is “extremely likely”. In the course of his speech Lord Reid said: “But in their Lordship’s judgement it is now necessary to…abandon the limitation of extreme likelihood” and later:
If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realize the danger he may have to do more. There may be difficult cases where the occupier will be hampered in the conduct of his own affairs if he has to take elaborate precautions. But in the present case it would have been easy to prevent the development of the dangerous situation which caused the plaintiff’s injuries.
And so we come to the facts of the present case. There is no need to labour them. The plaintiff, thirty‑seven years of age, and his wife, on one snowmobile, accompanied by another married couple on another snowmobile, set out from their home for an evening of healthful recreation through woods and across lakes of northern Ontario. They went along well‑travelled snowmobile trails, from Larder Lake to Crosby Lake, along a creek to Beaver Lake, to Bear Lake, to a hydro right-of-way along which were many ski-doo trails, down an old logging road “which was well ski-doo packed”, to a wide, hard‑packed, well-ploughed road on which they travelled until the plaintiff, Mr. Veinot, on the leading snowmobile, struck a rusty pipe, stretched across the road, at face-height, and sustained very serious injuries. The accident occurred on March 16, 1970. Mr. Veinot had owned snowmobiles since 1966. He had been for three years the president of the Larder Lake Snowmobile Club, one of the purposes of which was to maintain law and control snowmobiles in the town of Larder Lake. The machine on which Mr. Veinot was riding, a Bombardier 640 Nordic, was not a racing machine. At the time of the accident, it was travelling at a moderate speed of 15 to 20 miles per hour. It was equipped with the ordinary snowmobile lights and also with spot fog lights to improve visibility. The jury found that Mr. Veinot did not fail to take reasonable care for his own safety.
The pipe which Mr. Veinot struck was two inches in diameter, supported by unpainted posts located off the road, and invisible at night due to the background of trees. The pipe had been erected some twenty years earlier to prevent the movement of unauthorized vehicular traffic to the defendant company’s powder magazine not far from the community of Virginiatown. No point can be made of the fact that the pipe had been there for twenty years without accident for the type of accident which occurred in this case could only have occurred after the advent of snowmobiles.
From the evidence there seems no doubt that during the winter there was a great deal of travel on snowmobiles in and around Virginia-town. The two witnesses called on behalf of the defendant, the mine manager and the security officer, each had a machine. It also emerges that much of the snowmobiling was done at night, after work. The road on which the accident happened was an extension of one of the streets of Virginiatown, which had formerly been a company town. The street and road led to and across a north-south hydro right-of-way and then continued west to the magazine. The defendant company permitted snowmobile traffic along the road as far as the iron pipe. Such traffic normally then turned to the right and continued north along the right-of-way until the intersecting east-west hydro right-of-way was reached which in turn led west to the lakes across which Mr. Veinot and his party had travelled. Generally, as I have indicated, the main ski-doo traffic was east of the iron pipe, but the defendant’s security officer conceded that on a very few occasions he had seen ski-doo tracks in the winter of 1969-70 on the powder magazine side of the pipe. He did not report these discoveries to the mine manager and he did nothing about it.
