Ottawa (City) v. Munroe

Ottawa (City) v. Munroe
Collection
Supreme Court Judgments
Date
1954-11-01
Report
[1954] SCR 756
Judges
Estey, James Wilfred; Cartwright, John Robert; Kerwin, Patrick; Rand, Ivan Cleveland; Locke, Charles Holland
On appeal from
Ontario
Subjects
Torts
Decision Content
Supreme Court of Canada
Ottawa (City) v. Munroe, [1954] S.C.R. 756
Date: 1954-11-01
The Corporation of the City of Ottawa (Defendant) Appellant;
and
Joseph Charles Daniel Munroe, an Infant by his Next Friend Bernard Munroe and the Said Bernard Munroe (Plaintiffs) Respondents.
1954: February 26; 1954: March 1; 1954: November 1.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Infants—Landlord and Tenant—Child injured by fall through wash-room window—Whether allurement or trap to children—Whether child invitee or licensee.
The appellant municipality leased to the grandmother of the infant respondent, a child of four and a half years of age, an apartment situate on the 3rd floor of a building in which to alleviate the post-war housing shortage it provided “emergency shelter” to taxpayers unable to secure other accommodation. The grandmother’s household included the infant and his mother and his father, the other respondent. A common wash-room was provided the several occupants on that floor. In it was a row of wash-basins set in a stand at the back of which was a counter some three feet high at right angles to, and within two feet of a large window, the sill of which was some nineteen inches from the floor. Just below the sill and parallel to it and between it and the basins was a radiator. An adult found the infant respondent and another child playing on the counter and told them to get down. Shortly after the adult left the room the infant respondent fell through the window pane to the ground below and was seriously injured. In an action claiming damages from the appellant, a jury found that the injured child was on the premises with the knowledge and permission of the appellant. That his injuries were caused by the fall through the window pane and that there was present in the wash‑room a hidden danger or allurement to the infant respondent, namely the combination of radiator, basins, platform etc., adjacent to the unpro- tected window. That the appellant knew the danger existed, and by its neglect to install protection guards on the window, failed to use reasonable care to prevent injury to the child.
Held: (Estey and Cartwright JJ. dissenting)—that there was no evidence upon which the jury could find that the structural design of the wash-room constituted a trap or concealed danger, and the action should be dismissed.
Per Kerwin C.J. and Rand J.: The duty owed by a landlord to a licensee at the invitation of the tenant is no greater than the duty owed the tenant. Hugget v. Miers [1908] 2 K.B. 278; Cavalier v. Pope [1906] A.C. 432; Fairman v. Perpetual Investment Bldg. Society [1923] A.C. 76. In the absence of a trap or hidden danger no duty is owed by the landlord to a tenant, and a licensee on the premises at the invitation of the tenant is in no better position nor can a distinction be drawn if the licensee be a child of tender years. Dobson v. Horsley [1915] 1 K.B. 634.
Per Locke J.: There was a preliminary question of law to be determined by the trial judge as to whether the evidence disclosed anything in the nature of a concealed danger which might constitute a trap (Latham v. Johnson [1913] 1 K.B. 415) which should have been answered in the negative. There was no evidence from which negligence on the part of the defendant might reasonably be inferred (Metropolitan Ry. Co. v. Jackson 3 App. Cas. 193 at 197) and the case should have been writhdrawn from the jury.
Per Estey and Cartwright JJ. (dissenting): The jury, acting upon instructions to which no exception was taken and upon evidence that supported that view, found as a fact that the infant was a licensee and the “combination” constituted a trap. The case was therefore to be distinguished from Cavalier v. Pope, supra, Latham v. Johnson, supra and Dobson v. Horsley supra, and brought within the rule in Lynch v. Nurdin 1 Q.B. 29 followed in Cooke v. Midland Great Weastern Ry. of Ireland [1909] A.C. 238. Glasgoiv Corp. v. Taylor [1922] A.C. 44, Ellis v. Fulham Borough Council [1938] 1 K.B. 212, Yachuk v. Oliver Blais Co. Ltd. [1949] A.C. 386, Williams v. Cardiff Corp. [1950] 1 K.B. 514. Gough v. National Coal Board [1953] 2 All E.R. 1283 and Hawkins v. Coulsdon and Purley Urban District Council [1954] 2 W.L.R. 122 referred to.
