Grossman et al. v. The King

Grossman et al. v. The King
Collection
Supreme Court Judgments
Date
1952-02-05
Report
[1952] 1 SCR 571
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
Canada
Subjects
Air law
Decision Content
Supreme Court of Canada
Grossman et al. v. The King, [1952] 1 S.C.R. 571
Date: 1952-02-05
Irving H. Grossman And Gussun (Suppliants) Appellants;
and
His Majesty The King, (Respondent) Respondent.
1951: October 10, 11, 12, 15; 1952: February 5.
Present: Rinfret C.J. and Kerwin, Taschereau, Kellock, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Airports—Operated by Crown—Duty to make safe for aircraft—Warnings of Danger—Crown—Whether breach of duty by servant acting within scope of his employment, renders Crown liable under s. 19(c) of the Exchequer Court Act, R.S.C. 1927, c. 34, as amended.
On July 19, 1948, the appellant Grossman, piloting a light aircraft approached the Saskatoon airport, operated by the Department of Transport. Preparatory to landing he had observed workmen on the concrete runways, and diverted his course to a grass runway. While taxiing to a stop he suddenly noticed some distance in front an open ditch which cut across the runway. In attempting to take-off again he was unsuccessful in avoiding the ditch with the result that his aircraft was damaged beyond repair and his passenger and fellow appellant, Sun, was injured. The ditch in question, was not, in the view of the Court, sufficiently marked by a number of posts on which red flags had been placed by one Nicholas, the airport maintenance foreman, and they had not been seen by Grossman. The appellants' action to recover damages under s. 19(c) of the Exchequer Court Act as amended, was dismissed in the Exchequer Court where the damages of Grossman were assessed at $7,003.90 and those of Sun at $440.
Held: (Rinfret C.J. and Locke J., dissenting) that:
1. The open ditch across the grass runway constituted an obstruction and was recognized as such by Nicholas. In failing to provide adequate warning of the danger he failed in his duty to persons such as the appellants, and this breach of duty was negligence for which the Crown under s. 19(c) of the Exchequer Court Act was responsible. The King v. Canada Steamship Lines Ltd. [1927] S.C.R. 69 and The King v. Hochelaga Shipping & Towing Co. Ltd. [1940] S.C.R. 153, followed.
2. No negligence could be attributed to Grossman.
3. As the total amount claimed by Sun was $440, the Court under the provisions of the Exchequer Court Act, had no jurisdiction to hear his appeal which should therefore be quashed.
Per (Rinfret C.J. and Locke J., dissenting). The claim was not for an act of misfeasance but of alleged non-feasance. If there was failure on the part of Nicholas to cause adequate measures to be taken to warn aviators and such failure caused or contributed to the accident, Nicholas was not personally liable and accordingly the action against the Crown should fail. The King v. Canada Steamship Lines, supra and The King v. Hochelaga Shipping & Towing Co. Ltd., supra distinguished. The King v. Anthony [1946] S.C.R. 569, Adams v. Naylor [1946] A.C. 543, Lane v. Cotton 12 Mod. 473, Perkins v. Hughes, Say. 41, Mersey Docks Trustees v. Gibbs (1866) L.R. 1 H.L. 93, referred to : Donoghue v. Stevenson 1932 A.C. 562, distinguished. The matter was not affected by the Air Regulations enacted under the Aeronautics Act, R.S.C. 1927, c. 3, which were not expressed as applying to the Crown.
APPEAL from the Exchequer Court of Canada 1 dismissing a petition of right against the Crown with costs.
J. M. Cuelenaere K.C. for the appellants. The suppliants bring their action pursuant to the provisions of the Exchequer Court Act, R.S.C. 1927, c. 34 and in particular under s. 19(c) of that Act as amended by 1938 (Can.) c. 28, and seek to recover damages suffered by them as a result of an accident as outlined in the Statement of Facts. It is admitted in the pleadings and it was found by the learned trial judge that the Saskatoon Airport was constructed by the Crown as a Public Work and is being maintained and operated as a licensed airport for the use of the public. Such maintenance and operation is under the general supervision and direction of Earl Hickson, District Inspector of Airways, and managed by Philip R. Nichols. Both are servants of the Crown. The fact that the accident took place and the nature of the injuries suffered, it is submitted, were well established.
