Hayes v. Pathfinder Surveys Ltd., (1979) 19 A.R. 460 (QB)

• Judge: Kidd, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 26, 1979
• Citations: (1979), 19 A.R. 460 (QB)

Hayes v. Pathfinder Surveys Ltd. (1979), 19 A.R. 460 (QB)

MLB headnote and full text

Hayes v. Pathfinder Surveys Ltd.

(121123)

Indexed As: Hayes v. Pathfinder Surveys Ltd.

Alberta Court of Queen's Bench

Kidd, J.

October 26, 1979.

Summary:

This headnote contains no summary.

Damages - Topic 1004

Mitigation - General principles - Reasonable remedial measures - What constitutes - A landowner brought an action in negligence against a surveyor - The surveyor staked out a basement too small and too deep - The surveyor returned to correct the perimeter but assured the plaintiff that the depth was correct - As a consequence of the surveyor's assurances, the footings were poured - Subsequently, the landowner discovered from the architect that the footings were three feet too deep - The surveyor argued that the landowner failed to mitigate his damages by pouring the footings - The Alberta Court of Queen's Bench allowed the landowner's claim and held that pouring the footings was an honest mistake on the landowner's part - The Court of Queen's Bench further held that the landowner was only obligated to honestly do what he thought was best to keep his damages down - See paragraphs 23 and 24.

Evidence - Topic 2401

Special modes of proof - Presumptions - Inference from failure to call available evidence - A landowner brought an action in negligence against a surveying company - One of the company surveyors staked out a basement too small and too deep - At trial the company failed to call the surveyor or to explain why he was not called to testify - The Alberta Court of Queen's Bench allowed the landowner's claim and drew that an inference adverse to the surveying company, because it failed to call a witness who had personal knowledge of the events - See paragraph 10.

Professional Occupations - Topic 864

Surveyors - Liability to landowners - Negligence - A landowner brought an action in negligence against a survey or - A surveyor staked out a basement too small and too deep - The surveyor returned to correct the perimeter but assured the landowner that the depth was correct - As a consequence of the surveyor's assurances, the footings were poured three feet too deep - The surveyor argued that the information originally supplied was insufficient - The Alberta Court of Queen's Bench allowed the landowner's claim and held that the surveyor was professionally negligent - The Court of Queen's Bench held that the survey was not made with the skill and care that an ordinary surveyor would use - The Queen's Bench further held that because the surveyor accepted and completed the work as a professional the question of the landowner supplying insufficient information was not relevant - See paragraphs 13 and 15.

Counsel:

J.P. Petch, for the plaintiff;

C.D. Oughton, for the defendant.

This case was heard by KIDD, J., of the Alberta Court of Queen's Bench.

On October 26, 1979, KIDD, J., delivered the following oral judgment: