Ex:C:R.] EXCHEQUER 'COURT' OF CANADA ' • 'BETWEEN : — , . .. , } 1~ O1VIE0 '`1VIÀL13'OUF s, ._- -,_ ~; ,_. A . ND IiIS1VIAJESTY THE KIN'G -: .4: .. . . 6'._. . ._.RESPONDENT. `!@` ,)} ; Çr9wn-l!tregligence 1Vlaster• and servant—No liability of : master for egligent iréta'ôf sérvant,wh,en'sé`r •vhnt no" on mastér's'buszness.`, ~ - ~ ~•. :1 .. '.' • S •'' J . ' ''-~ H,eld:' fihàt where ~ servant does not start upon his masters J~vsiness s E and i's' in hô Waÿ 'in^-°thé"Gôursé "ôf following ' it the sntïatér is''nôt liable 'for drainage's 6-used 'Jiÿ'• tlië' servant's négli'genr;c. period. 523 ,•s ' •; r • . 1948 SÙPPLIANT' . Aprr.. 2 s , 27 _ ~ July 24 — y ' ~~J , , ~. • 'such
524 EXCHEQUER COURT OF CANADA [1948 1948 PETITION OF RIGHT by suppliant claiming damages MALBOMP for injuries suffered and allegedly caused by negligence of THE KiNQ a servant of the Crown in the course of his duties or employment. The action was tried before the Honourable Mr. Justice O'Connor at Ottawa. Hyman Soloway for suppliant. Michael E. Anka for respondent. The facts and questions of law raised are stated in the reasons for judgment. O'CONNOR J. now (July 24, 1948) delivered the following judgment: The suppliant claims damages from the respondent for loss which resulted when his 1937 Plymouth Sedan which was parked on the west side of Duke Street, in the City of Ottawa, south of the intersection of Lloyd Street, was struck by a motor ambulance owned by the respondent and driven by Frank Knox, a servant of the Crown, and which was proceeding south on Duke Street. The collision occurred about 9.40 p.m. on the 23rd of September, 1947. The suppliant's vehicle was damaged beyond repair. There are two issues—the first, negligence and the second, whether at the time of the accident the driver, Frank Knox, was acting within the scope of his duties or employment. The driver, Frank Knox, was at the time of the accident and had been for two years employed by the Department of Veterans Affairs and had been driving this particular ambulance for one year. His evidence may be summarized as follows: Each day at 8.45 a.m. he got the ambulance at the garage and drove to the Veterans' pavilion to pick up the patients who were to be taken to the Aylmer Building. That during the remainder of the day he had certain routine duties to perform at fixed times, such as taking new patients from the Aylmer Building to the various hospitals and calling at hospitals and bringing patients to the Aylmer Building. He also had to call for and deliver files and X-ray films during the day. His headquarters were at the Aylmer Building, and he received
Ex.C.R.] EXCHEQUER COURT OF CANADA 525 his instructions from Mr. Fraser and Mr. McCorkell each 1948 day as to his duties that were not routine. As an example M u r he would receive instructions from Mr. McCorkell to pick T HE «LxING up patients at various points in the City and take them — to a hospital or to meet patients on incoming trains, etc. O'Connor J. He also stated that twice a month he delivered magazines to the various hospitals, but that he did not make a special trip for that purpose, but he only took them if he happened to be making a trip to that hospital. He stated that his day finished normally at 4.45 p.m. when he would then return the ambulance to the garage at Kent and Somerset Streets and leave it there. He stated that on the 22nd of September, the day before the accident, he found a bundle of magazines marked, "Hull Sanitarium" on Mr. Fraser's desk and he took them down- stairs, intending to deliver them, but that he was called out on some special duty so that he did not deliver the magazines. At 4.30 p.m. on the 23rd of September he had what he termed a "spare" and he decided that he would then take the magazines to the Hull Sanitarium, and he did so via the Inter-Provincial bridge and arrived there a little after 5 p.m. He stated the Sister in charge was busy so that he just put the magazines at the top of the stairs and then started back. When he reached the railroad tracks about one-quarter of a mile from Hull he stopped for the first track, then proceeded across it and then stopped for the second track. When he stopped, the engine stalled and in endeavouring to start it the starter locked. He tried to rock the vehicle in order to free the starter but because of the weight of the vehicle he was unable to do so: That although this was on one of the main highways only one or two cars passed and they refused to help him. Finally, about 7 p.m. two men came up and helped him and he then drove them to a beer parlour in Hull: That he overlooked the time but eventually he decided to leave: The man at the next table in the beer parlour asked for a lift and he gave him one. That while he was proceeding south on Duke Street there were two cars proceeding north on Duke Street, one behind the other and that as he was approaching the first car, the car in the rear turned out to overtake and pass the preceding car. That to avoid a collision he turned the
.526 EXCHEQUER 'COURT 'OF 'CANADA ' [1948 1948 ambulance' to the 'right and that 'he then saw the: parked MALBOUF car , of , the suppliant for the first time, but that (it was tào ndkika late to avoid 'hitting it., 4 After .the collision, he st6pped7 thé -ambulance about One' and â half blocks -away- and the man O'ConnicieJ: with. h]m, opened the door and that was the last he' saw of him; ° '1 The SuPiJliant stated--4 that 'he had inst° finiShed Seme' 'Work à hen:lie-at 60 Dike Streetand Carne'ont tij,hiS'Car which 'Was-Parked 'in front Of this hdifse . and hadljtist -jot. id° °-it 'When lie lïêard' a' siren Senn d. He deeidedlo wait -and le -lit a-Cigarette and Sat there. lle -heard à crash' ithiia to that caused by a collision between teYo'èhidé"à ; ttirried arblind and °"Sae the 'Of' vehicle, 'which -was cabout to strike therear end "Of hiS ear,' ' He threw hïmself dOwn, and , there -Wité 'n impact and 'his' ,car was driven 75' feet.' Ilk sawn ainbtilance continue' south down 'Dùke Street' zigzagging 'acros's the rdad. ' 'He- then, 'got out -and -walkedback- to the intersectien' Of , Diike-- and Lloyd Streets Where he '.saw another inbtor vehicle in the intersection -Whieh had been Struck.' 