The evidence is undisputed that there were “a lot of snowmobile tracks” on the road leading south from the east-west hydro power line to the ploughed road on which the unfortunate accident occurred. The ploughed road “seemed to be well travelled”; looked like a public road; and had no markings to indicate that it was not a public road. Mr. Veinot had no idea he was on private property when he drove along the ploughed road and according to his evidence, which was not challenged, he would not have continued along it if he had known it was private property. Upon all of the evidence and following a charge by the trial judge to which no objection has been, or could be, taken, the jury made certain findings: (1) That Mr. Veinot on the date of the accident was on defendant’s land with the implied permission of the defendant; (2) That his injuries were caused by a concealed or hidden danger or a trap of which the defendant had knowledge, described by the jury in its answers as “a rusty pipe approximately 2” in diameter suspended across the travelled portion of the road at a height of approximately 45 inches from the road”; (3) The defendant failed to take reasonable care to avoid injury to persons traversing the area, there being no distinguishing warnings of the location of the pipe across the roadway from either the east or west approach to the pipe or on the pipe itself; (4) The finding to which I have already referred, that plaintiff did not fail to take reasonable care for his own safety. At the close of the evidence presented by the plaintiff a motion was made for a non-suit. The motion was renewed after the evidence for the defendant had been heard and again after the answers of the jury were received. The trial judge, Houlden J., dismissed the motion. He held that the finding of the jury that there was implied permission for the plaintiff to be on the land of the defendant could be substantiated on the evidence. The judge said:
The defendant knew that a number of old roads intersected its property. One of these roads was an old logging road coming from the north and this was the road which was followed by the plaintiff and his party on the night in question. There is no evidence that the defendant made any endeavour to close off this road. It knew of the existence of the road. It knew that it was possible for the road to be travelled by a truck for about a mile from the premises of the defendant, but nothing was done to close it off. According to the evidence which has been given to the Court, this road was being used, and used frequently, by owners of snowmobiles. This old road led directly to the ploughed road of the defendant.
In my opinion, it was a most reasonable assumption for the plaintiff and the other members of his party, when they came to this ploughed road, to assume that it was an ordinary road available for travel by the public. The evidence is that the ploughed road was well travelled and, as I have said, I think that there was ample evidence for the jury to find that there was implied permission for the plaintiff to be on the defendant’s land.
Whether or not there was an implied permission was a question of fact for the jury. The jury was properly instructed on the law and brought in its finding. I do not think that finding should be disturbed.
The Court of Appeal for Ontario, if it had been necessary to decide the point, would not have interfered with the jury finding that the pipe constituted a concealed danger. On the other point, that of whether or not there was an implied licence, Arnup J.A., for the Court, said:
Whether the test of the extent of knowledge on the part of the occupier which is required before an inference of implied license can be drawn is that the presence of trespassers was “likely”, “extremely likely”, “a substantial probability” or “as good as known”, the evidence in this case falls far short of what is required.
With greatest respect, I think the issue of likelihood, and the weight of evidence on this issue, was plainly one for the jury, and having referred the question to the jury, the answer of that body should have been accepted and that would have been the end of the matter.
Even if Mr. Veinot is regarded as a trespasser his appeal to this Court should succeed. If he was a trespasser, the enquiry must be as to whether his presence on the ploughed road could reasonably have been anticipated for, if so, the company owed him a duty and that duty was to treat him with ordinary humanity.
Although as a general rule a person is not bound to anticipate the presence of intruders on private property or to guard them from injury, a duty may arise if the owner of land knew of, or from all the surrounding circumstances ought reasonably to have foreseen, the presence of a trespasser. It appears to me that a person of good sense in the position of the defendant company, possessing the knowledge which its responsible officers possessed about snowmobiles and the degree of snowmobile travel in the area, the proclivity for travel by night, the ease by which the ploughed road could be reached by the several old roads leading on to it would have been alerted, on a moment’s reflection, to the probability of someone reaching the ploughed road as Mr. Veinot did. Stress was laid during argument upon the fact that the plaintiff came in by way of the back door, as it were, and that such avenue of approach could not reasonably have been anticipated. I do not agree. Snowmobiles are ubiquitous. They have an unusual and well-known capacity for travel on and off the beaten path. In an uncharted Canadian wilderness area, of forest, rivers and lakes, one could reasonably expect them to go in almost any direction, at least until such time as they reached indicia of private property. If there was a likelihood that someone would come upon the ploughed road on a snowmobile at night, and the evidence in my view supports such a likelihood, then I do not think there can be doubt that the company failed in the duty it owed Mr. Veinot to treat him with common humanity. The ploughed road gave every appearance of being a public road. Mr. Veinot had good reason to believe that he might freely use it if he wished to do so. Acting on that belief he failed to see or appreciate the abeyant danger of the rusty pipe. The defendant company in my opinion erred in permitting the continuance of what should have been recognized by it as a covert peril, menacing the safety of anyone who came upon the road at night on a snowmobile. And it would have been so easy to have averted the accident, by painting the pipe white or by hanging a cloth or a sign from it.
