T-1115-73
Okanagan Helicopters Ltd. (Plaintiff)
v.
Canadian Pacific Limited, Gordon Brockhouse
and Howard Arnold Shaw (Defendants)
Trial Division, Mahoney J.—Vancouver, April 1
and 2; Ottawa, April 26, 1974.
Jurisdiction of Court—Aeronautics—Collision between
helicopter and train—Helicopter summoned by railway com
pany to Siding—Failure of railway employee to direct heli
copter to safe landing place Helicopter landing so as to
overlap main line—Train striking helicopter—Railway com
pany liable for damages—Federal Court Act, R.S.C. 1970,
c. 10 (2nd Supp.), s. 23—Aeronautics Act, R.S.C. 1970, c.
A-3, s. 6.
The plaintiff's helicopter, under charter to the defendant
railway company, was ordered to a Siding by the divisional
engineer, the defendant B, calling from the dispatcher's
office. In response to signals from S, an employee of the
defendant railway company, the helicopter landed with the
circle of its rotor overlapping the main line of the railway.
The helicopter was struck by a freight train which was
proceeding without its crew having been warned of the
situation at the Siding.
Held, there is jurisdiction in the Court, under the
Aeronautics Act and the Federal Court Act. A helicopter,
resting on the ground in anticipation of its take-off, is
engaged in aeronautics. The helicopter and the railway com
pany each owed a duty to the other to exercise reasonable
care, in the conduct of its particular activity, to avoid injury
to each other. It was from breach of that duty that liability
flowed.
The engineer of the train had no chance to avoid the
collision. In the absence of evidence as to the authority of
the defendant B over the defendant company's dispatcher,
the Court was unable to find that B was negligent in relation
to the duties of the dispatcher, who was not a party or a
witness. B was entitled to summon the helicopter to the
Siding and to rely on the defendant S to exercise his
authority there responsibly. The failure of the helicopter
operator to direct his attention to the main line and to the
possibility of traffic on it, and his decision to land in a
position where the rotor impinged on the main line, con
stituted a cause of the accident. But that was severable from
the immediate cause and not negligence, in view of the
signals from the defendant S. The latter was negligent in his
failure to select a safe landing place and in his ensuing
failure to alter railway operations so as to render the landing
place safe. This negligence was the immediate cause of the
accident. Judgment is awarded against the defendant com
pany and S for the full amount of the damages, admitted at
$94,293. The action against B is dismissed. The defendant
company's counterclaim for damages of $4,119 is dismissed.
Johannesson v. The Rural Municipality of West St. Paul
[1952] 1 S.C.R. 292; Donoghue v. Stevenson [1932]
A.C. 562; Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B.
264; Lehnert v. Stein (1962) 40 W.W.R. 616, applied.
ACTION.
COUNSEL:
E. Lane for plaintiff.
R. W. Paisley for defendants.
SOLICITORS:
Manning, Bruce, Macdonald & Macintosh,
Toronto, for plaintiff.
Canadian Pacific Limited, Vancouver, for
defendants.
MAHONEY J.—This action arises out of a col
lision between the plaintiff's helicopter and a
freight train, designated XW4565, owned and
operated by the defendant, Canadian Pacific
Limited (herein called "CP"). The defendants
Shaw and Brockhouse were, at all material
times, employees of CP. Damages claimed by
the plaintiff in the amount of $94,293.82 are
admitted as are damages of $2,119.41 counter
claimed by CP.
The collision occurred at about 11:00 a.m.
Monday, March 13, 1972 as XW4565 was pro
ceeding west on CP's main transcontinental line
through Illecillewaet Siding (herein called "the
Siding") and the helicopter was on the ground,
on property owned and occupied by CP, with its
rotor turning, about to take off. The lead
locomotive of XW4565 came in contact with
the rotor.
Prior to the trial, the Court requested counsel
to direct their attention to the matter of the
Court's jurisdiction. This is a statutory court; its
jurisdiction is derived entirely from Parliament.
Jurisdiction cannot be conferred on it by agree
ment of the parties nor can lack of jurisdiction
be waived. Accordingly, the Court's jurisdiction
is a matter which the Court itself is bound to
consider even though it is not raised in the
pleadings.
