Bartlett et al. v. Weiche Apartments Ltd.
(1975), 7 O.R. (2d) 263
ONTARIO COURT OF APPEAL
JESSUP, BROOKE and ARNUP, JJ.A.
17TH OCTOBER 1974
Negligence — Occupier’s liability — Duty of care to licensee.
The duty of care owed by an occupier to a licensee must now be taken to arise with respect to obvious as well as concealed dangers. Thus, a nonsuit granted on the basis that the danger established by the evidence was not a concealed danger must be set aside and a new trial ordered. The duty of an occupier to a licensee is to take reasonable care to avoid forseeable risks of harm from any unusual danger on the occupier’s premises of which the occupier actually has knowledge or of which he ought to have knowledge because he is aware of the circumstances. The licensee’s knowledge of the danger goes only to the questions of contributory negligence and voluntary assumption of the risk. Per Arnup, J.A.: While the duty of an occupier to a licensee is no longer restricted to concealed dangers it is not possible to formulate in such general terms a principle which will govern all future cases of occupiers’ duty to licensees. In the case of a small child falling under the railing around a landing onto the sharp edge of a window well, the legal issue can only be stated in the question: “Did there exist, at the time and place of the accident, a combination of circumstances, known to the defendant, which taken together created an unusual danger, resulting in a forseeable risk of harm to children in the position of this infant plaintiff?” [City of Ottawa v. Munroe,  S.C.R. 756,  1 D.L.R. 465; Mitchell et al. v. C.N.R. Co. (1974), 46 D.L.R. (3d) 363, 6 N.S.R. (2d) 440, 1 N.R. 344; Hanson et al. v. City of Saint John et al.,  S.C.R. 354, 39 D.L.R. (3d) 417, 6 N.B.R. (2d) 292 sub nom. Hanson v. Saint John Horticultural Ass’n and City of Saint John, expld]
APPEAL from a judgment dismissing an action for damages for personal injuries. Earl A. Cherniak, Q.C., and Robert E. Seabrook, for appellants. Norman C. Brown, Q.C., for respondent.
JESSUP, J.A.:– The plaintiffs appeal a judgment dismissing their action granted on a motion for nonsuit made at the conclusion of the plaintiff’s case. The action was for damages as a result of injuries sustained by the three-year-old infant plaintiff and alleged to be caused by an unusual danger existing on premises occupied by the defendant and on which the infant plaintiff had a licence to be.
The infant plaintiff was injured when she fell from a landing located at 74 Emery St. W. in the City of London, the landing and surrounding property being owned by the defendant. The landing is in a complex of three apartment buildings erected in a row running east and west, 74 Emery St. being the most westerly of the three buildings. It is joined to the next adjacent apartment building by a laundry room over which is located the landing. The infant plaintiff resided with her parents in a main floor apartment at 74 Emery St. The main entrance to the apartment building was from Emery St. via a short sidewalk, thence up onto the landing and turning left to enter the building in which the infant plaintiff resided, or turning right to enter the next adjacent building. The halls and common areas including the landing were under the control of the defendant.
The landing is nine feet in length and six feet in width and its surface is approximately three feet above ground level. At its front there are two cement steps giving access to its surface from ground level. At each end of the landing there is an entrance to an apartment building. At the rear or north side of the landing there is a railing consisting of a metal pipe located about three feet above the surface of the landing. There is no fencing or wall from the railing to the surface of the landing. At the north side of the landing at ground level is a window well with a metal railing around the well which presents a fairly sharp edge, rising about a foot above ground level.
In the past there had been fences attached to the railing but they had been allowed to have been ripped down. For a period of time there had been cement blocks located on the landing directly under the railing at the north side of the landing and piled one or two cement blocks high.
On the day of the accident the infant plaintiff’s mother had intended to permit the infant to play with her tricycle on the sidewalk to the south of the landing. Upon leaving her apartment the mother carried the tricycle and in order to open the heavy doors leading onto the landing she set the tricycle down. When the door was opened the infant plaintiff picked up the tricycle and went onto the landing. She sat on the tricycle for a matter of seconds and then pedalled the tricycle backwards towards the north edge of the landing and under the railing. As a result she fell off the landing and onto the railing around the window well, breaking her arm.
Most of the families in the apartment building had children ranging in age from infancy to 12 years. The infant plaintiff’s mother had been instructed that her children could not play in the halls or in the garden but had received no other instructions as to where the children could play. Other children had previously fallen off the landing.