Broadly the question to be determined is whether the loss or damage suffered by the suppliants was due to the negligence of any officer or servant of the Crown, while acting within the scope of his duty or employment, so as to make the Crown liable in damages under s. 19(c).
It is submitted the trial judge was right in finding as he did that the officers of the Crown in charge of the airport were negligent and that the negligence consisted in the officers' failure to give or provide adequate warning. It is submitted they were negligent in the following respects: (1) Allowing the ditch in question to remain open after it became known that it constituted an obstruction or hazard to flying.
2. Allowing the ditch to remain without being clearly marked. The general and accepted practice at airports and the Air Regulations require that any obstruction existing at a landing area be marked. (s. 12, Air Regulations.)
3. Allowing grass and weeds to grow and debris to accumulate in the ditch, making it difficult, if not impossible, to sight the ditch from the air.
4. Having allowed land markers visible from the air to remain on the grass runways, and the word "Airport" to remain on a building adjacent to such runways; failure to mark the end of such runways or to give adequate warning of the obstruction or hazard to any person using such runways. Each of the above enumerated particulars or two or more taken together constituted negligence on the part of the officers or servants of the Crown.
The liability of the Crown under s. 19(c) has been discussed in numerous cases. In Rex v. Anthony 2 Rand J. sets out the nature of the negligence giving rise to liability on the part of the Crown. In the present case the acts of the officers or servants of the Crown constitute positive conduct within the scope of their duties or employment. The Crown and its officers or servants owed a duty to the suppliant as user of the airport and failed to discharge that duty in such a manner as to raise a liability on the servant for which the master (the Crown) becomes liable. Sincenne McNaughton Line v. The King 3 ; Yukon Southern Air Transport v. The King 4 ; Howard v. The King 5 ; The King v. Hochelaga Shipping 6. In none of the above cases was the question of invitation discussed. The liability of the Crown was based on the use of a public work by a person lawfully on the premises. The cases cited set out the principle relating to the liability of the Crown under s. 19(c). In the present case the airport was a public work built by and at the expense of the Dominion Government and maintained and operated by the officers and servants of the Crown for the benefit of the Crown and for the use of the public. In the light of these authorities it is submitted that the suppliants suffered injury and that the officers or servants of the Crown were negligent, and the trial judge should have held that the suppliants were entitled to recover. Alternatively, he erred in holding the suppliants were licensees and in not holding that they were invitees.
The Saskatoon Airport is an airport designated as such by the Minister of Transport. The Air Regulations, Part III s. 1, require that no area shall be used as an airport unless it has been licensed as required by the regulations. The airport is so licensed. It was constructed and is maintained and operated for the purpose of providing facilities for aerial transportation. The Air Regulations, Part III, s. 6, grants to the operator of any licensed airport permission to charge for its use or for any services performed, such fees as have been approved by the Ministry. The Saskatoon Airport provides hangar facilities, repair servicing, fuel and oil.
Where an airport is operated by a public authority, such public authority, either expressly or by implication, invite the public requiring such facilities to use that airport, and the position of such public authority, its officers or servants, is no different to the owner of a private commercial landing field. As to the latter see Beck v. Wing Field 7.
The liability of public authorities with respect to buildings is set out in: Arder v. Winnipeg 8; Nickell v. Windsor 9; Edmondson v. Moose Jaw School District 10; Blair v. Toronto 11.
The trial judge ought to have found the suppliants were invitees. If invitees, the common law imposes a duty to take reasonable care against endangering life or property. Charlesworth, The Law of Negligence at 154, quoting Parnaby v. Lancaster Canal Co. In Imperial Airway Ltd. v. Flying Service Ltd. 12 it was held that under English law the owner of a public airport is bound: (a) To see that the airport is safe for the use of aircraft entitled to use it, and (b) To give proper warning of any danger of which he knows or should know. Peavey v. City of Miami 13 quoted by the trial judge is distinguishable. There the pilot knew that the airport was then under construction, and he had a blind spot in his aircraft. In the present case the danger was not reasonably foreseeable. Where the user of the premises is an invitee it is no defence to show that the danger was open and obvious, if in fact reasonable steps have not been taken to protect the person coming on the premises. Knowledge of the condition may establish contributory negligence on the part of the user, but here, there was no knowledge. Charlesworth supra at 157, 136 and 123. In the light of the authorities referred to and the facts of this case, the trial judge ought to have found that the Suppliants were invitees and that there was a breach of duty committed by the officers or servants of the Crown giving rise to liability on the part of the Crown. In the. further alternative, even if the suppliants were licensees, the trial judge erred in holding that the ditch in question was an obvious danger and in not holding that the ditch was in the nature of a trap, and in holding that Grossman failed to take reasonable care or was guilty of negligence. The evidence discloses that Grossman acted reasonably and diligently exercising the same care as other pilots would have exercised under similar circumstances. In the alternative, if the finding of negligence on the part of the suppliant Grossman is accepted, the trial judge should have held that the damage or loss was caused by the fault of both the officers or servants of the Crown and the suppliant, and should have determined the degree in which each was at fault and directed that the suppliants were entitled to recover in proportion to the degree in which the servants of the Crown were at fault. The Contributory Negligence Act 1944 (Sask.) c. 23, ss. 2 and 3. The liability of the Crown under s. 19(c) of the Exchequer Court Act is not confined to cases where the negligent act of the Crown's officer or servant is the sole cause of the injury. The Contributory Negligence Act (Sask.) applies against the Crown. The King v. Laperriere 14 ; The King v. Murphy 15 ; Arial v. The King 16 ; Blair v. Toronto, supra.
G. H. Yule K.C. and David Mundell for the respondent. No case against the Crown was made out in the petition or on the evidence. The Crown is not liable in tort except in so far as liability is imposed by statute. Tobin v. The Queen 17; Feather v. The Queen 18. The appellants must rely on s. 19(c) of the Exchequer Court Act, as amended by 1938 (Can.) c. 28. The King v. Anthony 19; The King v. Murphy 20. In para. 8 of the petition the appellants assert "that the said officers and servants of the Crown (the said officers' refer back to the officers and servants in para. 7 who allegedly constructed the ditch) owed a duty to the suppliants to construct and maintain an airport fit for landing and the suppliants say that it was the duty of the said officers and servants to see to it that the said ditch was properly filled in, protected and adequately marked, but failed in the performance of that duty while acting within the scope of their employment by allowing the said ditch or excavation to remain open as aforesaid and/or without adequate markings. The ditch was constructed under contract with the Department of Transport by the Tomlinson Construction Co., relevant parts of which are to be found in the case. The ditch was designed to be an open ditch and to be kept open for drainage purposes. The Crown does not owe any duty as occupier to licensees coming on property that it occupies and servants of the Crown in charge of Crown premises are not occupiers and therefore do not owe any such duty. Adams v. Naylor 21.
The trial judge erred in holding that the Crown owed any duty to the appellants and should have held that the appellants had not brought themselves within the requirements set forth in the Anthony and Murphy cases to prove personal negligence on the part of some officer or servant of the Crown ; that is a breach of duty owed by an officer or servant of the Crown to the appellants. This not having been done, it is submitted that the King v. Hochelaga Shipping & Towing Co. case referred to by the trial judge at p. 198 is not in point.