After hearing counsel, the Court was satisfied
as to its jurisdiction by virtue of section 23 of
the Federal Court Act' which, in part, provides:
23. The Trial Division has concurrent original jurisdiction
as well between subject and subject as otherwise, in all
cases in which a claim for relief is made or a remedy is
sought ... in relation to any matter coming within any
following class of subjects, namely ... aeronautics, and
works and undertakings connecting a province with any
other province or extending beyond the limits of a province
Any doubt that the whole field of aeronautics is
within Parliament's exclusive legislative compe
tence as a matter affecting the peace, order and
good government of Canada was dispelled by
the Supreme Court of Canada in Johannesson v.
The Rural Municipality of West St. Pauli.
The Oxford English Dictionary defines
aeronautics as: "the science, art or practice of
sailing in the air; aerial navigation." Other
acceptable dictionaries are no more elaborate in
their definitions. The question is whether or not
a helicopter, resting on the ground with its rotor
in motion in anticipation of take-off is engaged
in aeronautics. I think it is. Clearly if it were
airborne it would be and I think it would be a
strained and artificial interpretation to separate
activities on the ground essential to the act of
flying from the flight itself.
Furthermore, in the absence of any clear con
trary intention in the statute, the Court should
conclude that Parliament intended it, in the
application of its judicial jurisdiction, to give the
word the same meaning that Parliament itself, in
the application of its legislative jurisdiction, has
given it. Parliament has legislated' with respect
to the use and operation of aircraft and to
accidents involving aircraft and that legislation
applies as well to use, operation or accidents on
the ground as in the air.
' R.S.C. 1970, c. 10 (2nd Supp.).
2 [1952] 1 S.C.R. 292.
3 The Aeronautics Act, R.S.C. 1970, c. A-3, s. 6.
I therefore conclude that the remedy herein is
sought in relation to a matter coming within the
class of subject of aeronautics and that this
Court has jurisdiction. It is not necessary for me
to consider whether or not there is merit in the
proposition that jurisdiction also flows from the
fact that the casualty occurred on CP's main
transcontinental line, which might be found to
be an interprovincial or extra-provincial work or
undertaking.
Illecillewaet Siding, on March 13, 1972, con
tained four parallel sets of railway tracks run
ning in a generally east-west direction. The most
northerly was the main line which, for a train
moving from east to west, entered the Siding
around a right curve next to an embankment
which effectively obstructed the engine crew's
view of the Siding until the engine was almost
on to the straight-of-way, some 550 to 600 feet
from the point of collision. The second set is a
long side track capable of accommodating a full
train when required for passing and will be
referred to as the passing track. The third and
fourth sets are shorter, used for storage, and are
designated No. 1 and No. 2 backtracks, the
latter being the most southerly of the four sets.
North of, and parallel to, the main line is a pole
line with three crossbars bearing wires. The
terrain north of the main line slopes upward
toward the Trans-Canada Highway. As a result
of the slope it is unsuitable for a helicopter
landing and all snow cleared from the Siding
must be disposed of to the south.
The snow clearing operation involves the use
of three vehicles—a plow and a spreader, nei
ther being self-propelled, and a locomotive. The
plow clears snow from between and immediate
ly adjacent to the tracks. The spreader rolls the
snow a distance of 12' or 13' away from the
tracks. When the build-up of snow interferes
with further spreading a bulldozer is brought in
to push the snow further away. The Siding was
completely plowed except for about three
inches of loose snow which had no bearing on
events.
The Siding's north-south profile was the natu
ral slope with the pole line, the well cleared area
occupied by or between the four sets of tracks,
a well cleared 12' or 13' strip parallel to No. 2
backtrack and a further parallel strip about 75'
wide where the surplus snow had been spread
out and packed down by the bulldozer. The
evidence is that the Siding was fairly level from
the base of the natural slope on the north to the
buildup of bulldozed snow notwithstanding that
the photographs comprised in Exhibit 4 appear
to show a perceptible drop in elevation between
passing track and the No. 1 backtrack.
On Friday, March 10 the same helicopter with
the same pilot, Evan Angus Cameron, had been
chartered by CP to survey snow and track con
ditions along the line. Cameron had then been
employed by the plaintiff for some 13 years and
was relief base manager of the plaintiff's Revel-
stoke establishment. During the first eight years
he was employed as an engineer and subse
quently as a pilot and engineer. He is duly
licensed in both capacities and his commercial
pilot's licence bears a helicopter endorsement.
He had logged some 5000 hours as a pilot, most
of them in helicopters.
The defendant Brockhouse was CP's division
al engineer for its mountain subdivision sta
tioned at Revelstoke, 28 miles west of the
Siding. He was a passenger on March 10 as was
his superior, the divisional superintendent, Hill.
The Siding was among the locations they
landed. They were there about 15 minutes; land
ing and take-off were routine. It was arranged
that the helicopter would be available for
another inspection trip on March 13 but the
departure time and other particulars were not
settled.
The helicopter, a Bell Jet Ranger, Canadian
registration CF-ZSO, is turbine powered. After
landing it must be left idling to cool for about
two minutes. While it is idling the rotor contin
ues to revolve. The safety of people on the
ground requires that it be shut off as soon as the
cooling period is completed. Starting procedures
consume 2i or three minutes from the time the
pilot takes his seat and begins them until the
helicopter can take off. The circle described by
the tip of the rotor is 34' in diameter. A circular
space, 50' in diameter, with a practically level
area for the landing gear, is required for a safe
landing and take-off. At the relevant time the
landing gear was of the skid type consisting of
two parallel aluminum tubes, curved upward
like skis in front, attached to and held below the
fuselage by two downward arched cross mem
bers of aluminum tubing. It is apparent from the
photographs entered as Exhibit 4, that there
would have been little, if any, room for error if
the pilot attempted to straddle a set of two rails
but the helicopter could rest with one skid on
the ties between the rails and one on the ground
outside.
Cameron and Brockhouse disagree as to
where the helicopter landed on March 10 but
they do agree that it landed where Hill wanted it
to—a location which Cameron, after reconnais
sance, found acceptable. Cameron did not direct
his mind to the main line but simply set down
where Hill wanted him to once he decided it
was suitable from the point of view of landing
and take-off. Hill did not testify. Cameron
thinks that he landed to the south of some.
railway cars on the passing track. They were not
necessarily the outfit cars that were there on the
13th. Brockhouse agrees that the railway cars
were not located in the same place on the 10th
as on the 13th but says they landed between the
backtracks to the west of whatever cars were
there. In either case, the helicopter was clear of
the main line. There is no evidence that a train
passed through while they were there on the
10th.
The significance of the disagreement is that
the location indicated by Brockhouse was equal-
ly available on March 13 while, due to the
situation of the outfit cars on No. 2 backtrack,
the location indicated by Cameron was not. On
the 13th, eleven coupled outfit cars, used and
occupied by a bridge and building gang of CP
employees, occupied some 600' of the No. 2
backtrack. This distance is translated from the
evidence of railwaymen who count distance in
terms of car lengths. There were no other cars
at the Siding. To the east of the most easterly
outfit car, a distance of 143', was the switch
where No. 2 backtrack joined No. 1 backtrack.
To the west of the most westerly outfit car, a
distance of 159', and to the south of No. 2
backtrack was an abandoned bunkhouse. Fur
ther west, another 100' to 200' was the other
switch where No. 2 backtrack joined No. 1
backtrack. The switches and bunkhouse, aside
from the outfit cars and the pole line, were the
only obvious impediments to a safe landing and
take-off. There were other locations, farther
removed from the outfit cars, that were also
suitable for landing and take-off.
The only instant communication from the
Siding to Revelstoke is by private telephone line
from instruments located near the ends of the
Siding to a single instrument in the dispatcher's
office. The dispatcher has control of the move
ment of traffic in the subdivision. Communica
tion with train crews approaching the Siding
would either be by flagging the train down or
through the dispatcher. The dispatcher was not,
at the time, able to speak to the train crew by
radio telephone but could use automatic signals
at various points along the line to stop the train.
There are private line telephones near all the
automatic signals. There was no such automatic
signal at the Siding and the nearest to it, for a
westbound train, was at Flat Creek, about half
way between Glacier and the Siding.
At 6:30 a.m. March 13, 1972, the dispatcher
at Revelstoke had prepared a lineup showing
that 31 trains, both east and westbound, were
scheduled to arrive or depart the mountain sub
division that day. This information is routinely
passed on to concerned CP personnel. Shaw
received the lineup by telephone from the dis
patcher early that morning and wrote it down.
For a variety of reasons it is not possible to
estimate accurately when these trains would
pass a given point. Nonetheless, it was probable
that between 10:30 a.m. and noon, four trains
would pass through the Siding. A fifth was
possible.
At about 9:30 a.m., the defendant Shaw, at
the Siding, phoned the dispatcher in Revelstoke
to advise that the bridge and building gang fore
man had been incapacitated by an attack of
some sort and was in his bed on his outfit car
unable to move. He wanted directions as to the
foreman's removal to hospital in Revelstoke.
