East Crest Oil Co. Ltd. v. The King

RAND J.-This is an appeal from a conviction for criminal negligence under sections 247 and 284 of the Criminal Code. The negligence was charged as permitting an oil well not then in use to remain unfenced or otherwise guarded, as a result of which a young child of about four years of age was drowned.

The well was approximately 250 feet from a highway and some greater distance from a small number of occupied houses. It had been temporarily discontinued under a conservation order issued by the provincial government. Centered around it was a pit ten feet square and eleven feet or so below the ground level, boxed in apparently to a distance of about two- feet above the ground. It was within a larger area set with concrete pillars at the corners, four or five feet high.

Between the pillars, on the north and south sides, were concrete walls about two feet in height. Supported on them were two large stringers twenty-four inches square running north and south about four feet apart and passing over (1) 2 W.W.R. 503; [1944] 3 D.L.R. 535; 82 Can. Crim. Cas. 77. the pit approximately one foot from each side. Lying longitudinally on each was a timber fourteen inches square. Across these was another lying transversely over the pit about two feet from the northerly side and extending well towards the sides of the larger square. From the east there was a sloping mound of earth which approached the northerly concrete pillar to within a few inches of its side and about one and a half feet from its top. Two loose planks lay across the easterly pillars, the inner of which passed close to the end of the transverse timber over the pit. In the pit was about nine feet of water, the surface of which was then seven feet or so from the top of the timbers. Access to this top could be gained by going up the mound from the east, onto the pillar and then by means of the planks to the timbers. The size of the opening into the pit inside the timbers was approximately six feet in length by four feet in width.

The young child had made his way to the top in company with three other children, two boys aged seven and eight years and a young girl of six, and in walking along was accidentally pushed off by the oldest boy into the water below. The other boy fell in also but he was able to save himself.

The well had been brought in about twelve years before and had been closed down for a year and a half. Children had from time to time played about it and in several instances had been seen by employees of the appellant. One of these latter had brought what he considered the danger of the well to the attention of the manager. He was prompted to this by a recent loss of two grandchildren by drowning; and with the permission of the manager he had secured the well by means of boards and fencing in a manner which he thought sufficient for all reasonable purposes.

This was in the autumn of 1941. He considered the top of the structure-the timbers-to be beyond the reach of children too small to look after themselves. No doubt the well with its pillars and beams carried some degree of attraction to children from a point where they had a right to be, but in the local surroundings probably any visible structure would have done so. A small quantity of gas bubbled out through the water, but this could be seen only at the well.

The trial judge dismissed the charge.

On appeal the court found the accused guilty under the sections mentioned by reason of a breach of the duty prescribed by section 287 (b), and a fine of $1,000 was imposed. Sections 247 and 284 embody the Common Law rule J and, under them, apart from section 287, the owners of the well could not in the circumstances have been held criminally responsible for the tragic mishap.

The trial judge found the child to be a trespasser on the land and I do not see how he could have done otherwise. Trespass does not depend on intention. If I walk upon my neighbour's land, I am a trespasser even though I believe it to be my own, and this rule is as applicable to children as to adults.

There was no evidence of license: that goes to the mind of the licensor either actual or as drawn from his actions. But here there was not only no willingness on the part of the owner that the children should play on this property but unequivocal demonstration to the contrary. Although children had, over the twelve years, played occasionally about the well, their numbers were few, they did not make a practice of it and, whenever seen by employees of the owners, they had been warned off, in one case somewhat vigorously. What was done made it perfectly clear that they were not being tolerated about the well. This was not wholly or even chiefly because of any special danger from the exposed pit, but rather the danger from gas and fire and the pressures in the pipes.