If the appellants were licensees on Crown property, and if either the Crown or any officer or servant of the Crown, as occupier, owed any duty to the appellants as licensees, the only duty owed by the Crown or any such officer or servant would be to warn the licensees of any concealed danger or a trap. The petition does not allege a breach of any such duty nor does the evidence disclose any which would bring on him personal responsibility to the appellants. The only person on the evidence who was personally in charge of the airport was Nicholas, who is described as "Air Port Maintenance Foreman". Could Grossman have successfully asserted personal negligence by Nicholas? It is submitted not. The trial judge erred in holding that the appellants were licensees on that part of the property of the Crown where the accident took place. A licensee is one who comes on the property by permission, express or implied, for his own purposes. It is doubtful if on the allegation in the petition the appellants are entitled to assert that they were licensees on the area where the accident took place but in any event it is submitted that they were not licensees. That area was formerly a landing field for the R.C.A.F. When the department took over and built the new runways, that area was not maintained by the Crown.
It is conceded that Grossman would have been a licensee of the Crown in landing on the hard-surfaced runways. The onus is on him to establish permission to land where he did. He must bring himself within the area of permission, the same as the invitee must bring himself within the area of invitation. There is no evidence that would establish permission to land where he did. The simple fact is that Grossman decided not to land on any of the four serviceable hard-surface runways but picked out the grassy area because he thought it looked like a good place to make a landing. His case appears to be that he has the right to dictate to the Crown where he shall land and that the Crown has no control over the situation at all. Exhibit 2, a diagram of the Saskatoon airport, shows a portion described as "Dotted area is abandoned airdrome". This is the area in which the accident took place. This exhibit, on which the Attorney General relies strongly, is an official publication obtainable from the Department of Natural Resources, Engineering Division, and can be had for the asking. Grossman had in his possession a map prepared in 1941, before the Saskatoon Airport was constructed and he never applied for any other information, maps or any other material before he decided to come to an airport of which he knew nothing. The per mission, held out by the Department of Transport is the permission indicated by Exhibit 2, and if he had asked for a copy of this, the area of permission would have been plain. How can he be heard to say when he did not take the elementary precaution to get such a document from the department that he has the right to dictate the area of permission? If he had he would have seen detail as to the radio range and how to contact it, and would have been told where to land and to keep away from the area where he was hurt.
The appellants contend that because the grassy area on which Grossman landed was so used by other aircraft, that that would imply permission by conduct for him to land on the same area. This is not so. In order to establish such permission (1) There would have to be much more evidence than there was here to establish the circumstances regarding the use of this area by other craft. (2) If this craft was using the area by tolerance, to establish permission on the part of the Crown it would have to be shown that responsible officers knew of such use. (3) In any event Grossman would have to show that he relied on previous use as implied permission.
On the first point, there was no evidence under what circumstances or arrangements, if any, between Saskatoon Flying Club and the department this area was used by the club. It is to be assumed there must have been some contractual relationship. It is a fair assumption that other light aircraft landing on the area might have been doing so under some arrangement with the Flying Club, or without permission. The building marked "airport" is a C.P.R. building. If C.P.R. light aircraft were using the area, surely it would be with some contractual arrangement with the department and not by leave and licence or tolerance amounting thereto. On the second point, in order to establish leave and licence of the Crown, it would have to be shown that responsible officers of the department knew of such use. Jenkins v. Great Western Ry. 22; Pianosi v. C.P.R. 23. On the third point, assuming responsible officers of the department knew that light aircraft had been landing on the area for some time, Grossman, to establish leave and licence to him, would have to show that he was aware of such licence. Clark & Linsell, Ed. 10, p. 653; Lowrey v. Walker 24.
In all these cases the injured party asserting leave and licence because of prior use by others, knew of the prior use and assumed that it would be in order for him to enter as the public had been doing. Here, Grossman had no such knowledge. Coleshill v. Manchester Corporation 25 ; Jenkins v. Great Western Ry. 26. It is submitted that the appellants would have to establish permission to land on the area. Assuming Grossman had been invited to land on the new runways and being an invitee was entitled to a higher degree of duty than a licensee, it is submitted that he would be outside the extent of the invitation if he landed where he did, or, in any event, would have to prove that the area was within the area of invitation. 23 Halsbury, 606, para. 855; London Graving Dock Co. v. Horton 27.
