Daneau and Daneau v. Trynor Construction Co. Ltd., (1971) 7 N.S.R.(2d) 207 (TD)

JudgeGillis, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateNovember 03, 1971
JurisdictionNova Scotia
Citations(1971), 7 N.S.R.(2d) 207 (TD)

Daneau v. Trynor Constr. Co. (1971), 7 N.S.R.(2d) 207 (TD)

MLB headnote and full text

Daneau and Daneau v. Trynor Construction Co. Ltd.

Indexed As: Daneau and Daneau v. Trynor Construction Co. Ltd.

Nova Scotia Supreme Court

Trial Division

Gillis, J.

November 3, 1971.

Summary:

This case arose out of a claim for damages for personal injuries arising out of an accident which occurred at the site of a public street excavation. The 6 year old plaintiff was playing with her younger brother on a pile of sand on the unstable bank of a trench recently excavated by the defendant contractor. The children had ignored warnings from their mother not to play at the site. The defendant had placed sawhorses intermittently near the trench as a warning to passersby. The plaintiff was injured when a pile of sand gave way and the child fell into the trench. The Nova Scotia Supreme Court, Trial Division, allowed the action by the infant plaintiff. The Trial Division stated that the pile of sand constituted a trap, attraction or allurement to the child - paragraphs 24 to 30.

The Trial Division further stated that knowledge of the danger could be attributed to the defendant by reason of his knowledge of the physical facts constituting the danger. The Trial Division further stated that the danger was not apparent to the child and that the defendant had not taken reasonable care to protect the child from the danger.

Damage Awards - Topic 31

Arm injuries - Severe fracture to growth areas at base of left elbow - Probability of stoppage in growth requiring corrective surgery - Possibility of arthritis - Permanent scar - Considerable pain and suffering - 6 year old girl - The Nova Scotia Supreme Court, Trial Division, awarded the plaintiff $7,500 general damages for personal injuries - Paragraphs 36 to 46.

Torts - Topic 3750

Occupier's liability - Licensees - Definitions - Meaning of the word "licensee" in the law of occupier's liability - Paragraph 10. (Nova Scotia Supreme Court, Trial Division)

Torts - Topic 3757

Occupier's liability - Licensees - Particular types of property - Public street excavation - A child was injured while playing at defendant contractor's street repair site when a pile of sand on the unstable bank of a recently excavated trench gave way and the child fell into the trench - The defendant had placed sawhorses intermittently near the trench as a warning - The Nova Scotia Supreme Court, Trial Division, stated that knowledge of the danger could be attributed to the defendant by reason of his knowledge of the physical fact constituting the danger - The Trial Division further stated the danger was not apparent to the child and that the defendant had not taken reasonable care to protect the child from the danger - The Trial Division held the defendant liable for injuries suffered by the child.

Torts - Topic 3785

Occupier's liability - Licensees - Duty of a licensor to children - A child was injured while playing at defendant contractor's street repair site when a pile of sand on the unstable bank of a recently excavated trench gave way and the child fell into the trench - The defendant had placed sawhorses intermittently near the trench as a warning - The Nova Scotia Supreme Court, Trial Division, stated that knowledge of the danger could be attributed to the defendant by reason of his knowledge of the physical facts constituting the danger - The Trial Division further stated that the danger was not apparent to the child and that the defendant had not taken reasonable care to protect the child from the danger - The Trial Division held the defendant liable for injuries suffered by the child.

Words and Phrases

Licensee - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the word "licensee" in the law of occupier's liability - Paragraph 10.

Words and Phrases

Allurement - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the word "allurement" in the law of occupier's liability - Paragraph 24.

Words and Phrases

Attraction - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the word "attraction" in the law of occupier's liability - Paragraph 24.

Words and Phrases

Trap - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the word "trap" in the law of occupier's liability - Paragraph 24.

Cases Noticed:

Hambourg v. The T. Eaton Company Ltd., [1935] S.C.R. 430; [1935] 3 D.L.R. 305, folld. [para. 11].

Hillman v. MacIntosh, [1959] S.C.R. 384; (1959), 17 D.L.R.(2d) 705, folld. [para. 12].

Jacobs v. London County Council, [1950] A.C. 361; (1950), 1 All E.R. 737, refd to. [para. 12].

Mersey Docks and Harbour Board v. Proctor, [1923] A.C. 253; 92 L.J. K.B. 479, refd to. [para. 12].

Hanson et al. v. Saint John Horticultural Association et al. (1971), 18 D.L.R.(3d) 685; (1971), 3 N.B.R.(2d) 477, folld. [para. 16].

Addie & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358, refd to. [para. 16].

Haseldine v. C.A. Daw & Son Limited, [1941] 2 K.B. 343, refd to. [para. 16].

Latham v. R. Johnson & Nephew, Limited, [1913] 1 K.B. 398, refd to. [para. 16].

Ellis v. Fulham Borough Council, [1938] 1 K.B. 212, refd to. [para. 16].

Baker v. Borough of Bethnal Green, [1945] 1 All E.R. 135, refd to. [para. 16].

Counsel:

R. L. Weldon, for the plaintiffs;

J. T. MacQuarrie, for the defendant.

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2 practice notes
  • Mishra v. Metlege, (1978) 37 N.S.R.(2d) 541 (TD)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • December 19, 1978
    ...Group v. Genesis Marketing Organization Ltd. (1977), 76 D.L.R.(3d) 592, appld. [para. 38]. Dalhousie University v. City of Halifax (1974), 7 N.S.R.(2d) 207; 53 D.L.R.(3d) 610, appld. [para. Authors and Works Noticed: Chitty on Contracts (24th Ed.), para. 1492 [para. 31]. Di Castri, Law of V......
  • Joseph v. Abraham, (1979) 33 N.S.R.(2d) 228 (TD)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • May 31, 1979
    ...Noticed: Indermaur v. Dames (1866), L.R. 1 C.P. 274, refd to. [para. 16]. Daneau and Daneau v. Trynor Construction Company Limited (1974), 7 N.S.R.(2d) 207, refd to. [para. Flinn v. Brewer (1972), 2 N.B.R.(2d) 467, refd to. [para. 51]. Authors and Works Noticed: Charlesworth on Negligence, ......
2 cases
  • Mishra v. Metlege, (1978) 37 N.S.R.(2d) 541 (TD)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • December 19, 1978
    ...Group v. Genesis Marketing Organization Ltd. (1977), 76 D.L.R.(3d) 592, appld. [para. 38]. Dalhousie University v. City of Halifax (1974), 7 N.S.R.(2d) 207; 53 D.L.R.(3d) 610, appld. [para. Authors and Works Noticed: Chitty on Contracts (24th Ed.), para. 1492 [para. 31]. Di Castri, Law of V......
  • Joseph v. Abraham, (1979) 33 N.S.R.(2d) 228 (TD)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • May 31, 1979
    ...Noticed: Indermaur v. Dames (1866), L.R. 1 C.P. 274, refd to. [para. 16]. Daneau and Daneau v. Trynor Construction Company Limited (1974), 7 N.S.R.(2d) 207, refd to. [para. Flinn v. Brewer (1972), 2 N.B.R.(2d) 467, refd to. [para. 51]. Authors and Works Noticed: Charlesworth on Negligence, ......

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