Per Cartwright J. (dissenting): Assuming that the attention of the jury was not directed to the question whether or not it was an implied term of the license to the infant respondent to be in the wash-room that he should be accompanied by an adult and that this point was left undecided by their answers, it was the right and duty of the Court of Appeal to decide it (The Judicature Act (Ont.) s. 27), and that court rightly held that the license was not subject to the implied condition.
APPEAL by the defendant corporation from the judgment of the Court of Appeal for Ontario[1] which dismissed (Hogg J.A. dissenting in part) its appeal from the judgment of Spence J upon a verdict of a jury.
F.J. Hughes, Q.C. and A.T. Hewitt for the appellant.
R.A. Hughes, Q.C. for the respondent. The judgment of Kerwin C.J. and of Rand J. was delivered by:
RAND J.:—This action was brought in tort by a father and his infant child aged 4½ years against the city of Ottawa as landlord of the former’s mother-in-law with whom he and his family were living, for damages resulting to the infant in falling through a window from the third storey of an emergency apartment house. On that storey was a tenant’s wash-room, one of the basins in which had been allocated to the tenant. The basins were set in a stand at the back of which rose a top or counter a foot or so in width to hold washing, shaving and other accessories. The counter was about three feet from the floor. The stand was placed at right angles to and within two feet of a large window. The sill of the latter was about nineteen inches above the floor. Just below the sill was a radiator or heating coil which apparently could be used by children to reach the wash basins and, it may be, climb the stand.
The child, with one or two others, was playing in the wash-room and in some way, with at least one other, managed to get up on the top of the stand. While there and shortly before the accident, another tenant entered the room land seeing them there, warned them to get down and from what appeared later the companion did. The mother was in an adjoining room washing some clothes and knew the child with two other children had been playing in the hall on which the wash-room opened. There was a crash of breaking glass and the little boy was found lying on the ground, about 40 feet below, gravely injured. It does not appear what happened but it is possible that in trying to get off the stand at the end near the window, or in standing on the sill or coil in the course of getting down, he lost his balance and fell against the pane which gave way.
The father, as well as another, had complained to the janitor of the danger presented by the low window in its special situation and had asked that boards be placed across the lower part to prevent just such an accident; but neither the janitor nor the tenant did anything and the hazard remained. Some time previous to the accident a woman had fallen out of the window but under what circumstances does not appear. The jury found that there was present in the wash-room a “hidden danger, allurement or enticement” consisting of a “combination of a heating radiator, pipes, basin, bracket and platform adjacent to an unprotected window”, the structural elements mentioned; and the question is whether, in law, such a claim lies.
From the earliest times the courts have laid it down that a landlord vis-a-vis the tenant may lease lands or unfurnished premises in any condition in which they may be and that the tenant takes them with all their objectionable features. In Chappell v. Gregory,[2] the Master of the Rolls. Sir John Romilly, states the rule in these words:—
But, in the absence of such promise, (to put the house in a state of repair) a man who takes a house from a lessor, takes it as it stands; it is his business to make stipulations beforehand, and if he does not, he cannot say to the lessor “This house is not in a proper condition, and you or your builder must put it into condition which makes it fit for my living in.”
In Robbins v. Jones,[3] Erlie C.J., at p. 776:—
A landlord who lets a house in a dangerous state, is not liable to the tenants, customers or guests for accidents happening during the terms; for, fraud apart, there is no law against letting a tumbledown house; and the tenant’s remedy is upon his contract, if any.
And the language of Lord Atkinson in Cavalier v. Pope,[4] is to the same effect.