4116 told Of à' conversation' with the occupants which hold is not admissible and 'which I .reject. He stated that -after he heardthe Siren he remained seated in the 'car 'and that there Was not nïuch traffic going (north on Duke 'Street) to hull and that- lie did' not see two, ears travelling hôrth 'at that time. 'His' evidence was: ,. , • W. Well did you see-any ears-Coming towards yôu and cut out int> the, centre, of, the road?, , 2 • • - , _ , A. No, ' -Three-officials of the 'DepartMent were -called. Mr. ChurchWard` said that 'certain magazines were received bY him, from time to' time and' he instrùcted. Mr.' FraSer, his assistant; to have Frank Knox deliver, them: That neVer, at, any' time; were any of 'these' magazines sent, tà the. Hull Sanitarium; ° -and th'at the magazines that, were' , delivered to the other , hospitals 'Were never delivered -on-a -sPecial trip;, but' only -when 'the' ambulance happened' to be: going to that particular hospital. _ 7 , Mr. Fraser, the District Transport Officer,t said thatTiiink Knok'waS employed as a,driver_and , worked, directly un -dér him and. received,s11 instructiOns exception 'oftheinstructioriswhich were :given by Mr. Mc, COrkell iaS to picking ,up 4 -certain patients : ° That- the •, only
Ex.CR.] EXCHEQUER COURT OF CANADA (527 magazines that were. ever delivered. were those that were 1948 ,received, ,through Mr. lehurchward; and. that none • of these -Mn OUF magazines were ever for the Hull Sanitariumy stated THE km.à that he . had not instructed Frank, , Io ,to., deliver any o'connôr magazines to the. He Sanitarium. , , ', Miss Doran, . a receptionist at the Hill Sanitarium; said that she was bn duty in Septewber, 1947,' from''one to three `ancrsix-`to nine 'p.m.,` and thae she had riever, ^received magazines from the Department of Veterans' Affairs while on duty, nor to" her knowledge had arty'• magazines been received fat •'any 'time' froth the Department of Veterans' Affairs. Mr. McCorkell . said , that he gave ^instructions each • Iday to Frank Knox 'to' pick'' up 'the" varioiis'patien'ts, bût that he had never ,instructed ,Frank Knox ,at ,any time, to deliver any magazines, , to any hospital. , The- sû'ppliant's-evideüce "as to what happened at` the ;time of the' collision' is in direct, Conflict 'With ,the `evidence .given by ,Frank,, Knox. • . I :,accept the,, evidence of the sûppliant: r T find that Frank Knox was, driving ât an excessive ,ra'te of speed. The suppliant's vehicle was struck so violently that it was • driven 75 feet 'from the' 'place where it was parked. I find that' Frank Knex did-not have'the vehicle `Under contror and that he was not' keé iri'g a proper lo'okou't'. The injuries to the 'meto'r véhiclé'bf 'the suppliant resulted from the negligence )of Frank Knox. ' The evidence given' by Mr. Chnrchward and Mr.' Fraser is at variance in certain respects with the evidence given by•Frank Knox. I 'accept the 'evidence of Mr. ChuY'chward arid Mr.'Fraser. '`' " Î find that the driver, ' Frank Knox,, did not 'start Out on the, respondent's ',business- when.` he left' the Aylmer Building but solely; for his own purposes, and undertaken without 'the knowledge or consent" of the respondent. He was not, therefore, at the time of the collision ' acting within - the .ecope of his duties or employment. If he had started on the respondent's business and had deviated from the course on some business of his own, then the respondent might have been held liable because deviations are, always a question of degree.
528 EXCHEQUER COURT OF CANADA [ 1948 1948 But when the servant does not start upon his master's M OUF business and is in no way in the course of following it, the THE KING master is not liable. o'Conuor J. In Mitchell v. Crassweller (1), Jervis, C.J., said: I think, at all events, if the master is liable where the servant has deviated, it must be where the deviation occurs in a journey on which the servant has originally started on his master's business; in other words, he must be in the employ of his master at the time of committing the grievance. In Joel v. Morison (2), Parke, B., said: The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against 'his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable. In Storey v. Ashton (3), Cockburn, C.J., said: I am very far from saying, if the servant when going on his master's business took a somewhat longer road, that owing to this deviation he would cease to be in the employment of the master, so as to divest the latter of all liability; in such oases, it is a question of degree as to how far the deviation could be considered a separate journey. Such a consideration is not applicable to the present case, because here the carman started on an entirely new and independent journey which had nothing at all to do with his employment. Nor can it be said that when the driver left the beer parlour with the intentions of taking the ambulance to the garage that he re-entered upon the work he was employed to perform. Because not having started out on the respondent's business, his frolic would not end until he returned the ambulance to the Aylmer Building or to the garage. The result is, much as the loss to the suppliant is to be regretted, that the suppliant, in my opinion, is not for the reasons I have given, entitled to the relief sought against this respondent. If it had been necessary to compute the damages of the suppliant I would have assessed them at $800.00. The suppliant's claim will, therefore, be dismissed, but under the circumstances, without costs. Judgment accordingly. (1) (1853) 13 C.B.R., 235 at 245. (2) (1834) 6 Car. & P. 501 at 503. (3) (1869) L.R. 4 Q.B. 476 at 479-480.
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.