I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the trial judge with costs throughout.
The judgment of Martland, Judson, Ritchie and de Grandpré JJ. was delivered by
MARTLAND J. (dissenting)—This appeal is from a judgment of the Court of Appeal for Ontario, which allowed the appeal of the present respondent (hereinafter referred to as “the company”) from the judgment at trial, pronounced upon the answers to questions put to a jury, which awarded to the appellant, Peter Veinot (hereinafter referred to as “Veinot”), damages in the amount of $29,537 for personal injuries which he had suffered.
The Company operates a mine in the area of Virginiatown and in 1950 acquired the surface rights to a parcel known as Mining Claim L25195 for the purpose of storing its high explosives. It used the property for such purpose steadily until June of 1970 when the magazines were moved from the property into the mine complex itself as a result of a requirement that high explosives be guarded. In the year 1950, when the first magazine was built, a gate was erected consisting of a 2 inch diameter pipe bar, placed some 45 inches from the ground, supported on two “U” bolts inserted in 8 x 8 posts on either side of the private road, which led west from the gate to the powder magazine, with a chain on the pipe so that it could be padlocked. The Company kept the gate locked at all times. The Company had allowed only two people, other than Company employees, to have access to its property. One of these, Mr. Jim Youni, was given access for logging purposes at some time in the past. Mr. Youni had used the private road with permission and had been in possession of a key to the gate. A Mr. Campbell had been allowed to use the private road for prospecting purposes and he had been required by the Company to leave his truck inside the gate for the duration of this operation.
The only access for traffic to the powder magazine property was by the private road. This road came to a dead end at the powder magazines and from this point there were three old logging roads branching off, which were impassable or almost impassable. A short distance to the east of the site of the powder magazines there was an old logging road extending to the north of the private road, which was passable by truck, with difficulty, for approximately a mile.
The Company caused a “Danger-Explosives in the Area” sign to be placed inside the gate on the north side of the private road and “Danger-Explosives, No Trespassing” signs at the powder magazines.
To the east of the gate the Company’s private road runs to Virginiatown. Proceeding from Virginiatown to the gate, the road commences from 28th Avenue, which is situated in the north-west portion of the townsite running east and west. The private road, which is owned and maintained by the Company, runs west from 28th Avenue for about 1,000 feet and then swings slightly toward the north for about 200 feet. It then reaches a right-of-way of the Hydro-Electric Power Commission of Ontario, which runs north and south. The private road crosses the right-of-way, diagonally, toward the north-west, and then runs toward the west. From the westerly boundary of the Hydro right-of-way the road runs for some 1,100 feet to the powder magazine area. The gate on the road is located where the private road leaves that boundary. Some distance north of the private road there is another Hydro right-of-way, which intersects the north-south Hydro line. The old logging trail, which extends north from the private road near the powder magazine area, reaches to the east-west Hydro line.
On the night of March 17, 1970, Veinot was driving his snowmobile, accompanied by his wife, as a passenger. They were accompanied by a friend and his wife on their own snowmobile. Both machines had headlights. The journey commenced at Larder Lake, where Veinot has lived for some 32 years, and which is some 6 or 7 miles, as the crow flies, south-west of Virginiatown. They drove out on to the bay adjacent to Larder Lake, returned to the land and continued north-easterly for about 5¾ miles and then northerly for 7 or 8 miles. They then returned southerly and at Crosby Lake turned south-easterly, traversing Beaver Lake, crossing the Ontario Northland Railway right-of-way and then turning more easterly, crossed Bear Lake and, at its eastern end, followed the east-west Hydro right-of-way until they came to the logging road.
