NOTES
Recent Cases on Occupier’s Liability
The recent decision of the Alberta Supreme Court in Marquardt
v. DeKeyser & DeKeyser Enterprises Ltd.’ is another example of a
judicial attempt to circumvent the somewhat Draconian attitude
of the law to a trespasser. This is done by elevating him to the
status of a licensee through an implication of consent by the occupier
to his presence. When regarded as a licensee, the law affords him
greater protection for any injuries he may suffer on an occupier’s
property than it would were he a trespasser.
The plaintiff, a thirteen year old boy, sued for damages arising
from injuries (severe burns over his body) which he suffered on
the defendant’s land after a pile of shale on which he was climbing
caved in under him. With the defendant’s consent, part of the proper-
ty had been used as a baseball diamond by members of the
community in which the plaintiff was a resident. A rather deep,
but dry, creek bed separated it both from an abandoned coal mine
and piles of slack that had been hauled from the mine before it
ceased operations in 1960. No fences enclosed this area; nor were
there any visible “No Trespassing” signs near the shale 2 Prior to
the accident, two trucks were present at the pile for the purpose
of removing it, which, in point of time, was five years after the
last slack had been deposited there and which had not been
disturbed since. The truckers, aware that some children (including
the plaintiff) were watching them, chased the youngsters away
from where they were working although they did not realize when
they warned the children that under the top level of the pile was
hot smouldering shale.’
Although Allen, J.A., in delivering the opinion of the Court,
discussed the fact that the child might have been a trespasser,
1 [1972] 2 W.W.R. 49 (App. Div.).
2 According to the facts of the case, at one time there had been a similar
sign near the shale pit, but on the day of the accident this sign was lying in
the weeds and was so battered as to be illegible.
3 Only Hunter, a self-employed trucker, realized the possibility of the shale
burning at the centre of the pile. Smith, who was employed by the defendant,
was not aware of this possibility and the danger he had in mind when he
chased the children off the property was of the general nature of the truckers’
operations.
McGILL LAW JOURNAL
[Vol. 19, No. 1
he did not decide whether the defendant would have been liable
for the injuries that the plaintiff suffered in his status as a
trespasser. Instead, he relied on the trial judge’s finding 4 that the
plaintiff was a licensee and, in consequence, dismissed the de-
fendant’s appeal on the basis that the danger
… although its precise nature may not have been appreciated, was known
or ought to have been known to the occupier…G
Moreover, the latter had failed to take adequate steps to prevent the
occurrence of the accident.
It is not quite clear how the licence is inferred. Finding a licence
where no express permission to come onto land has been given is a
frequently used method of fixing an occupier with liability.” When-
ever he is conscious of a trespass and neglects to protest the presence
of the trespasser, the latter becomes a licensee. But one cannot
always imply a licence unless the category of trespasser be devoid
of meaning. In Edwards v. Railway Executive,7 it was stated reso-
lutely that the burden is on the person claiming the licence to show
either express permission by the occupier or some action on his
part from which his consent to the trespass can be readily inferred.
A property owner is not required to fence off his property against
trespassers or erect signs warning against trespassing.’ If he takes
reasonable steps to object to an intruder’s presence once he is
aware of it, that is enough.’
While permission to play on part of the defendant’s land was
expressly granted in this case, this surely did not include permission
to play on any part of the land. The shale pit was far enough from
the ball diamond not to be included in the area permitted to be
used for recreational purposes. The defendant was not obliged to
fence off the pit, nor was it shown that the children played near
it prior to the accident. Further, when the truckers saw the children
they chased them away because of the danger involved in the
truckers’ operations. Were not the children then trespassers when
they crossed the creek to go to the shale pile? An occupier is under
4 (1970) 75 W.W.R. 439, at p. 441 (Alta. Sup. Ct.).
5 [1972] 2 W.W.R. 49, at p. 62.
OE.g.: Lowery v. Walker, [1911] A.C. 10, (1910) 103 L.T. 674 (H.L.).
7 [1952] A.C. 737, [1952] 2 All E.R. 430 (H.L.).