That being the general law in respect of the leased premises, no question would arise here were it not that the injury arose in a wash-room common to the tenants of the third floor. We have no direct evidence of the person who was in possession of that room. That the landlord may have undertaken to keep it and the basins in fit condition for use might conceivably be inferred from the fact that a janitor was supplied for the building. We have no particulars of any duty in this respect or whether, generally, he had the oversight of the room. But I will assume he did have and that the legal possession of the wash-room had been retained by the city.
Since the lease was made to the mother-in-law, the right of the child to be on the leased premises derives through her, arising from the fact of her sole possession. But when we come to collateral privileges annexed to leased premises, other considerations must be taken into account. It is clear that involved in the right to the wash-room given the tenant is the contemplated use of it by members of the tenant’s family and that will include those in fact living with the tenant; but whatever their privilege, it is essentially derivative. The right to extend permission to children or others to make use of these facilities is properly looked upon as being included in what is granted to the tenant, but they are there primarily as the tenant’s guests or licensees, and only in a secondary sense do relations between them and the landlord arise.
What, then, is the duty of the landlord toward the tenant, because it would appear to follow that the tenant cannot confer greater rights or privileges upon others than he possesses himself; the scope of the tenant’s rights against the landlord will limit those of such licensees.
The tenant is in contractual relations with the landlord upon the terms of which she would, in this case, be entitled to rely. For example, a covenant to repair, running directly to the lessee, provides a right that is not available to any one who is not a party to that contract: Cavalier v. Pope, supra. The position of the licensees must, then, be placed upon the footing of a duty at law not higher than that which is owed by the landlord to the tenant exclusive of contractual rights which run to the tenant alone.
This limitation has been declared by the Court of Appeal of England in Hugget v. Miers,[5]. There an employee of one of the tenants, in going down an unlighted staircase retained in the possession of the landlord, fell through a door and suffered injuries. In the course of holding against the claim, Sir Gorell Barnes, President, at p. 283, said:—
If there were no such duty on the part of the landlord towards the tenants, I cannot see how there possibly could be such a duty towards an outsider who comes on the premises on the invitation of a tenant.
and at p. 284:—
It appears impossible under the circumstances to infer in favour, of a person using the staircase by invitation of a tenant any undertaking on the part of the landlord to do what the tenants, as it would seem by arrangement with the landlord, undertake to do for themselves, and I cannot see how such a person could be in a better position in this respect than the tenant himself. In this Farwell L.J. concurred:—
A member of the public using the staircase on the invitation of the tenant can (not) have a greater right than the tenant himself.
The same authority, as well as Cavalier v. Pope, supra, and Fairman v. Perpetual Investment Building Society,[6] shows also that under the general duty implied in law from the circumstances of the appurtenance, the landlord is responsible to such a person only as to a licensee, that is, one entering by the authority of the tenant takes the premises as he finds them, subject to protection against concealed dangers or traps. It is obvious that, here to the tenant as well as to her licensee there was no trap or hidden danger. What is complained of is simply certain parts of the structural design which the landlord saw fit to give to the wash‑room. On that state of things, the tenant could not have found any claim against the landlord, nor could an adult licensee.
Is the child in any better position? The only ground upon which this can be suggested is that what is apparent to the tenant may be a trap or an allurement to the child. Apart from the fact that the child is brought on the premises by his father, it would be a strange proposition that a landlord should be bound to alter his premises in order to make them safe for the child when they are unobjectionable as to his tenant. The answer to be given the tenant is simply that if the premises are not fit for his children he should look for others. Now that may appear to be a cold answer when premises are at a premium; but if through stress of circumstances the tenant, and a fortiori a tenant’s licensee, must live where he can, then any special accommodation necessary for the needs of his children must, in some manner, be provided by himself. Of course not all tenants have children and children may arrive in the family at any time and it would be a reductio ad absurdum that the duty of the landlord in relation to the structure of his accessory accommodation should depend upon such happenings. On long leases of, say, apartments, safe today they would become dangerous tomorrow as and where and when children happened to be added to a family. On this point there is direct authority. In Dobson v. Horsley[7], the facts were almost identical with those here. The tenant’s child of 3½ years of age, while playing on steps retained in the control of the landlord, fell through an aperture of the railing owing to one of the upright bars being missing. It was argued that as to the child the stairway, the danger of which he could not appreciate, was a trap but the Court of Appeal held that no cause of action was shown. Buckley L.J. at p. 641, meeting this contention, said:—
If this was a dangerous place, as obviously it was, the child ought not to have been there without proper protection; and the liability of the defendant cannot be enlarged by exposing him to a liability for not providing such a railing as would prevent a child from falling into the area.
