Warren v. Camrose (City), (1989) 92 A.R. 388 (CA)

• Judge: Hetherington, Irving and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 07, 1989
• Citations: (1989), 92 A.R. 388 (CA)

Warren v. Camrose (City) (1989), 92 A.R. 388 (CA)

MLB headnote and full text

Philip Warren and Olga Warren (plaintiffs/respondents) v. City of Camrose (defendant/appellant)

(No. 8803-0157-AC)

Indexed As: Warren v. Camrose (City)

Alberta Court of Appeal

Hetherington, Irving and Côté, JJ.A.

February 7, 1989.

Summary:

Warren was injured when he dove into one metre of water in a municipal swimming pool. Warren brought an action for damages against the city.

The Alberta Court of Queen's Bench, in a judgment reported 83 A.R. 384, allowed the action. The court found the city negligent and 40% at fault and Warren contributorily negligent and 60% at fault. The city appealed.

The Alberta Court of Appeal allowed the appeal and found Warren solely at fault.

Torts - Topic 25

Negligence - Standard of care - Customary trade practice - Effect of - The Alberta Court of Appeal stated that "the consensus of the recognized experts in a field on what is safe does not absolutely bind the courts. Neither does the uniform practice of a profession or industry. But they are very strong evidence ... The court can override expert evidence and brand a universal practice as negligent only in a strong case: The experts' thinking or the profession or trade's practice, properly understood, must offend logic or common sense, or flow from a gross error in weight ..." - See paragraph 18.

Torts - Topic 3712

Occupiers' liability for dangerous premises - Invitees - Liability of particular occupiers - Recreational facilities - Swimming pools - Warren was injured while doing a shallow dive into one metre of water in a municipal swimming pool - Warren apparently struck, or his dive was diverted by, a floating lane marker - The pool did not prohibit or warn against shallow dives - Warren was trained in shallow dives and should have seen the marker - Experts testified against the need for warning signs - The trial judge found the municipality negligent and 40% at fault and Warren contributorily negligent and 60% at fault - The Alberta Court of Appeal held that the municipality was not negligent; there was no duty to post signs prohibiting shallow dives.

Torts - Topic 6619

Defences - Contributory negligence - Particular cases - Dangerous premises - [See Torts - Topic 3712 above].

Cases Noticed:

Weaver v. Buckle (1983), 42 A.R. 241, refd to. [para. 16].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, refd to. [para. 18].

Ruch v. Col. Bus Lines, [1966] 1 O.R. 621 (C.A.), refd to. [para. 18].

McLeod v. Roe, [1947] S.C.R. 420, refd to. [para. 18].

London & Lancs. etc. v. Cie. F.X. Drolet, [1944] S.C.R. 82, refd to. [para. 18].

McDaniel v. Vancouver Gen. Hosp., [1934] 3 W.W.R. 619 (P.C. (B.C.)), refd to. [para. 18].

Maynard v. W. Midlands R.H.A., [1984] 1 W.L.R. 634 (H.L.), refd to. [para. 18].

Quintal v. Datta and Skochylas, [1988] 6 W.W.R. 481; 68 Sask.R. 104 (C.A.), refd to. [para. 18].

Bolam v. Friern Hosp., [1957] 1 W.L.R. 582, refd to. [para. 18].

Edmison v. Boyd (1985), 62 A.R. 118, affd. (1987), 77 A.R. 321; 51 Alta. L.R.(2d) 43 (C.A.), refd to. [para. 18].

Counsel:

D.W. Ross, for the plaintiffs/respondents, Philip Warren and Olga Warren;

J.P. Brumlik, Q.C., for the defendant/appellant, the City of Camrose.

This appeal was heard before Hetherington, Irving and Côté, JJ.A., of the Alberta Court of Appeal.

On February 7, 1989, Côté, J.A., delivered the following judgment for the Court of Appeal.