8Addie v. Dumbreck, [1929] A.C. 358, at p. 369 (H.L.); Adams v. Naylor,
[1944] K.B. 750, [1944] 2 All E.R. 21 (CA.); Dean v. City of Edmonton, (1965)
51 W.W.R. 539, at p. 547 (Alta. Sup. Ct.).
9 Addie v. Dumbreck, [1929] A.C. 358, at p. 372 (H.L.), per Viscount Dunedin;
approved in: McEwen v. C.N.R. and Imperial Oil Ltd., (1961) 34 D.L.R. (2d)
743, at p. 748 (Alta. Sup. Ct.); Bonne v. Toews, (1968) 64 W.W.R. 1, at p. 5 (Man.
Q.B.); Nelson v. The Pas, (1969) 67 W.W.R. 580, at p. 582 (Man. Q.B.).
19731
NOTES
no liability to an entrant unless injury occurs while his property
is being enjoyed in the manner and to the extent contemplated
by his consent.10 If an individual ventures onto another part of the
premises to which no permission to visit has been given, he can
expect no greater rights than those conferred on trespassers.”
A court may, however, be more ready to infer a licence by
means of the doctrine of allurement where the entrant is a child.
Thus, where a child has been given permission to go onto part of an
occupier’s land, and, being attracted by some object, wanders off
to another part of the land, it might be said that the occupier
should have realized that the object would entice children and
that he has tacitly permitted them to go onto the other part.12
It would seem that this is how Allen, J.A. arrived at the conclusion
that a licence had been created since he adopted the finding of the
trial judge. The latter stated:
The evidence clearly indicates that there was implied permission for
residents, particularly children… to enter the company lands. There was
express permission for them to use the ball diamond that lies just east
of the shale pit. The company took no steps whatever to effectively post
its lands with signs or to fence it in any way. It knew or ought to have
known that neighbourhood children played on its lands which formed a
natural and attractive playground for them. It did nothing whatever to
prevent them.’
It would seem quite likely that the coal mine and shale pits were
sufficiently attractive traps to warrant the operation of the doctrine. 14
1D “When you invite a person into your house to use the staircase, you do
not invite him to slide down the banisters…”. The Carlgarth, [1927] P. 93, at
p. 110, per Scrutton, L..; Hilden and Pettigrew v. I.C.I. (Alkali) Ltd., [1936]
A.C. 65 (H.L.), at p. 69, per Lord Atkin.
“Jenkins v. Great Western Ry., [1912] 1 K.B. 743, [1911-13] All E.R. Rep.
216 (C.A.); Knight v. Martelle, (1965) 53 D.L.R. (2d) 390, at p. 403 (Ont. C.A.);
Connor v. Cornell, (1925) 57 O.L.R. 35 (App. Div.).
12 Glasgow Corp. v. Taylor, [1922] 1 A.C. 44, [1921] All E.R. Rep. 1 (H.L.);
Victoria Rys. v. Seal, [1966] V.R. 107 (Sup. Ct.).
‘3 [1972] 2 W.W.R. 49, at p. 53.
14 The trap must be both attractive and inherently dangerous and these
are a question of fact. The following have been regarded as traps: poisonous
berries in a public park: Glasgow Corp. v. Taylor, [1922] 1 A.C. 44, [1921] All
E.R. Rep. 1 (H.L.); a bomb-damaged house in the course of demolition: Davis
v. St. Mary’s Demolition and Excavation Co., [1954] 1 W.L.R. 592, [1954] 1 All
E.R. 578 (Q.B.); a bank on which children were allowed to play, at the foot
of which were tins and broken glass: Williams v. Cardiff Corp. Council, [1950]
1 K.B. 514, [1950] 1 All E.R. 117 (CA.). Contra: a heap of paving stones:
Latham v. Johnson, [1913] K.B. 398, [1911-13] All E.R. Rep. 117 (C.A.); a stack
of metal: Morley v. Staffordshire County Council, [1939] 4 All E.R. 92 (C.A.);
and also: Prince v. Gregory, [1959] 1 W.L.R. 177, [1959] 1 All E.R. 133 (C.A.)