In this statement Pickford L.J. concurred:—
With regard to the question as to the child, I entirely agree with what has been said by Buckley L.J., that his age makes no difference.
Does the case gain any strength from the fact that the landlord, for instance, has knowledge that the child has played in the wash-room and on the top of the stand? That can only be on the principle of the cases that have held an owner liable to a trespassing child who had been attracted by an object containing a hidden danger. But the child here was not a trespasser nor was it attracted to the room by the so-called combination of features; it was in the room as of right through the tenant, and although it bears a relation of licensee toward the landlord, I know of no consideration in law which in such a situation transfers the care of the infant from the parent to the landlord.
But the arrangement here cannot be called an allurement or trap as that term is used in the cases. The wash-room and its fixtures were of ordinary design. The window was, in a sense, dangerous because it reached so near to the floor, but no one would suggest that it constituted a trap. If an ordinary table had been supplied and the child fell off and went through the window, could that also be called a trap? If the common approach was a high narrow walk without any protecting sides, would the landlord be liable when a young child, playing on it, falls off? Would his knowledge that the child was accustomed to play on it make any difference? I should say no to both questions, and if that is so there is no distinction that I can see to be drawn between that and what we have before us.
The appeal must therefore be allowed and the action dismissed. If, in the face of the circumstances disclosed, the city insists on costs, they must follow the event throughout.
ESTEY J. (dissenting):—The respondent, Bernard Munroe, in this action claims damages on behalf of himself and, as next friend, of his infant son, Joseph Charles Daniel Munroe, for injuries suffered by the latter when, at the age of about four and one-half years, he fell through a third floor window in the appellant’s apartment block, Wallis House.
By a lease in writing dated April 1, 1948, the appellant leased to Mrs. Caroline Dorion suite No. 29 consisting of three rooms in the said Wallis House. While not mentioned in the lease, it was understood that Mrs. Dorion and her guests would use the wash-room on the third floor. In fact, one of the basins in that room was allotted to her suite. Mrs. Dorion is the mother‑in‑law of the respondent Bernard Munroe. The latter, with his wife and infant son, were, for some time prior to and at all times material hereto, living with Mrs. Dorion in this suite No. 29.
In the afternoon of October 19, 1949, the infant respondent, with another infant, was playing in the wash-room when he fell through a pane of glass in a closed window and suffered the injuries here claimed for. Only the infant plaintiff and the other infant of tender years were, at the critical time, present in the wash-room and it is, therefore, impossible to ascertain precisely what happened. Two or three minutes before the infant respondent fell, George Thomas, who occupied suite No. 31, which had a door opening into this wash-room, was in the latter and saw him and another infant playing on the counter. He told them to get down and they were apparently in the course of doing so when he left the wash-room. The jury evidently concluded that in doing so the infant respondent fell through the window.