Veinot was not sure where he was at that point, but travelled down this road until he came to the private roadway of the Company at the point somewhat easterly of the explosive storage locations. Veinot said that this road, i.e., the old logging road, had a lot of snowmobile tracks on it and was hard packed from previous use. He then continued easterly on the private road and, while driving at about 15 to 20 miles per hour, his head hit the pipe and he sustained serious injuries. His wife and the occupants of the other snowmobile were able to avoid injury.
The case was tried prior to the judgment of the House of Lords in British Railways Board v. Herrington[9]. It went to the jury on the basis that the Company’s liability was dependent upon Veinot establishing that he was on the Company’s land with the implied permission of the Company.
The questions put to the jury and their answers were as follows:
1. Was the plaintiff on the date of the accident on the land of the defendant with the implied permission of the defendant?
Answer: Yes.
2. If the answer to question 1 is “yes”, were the plaintiff’s injuries caused by a concealed or hidden danger or by a trap of which the defendant had knowledge?
Answer: Yes.
3. If your answer to question 2 is “yes”, what was the concealed or hidden danger or trap? Please specify in detail.
Answer: It was a rusty pipe approximately 2” in diameter suspended across the travelled portion of the road at a height of approx. 45 inches from the road.
4. If your answers to questions 1 and 2 are “yes”, then did the defendant fail to take reasonable care to avoid injury to such person traversing that area?
Answer: Yes.
If your answer is “yes”, please specify in detail.
There were no distinguishing warnings of the location of the pipe across the roadway from either the east or west approach to the pipe or on the pipe itself.
5. If your answers to questions 1 and 2 are “yes”, did the plaintiff fail to take reasonable care for his own safety?
Answer: No.
The Court of Appeal reached the conclusion that there was no evidence of implied licence which could support the finding of the jury on that point.
On this issue, the mine manager of the Company testified that he had no knowledge or information of snowmobiles coming down and going across any part of the powder magazine property. He was aware of the use for snowmobiles of the road from Virginiatown to the north‑south Hydro right-of-way and thence, via the east-west Hydro right-of-way, to Bear Lake.
The chief security officer of the Company testified that he visited the powder magazine area on an average of once or twice a week. He would unlock the gate and proceed to the powder magazine. He had never seen anyone on the site other than mining personnel. In the winter of 1969-70 he had seen, on a very few occasions, snowmobile tracks just west of the gate. He had seen none near the powder magazine. He did not report the presence of these tracks to the mine manager. He did not do anything about them because, as he said, it would have been necessary to post a guard to prevent entry or to catch somebody who was there.
On the issue of implied licence, Arnup J.A., who delivered the judgment of the Court, makes the following comments:
After careful consideration of the entire transcript it is my view that there was no evidence of implied license to go to the jury. There was a good deal of evidence that snowmobilers had been using the defendant’s private road to go westerly from the North Virginiatown townsite to the north-south Hydro right-of-way, and thence along that right‑of-way in both directions. However, as noted earlier, the only evidence of knowledge on the part of servants of the defendant of any use of the roadway west of the Hydro right-of-way is that on “very few occasions” in that same winter, the security officer had seen snowmobile tracks a short distance west of the gate in question.
...
In my view there was a physical separation, by the north-south Hydro line itself, of the two parts of the private roadway, even without regard to the gate across the roadway at the west limit of the Hydro right-of-way. I do not think that knowledge of user of the private roadway in that portion lying east of the Hydro right-of-way, however extensive, can be relied on so as to give rise to an implication that the occupier had good reason to expect similar trespassing on the portion west of the Hydro right-of-way.
In Edwards v. Railway Executive[10], the House of Lords had to consider the evidence requisite to create an implied licence. A nine-year-old boy, who had gone on to the defendant’s railway line on top of a railway embankment, was struck by a train. The embankment was fenced, but there was evidence that other children had been accustomed to break through the fence and had made a slide down the embankment. The fence had been kept in repair, after damage, and was in proper condition on the day of the accident. The jury found that the boy had gone on to the embankment and on to the railway line with the tacit permission of the defendant’s servants.