With certain exceptions, not present here, an owner of land is entitled, at common law, to do with it what he pleases: Jordin v. Crump (1); trespassers move at their own risk and peril; and in the absence of an object of fascination drawing children to their injury or of active conduct by the owner in disregard of their known, or necessarily apprehended, presence, that rule is as applicable to them as to adults. No such allurement was present here, nor is the case within the second qualification of the rule. The facts are almost identical with those present in Holland v. Lanarkshire Middle Ward District Committee There the defendants were the owners of a piece of ground which contained a disused and unfenced quarry, with high and precipitous banks and containing water, at one point, eleven feet deep. A young child six years of OI age had gained access to the quarry through a defective Tv.

fence from a strip of waste ground on which children were T nE "

in the habit of playing. The child was drowned but the Rand J. Court of Session held that no duty on the part of the owner had been shown.

In the language of the Lord President (Lord Dunedin):

It is a new and unheard of proposition that, if you have something on your ground as to which there is no duty of fencing, and someone else makes use of his ground in some particular way, a duty is thereby imposed upon you of doing what you were under no duty to do before, a duty, namely, of fencing. I know of no authority for such a proposition.

The quarry here was old and disused long before this strip of ground had become open to the use of the children, and that, I think, ends the question.

And in this respect the law of England is the same as that of Scotland (Addie's case (1)).

Cleasby, B., ruled to the same effect in a prosecution for manslaughter of the owner of an abandoned coal mine down the open shaft of which a trespasser had accidentally fallen: Reg. v. Gratrex But the conviction is placed on a violation of the duty imposed by section 287 (b) of the Code, which is as follows: 287. Every one is guilty of an offence and liable, on summary conviction, to a fine or imprisonment with or without hard labour, or both, who

(b) being the owner, manager or superintendent of any abandoned or unused mine or quarry or property upon or in which there is any excavation of a sufficient area and depth to endanger human life, leaves the same unguarded and uninclosed by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking or falling therein. Harvey, C.J., delivering the judgment of the Court, considered this language to be so precise in its delineation of the duty as to exclude any question of degree of fault or lack of care, and in effect to require such a fence or guard as must in any event prevent a person from falling into the well or opening; and in the case of young children, this would take into account their natural and likely behaviour in such situations as a circumstance to be anticipated in the measures of security taken.

(1) Robert Addie & Sons (Col- (2) (1872) 12 Cox C.C. 157. lieries) Ltd. v. Dumbreck,

[1929] A.C. 358, at 371.

But, assuming the excavation here to be within the scope l45 of the subsection, does that interpretation pay sufficient regard to the purpose of the legislation as indicated by the oI. language, "to prevent any person from accidentally riding, driving, walking or falling therein"? What is contemplated is the prevention of injury from hidden openings; the fence or guard must protect the unwary; but when the existence of the opening is made evident, the purpose of the fence or guard is accomplished.

The owner must protect the trespasser on the land from a trap, but he is not called on to protect against a subsequent danger from trespassing on the guard itself raised against that trap. The duty is not to prevent a person from falling into an opening but from falling in "accidentally", that is, accidental as to the existence of the thing holding the threat. It is to safeguard against a concealed danger; but if the thing becomes known, it ceases to be the accidental circumstance; and the accidental may, as here, become a consequential circumstance, as the jostling of the older boy in the course of walking on the guarding structure.

A young child may not, of course, appreciate the danger; but we are dealing here with objective causation toward persons without rights: and if, considering the object of the legislation, the scope of the duty is clear, it is as limited in relation to a child as to a grown person. A child, as he plays or trudges over a field, may accidentally fall into an open shaft; against this the owner must provide a safeguard. It is quite another matter that the owner, otherwise blameless, should be called upon to afford physical security against apparent dangers to children who ought not to be on his land at all. Does such a rule protect the child within the precincts of his own home? Is such a responsibility placed upon those charged with his care? It would come as a shock to a parent to find himself guilty of manslaughter because he had failed to provide barriers to keep his child from climbing into a well in the farmyard.

The legislation is not specially intended for the protection of children, and we cannot allow sympathy to stretch its scope. The conditions in which we live bristle with hazards for the young but, from the standpoint of safeguarding them, there is no more reason to treat the patent danger of such an opening as malum prohibitum than that of many other accessible structures or condi- '

* tions equally dangerous.