This wash-room, located on the south side of the corridor at the west end of the building, was for “personal washing and shaving.” The window in question is one of two facing in a southerly direction. Between these two windows there is a short space and the wash basins extend from near that space northward through the middle of the room. Immediately behind these wash basins, and used for placing toilet and shaving accessories, is what is variously described as a platform, counter, shelf or washstand (hereinafter called the counter). This counter rests upon the floor. It is eleven feet three inches in length, one foot six inches in width and two feet eleven inches in height. It commences about one foot from that part of the window through which the infant fell and extends behind and along the wash basins. Under the window is a radiator heating the room and the basin nearest to the window had been removed but, in the main, the equipment necessary to service it remained in place. The glass in the lower sash of this window is in two parts. He fell through one of these which is two feet eight inches in length and one foot six inches in width. The window itself is three feet four inches wide and the window pane described as of “ordinary light glass.” The janitor deposed that the presence of the radiator and the drainage pipe, exposed since the removal of the basin, provided “good climbing” and that small children three or four years old could climb on it. The janitor, when asked “Would they go through the window?” answered “It is a dangerous window.”
The respondent Bernard Munroe, some five months prior to the infant’s falling through this window, in the presence of Walter Casey, another tenant, and the janitor, complained of the window here in question being dangerous to children, without a guard or other protection thereon, to Louis Nezan, who was employed by the appellant and was in charge of purchasing cleaning supplies for Wallis House and was one of the employees who might instruct the janitor to make repairs. At that time he asked “if it were possible to put any guard or railings in front of that window.” He stated that when Louis Nezan asked why “I told him why I was asking, and he said he did not have time or men for that.”
Walter Casey recalled the conversation and deposed that Bernard Munroe
was talking about putting some protection on the windows so that the children would not fall out and hurt themselves. The janitor, while he recalled the occasion, could not remember what was said and Louis Nezan had no recollection of the occasion, or of any complaint in respect to the window.
The janitor, Balmore Lemire, was the attendant on the premises. He admitted that he had seen children playing in this room and upon the counter. In the course of his evidence he stated:
Q. Did you ever see children on the counter which is shown in these exhibits? A. Yes, I have seen them, and took them off myself.
Q. How often? Frequently? Were they up there a lot? A. Especially on a Saturday when they had no school, or something.
Q. What were they doing up there when you saw them? A Mostly sitting down, or else they were bending down and turning the taps on and throwing water on each other.
Q. In other words, they would lean over the taps, and have water fights on the counter? A. Yes.
Q. Were they standing up on the counter when you saw them? A. I didn’t see them stand up. I saw them sitting down, and stooping down.
Q. Did you ever tell them to get off? A. Sometimes they were using hot water, and I told them we have not got enough to throw away, so I brought them down with my hand, and told them not to get on there any more.
Q. You took them down, and told them not to get on there again? A. No; it was a dangerous place to play.
In spite of the fact that the janitor had said this was a “dangerous window,” when asked why he did not put a guard thereon, he replied: “Because there did not seem to be any danger there.” Moreover, Louis Nezan deposed, when specifically referring to the wash-room, “I did not know it as a dangerous condition” and, when asked if the presence of wash basins, coils and platform where “children were wont to get up and play” did not require some protection on the window, he replied: “I did not think it was necessary.”
The jury found the infant was on the premises at Wallis House to the knowledge of and with the permission of the appellant; he suffered his injuries when he fell through a window in the wash-room; the combination of the heating radiator, pipes, basins, bracket and platform adjacent to an unprotected window constituted, in the wash-room, a hidden danger, an allurement or enticement to the infant plaintiff; the appellant, through its officials, knew of the danger and did not take reasonable care to prevent injury from the hidden danger, allurement or enticement in that it failed to install protection guards on the wash-room windows.
The wash-room was not included in the lease and the evidence establishes that it remained at all times in the control and possession of the appellant, whose janitor regularly inspected it, as did other employees, and in this, as in the other wash-rooms, it would make any necessary repairs or alterations. The fact that the injury did not occur in the demised suite, but in that portion which remained in the possession of the landlord, distinguishes it from cases such as Cavalier v. Pope[8]. This distinction is emphasized in a number of cases, particularly in Sutcliffe v. Clients Investment Co. Ltd.[9], where a licensee with an interest, or an invitee, was injured when a portion of a balcony not included in the lease gave way. Scrutton L.J. at p. 756 stated.
The first question is, Did this balcony and balustrade form part of the premises demised to the tenant? Because if they were included in the demise, I do not think, as at present advised, that any action would lie against the landlords… The learned judge has decided the question as a matter of law, and in the circumstances I do not feel able to interfere with his decision, and so we must proceed on the assumption that not being included in the demise they remained in the possession and control of the landlords.
It is clear that the facilities of this wash-room were essential to the enjoyment of the suite by Mrs. Dorion, as well as by her boarders and guests, and, as already stated, one of the basins was specifically allotted to her suite. As indicated by the foregoing evidence, children were, to the knowledge of the appellant’s servant, playing in the wash-room, unattended, upon a number of occasions. The finding of the jury that the infant respondent was on the premises at Wallis House to the knowledge of and with the permission of the appellant, when construed, as it must be, in relation to the evidence and the other findings, cannot be restricted to parts of Wallis House other than this wash-room, but rather must include the latter.
The relationship between the infant respondent when in the wash-room and the appellant is similar to that of the plaintiff in Fairman v. Perpetual Investment Building Society[10], where, in the view of the majority, the relationship between the lodger and the landlord was that respectively of licensee and licensor. While there may be much to be said for the view expressed by Scott L.J. in Haseldine v. C.A. Daw and Son Ltd.[11], to the effect that the expression of the majority in the Fairman case was but a dictum, and that the relationship in such circumstances should be that of invitee and invitor, it is unnecessary, in the present case, to determine that issue, as, in my view, upon the facts in this record, the result would be the same whether the infant be described as an invitee or a licensee.
Upon the assumption that the infant respondent was, while in the wash-room, a licensee, he must accept the premises with whatever inconveniences, risks or dangers as are open and obvious. Latham v. Johnson[12]. In this regard there is no distinction between an adult and a child, as emphasized in Dobson v. Horsley[13].
In the present case, however, the jury, upon instructions to which no exceptions have been taken upon this appeal, have not found the danger to be open and obvious, but, on the contrary, that the heating radiator, pipes, basins, bracket and counter constituted an allurement or enticement to the infant to climb thereon and that the combination of this equipment and the window adjacent thereto, through which, in the absence of guards or appropriate protection, a child might, as the infant plaintiff did, fall in the course of his climbing or playing upon this wash-room equipment, constituted a concealed or hidden danger. When such facts are found to exist by a jury, the issue is not whether the members of an appellate court agree with the jury’s finding, but whether there was evidence upon which a jury, acting judicially, might so find.
This finding brings the case within Lynch v. Nurdin[14], where an infant climber upon a cart left unattended in a public place. He fell off and suffered injuries for which damages were recovered because such a vehicle so left was to children but an attraction or an inducement to the exercise of their natural tendencies. As stated by Lord Atkinson, the principle of Lynch v. Nurdin “applies to any place to which boys or girls have a legal right to go and may reasonably be expected to be not unlikely to frequent.” Cooke v. Midland Great Western Ry. of Ireland[15].
In Ellis v. Fulham Borough Council[16], the borough provided a paddling pool in a public park for the use of children. On the morning in question the attendant had raked out the pond for the purpose of making it safe for the children to paddle and almost immediately thereafter the infant stepped into the pond and cut his foot upon a piece of glass. On the basis that the infant was a licensee, it was held that the council knew of the danger and had taken inadequate precautions to provide against that danger. Lord Justice Greer at p. 225 stated:
…the ground which I think is sufficient is that the corporation recognized the danger to the children when they stepped into this pond at the place adjoining the sand patch, but that they took inadequate measures to remove that danger which they could have prevented if they had taken adequate measures to prevent it.
The language of this statement is particularly appropriate as no doubt the infant respondent, in the present case, would not have fallen through this window pane had the appellant provided guards, or other reasonable protection. In its failure to do so it “exposed the children to a danger” which it could, by reasonable means, have removed.