If Grossman used this area by leave and licence of the Crown, then the reasons of the trial judge are relied on, holding that there was no breach of duty on the part of the Crown to Grossman and his unfortunate accident was entirely due to his fundamental failure to use care for his own safety on strange territory. Hounsell v. Smyth 28 ; Mersey Dock & Harbour Board v. Procter 29; Bay Front Garage Ltd, v. Evers 30.
The judgment of the Chief Justice and Locke J. (dissenting) was delivered by:—
Locke J.:—The claim of the appellants against the Crown as pleaded is for damage sustained by an aeroplane, the property of the appellant Grossman, and personal injuries by the appellant Sun when an airplane, the property of and piloted by the former, landed at an airport near Saskatoon owned by the Crown and operated by the department. On the day in question the appellants had flown from Prince Albert to Saskatoon and they allege that when they arrived at the airport at the latter place they saw a building on which the word "airport" was legibly painted and observed landing strips and some other buildings, whereupon they proceeded to land, when the plane ran into a ditch which crossed part of the airport causing the damage and injuries complained of. Other than the fact that the word "airport" thus appeared, no invitation or permission to use the facilities of the airport is alleged.
The exact nature of the claims as pleaded is to be noted : after alleging that the ditch was not marked by clearly visible markings and was not "detectable" from the air, the appellants asserted that the ditch was made by officers and servants of the Crown "while acting within the scope of their duties of employment and in the course of establishing and constructing the said airport the said officers and servants allowed the ditch or excavation to remain open in such a manner as to provide a danger or hazard to aircraft landing at the said airport," and again:—
the said officers and servants of the Crown owed a duty to the suppliant to construct and maintain an airport fit for landing, and the suppliants say that it was the duty of the said officers and servants to see to it that the said ditch was properly filled and protected and adequately marked, but failed in the performance of that duty while acting within the scope of their employment by allowing the said ditch or excavation to remain open as aforesaid and without adequate markings.
The appellants did not plead that there was any duty owing to them by the Crown but, showing a proper appreciation of their legal position, founded their claims on the alleged negligence of officers or servants of the Crown under subsection (c) of section 19 of the Exchequer Court Act.
While the claims as thus pleaded appear to be directed to the acts and defaults of the officers and servants of the Crown who, it was contended, caused the ditch to be excavated, and allege apparently a continuing duty on their part after its construction to see that it was protected and adequately marked, and are not directed to those of the officers or servants who were in charge of the airport at the time of the accident, I think, in view of the course of the trial in which inquiry was made without objection as to the identity and duties of various officers and employees of the Department of Transport at the time of the accident, that they should be considered as if a duty on the part of some or more of these persons towards the plaintiff had been pleaded and put in issue. The action was tried before Mr. Justice Cameron and dismissed on the ground that the proximate cause of the accident was the negligence of the appellant Grossman. In arriving at this conclusion, the learned trial judge considered that the legal relationship existing between the Crown and Grossman was that of licensor and licensee and that the respective obligations of the parties were defined by cases such as Fairman v. Perpetual Building Society 31, and Mersey Docks v. Procter 32. Accordingly, on the footing that the Crown owed a duty to warn Grossman of the danger from the open ditch, only if it was not known to him or obvious if he had used reasonable care, and that he had failed to use such care, the action failed. With great respect for the opinion of the learned trial judge, I do not think the issues in the present case are to be determined on the basis that the Crown owed the appellants any such duty. The Crown owes no duty to the subject qua owner or occupier of property and it will be noted that no such claim is advanced in the petition of right. The matter must be decided, in my humble opinion, upon other principles.