In granting a nonsuit the learned trial Judge applied the law as laid down by the Supreme Court of Canada in City of Ottawa v. Munroe,  S.C.R. 756,  1 D.L.R. 465, and since any danger presented by the unfenced landing edge was not a concealed danger he concluded there was no evidence to go to the jury on which liability could be founded. On the law as it then stood I think the nonsuit was properly granted. The alleged danger was obvious even to a child and therefore invoked no liability of a licensor to a licensee.
The case was tried in March, 1973, and it was not until February, 1974, that the Supreme Court of Canada pronounced its judgment in Mitchell et al. v. C.N.R. Co. (1974), 46 D.L.R. (3d) 363, 6 N.S.R. (2d) 440, 1 N.R. 344.
In the Mitchell case the infant plaintiff was walking along a path which was on top of a railway embankment on railway property. The defendant company was aware of the use of the path by the public so that the infant plaintiff was a licensee on premises occupied by the defendant. The path was in close proximity to railway tracks which were located below the embankment and at a sharp drop from it. Winter freezing had created an icy and slippery condition on the path and embankment. There were protruding shrubs or bushes on the embankment and the infant plaintiff tripped on one sliding down the embankment into the path of a passing freight train.
In delivering the majority judgment of the Court imposing liability on the defendant, Laskin, J., as he then was, said at pp. 378-9 D.L.R., pp. 449-50 N.S.R.:
The trial Judge’s factual determination that there was no trap or allurement is of no consequence because there was no suggestion that the injury to the infant plaintiff resulted because the boy was in a forbidden area outside of that where he had tacit permission to be. No question of trap or allurement therefore arises. The relevant inquiry then, apart from any statutory duty owing to the boy or to others who might reasonably be expected to be on the railway company’s right of way in the particular area, is as to the nature of the duty owing by the respondent at common law to a person in the position of the injured plaintiff in respect of the condition of the right of way.
Germane to this inquiry are, of course, the proximity of the path to the tracks lying below the embankment and the sharp drop from the edge to the ditch below leading to the tracks.
In determining the scope or extent of the duty, the icy condition of the path and of the embankment is also a material consideration. The classification of the injured plaintiff by the trial Judge as a licensee does not, in my opinion, exclude the liability of the railway company as licensor when there is awareness of the use of the path, its proximity to the tracks and the fact that winter freezing would create an icy and slippery condition. This would result in a foreseeable risk of harm, especially to children, beyond any risk that could be said to arise in seasons other than winter. A warning sign would have been a prudent measure at any time of the year, considering the little inconvenience and expense to the respondent to provide one. But be that as it may, the heightened danger that the area presented when it was icy and consequently slippery, having regard as well to protruding shrubs, laid a duty upon the respondent to warn persons off the path or at least to alert them to the risk of using it in such circumstances. Admittedly, no warning was given by a sign or otherwise. This failure is enough to establish liability unless there is exoneration in the trial Judge’s finding against the children when they testified that they neither saw nor heard the train, or exoneration in the fact that they knew that they were on icy and slippery ground that was close to the tracks.
I am the less reluctant to find an actionable breach of a duty of care in the present case when I consider how broadly other Courts in sister jurisdictions have viewed the duty owing by an occupier to children, even where they are classified as trespassers. British Railways Board v. Herrington,  A.C. 877, and Pannett v. P. McGuinness & Co. Ltd.,  3 All E.R. 137, are illustrative English cases dealing with liability to trespassing children, a situation to which the Occupier’s Liability Act, 1957 (U.K.), c. 31, does not apply. In appraising the American case law, Prosser on Torts, 4th ed. (1971), at p. 366, states that “child trespasser law is merely ordinary negligence law”, and that “In any case where the child could recover if he were a trespasser, he can recover at least as well when he is a licensee or an invitee on the premises.”
In my opinion, the finding against the injured plaintiff on whether he saw or heard the train and his awareness of the icy condition of the path go to contributory negligence on his part. I do not think it is any longer proper to hold that mere knowledge of likely danger is any more exonerative of a licensor than of an invitor.
There is no mention there of a concealed danger or trap. It is true that in Hanson et al. v. City of Saint John et al.,  S.C.R. 354, 39 D.L.R. (3d) 417, 6 N.B.R. (2d) 292 sub nom. Hanson v. Saint John Horticultural Ass’n and City of Saint John, Spence, J., assumed that nature of a danger as the predicate of an occupier’s liability to a licensee and Laskin, J., concurred in his judgment while in the Mitchell case, Spence, J., concurred in Laskin, J.’s judgment. However, the reach of the judgment of the present Chief Justice in the Mitchell case is emphasized by the fact that both Pigeon, J., in his judgment concurring in the result in the Mitchell case, and Ritchie, J., in his dissenting judgment in that case, decline to base liability to the infant licensee on any duty of the defendant-occupier because the danger was an obvious one and not concealed. I think it must be now taken that the duty of an occupier to a licensee arises with respect to both obvious and concealed dangers.