Brockhouse, to whom the bridge and building
gang was subordinate, was called to the dis
patcher's office to take the call. Shaw, while not
the foreman's deputy was, next to the foreman,
the senior CP employee present and so, by
accepted CP practice, in the foreman's incapaci
ty, in charge.
While the options appear not to have been
discussed at all, Shaw says he was thinking only
in terms of using automotive transport available
on the site or having a conventional ambulance
dispatched from Revelstoke. Shaw did not want
to take responsibility on himself for moving the
foreman. Shaw says, specifically, that the possi
bility of a helicopter did not enter his mind.
Following Shaw's conversation with Brock-
house, the dispatcher told Shaw to stay on the
line and that Brockhouse would be back to him.
Brockhouse, aware of numerous highway clo
sures in recent days and knowing the helicopter
was booked and of its ambulance capability,
returned to his own office and immediately
called Cameron. Cameron told him that he was
doing some routine maintenance but could be
airborne in 30 to 45 minutes. He asked Brock-
house to ascertain weather conditions at the
Siding and whether a first-aid man was available
to accompany him and also to notify the hospi
tal to expect their landing. Cameron then went
back to preparing the helicopter for the trip.
Brockhouse spoke by phone to a doctor and
was advised that the only thing to do was to
keep the foreman breathing until he got to hos
pital and that there was no need for a doctor to
go out but that someone who could administer
artificial respiration, if necessary, was required.
He located a first-aid man, another CP
employee, communicated the doctor's advice to
him, and sent him to the plaintiff's base. He
then returned to the dispatcher's office to speak
again to Shaw. This was some 15 or 20 minutes
after their first conversation.
According to both Brockhouse and Shaw this
second conversation dealt only with the weath
er. Brockhouse did not tell Shaw a helicopter
was being sent and Shaw, having asked for
measures to remove the foreman to hospital,
left the phone content that Brockhouse had
everything in hand but unaware of how. He says
that he was not even sure the helicopter was to
be the ambulance when he first learned of its
approach but was certain only when it appeared
definitely to be landing.
Meanwhile XW4565 had arrived at Glacier,
13 miles east of the Siding, and was stopped for
some time for a crew change. The new crew had
gone out from Revelstoke by taxi and the crew
being relieved left in the same cab. There are
dispatcher's phones at Glacier, however the new
crew was not contacted by the dispatcher. It
received its orders in the normal way from the
crew being relieved. The speed limit between
Glacier and the Siding is 20 m.p.h. and the
engineer estimates his maximum speed at
between 18 and 20 m.p.h. This would indicate
that XW4565 left Glacier at about 10:15 a.m.
When it reached Flat Creek at about 10:30 a.m.
the automatic signal was "Go". The crew knew
nothing of events at the Siding.
After his second conversation with Shaw,
Brockhouse again phoned Cameron, told him
the weather seemed much the same as in Revel-
stoke and that the first-aid man was en route.
He also told him expressly that the foreman was
in one of the outfit cars. Cameron completed his
servicing, checked the stretcher, got the heli
copter out on the tarmac, fueled and then
waited no more than five minutes for the first-
aid man. They took off at about 10:15 a.m. The
trip to the Siding was routine.
The helicopter, with only Cameron and the
first-aid man aboard, arrived over the Siding
from the west at about 10:30 a.m. They circled
twice; Cameron ascertained that, except for the
location of cars on the tracks conditions were
much the same as three days earlier. There was
no room to land where Cameron says he landed
March 10.
After the first circle, Cameron saw a man
pointing to one of the outfit cars and waving in
a manner indicating where he should land. Cam-
eron says that the man waving signalled in an
accepted manner to indicate the landing place.
Shaw acknowledges that he was familiar with
such accepted signals as a result of instruction
from helicopter pilots during a period of
employment with the B.C. Forestry Depart
ment. The only signal which Shaw says he made
was that of pointing to the foreman's car which
he demonstrated as a poking motion with his
right elbow held close to his side, forearm and
index finger extended horizontally much as a
small child would indicate it had a make believe
pistol. Cameron saw only one person signalling
and there is no evidence that anyone except
Shaw signalled.
The foreman's car was the sixth, or centre
car, of the eleven car string. The helicopter
landed directly opposite it parallel to the tracks
and facing west. There is some conflict in the
evidence as to exactly where it landed in rela
tion to the various tracks however that does not
seem particularly important since any position
to the north of the outfit cars necessarily
involved the circle inscribed by the rotor com
pletely overlapping the main line. Accepting
Cameron's location, measurements taken after
the event place the helicopter's fuselage some
50' from the pole line and some 30' from the
foreman's car with the rotor's tip coming within
12'6" of the car.
I accept Cameron's judgment that the bull
dozed area was unsuitable. There were however
suitable areas at either end of the outfit cars,
each some 300' removed from the foreman's
car. Had he chosen to land to the south of one
of these areas, in line with the outfit cars, the
rotor would have been clear of the main line.
Immediately upon landing, Cameron locked
the controls and, leaving the engine idling and
rotor turning, got out of the helicopter. Shaw
says that as soon as Cameron got out of the
helicopter he asked him if he had clearance to
land on the track and that Cameron told him
that someone must have arranged it. Cameron
has no recollection of that conversation. There
is no evidence that Shaw identified himself as
the man in charge or that Cameron recognized
him as the man whose signals he had followed.
Shaw was concerned about the helicopter
blocking the main line however his concern did
not manifest itself beyond the previously men
tioned inquiry. He did not contact the dispatch
er. He did not order or even suggest that the
helicopter be moved, which could have been
done, prior to its engine being shut off, in a
matter of seconds. He did not tell the pilot
about the lineup. He did not send men down the
track to watch for and, if necessary, flag down
trains. He did, instead, accompany Cameron
and the first-aid man into the foreman's car and
then went to the cook-diner car to tell the cook
to give the crew its lunch and that he would eat
later when the helicopter had gone.
Cameron left the foreman's car, shut off the
helicopter's engine, got the stretcher and
returned to the foreman's car. The first-aid man
and Cameron transferred the foreman from his
bed to the stretcher, strapped him in and carried
him to the helicopter. The left side of the fusel
age was opened, the stretcher was installed and
locked in place. The first-aid man re-entered the
helicopter and sat in the right rear seat. Camer-
on returned to the right front seat and, shortly
before 11:00 a.m., began going through the
starting sequence.
In about two minutes the rotor was engaged
and Cameron was about to take off when he felt
an impact and the helicopter rolled onto its left
side. Meanwhile Shaw, seeing the rotor start,
began walking east toward the telephone intend
ing to call the dispatcher when the track was
clear. He got to within 40' or 50' of it when he
saw the train coming around the curve. He
waved his arms and it went past him. He heard
a terrific crash, turned and saw the helicopter
on its side.
There is evidence as to the actions of the
engineer. I do not propose to review it because I
am satisfied that he had absolutely no chance to
avoid the collision. He had already done every
thing possible by the time Shaw waved and the
train stopped after four power units and eight
cars had passed the helicopter. No one was
injured and the foreman was removed from the
helicopter, placed on the train and taken to
Revelstoke apparently none the worse for the
delay or the experience.
Having regard to all the circumstances, I
think that Cameron's evidence as to the nature
of the signal from the ground is to be preferred
to Shaw's. Shaw acknowledges his familiarity
with the signals usual in such circumstances.
The motion he demonstrated does not seem to
me to be a natural motion for one to make if he
wished to communicate from the ground to an
airborne helicopter. There was no useful pur
pose in his indicating the location of the particu-
lar outfit car to the airborne helicopter, however
he signalled, unless he intended the pilot to act
on the information and the only logical infer
ence the pilot could draw from the information
was that it was intended to influence his deci
sion where to land. That decision was, of
course, entirely Cameron's.
The dispatcher is not a party and was not a
witness; however I find it difficult to conceive,
given the facts that Brockhouse was using his
phone to talk to Shaw and that he transmitted
the message to Shaw to stand by for Brock-
house's second call, that he did not know what
was going on. Shaw displayed a remarkable
indifference in not enquiring what arrangements
had been made as a result of his request and
Brockhouse displayed a remarkable restraint in
not volunteering the information. The idea that
the dispatcher was also remarkably disinterest
ed in what was, per se, a very interesting event
is not believable particularly when that event
also should have concerned him from the point
of view of his responsibility for the traffic on
the subdivision.
The plaintiff was an invitee; however, with
respect to the defendants' argument, it does not
seem to me that the classic distinctions as to an
occupier's liability to those coming on his land
are the guiding principles in such a case as this.
It is now accepted that where injury occurs to a
person lawfully on anther's property as a
result, not of the condition of that property but
rather of an activity being carried on there, the
broad principles of Donoghue v. Stevenson 4
apply.
As Denning L.J. put it, in Slater v. Clay Cross
Co. Ltd.', after pointing out that the distinction
in the duty owed an invitee and a licensee had,
by then, been reduced to vanishing point:
At any rate, the distinction has no relevance to cases .. .
where current operations are being carried out on the land.