The jurisdiction of the Exchequer Court to hear and determine claims against the Crown for injury to the person or to property, resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment, and the right of the subject to recover damages for loss so occasioned were established in Canada by section 16(c) of c. 16 of the Statutes of 1887. The history of this enactment has been traced by Duff C.J. in The King v. Dubois 33. In the form in which it now appears after the amendment made by s. 1 of c. 28 of the Statutes of 1938, it is s. 19(c) of the Exchequer Court Act (c. 34, R.S.C. 1927). Prior to the Act of 1887 it had been decided by this Court in The Queen v. McFarlane 34, following Canterbury v. The Attorney General 35 and Tobin v. The Queen 36, that the Crown was not liable for injuries occasioned by the negligence of its servants or officers and that the rule respondeat superior did not apply in respect of the wrongful or negligent acts of those engaged in the public service. Of the many cases in which the effect of the section, in so far as it touches the present matter, is concerned, it is only necessary, in my opinion, to refer to three.
In The King v. Canada Steamship Lines 37, the steamship company claimed to recover for loss sustained in consequence of the collapse of a landing slip on a government wharf at Tadoussac. The pleadings alleged negligence on the part of various persons in the employ of the Department of Public Works. One Brunet, an assistant government engineer in the Quebec office of the department, whose duties required him from time to time to make inspections of Dominion government properties, had, some three days prior to the accident, landed at the wharf in company with a number of passengers from a vessel of the steamship company, and he said that the condition of the slip aroused apprehension in his mind for the safety of the passengers. On the following morning, he made what Anglin C.J. described, in delivering the judgment of the court, as a casual and perfunctory examination of the wharf, and, after requesting one Imbeau to examine the slip and make a written report, left Tadoussac. Imbeau who, it appears, was engaged as a foreman by the department, whenever government work was done at Tadoussac, but was not a regular employee, made an examination of the wharf and reported to the district engineer on July 7th that he had found the slip was in a very dangerous condition. On the same date the accident which gave rise to the claims occurred. The judgment in this Court found liability in the Crown. After saying that, had Imbeau been in the employ of the government when he inspected the slip on the 6th of July, his failure either to bar access to the slip or, if he had not authority to do so, to advise the department by telegram of the imminent danger, or at least to warn the responsible officers of the Canada Steamship Lines against making further use of the slip until it had been put in a safe condition, would have amounted to negligence which would have imposed liability upon the Crown, it was said that the evidence did not sufficiently establish that Imbeau was an officer or servant of the Crown, within the meaning of section 20(c) (now 19(c)) of the Exchequer Court Act. The fault of Brunet which imposed the liability was thus described:—
The case of Brunet is quite different. He was undoubtedly an officer or servant of the Crown. He came to Tadoussac in the discharge of his duties or employment. He saw the use that was being made of the slip which afterwards collapsed and immediately realized that its condition was dubious and had reason, as he says, to "fear" for its safety. He was told by Imbeau that there should be an inspection "comme il faut" of the slip because it might be "endommagé"—to see if it were not also in bad condition. Instead of clearing up his suspicions by an immediate personal inspection, or at least promptly reporting his fears to Quebec, or warning the officers of the steamship company of the probable danger of using the slip in its then condition, he contented himself with asking Imbeau to make an inspection and to report the result in writing to Quebec. In taking the risk of allowing the continued use of the wharf pending such report and in failing to give any warning to the officers of the steamship company Brunet was in my opinion guilty of a dereliction of duty amounting to negligence on his part as an officer or servant of the Crown while acting within the scope of his duties or employment upon a public work.
In The King v. Hochelaga Shipping and Towing Company, Limited 38, the owner of a towboat claimed damages from the Crown for injuries sustained by the vessel in striking a portion of the outer cribwork and rock ballast of a jetty projecting from the Dominion government breakwater at Port Morien, Nova Scotia. While the jetty was under construction a portion of it had been swept away by a storm and, in the result, the cribwork and ballast referred to were submerged, their presence being apparently unknown to those in charge of the towboat. At the trial in the Exchequer Court the Crown was held liable. Angers J. found liability in the Crown under section 19(c) in the following terms:—
After a careful perusal of the evidence I have come to the conclusion that the accident is attributable to the negligence of officers or servants of the Crown, namely the district engineer and the assistant engineer under whose supervision the construction of the jetty and its reparation after the top part of the outer end thereof had been partially washed away were effected, acting within the scope of their duties or employment upon a public work.