Accordingly, there must be a new trial and to assist the new trial Judge I think I should state what I conceive to be the principle arising from the Mitchell and Hanson cases governing the liability of an occupier to a licensee. It is to take reasonable care to avoid foreseeable risk of harm from any unusual danger on the occupier’s premises of which the occupier actually has knowledge or of which he ought to have knowledge because he was aware of the circumstances. The licensee’s knowledge of the danger goes only to the questions of contributory negligence or volenti.
The respondent argues that in any event the danger in the present case was not an unusual one but I am of the view that there was evidence on which a jury could find that the danger was an unusual one for small children.
In the result I would allow the appeal with costs, set aside the judgment below and order a new trial with the costs of the first trial to be in the discretion of the new trial Judge.
BROOKE, J.A., concurs with JESSUP, J.A.
ARNUP, J.A.:– I agree with my brother Jessup that this appeal must be allowed and a new trial directed, because the trial Judge dealt with the duty of the defendant to the infant plaintiff on a basis which must now be regarded as wrong in law.
Prior to the delivery on February 12, 1974, of the judgment in Mitchell et al. v. C.N.R. Co., (1974), 46 D.L.R. (3d) 363, 6 N.S.R. (2d) 440, 1 N.R. 344, I had always understood the law of Ontario to be as stated by Ritchie, J., in his dissenting judgment in that case, i.e., that an occupier’s duty to a licensee was limited to warning him of concealed dangers of which the occupier knew, and that no duty arose in respect of obvious dangers.
That this was the accepted view of the law in Ontario is illustrated by the 1972 report of the Ontario Law Reform Commission on occupier’s liability. That report, after stating shortly what the law was, recommended that the law be changed by statute so as to impose on an occupier a “common duty of care to all persons entering on the premises … to take such care as in all the circumstances of the case is reasonable, to see that the person and his property will be reasonably safe in using the premises for the purposes contemplated by the occupier” [s. 3(1) (a) on p. 13]. This is substantially the wording of the English Occupier’s Liability Act, 1957 (U.K.), c. 31. No such legislation has been passed in Ontario.
The judgment of Spence, J., in Hanson et al. v. City of Saint John et al.,  S.C.R. 354, 39 D.L.R. (3d) 417, 6 N.B.R. (2d) 292 sub nom. Hanson v. Saint John Horticultural Ass’n and City of Saint John, delivered on May 7, 1973, and concurred in by Laskin, J., as he then was, in dealing with the liability of the Saint John Horticultural Association, treated the case as one involving the duty of an occupier to a licensee in respect of a hidden danger, known to the occupier but not reasonably apparent to the licensee (per Spence, J., at foot of p. 373 et seq. S.C.R., p. 430 D.L.R.). Spence, J., went on to deal with conditions which an occupier should be presumed to have knowledge of because of his actual knowledge of a state of affairs which a reasonable man would realize was a danger. He quoted and adopted the observations of Denning, L.J., in Hawkins v. Coulsdon and Purley District Council,  1 Q.B. 319, to that effect.
Ritchie, J., on the same aspect of the case, also dealt with the association as an occupier, and the plaintiffs as licensees. He quoted [at p. 362 S.C.R., p. 422 D.L.R.] from the judgment of Rinfret, C.J.C., in Booth et al. v. St. Catharines et al.,  S.C.R. 564,  4 D.L.R. 686, which in turn had quoted from Lord Greene’s judgment in Baker v. Borough of Bethnall Green,  1 All E.R. 135 at p. 140, as to the duty owed to a licensee. Spence, J., quoted that same passage from Lord Greene: p. 374 S.C.R., p. 430 D.L.R. Ritchie, J. (with whom Judson, J., agreed), was therefore approaching the case on the same basic principle as were Spence and Laskin, JJ. Ritchie, J., appears to have been of the same view as Spence, J., concerning a case where the occupier has knowledge of a state of affairs on his land which in fact constitutes a danger and from which a reasonable man would realize such danger existed.
Pigeon, J., found the association not liable because “its responsible officials did not have actual knowledge of the danger until after all the accidents had occurred. It was, therefore, not in breach of its duty to the plaintiffs as licensees” [p. 384 S.C.R., p. 437 D.L.R.].