McGILL LAW JOURNAL
[Vol. 19, No. I
That which would be an open and obvious source of danger for an
adult could well be an attraction, a fascination and a temptation
for a child, luring him onto the property. What is curious, however,
is that the Court held that the infant plaintiff was contributorily
negligent for the accident. He was old enough to have realized the
peril in which he placed himself and should have been aware that
the shale pile was dangerous, even if only that it might collapse
while he was climbing on it. In the view of Allen, J.A.:
Kenneth was not a child of tender years and must be fixed with some
appreciation of the possibility of danger he might encounter on the pile.’5
Is it not somewhat anomalous that a child could be considered
at the same time as being sufficiently old to realize the possibility
of danger, but young enough to benefit by the doctrine of allurement?
There is no logical contradiction here, but it is clear that this
involves a considerable extension of that doctrine.
Although Allen, J.A. found that the plaintiff was a licensee, he
said that he was not altogether sure that it would have made any
difference if the plaintiff were a trespasser.’ He gave the impression
of being influenced by the judgment of the Court of Appeal in
Herrington v. British Railways Bd.,17 where a six year old child was
electrocuted by a live rail after crawling through an unrepaired hole
in a fence built by the defendant to enclose its railroad from a nearby
public estate. The Court followed the rule in Addie v. Dumbreck I
that a trespasser has no claim against an occupier unless the injury
is caused by his intentional act or reckless disregard. However,
two of the three judges who decided the case thought that “reckless
disregard” does not differ in kind from ordinary negligence. It is
rather a question of degree. Edmund Davies, L.J. held that it was
gross negligence,19 and Cross, L.J. found that it was simply a very
high degree of negligence.20 In Marquardt, it would appear that
Allen, J. A. would have been willing to find the defendant liable under
this expanded definition of recklessness had he not found him liable
as a licensor, although this was not expressly discussed.
Since this decision of the Alberta Supreme Court, the House of
Lords has had the opportunity to consider the decision of the Court
of Appeal in British Railways Bd. v. Herrington.2′ Although it dis-
15 [1972] 2 W.W.R. 49, at p. 63.
16Ibid., at p. 54.
17 [1971] 2 W.L.R. 477, [1971] 1 All E.R. 897 (C.A.).
18 [1929] A.C. 358, [1929] All E.R. Rep. 1 (H.L.).
‘9 [1971] 1 All E.R. 897, at p. 914.
o Ibid., at p. 918.
21 [1972] 1 All E.R. 749 (H.L.).
19731
NOTES
missed the appeal, it called into serious question the rule in Addie’s
case, which had essentially been followed by the Court of Appeal.
All five Lords concurred in the dismissal, but only Lords Pear-
son, Morris and Diplock were willing to depart from the rule in
Addie’s case. Considering the extensive changes in both physical
and social conditions since that decision, it was held that the
occupancy duty enunciated in that case should be discarded forth-
rightly rather than circumvented. 22 The remaining members of the
Court, Lords Reid and Wilberforce, did comment on the inadequacy
of the law, but they were not willing to alter it so drastically
without Parliamentary assistance.23
In a general but succinct manner, Lord Pearson accurately
reflected his position, as well as that of Lords Morris and Diplock,
in the following passage:
If the presence of the trespasser is known to or reasonably to be antici-
pated by the occupier, then the occupier has a duty to the trespasser,
but it is a lower and less onerous duty than the one which the occupier
owes to a lawful visitor. Very broadly stated, it is a duty to treat the
trespasser with ordinary humanity…s2
Although the members proposed a new treatment of the duty
owing to a trespasser, they did not intend to so completely alter
the position of the occupier with respect to a trespasser as to impose
any more demanding a burden on him than is necessary. The
duty is to arise only when the occupier has:
1. actual knowledge of either the presence of the trespasser on
his land or facts which make it likely that the trespasser will come
onto his land;25 and
2. actual knowledge of facts concerning the condition of his land
or of activities carried out on it which are likely to cause personal
injury to a trespasser who is unaware of the danger.28
Until the time arrives that the above two conditions are met,
the position of the occupier is to remain the same as it always has.