On the appeal to this Court, Duff C.J. said: (p. 155)—
I agree with the learned trial judge that the submerged cribwork which, after the superstructure of the jetty had been carried away, was left with nothing to warn navigators of its presence, constituted a dangerous menace to navigation; and that in leaving this obstruction without providing any such warning the officials concerned are chargeable with negligence for which the Crown is responsible by force of section 19(c) of the Exchequer Court Act.
Crocket J., with whom Rinfret J. (as he then was) and Kerwin J. agreed, after referring to the finding of negligence made at the trial, said that he agreed that the collision: (p. 163)—
was attributable to such negligence on the part of officers and servants of the Crown, while acting within the scope of their duties or employment upon a public work as rendered the Crown responsible therefor under the provisions of s. 19(c) of the Exchequer Court Act. It was not a case of mere non-repair or non-feasance, but of the actual creation of a hidden menace to navigation by a Department of the Government through its fully authorized officers and servants in the construction of a public work.
Davis J. said in part: (p. 170)—
What is contended for by the Crown is that the Exchequer Court had no jurisdiction because there could be no duty on the Crown to remove the submerged pile of balast ; consequently no duty on any officers or servants of the Crown to remove it and a fortiori no negligence on the part of officers or servants of the Crown in not removing it. But I agree with the view taken by the learned trial judge on the evidence, that is, that in the restoration and changes made in the jetty, there was negligence on the part of the officers or servants of the Crown while acting within the scope of their duties or employment upon the public work.
In The King v. Anthony 39, the claim advanced against the Crown was for a loss from fire started by a tracer bullet fired through the window of a barn by a private soldier. It was shown that at the time of the occurrence this man, in company with two non-commissioned officers, was driving along a road, the men being under orders not to fire except upon the command of a superior officer. The man whose act caused the damage had, at least once before he came to Anthony's property, fired live ammunition, and the contention of the suppliant was that the failure of the noncommissioned officers to prevent him from firing was negligence of the nature referred to in section 19(c) and imposed liability. The suppliant succeeded at the trial but this judgment was reversed and the action dismissed on the appeal to this Court. Rand J., with whose judgment Rinfret C.J. and Hudson J. agreed, in dealing with the liability imposed by the subsection, said in part: (p. 571)—
I think it must be taken that what paragraph (c) does is to create a liability against the Crown through negligence under the rule of respondeat superior, and not to impose duties on the Crown in favour of subjects: The King v. Dubois 40 at 394 and 398; Salmo Investments Ltd. v. The King 41, at 272 and 273. It is a vicarious liability based upon a tortious act of negligence committed by a servant while acting within the scope of his employment; and its condition is that the servant shall have drawn upon himself a personal liability to the third person.
After saying that if the liability were placed merely on the negligent failure to carry out a duty to the Crown and not on a violation of a duty to the injured person, there would be imposed on the Crown a greater responsibility in relation to a servant than rests on a private citizen, Rand J. said further (p. 572) :
This raises the distinction between duties and between duty and liability. There may be a direct duty on the master toward the third person, with the servant the instrument for its performance. The failure on the part of the servant constitutes a breach of the master's duty for which he must answer as for his own wrong; but it may also raise a liability on the servant toward the third person by reason of which the master becomes responsible in a new aspect. The latter would result from the rule of respondeat superior; the former does not.
The majority of the Court considered that the non-commissioned officers owed no such duty towards the suppliant, as was contended for. Kerwin and Estey JJ. dissented, they both being of the opinion that one of these non-commissioned officers, one Williams, a sergeant major, owed a duty to the suppliant to prevent the men under his charge from firing and that, accordingly, the Crown was liable. In the Canada Steamship's case the evidence as to the scope of Brunet's duty was meagre and whether he was vested with authority to prevent the further use of the wharf for the purpose of landing passengers until it was rendered safe for use does not appear and, whether the "dereliction of duty" referred to in the passage from the judgment of Anglin C.J., above referred to, was of a duty owed to the Crown as his employer, or one which he owed to the steamship company or other persons who might utilize the wharf as a place to land, is not stated. Neither the various judgments written nor the written arguments filed by the parties in that case or in the Hochelaga case indicate that the question as to whether any officer or servant of the Crown had incurred personal liability was argued.