It had therefore seemed to me that all five Judges were in substantial agreement as to the applicable law (while disagreeing as to its application to the facts), although Spence, Laskin, Ritchie and Judson, JJ., had somewhat widened the ambit of the phrase “of which he knows” as that phrase appeared in the familiar statements of the occupier’s duty to licensees.
I agree with Jessup, J.A., that what appeared to be the law on May 7, 1973, by virtue of Hanson and many earlier cases, was changed on February 12, 1974, by virtue of Mitchell v. C.N.R. Ritchie, J. (dissenting), restated the occupier’s duty to licensees in the same way as before, in precise terms and with reference to three earlier cases in the Supreme Court.
Pigeon, J., referred to “the danger of coming close to the passing train” as “obvious” and said that the “additional danger due to the icy snow was also quite obvious”. He could find no basis for holding that the railway was under a duty to make the path across its track safe for pedestrians or to warn them of the danger involved in using it. Accordingly, he would not have held the railway liable for breach of its duty as an occupier. (He did find liability for breach of the railway’s statutory duty to keep its right of way properly fenced.)
Laskin, C.J.C. (with whom Spence and Dickson, JJ., concurred), held that failure to fence was not the cause of the accident. He found liability for breach of the railway’s “duty … at common law to a person in the position of the injured plaintiff in respect of the condition of the right of way” [p. 378]. The injured plaintiff was nine years old, and was treated in all of the three Courts as a licensee. The key passages of the judgment of Laskin, C.J.C., are quoted by Jessup, J.A. The last paragraph quoted is of interest because in all three of its sentences, the references are to the duty owed to children.
I agree further with Jessup, J.A., as to the desirability of assisting the new trial Judge. I would add: “and other trial Judges”. To give such assistance is an important part of an appellate Court’s function. My difficulty is in trying to state, as a general principle, the ratio of the Mitchell judgment.
It presumably is not confined to children (c.f. “a foreseeable risk of harm, especially to children” (my emphasis)). It would appear that the “heightened danger” was a decisive factor and that the location there in question was not one which would give rise to a foreseeable risk of harm in the summer. It would also appear that in the view of the majority the duty was limited to one of warning persons off the path, or at least alerting them to the risk of using it in such circumstances. It seems implied that the duty would have been satisfied if the railway had erected signs on the path reading “dangerous when icy”.
Laskin, C.J.C., stated that there was “awareness of the use of the path, its proximity to the tracks and the fact that winter freezing would create an icy and slippery condition” [p. 379]. “Awareness” means the railway knew these three key facts. The other two key facts mentioned are “the sharp drop from the edge to the ditch below leading to the tracks”, and “protruding shrubs”, both being facts obviously known to the railway. The Mitchell case therefore does not have anything to do with what the occupier “ought to know”.
That part of the statement of principle by Jessup, J.A., in which he uses the expression “of which he [the occupier] ought to have knowledge because he was aware of the circumstances” is not derived from the Mitchell case. It comes from the judgments of Spence and Ritchie, JJ., in the Hanson case.
I am also troubled by the question whether an “unusual danger” (per Jessup, J.A.), is the same thing as a “heightened” danger (per Laskin, C.J.C.). I am inclined to think it is. “Heightened” must mean “greater than usual”, but which term should a trial Judge use in charging a jury?
Professor Fleming, in the extract quoted by Ritchie, J., in the Mitchell case, points out that as to licensees, the danger must be “concealed”, whereas as to invitees, it must be “unusual”, and that while all concealed dangers are unusual, dangers may be unusual though not concealed. Are both “unusual” and “concealed” now obsolete? “Concealed” certainly appears to be.
My difficulties are not lessened by the fact that Laskin, C.J.C., does not refer to any authorities at all in reaching the conclusion that liability attached to the railway. Accordingly, I am unsure whether any of the previous cases in the Supreme Court are still binding, even on facts similar to those on which the earlier cases were decided.
I conclude that Laskin, C.J.C., has relied upon a combination of circumstances, known to the occupier, which taken together created at that time and place an unusual danger giving rise to a foreseeable risk of harm to persons like the infant plaintiff. Until these troublesome questions have been clarified by the Supreme Court of Canada — hopefully by the Full Court — it is not possible, in my respectful opinion, to formulate, in as general terms as Jessup, J.A., has sought to do, a principle which will govern all future cases of an occupier’s duty to licensees. In the case before us, the legal issue on the present state of the authorities can only be stated thus:
Did there exist, at the time and place of the accident, a combination of circumstances, known to the defendant, which taken together created an unusual danger, resulting in a foreseeable risk of harm to children in the position of this infant plaintiff?
Appeal allowed; new trial ordered.
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