Norman Danard (Suppliant)
v.
The Queen (Respondent)
Trial Division, Dumoulin J.—Vancouver, May
10; Ottawa, July 13, 1971.
Crown—Tort—Personal injuries of prison inmate—Haz-
ardous task performed on orders of guard—Liability of
Crown.
A penitentiary inmate in British Columbia suffered per
sonal injuries when he fell down a steep grassy slope which
was slippery from rain and was struck by a power mower
with which he had been mowing the grass on a guard's
order.
Held, the Crown was answerable for the guard's blame
worthy act in requiring the inmate to perform a palpably
hazardous task. A refusal by the inmate to obey the guard
would have rendered him liable to punishment.
ACTION for damages.
C. C. Sturrock for suppliant.
G. C. C. Carruthers and G. O. Eggertson for
respondent.
DUMOULIN J.—In paragraph 1 of his petition
of right, the suppliant states that he "is present
ly unemployed" and resides in the City of Van-
couver, adding this in paragraph 2:
2. At all material times to this action, your Suppliant was
an inmate at the British Columbia Penitentiary, which said
Penitentiary is operated within the Federal Canadian Prison
System by servants, agents or employees of Her Majesty
The Queen.
Paragraphs 3, 4, 5, 6 and 7 next allege as
follows:
3. On or about the morning of the 24th day of Septem-
ber, 1969, your Suppliant and certain other prisoners were
assigned by servants, agents or employees of the said Brit-
ish Columbia Penitentiary, who at all material times were
acting within the course and scope of their employment, to
work on the grounds outside the main prison walls.
4. A certain prison guard by the name of James Johnston
who, at all material times, was acting within the scope and
course of his employment, escorted your Suppliant and
certain other prisoners to the grounds outside the said
prison walls.
5. The said James Johnston ordered the said prisoners to
perform certain work and, in particular, ordered your Sup
pliant to cut the grass embankment adjoining the prison
walls with a power lawn mower supplied for that purpose.
6. In performing the said work, your Suppliant fell down
the said grass embankment with the result that the said
power lawn mower struck his person, causing serious per
sonal injuries.
The statement of defence in its paragraph 1
admits the allegations of fact related above but
denies those contained in paragraph 7 of the
petition wherein James Johnston is reproached
for having imprudently instructed Danard to:
7. ..
(a) ... cut the grass when it was known or ought to have
been known, that such work was extremely dangerous;
(b) In ordering your Suppliant to cut the grass when the
said grass was extremely slippery due to the steepness of
the embankment, and the fact that it was raining;
(c) In failing to provide your Suppliant with proper safety
shoes in order to perform the work so ordered in a safe
and workmanlike manner;
(d) In ordering your Suppliant to work in an unsafe area,
which said area was under the control of Her Majesty the
Queen;
Such are the essential assertions of fault, all
of which are rejected by the respondent, but
which, in fact, nevertheless, resulted in the sup
pliant suffering, it is said in paragraph 8, "seri-
ous injuries and other loss and damage, in
particular ... .
8....
(a) Injury to the left thigh;
(b) Injury to the left knee;
(c) Scarring to the left thigh;
(d) Shock;
which said injuries have caused and continue to cause (the)
Suppliant pain, suffering, physical disfigurement, loss of
enjoyment of life, both past and prospective and loss of
earning capacity.
The defence does not admit responsibility for
any of the allegations relating to personal inju
ries, pain, suffering, physical disfigurement,
loss of enjoyment of life, loss of past and
prospective earning capacity and also denies:
...that any such injury or loss suffered by the Suppliant
resulted from negligence or breach of any duty by the said
James Johnston or any employee, servant, or agent of Her
Majesty the Queen.
Paragraph 5 pleads, as a further answer to the
petition of right:
... that the said incident was caused solely by the negli
gence of the Suppliant, particulars of which are as follows:
(a) in turning the power lawn mower by passing below it
rather than above it;
(b) in not following the instructions he had been given
regarding the safe operation of the power lawn mower;
(c) in not directing his full attention to the work he had
been assigned;
(d) in not using reasonable care for his personal safety
while cutting the grass.
[His Lordship reviewed the testimony of 11
witnesses and proceeded as follows:]
In specific matters ("cas d'espèce"), each
should be examined and decided in the light of
its particular circumstances.
This elementary and guiding rule is satisfac
torily laid out in Clerk and Lindsell on Torts,
13th ed., par. 854, from which treatise I cite the
pertinent passage:
The tort may be described as the infliction of damage as a
result of a breach of a duty of care owed by the defendant
to the plaintiff. This formula yields six ingredients of liabili
ty. [Four only are given.] (1) A duty of care situation,i.e.,
recognition by law that the careless infliction of the kind of
damage in suit on the type of person to which the plaintiff
belongs by the type of person to which the defendant
belongs is actionable. (2) Foreseeability that the defendant's
conduct would have inflicted on the plaintiff the kind of
damage in suit. (This is what is implied in the statement that
the duty of care has to be "owed" to the plaintiff.) (3) Proof
that the defendant's conduct was careless, i.e., that it failed
to measure up to the standard and scope set by law: breach
of duty. (4) There must be a causal connection between the
defendant's carelessness and the damage. As long as these
four requirements are satisfied, the defendant is liable in
negligence.
A lengthy perusal of this unfortunate inci
dent, of all its contributing factors: the very
abrupt declivity of the grassy slope; the consid
erable precipitation of rain, officially evidenced
in Exhibit P-4, the Department of Transport
Monthly Record; a lapse of no more than 21
hours between the cessation of the rain at 6
a.m. and the beginning of the ill-fated task,
about 8.30 a.m.; the admittedly damp condition
of the grass and soil (James Johnston dixit); the
weight of the lawn mower, at least 55 pounds
aggravated by the downward pull of a too-steep
incline, have created those conditions of
responsibility foreseen in the above-quoted
treatise.
Danard was enjoined by a person in authority
to perform a palpably hazardous piece of work;
a refusal to comply would be interpreted as
tantamount to disobeying orders and would
have rendered him liable to punishment. I am,
therefore, of the opinion that the respondent,
through the blameworthy act of her agent,
should be responsible in tort for the resultant
damages caused.
The petition of right suggests no specific
amount for general damages; at the hearing, the
suppliant's very able counsel tentatively submit
ted as suitable indemnity the figure of $21,000.
Needless to say, this is purely subjective; a
more objective and realistic compensation
would appear to be the sum of $5,000, plus
$350 for special damages as agreed to by coun
sel should responsibility be eventually found.
Though the Court rests but slight confidence
in the suppliant's future earning capacity, which
may well be a repetition of his slothful past, he
nevertheless remains entitled to redress for
harm and injury illegally inflicted.
Consequently, for severe and protracted pain
endured, partial and permanent "lack of 30° of
flexion in the left knee", lastly, even if dubious
ly admissible, for loss of earning capacity, the
petition should be granted and the respondent
respectfully recommended to pay to the suppli
ant, Norman Danard, an indemnity in the total
amount of $5,350 with all taxable costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.