Some two years before this accident, extensive improvements and additions to this airport were made at the instance of the Department of Reconstruction and Supply of Canada. Under a contract dated June 25, 1946, made between His Majesty, represented by the minister of that department, and Tomlinson Construction Company, Ltd., a contractor, the latter undertook, inter alia, the construction of two concrete landing strips, each something more than a mile in length, and the excavation of the open ditches for the purpose of draining water from these strips, this being effected by a system of buried pipes draining into the ditches. Mr. Edward F. Cook, the district airways engineer of the Department of Transport at Winnipeg, supervised the construction of these and other works necessary for the operation of an airport by the contractor. The plan of having these open ditches which were some 48 ft. in width and varied from 7 to 11 ft. in depth was no doubt that of the professional advisers of the Department and was obviously approved and adopted on behalf of the Crown by the minister. Such open ditches situate some 600 ft. from the hard-surface runways as a means of drainage were adopted at other airports constructed for the department at The Pas, Weyburn, Brandon, Portage la Prairie and Winnipeg. It is not suggested that Cook was himself responsible for the opening of these great ditches, nor charged with any duty in respect of them other than to see that the work was properly done by the contractor, nor that he had any continuing duty in regard to them afterwards. The work was not done by any officer or servant of the Crown but by an independent contractor under the terms of this contract. There was, however, at the airport an employee of the department by the name of Nicholas who was described as the airport maintenance foreman, a position which he had occupied for some time prior to 1946. In giving evidence he said that his duty was to supervise the airport and maintain it in good condition and, if it was necessary, to put up any markings to give instructions for this to be done. According to him, he had caused to be placed 18 or 20 red woolen flags approximately 2 ft. by 3 ft. in area on posts in the vicinity of the open ditches to indicate their presence. In paragraphs 7 and 8 of the petition of right which, for the reasons above indicated, I think should be taken as directed to the conduct of Nicholas, it is alleged that he owed a duty to the suppliants to properly fill in, protect and adequately mark the ditches. There was apparently no officer of the Department of Transport, senior to Nicholas at Saskatoon, concerned with the operation of the airport, but it cannot be seriously suggested that he could have directed that the ditch, constructed under the direction of the Minister for these purposes, be filled in. I do not understand what is meant by the allegation that it was his duty to see that the ditch was properly "protected." The suppliants' claims must, therefore, be based upon the contention that Nicholas owed a duty to them and to other people who might resort with their planes to the airport to warn them of the presence of the ditch, and that the damages claimed resulted from a breach of this duty.
The question as to the liability of a servant of the Crown occupying a position such as that of Nicholas is not, I think, decided by the judgments of this Court in the Canada Steamship and Hochelaga cases, where the question of the personal liability of such officers or servants was not argued or, so far as the judgments rendered indicate, considered. Since the claims are based upon the alleged negligence of Nicholas, the appellants must establish that he owed a duty to them to warn them of the presence of the ditch. It is, of course, not sufficient that under his contract of employment with the Crown it was his duty to see that any dangers, obstacles or obstructions on the airport be marked, so as to warn aviators of their presence. Nicholas was neither the owner, occupant or operator of the airport and no liability in any such capacity can be asserted against him. The claim, therefore, is clearly not for an act of misfeasance but of alleged non-feasance.
In Adams v. Naylor 42, which was decided in the House of Lords a few weeks earlier than the decision of this Court in Anthony's case, a claim was advanced against an officer of the Royal Engineers for injuries sustained by children in a mine field laid by the military authorities as a measure for the defence of the country. It was the practice in England, under such circumstances when a Crown servant might be involved, for th