The House of Lords held that there was not evidence to justify these findings. At p. 747, Lord Goddard says:
Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it.
Lord Porter, at p. 744, says:
The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondents to fence, children again and again broke their way through.
The implication of a tacit permission arising from other intrusions upon an owner’s land could not be made, under the concept of an implied licence, unless it could be shown that the owner was aware of such intrusions, and, even if he was aware, it had to be shown that he permitted such intrusions on his land and not merely tolerated them.
Lord Porter, following the paragraph of his reasons which contains the statement above quoted, went on to say:
It will be observed that in expressing this opinion I have assumed that the servants of the Railway Executive had knowledge that children were accustomed to go there. I am not convinced that they had this knowledge, but it may have been legitimate for the jury to find that the ganger who repaired the fence must have known, although I am not prepared to accept the proposition that any inference can be drawn from the fact that trains passed up or down, or to hold that their drivers ought or must be taken to have seen the children. However that may be, and even assuming that the respondents had knowledge of the intrusion of children on to the embankment, the suggestion that that knowledge of itself constitutes the children licensees, in my opinion, carries the doctrine of implied licence much too far, though no doubt where the owner of the premises knows that the public or some portion of it is accustomed to trespass over his land he must take steps to show that he resents and will try to prevent the invasion.
As has already been noted, the Company had no knowledge that operators of snowmobiles had used its private road to drive their vehicles from the powder magazine area to the gate, or from the gate to that area. The only tracks seen by the security officer were just to the west of the gate. The persons whose vehicles created those tracks must have been aware of the presence of the gate, the very purpose of which was to indicate the resentment of the Company against trespass on its road, and to prevent such intrusion by vehicular traffic.
In my opinion there was no evidence of implied permission having been given by the Company for the use of its private road by the drivers of snowmobiles.
This conclusion, in itself, does not necessarily involve the failure of this appeal. Counsel for Veinot contends that, even if Veinot was not a licensee, none the less the Company owed a legal duty to him, even as a trespasser, which had, on the facts of this case, been breached. He relied chiefly upon the judgment of the House of Lords in British Railways Board v. Herrington (supra).
Before considering the reasons delivered in that case it is necessary to give attention to its facts. The plaintiff was a six-year-old boy. He had been playing with his two older brothers in a field which was National Trust property, which was freely open to the public. Adjoining this property was the defendant’s electrified railway line. Beyond that was another National Trust property. Through the field in which the boy was playing ran a path which led to the railway line. Shortly before reaching the line the path came to a four-foot-high chain link fence, which bordered the track. The path turned to the right to a footbridge over the track. Where the path turned right there was a further short stretch of trodden path leading straight up to the fence. At the point where this path reached the fence, the fence had become detached from a supporting post and it had been pressed down to within 10 inches of the ground. The evidence showed that the fence had been in that condition for some time and that people had been using the gap to take a short cut across the line. Employees of the defendant, some seven weeks before the accident, had reported the presence of children on the line, but no action had been taken. The plaintiff left the field where he had been playing, crossed the gap in the fence, and walked on to the line, where he came into contact with the electrified rail and was severely injured. No witnesses were called at the trial on behalf of the defendant.
The Railways Board contended that the boy had been a trespasser on its property and that, applying the principles enunciated in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck[11], there could be no legal claim for damages in respect of his injuries. The principle stated by Lord Hailsham L.C. in that case, at p. 365, was as follows:
Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the tresspasser.
In his reasons in the Herrington case, at p. 931, Lord Diplock makes the following candid statement:
If the facts in the instant appeal are compared with those in Addie’s case as stated by Lord Hailsham L.C, at pp. 359-360, I do not think it possible to say that, judged by current standards of behaviour, the conduct of those engaged in operating the appellants’ railway