In Williams v. Cardiff Corporation[17], an infant four and one-half years old, while playing on a piece of waste ground, the property of the Cardiff Corporation, rolled down a bank and was injured by broken glass and tins at the foot thereof. The corporation was held liable and Jenkins L.J. at p. 518 stated:
From the point of view of an infant, I have no doubt that such objects, scattered about the ground, are traps or concealed dangers, whatever might be said of them from the point of view of an adult.
Romer J. at p. 519 stated:
It is obvious, I think, that the mere presence of a grassy slope could not amount to a concealed danger, for it could be seen. What I think is equally clear on the evidence is that the presence of that slope, coupled with the presence of tins and broken glass and other material at the bottom of it, did amount, and the county court judge was right in so holding, to a concealed danger, which would result in the corporation’s being liable for damage sustained by this infant plaintiff. Here again it may well be said that even a child would see that if he climbed upon the equipment he might fall to the floor or on some other part thereof and, therefore, that such was an obvious and not a concealed danger. That, however, was not the issue. The infant respondent had fallen through the closed window and the jury found it was the “combination” of this alluring equipment in such proximity to the window that constituted a concealed or hidden danger.
In Corporation of the City of Glasgow v. Taylor[18], the berries were perfectly obvious to children, but it was their poisonous character that they did not appreciate and, therefore, constituted “something in the nature of a trap.” Lord Atkinson at p. 53 points out:
The defenders were, therefore, aware of the evistence of a concealed or disguised danger to which the child might be exposed when he frequented their park, a danger of which he was entirety ignorant, and could not by himself reasonably discover, yet they did nothing to protect him from that danger or even inform him of its existence.
In Latham v. Johnson, supra, where the danger was obvious, the infant did not recover, Hamilton L.J. (later Lord Sumner), however, in the course of his judgment, stated at p. 416:
On the other hand, the allurement may arise after he has entered with leave or as of right. Then the presence in a frequented place of some object of attraction, tempting him to meddle where he ought to abstain, may well constitute a trap, and in the case of a child too young to be capable of contributory negligence it may impose full liability on the owner or occupier, if he ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness and peril of the object.
These cases illustrate that a licensor ought not to have upon his premises, which children of tender years, unattended, are known to frequent, objects with which, in the exercise of their natural propensity, they will meddle and suffer injury from the concealed or hidden danger of which the licensor has knowledge. This is further illustrated by the observations of the learned Lord Justices in Hawkins v. Coulsdon and Purley Urban District Council[19], where at p. 132 Denning L.J. stated:
I do not think that there is any difference between a child licensee and an adult licensee except that a child will meddle where an adult will not, and this fact must be taken into account in deciding whether the occupier has been negligent. In the same case Somervell L.J., referring to accidents to young children, stated at p. 127:
They are, of course, in one sense in a class apart in that, for example, no adult who choose to play with a turntable would be able to recover damages if he injured himself.
Then in Pollock on Torts, 15th Ed. at p. 406, it is stated:
…an occupier who knowingly allows young children to come and play on his land must not expose them to dangers which, though manifest enough to an adult of ordinary sense, are not manifest to them.