The balance between the responsibilities of owners of property and guardians of K- children is too close in accepted considerations of policy J. to justify our going beyond what the legislation has fairly indicated; and however poignant the death of a child in such circumstances may be, it is still one of the unhappy risks of living in this imperfect world, and not a happening to call for the infliction of punishment on others.

Having reached this conclusion on the scope of the duty under section 287 (b) and that the death of the child could not be charged to neglect of it, I do not find it necessary to consider the view of the Appeal Court that there could be no question of degrees of care in the performance of it. This would be to make it absolute against certain consequences and to rule out mens rea. It will be sufficient, of course, to deal with a case within the section when it arises but I desire to guard myself against being taken to assent to that interpretation of the obligation created.

I would allow the appeal and quash the conviction.

Esurs J.-The accused company was tried before the Chief Justice of the Trial Division in Alberta without a jury, at Calgary, on a charge containing two counts, the first charging an offence contrary to the provisions of secs. 247 and 284, and the second an offence contrary to sec. 222, of the Criminal Code. At the conclusion of the hearing, the learned Chief Justice dismissed both charges and delivered the following oral judgment:

the open cellar or well, or by the top being planked over.

Either of those acts would have made it safe as regards children.

That is the fact that I am bound to find.

OIL Co. I do think that the law is decidedly against the Crown obtaining a verdict of guilty. No doubt the law is, in my opinion, this child, THE however unreasonable you may think it or I may think it, was a trespasser.

He had no right there.

It does not matter whether he Estey J. could read the sign or not, according to the best statements of the law in my opinion, and no duty was owed to that child or to the other children or to anyone else to fence that property or to plank that cellar, on ground in proper and legal occupation of the accused. Both charges will be dismissed.

Upon appeal to the Appellate Division of the Supreme Court of Alberta, the dismissal of the charge under sec. 247 was set aside and a verdict of guilty directed.

Section 247 is a restatement of the common law. Union Colliery Co. v. The Queen (1); The King v. Baker (2). The learned trial judge found the child to be a trespasser, and the evidence supports that finding.

The duty which at common law rested upon a landowner towards trespassers is stated by Scrutton, L.J., in Hardy v. Central London Railway Company (3):

If the children were trespassers, the landowner was not entitled intentionally to injure them, or to put dangerous.traps for them intending to injure them, but was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business.

Against those he was under no obligation to guard trespassers. In that case, "whenever servants of the company saw the children, they either drove them away or told them to go away," and they apparently went away but repeatedly returned. Upon this evidence the Court of Appeal refused to find permission express or implied and therefore held the children to be trespassers rather than licensees, as the learned trial judge had held them to be.

The authorities are reviewed in Canadian Pacific Ry. Co. v. Anderson (4), where Chief Justice Duff at p. 218 states:

The respondent is precluded from recovering by reason of the fact that, being a trespasser, the only duty owing to him is that explained in Barnett's case (5), not intentionally to injure him or "not to do a wilful act in disregard of humanity towards him," "not to act with reckless disregard of the presence of the trespasser."

(1) (1900) Can. S.C.R. 81.

(4) [19361 S.C.R. 200.

(2) [1929] S.C.R. 354.

Barnett, [1911] A.C. 361. It is sometimes suggested that a landowner is under an obligation to take special precautions with respect to chilo dren, but so long as the children remain trespassers the law seems to be settled that in principle there is no difference between -a child and an adult.

Estey J.

It is recognized that where, as in cases of licensees and invited guests, a duty is placed upon a party in possession of land, from similar facts different inferences may be drawn where children rather than adults are involved, but the principle of legal responsibility is the same regardless of age. Robert Addie & Sons (Collieries) Ltd. v. Dumbreck (1), where at p. 376 Viscount Dunedin states as follows:

In this case there is no suggestion of any intention to injure the children or to place a dangerous trap or any trap for them. From time to time the children did play about this well, but whenever observed were always warned and chased away by both the employees of the accused company and by nearby residents.

Mr. F. C. Tuckett was in charge of the property in question for the accused company over a period of years.

He deposed that in 1941 two of his grandchildren were drowned in the Elbow River at Calgary, as a result of which he discussed the possibility of such a fatality at this well, and was then instructed by the company to fix it so as to keep small children out. He obtained material and did what he thought was sufficient, and the well remained substantially as he left it up to the time of the fatality that led to these proceedings.