That is, he is still under no duty to fence off his land against
22 Ibid., at p. 769, per Lord Morris; at p. 779, per Lord Pearson; at p. 787,
per Lord Diplock.
2 Ibid., at pp. 757-8, per Lord Reid; at p. 778, per Lord Wilberforce.
24 Ibid., at p. 779, per Lord Pearson. See also: at p. 765, per Lord Morris;
at pp. 776-7, per Lord Wilberforce.
2 5 Ibid., at p. 758, per Lord Reid; at p. 776, per Lord Wilberforce; at p. 795,
per Lord Diplock.
2
0 Ibid., at p. 758, per Lord Reid; at pp. 767-8, per Lord Morris; at pp. 777-8,
per Lord Wilberforce; at p. 794, per Lord Diplock.
McGILL LAW JOURNAL
[Vol. 19, No. I
trespassers, children included. There is no general duty on the
part of the occupier to foresee the possibility or likelihood of a
trespass on his land, or to carry out an inspection to see whether
a trespass is occurring2 7
When it is imposed, it would seem that this duty is simply to
take reasonable care to enable the trespasser to avoid the danger.28
As such, it is open to question whether the new duty differs
greatly from the duty of a licensor to warn of hidden dangers which
he knows or of which he has imputed knowledge. Such a warning,
at least in the case of an adult, would probably suffice to enable
him to avoid the danger.
It is less clear, however, what an occupier must do to absolve
himself of liability to a trespassing child. A warning on a sign
could not suffice if the child is too young to read. In this case,
the defendant was found liable for failing to repair the fence after
it knew that children played in the vicinity. It had failed to act
with due regard to humane considerations by not taking those steps
which common sense would dictate.29 Where the likely trespasser
is a child too young to understand or heed a warning, the occupier
may have a duty to maintain adequate physical obstacles to keep
the child away from danger if it is not possible to be on hand
continuously to chase him away.,30 This is quite possibly what the
licensor would have had to have done in the Marquardt case in
order to avoid liability had the plaintiff been very young.8′
It is therefore suggested that this new duty is not unlike the
duty of an occupier to licensees. If this is the case, one must feel
great sympathy with Lord Diplock’s comment that this new duty
has now rendered obsolete the judicial technique of finding an
occupier liable by inferring a licence.32 Two years ago, Professor
27 Ibid., at p. 776, per Lord Wilberforce; at p. 783, per Lord Pearson.
28 Ibid., at p. 767, per Lord Morris; at p. 786, per Lord Pearson, at p. 796,
per Lord Diplock. The duty is, in any event, not so stringent as the common
duty of reasonable care owed to lawful visitors under the Occupiers’ Liability
Act, 1957, 5 & 6 Eliz. 2, c. 31, s. 2. Cf. Lord Morris at p. 767 and Lord Diplock at
p. 795.
29 Ibid., at p. 759, per Lord Reid; at p. 767, per Lord Morris; at p. 779, per
Lord Wilberforce; at p. 786, per Lord Pearson; at p. 796, per Lord Diplock.
30 Ibid., at p. 767, per Lord Morris; at p. 779, per Lord Pearson.
31 Cf. the view of the trial judge: [1972] 2 W.W.R. 49, at p. 53, cited supra,
at p. 101. Sed quaere whether the entry might not be conditional or the child’s
parents might be liable for contributory negligence: Latham v. Johnson, [1913J
1 K.B. 398, [1911-13] All E.R. Rep. 117 (C.A.).
32 [1972] 1 All E.R. 749, at p. 790.
1973]
NOTES
Fleming stated that “[h]owever distasteful, this devious practice
will retain its pull until it becomes permissible frankly to admit
a duty of care for trespassers’in suitable cases”.33 Now that such
a duty exists, it is to be hoped that this most strained of legal
fictions will be discarded.
Ronald Argue*
33 John G. Fleming, The Law of Torts, 4th ed., (Australia, The Law Book Co.
Ltd.: 1971), at p. 401.
* LL.B. III, Faculty of Law, McGill University.
