Hanson v. Saint John Horticultural Association and Saint John (City), (1973) 6 N.B.R.(2d) 292 (SCC)

• Judge: Judson, Ritchie, Spence, Pigeon and Laskin, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 07, 1973
• Jurisdiction: Canada (Federal)
• Citations: (1973), 6 N.B.R.(2d) 292 (SCC);1973 CanLII 144 (SCC);11 CPR (2d) 233;36 DLR (3d) 413;35 DLR (3d) 596;1973 CanLII 24 (SCC);1973 CanLII 168 (SCC);[1974] SCR 1096;1973 CanLII 160 (SCC);[1973] 5 WWR 275;[1974] SCR 659;36 DLR (3d) 321;[1973] 5 WWR 289;[1973] SCR 694;1973 CanLII 154 (SCC);38 DLR (3d) 105;1973 CanLII 134 (SCC);[1974] SCR 584;37 DLR (3d) 5

Hanson v. Horticultural Assoc. (1973), 6 N.B.R.(2d) 292 (SCC);

    6 R.N.-B.(2e) 292

MLB headnote and full text

Sommaire et texte intégral

Hanson v. Saint John Horticultural Association and The City of Saint John

Indexed As: Hanson v. Saint John Horticultural Association and Saint John (City)

Répertorié: Hanson v. Saint John Horticultural Association and Saint John (City)

Supreme Court of Canada

Judson, Ritchie, Spence, Pigeon and Laskin, JJ.

May 7, 1973.

Summary:

Résumé:

This case arose out of a claim for damages for personal injuries arising out of several toboggan accidents. The plaintiffs were using their toboggans on a toboggan slide owned by the Saint John Horticultural Society. The Saint John Horticultural Society did not charge the public for use of the slide. The accidents occurred in January of 1967. Sometime before the accident the City of Saint John at the request of the Saint John Horticultural Society undertook improvements to the toboggan slide which included clearing and levelling. The New Brunswick Court of Queen's Bench dismissed the plaintiffs' claims against the City of Saint John and allowed the plaintiffs' actions against the Saint John Horticultural Society - see 3 N.B.R.(2d) 46. The New Brunswick Court of Appeal affirmed the dismissal of the plaintiffs' claims against the City of Saint John and set aside the Court of Queen's Bench judgments in favour of the plaintiffs against the Saint John Horticultural Society - see 3 N.B.R.(2d) 476. The Supreme Court of Canada in the judgments below affirmed the dismissal by the Court of Appeal of the plaintiffs' actions against the Saint John Horticultural Society, but reversed both the Court of Queen's Bench and the Court of Appeal and allowed the plaintiffs' claims against the City of Saint John.

The Supreme Court of Canada stated that the City of Saint John was negligent in making the improvements to the toboggan slide. The grading and clearing of the slide by the City of Saint John resulted in a sudden drop or abrupt change in slope near the bottom of the slide which caused the plaintiff's personal injuries. The Supreme Court of Canada stated that the City of Saint John negligently created a 3 to 4 foot sudden drop from the end of the toboggan slide onto a frozen lake which the Supreme Court of Canada described as a "very dangerous hazard" and "grave danger" - see paragraphs 11 and 33.

Ritchie and Judson, JJ., dissenting, would have dismissed the plaintiffs' claims against the City of Saint John.

The Supreme Court of Canada in affirming the dismissal of the plaintiffs' actions against the Saint John Horticultural Society stated that the Saint John Horticultural Society was not under a duty to make repeated inspections of the slide - paragraph 52.

Spence and Laskin, JJ., dissenting, with respect to the dismissal of the plaintiffs' actions against the Saint John Horticultural Society would have held the Saint John Horticultural Society liable because of the failure of its Superintendent to perceive a dangerous situation created by the negligent work of the City of Saint John.

Torts - Topic 30

Negligence - Standard of care of a person undertaking an improvement to a toboggan slide - The Supreme Court of Canada held the City of Saint John liable for negligently improving a toboggan slide for creating a sudden drop or abrupt change in slope which caused personal injury to users - Paragraphs 11 and 33.

Torts - Topic 3755

Occupiers liability - Duty owed by the owner of a toboggan slide to users of the slide who were classified licensees - Accidents were caused by a concealed dangerous condition created by unusual weather - The Supreme Court of Canada dismissed the plaintiffs' action against the owner for damages for personal injuries and stated that the owner was not under a duty to make repeated inspections and that the owner did not have knowledge of the dangerous condition - Paragraphs 36, 52 and 53.

Torts - Topic 6725

Voluntary assumption of risk - Whether members of the public who were injured while using an icy toboggan slide consented to the risk of injury - The plaintiffs were injured when their toboggan suddenly dropped 3 to 4 feet caused by an abrupt change in slope - The Supreme Court of Canada stated that the plaintiffs did not consent to the risk without compensation - Paragraphs 14, 15 and 34.

Practice - Topic 7155

Costs - Party and party costs - Apportionment of liability for costs between defendants - Bullock order - The Supreme Court of Canada held an unsuccessful defendant liable for party and party costs which a successful plaintiff may be required to pay on taxation to a successful defendant - Paragraphs 26 and 37.

Cases Noticed:

Riden v. A.C. Billings & Sons Ltd., [1957] 1 Q.B. 46 (C.A.); [1958] A.C. 240 (H.L.), folld.

Car and General Insurance Corporation Limited v. Seymour and Maloney, [1956] S.C.R. 322, folld.

Lehnert v. Stein, [1963] S.C.R. 38, folld.

Eid v. Dumas, [1969] S.C.R. 668; 1 N.B.R.(2d) 445, folld.

Baker v. Borough of Bethnall Green, [1945] 1 All E.R. 135, folld.

Booth v. St. Catharines, [1948] S.C.R. 564, folld.

Hawkins v. Couldson et al., [1954] 1 Q.B.D. 319 (C.A.), folld.

Gilchrist v. A. & R. Farms Ltd., [1966] S.C.R. 122, folld.

Canadian General Electric v. Pickford & Black, [1971] S.C.R. 41, folld.

Robert Addie & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358, not folld.

Ellis v. Fulham Borough Council, [1938] 1 K.B. 212, folld.

Hawkins v. Coulsdon and Purley Urban District Council, [1953] 1 W.L.R. 882, folld.

Counsel:

John Turnbull and Barry Roderick, for the appellants;

J. Turney Jones, Q.C., for the respondent, City of Saint John;

Thomas B. Drummie, Q.C., for the respondent, Saint John Horticultural Association.