The taking of such precautions does not create any obligation towards trespassers but it does exonerate the accused from any suggestion that it intended to injure or to trap, and indeed any suggestion that it had acted with a callous or wanton disregard of consequences.

A tragedy such as this, that takes away a very young child, arouses our feelings of sympathy. However deep and strong these feelings may be, they must not influence one either in ascertaining the law or in the application thereof to the facts and circumstances of a given case. If children in this case had been licensees or invitees, the obligation and responsibility of the accused company would have been very different.

The respondent contended before the Court of Appeal of Alberta and this Court that the facts disclosed an offence under sec. 287 (b), and by virtue of the provisions of sees. 951, 1013 (5) and 1016 (2) a conviction should now be directed.

It is doubtful if the offence under see. 287 can within the meaning of these sections be an offence so included under see. 247, both because of the essentials required to constitute the offence and because it is a summary conviction rather than an indictable offence. Apart from these considerations the evidence does not disclose that an offence was committed under sec. 287. Under that section the accused can be convicted only when the excavation is left "unguarded and uninclosed by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking or falling therein." The evidence here discloses that the excavation in question was so far guarded that instead of accidentally falling therein, the children in question climbed over some obstruction which they described as a fence. Counsel contended it was not actually a fence, but, however styled, it did constitute a barrier. Two of the children were called as witnesses. Bennett Keith deposed as follows:

The other boy, Gordon Earl Andrews, deposed:

Q.

Upon this evidence the children encountered the obstacles erected by the company to prevent people from getting into the well.

The charge was not laid under sec. 287 (b) and at the trial this section was not brought to the attention of the learned Chief Justice. His finding of fact must be read in relation to the issues raised before him. It is obvious that, had he been asked to find the accused guilty under sec. 287 (b), he would have dealt with the facts in the light of the provisions of that section, as well as the requirements of secs. 247 and 284.

The evidence is clear that the concrete posts on which the stringers rest extend about five feet above the ground. Photographs show that between the posts boards had been placed to prevent persons getting into the well. The stringers are on top of these posts. On the east side there are one or two mounds of earth which one might walk up. and reach the top of these posts. The distance from the mounds to the top of the posts is a point upon which there is some conflict in the evidence but it is clear there is some distance; and some effort must be made to pass from the mounds of earth to the top of the stringers.

The evidence also discloses a place or two where children and others by crawling under the boards might reach the well. In either case a party to get into the well must put forth an effort towards that end.

These facts negative the commission of an offence under sec. 287, which requires only such protection as will prevent persons from "accidentally riding, driving, walking or falling therein." In my opinion, the judgment of the Court of Appeal should be reversed, the conviction there directed quashed, and the judgment of the trial judge restored and the charge dismissed as against the accused.

J.-I believe that this appeal should be allowed and the conviction quashed.

The appellant was acquitted by the trial Judge, but the Court of Appeal found a breach of the duty imposed by section 287 (b) of the Criminal Code, and fined the appellant $1,000.

This section is to the effect that whoever is the owner, manager or superintendent of any abandoned mine or quarry in which there is an excavation of a sufficient area to endanger human life, must not leave the same unguarded and uninclosed by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking or falling therein.

The duty imposed by this section is, therefore, to fence the excavation in such a manner that a person riding, driving or walking shall not fall therein accidentally.

We would, I believe, unduly stretch the scope of this section and go further than the legislator did and, therefore, do violence to the text, if we held that the fence must be built in such a way that entrance to the premises is made impossible.

The law contemplates to protect a motorist or a pedestrian from a danger of which he is unaware, and which may accidentally cause his death. It does not apply, as in this case, to a trespasser who succeeds in making his way to the excavation where the danger is obvious, in the manner described by my brother Rand, and who is accidentally pushed in the water by a companion.

The judgment of the Court of Appeal should be set aside and the order of acquitment made by the trial

Judge should be restored.

Appeal allowed.

Might & Saucier.