4 [1932] A.C. 562.
5 [1956] 2 Q.B. 264 at 269.
In that case, the plaintiff, a licensee, was injured
by the defendant's train as she was walking
through a tunnel on the defendant's property
and it was held that:
... the Clay Cross Company, in carrying on their operations
were under a duty to take reasonable care not to injure
anybody lawfully walking upon the railway, and they failed
in that duty. 6
In this instance, two activities were involved,
both specialized: the operation of a helicopter
and the operation of a railway. Each was being
lawfully conducted on the premises and each
presents a hazard to one not versed in it. The
plaintiff and CP owed each other a duty to
exercise reasonable care in the conduct of its
particular activity to avoid injury to the other. It
is from the breach of that duty that liability
flows.
In the absence of evidence that Brockhouse
had at any line authority over the dispatcher, I
am unable to find that he was negligent although
I do find it difficult to believe that the dispatch
er was not aware of what was going on. It may
be that Brockhouse should have anticipated
what in fact occurred and should have instruct
ed Shaw explicitly in what to do and what not to
do however the evidence does not support such
a finding. Brockhouse knew the pilot had been
at the Siding before and that the helicopter
could land and take off from there. He was, in
my view, entitled to send the helicopter to the
Siding and to rely on Shaw to exercise his
authority there in a responsible fashion.
Cameron's failure to direct his attention to the
existence of the main line and the probability of
traffic on it together with his decision to land in
a position where the rotor impinged upon the
main line were a cause of the accident. If he had
not landed there, it would not have occurred.
However, that was all anterior to and severable
from the immediate cause and, in any event,
was not, in view of Shaw's signals, negligent.
Cameron had a right, perhaps even an obliga-
6 Ibid. at 270.
tion, to act on Shaw's signals. Had he not done
so, he might very well have been negligent pro
vided, of course, that to do so was prudent from
the point of view of operating the helicopter.
Having acted on Shaw's signals, Cameron had a
right to assume that CP's railway operation
would be conducted taking into account the
presence and operation of the helicopter.
Cameron's interpretation of Shaw's signals
and his consequent action were entirely reason
able. His assertion that someone must have
cleared his landing on the track follows natural
ly from his interpretation of the signal from the
ground. Cameron was not expert in the opera
tion of a railway. Shaw, on the other hand,
should have known that if such clearance had
been given, he, as CP's de facto man in charge,
ought to have been informed of the clearance by
the dispatcher. Indeed, Shaw acknowledged that
had Brockhouse known the helicopter was going
to land on the tracks he would certainly have
informed Shaw. Not having been so informed,
he should have doubted that Cameron's impres
sion was well founded and required that the
helicopter be moved. He should have posted
men up and down the line just in case. He
should have called the dispatcher. However
reluctant Shaw was to accept the responsibility
thrust on him by the foreman's disability, he had
the responsibility and he knew he had it. He was
an experienced railwayman.
Just as it was Cameron's duty to select a safe
landing place from the point of view of the
operation of the helicopter so it was Shaw's
duty to select a safe landing place from the
point of view of the operation of the railway.
His failure to do that and the ensuing failure to
take reasonable steps to alter the operation of
the railway so as to render the landing place
safe were negligent and the immediate cause of
the accident.
I find further that the helicopter was under a
contract of charter between the plaintiff and CP
and that an implied condition of that contract
was that CP would provide a safe landing place
for it from the point of view of its railway
operations. Acting through the instrument of its
de facto employee in charge at the Siding, it did
not fulfil that obligation.
The defendants plead volenti non fit injuria.
In Lehnert v. Stein' the Supreme Court of
Canada adopted the following statement in Sal-
mond on Torts, 13th ed., p. 44:
"The true question in every case is: did the plaintiff give a
real consent to the assumption of the risk without compen
sation; did the consent really absolve the defendant from the
duty to take care?"
In this case, it is quite the contrary. The plaintiff
assumed, as was its right, that CP would exer
cise reasonable care in the operation of its
railway.
The claim is therefore allowed in full as
against CP and Shaw and CP's counterclaim is
dismissed. The claim against Brockhouse is dis
missed. The plaintiff is entitled to its costs
against CP and Shaw. It is my impression that
the arrangement among the defendants is such
that costs ought not be awarded to Brockhouse,
however, he may apply under Rule 344(7) if my
impression is erroneous.
[1963] S.C.R. 38 at page 43.
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.