The word “allurement,” as used in this connection, is incapable of precise meaning. Whatever is attractive to children, in the sense that its presence will lead them, as here, to the exercise of their natural tendency to climb, turn on the taps and throw water at each other, provides an allurement or an enticement. If, in so doing, they suffer an injury from a concealed or a hidden danger in contrast to that which is open and obvious, then the licensor is said to have maintained a trap on his premises and may be liable in damages to an injured child. As Lord Atkinson stated in Cooke v. Midland Great Western Ry. of Ireland, supra, at p. 237:
…if vehicles or machines are left by their owners, or by the agents of the owners, in any place which children and boys of this kind are rightfully entitled to frequent, and are not unlikely actually to frequent, unattended or unguarded and in such a state or position as to be calculated to attract or allure these boys or children to intermeddle with them, and to be dangerous if intermeddled with, then the owners of those machines or vehicles will be responsible in damages for injuries sustained by these juvenile intermeddlers through the negligence of the former in leaving their machines or vehicles in such places under such conditions, even though the accident causing the injury be itself brought about by the intervention of a third party, or the injured person…
What constitutes a trap, or a concealed or hidden danger, is a question of fact to be found by a jury upon a consideration of all the relevant facts in a particular case. In the present case, apart from any conclusion the jury might arrive at from the construction, appearance and position of the equipment in the wash-room, and particularly its relation to the window, there is the evidence of the janitor that this was a “dangerous window” which, in the context, could only mean that a child climbing upon the equipment already described might slip and, as a consequence, fall through the closed window. There is also the evidence of the complaint made by Bernard Munroe when he requested a guard be placed thereon and the answer of Louis Nezan. These, in my view, all support the verdict of the jury to the effect that this “combination” constituted a concealed or hidden danger. In the language of Hamilton L.J., in Latham v. Johnson, supra, at p. 415, this “combination” presented to the infant “an appearance of safety under circumstances cloaking a reality of danger,” at least in so far as the possibility of his falling through a pane of glass in the window was concerned. That it was such is strengthened by the evidence of Louis Nezan, who was fully aware of the details of this room and failed to realize the danger to children without protection or guards on the window. The jury might well conclude that if Louis Nezan did not realize the danger children of tender years would not do so and could not be reasonably expected to do so.
We are not here concerned with how much an infant should know or realize the danger of his falling to the floor or upon another part of the equipment, or even the possibility of his falling out of the window, had it been up or open. We are concerned with whether an infant of tender years, with the window closed, would recognize or appreciate the possibility of his falling through it, as a consequence of climbing upon the equipment. The infant in Yachuk v. Oliver Blais Co., Ltd.[20], knew gasoline could be used to make a fire. In fact the boys had purchased it for that purpose. Their Lordships of the Judicial Committee, at p. 396, stated, referring to the infant plaintiff,
He did not know, and there is no evidence that he had ever been told, that gasoline was a volatile liquid capable of producing a highly inflammable vapor likely to burst into flame if heat were brought near it.
Their Lordships then concluded:
It is a fair inference from the evidence that it was the very property of gasoline which he neither knew, nor could be expected to know, which brought about his misadventure.
So here, however much the danger of falling may have been obvious to the infant respondent in other respects, the jury, in my view, were justified in finding that the “combination” was such as to hide or conceal from the infant the possibility of his falling through a pane of glass in a closed window. In my opinion, and with great respect to those who entertain a contrary opinion, the jury, with all the circumstances before them, had evidence upon which they might conclude, as they did, that an allurement existed and that the “combination” constituted a hidden danger to the children. It follows that the judgment entered for the plaintiff at the trial, and maintained in the Court of Appeal, should be affirmed.
The appeal should be dismissed and the judgments below affirmed.
LOCKE J.:—In Metropolitan Ry. Co. v. Jackson[21], Lord Chancellor Cains, referring to the respective functions of the Judge and the jury, said in part:—
The Judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether from those facts, when submitted to them, negligence ought to be inferred.
In my opinion, there was no such evidence in the present case and it should have been withdrawn from the jury: accordingly the appeal should be allowed.
The circumstances under which the child Daniel Munroe and his parents came to be living in the suite of rooms rented by his grandmother in Wallis House are described in other reasons to be delivered in this matter, as well as the layout of the so-called wash room from one of the windows of which the child fell.
There must be determined at the outset the status of the child when in the room. According to the evidence of the father and the mother, they both considered the window, with the adjoining basins, as a danger to little children. On the day of the accident, the mother took the little boy with her to a room where she proposed to wash some pots. According to her, there were two other little children in the hall and her son remained with them and, with her consent, went with them into the wash room. Mrs. Munroe said she permitted this as she could watch them from the room in which she was working. Unfortunately, she did not do so and there is no account by any eye witness of the manner in which the child struck or fell against the pane