COMMENTS
COMMENTAIRES
Veinot v. Kerr-Addison: A Case Note
Occupiers’ liability has long been an unsettled field of law,
particularly as far as the vexed question of liability towards tres-
passers is concerned. Some clarification was provided recently by the
Supreme Court of Canada in Veinot v. Kerr-Addison Mines Ltd.1
The facts of the case were simple: The plaintiff, Mr Veinot, was
driving his snowmobile one night when he lost his way, ran into a
steel pipe and injured himself. The pipe belonged to the defendants,
who had put it up twenty years earlier to form a gate across their
private road in order to discourage vehicles from entering their
property. They alleged that the plaintiff was -a trespasser, and that
they owed him no duty. The plaintiff argued that he had an implied
license, and that the pipe was a concealed danger. The jury agreed
and he won the case; the defendants appealed.
Meanwhile, the House of Lords had denounced the implied license
doctrine in D.R.B. v. Herrington.2 In the light of this case, Arnup J.A.
of the Ontario Court of Appeal found that there was no evidence
of implied license to go to the jury. Following several earlier deci-
sions, he held that the forseeability of a trespasser appearing on the
defendants’ land was the criterion of their liability as owners. On
the facts before him he came to the conclusion that “a few isolated
and recent instances of trespass by snowmobilers” 3 did not suffice
to make the plaintiff’s presence foreseeable, and the appeal was
allowed.
The plaintiff in turn appealed to the Supreme Court and was
successful on the primary ground that the jury’s finding of an
implied license should not have been disturbed. However, the Court
also held that even if Mr Veinot was a trespasser the defendants
would be liable since his presence should have been anticipated and
the danger averted by clearly marking the pipe.4
1 (1974) 51 D.L.R. (3d) 533 (S.C.C.); rev’g (1972) 31 D.L.R. (3d) 275 (Ont.C.A.).
2 [1972] A.C. 877.
3 (1972) 31 D.L.R. (3d) 275, 281.
4 (1974) 51 D.L.R. (3d) 533.
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The Supreme Court, however, was divided and the division
mirrored the split between two opposing philosophies. The older
philosophy which maintains the sanctity of private property and
sees the trespasser as a nuisance or a danger, was expressed by Lord
Hailsham in Robert Addie & Sons (Collieries) v. Dumbreck as
follows:
Towards the trespasser the occupier has no duty to take reasonable care
for his protection or even to protect him from concealed danger. The
trespasser comes on to the premises at his own risk. An occupier is in
such a case liable only where the injury is due to some wilful act in-
volving something more than the absence of reasonable care. There must
be some act done with the deliberate intention of doing harm to the
trespasser, or at least some act done with reckless disregard of the
presence of the trespasser.5
The alternative philosophy puts considerations of humanity and
personal safety before undisturbed enjoyment of property. It is
reflected in the words of Mr Justice Peters of California who said
of the trespasser that his “life or limb does not become
less
worthy of protection by the law … because he has come upon the
land of another without permission”.6
One of the problems facing the Supreme Court was the difference
between a trespasser and a lawful visitor. Invited guests get a better
welcome than unknown strangers whose business is unclear. Ac-
cordingly, the common law distinguished between trespassers and
lawful visitors and defined the occupier’s duty of care to the latter
far more stringently than that towards the former. The Supreme
Court in Veinot v. Kerr-Addison took a different attitude and the
decision continues a recent trend shared by all common law coun-
tries towards the more humane view of the trespasser outlined above.
Since the occupier’s liability depended on the status of the person
entering his premises, much legal finesse went into distinguishing
not only between trespasser and lawful visitor, but within the latter
category, between licensee and invitee. Often it was hard to see
where the line between the invitee and the licensee was drawn. The
occupier’s business interest was a poor criterion, giving the awkward
result that a licensee, perhaps a family friend invited to dinner,
was less’protected than the invitee, often a shady character re-
luctantly admitted to discuss a business deal. This distinction was
abolished in England by the Occupiers Liability Act, 19577 which
5 [1929] A.C. 258, 365.
6Rowland v. Christian 70 Cal.Rptr.97, 104 (1968).
7 5-6 Eliz.II, c.31 (U.K.).
19761
COMMENTS – COMMENTAIRES
has enabled English courts to decide cases on the basis of whether
the plaintiff was lawfully on the defendant’s grounds. Alberta has a
similar Act.8 The rest of Canada, however, does not have such
legislation and Canadian courts continue to be guided by the
distinction between licensee and invitee –
in theory at least. It
seems, however, that the gap between the two is being quickly
closed. Over a decade ago, E. C. Harris said:
[T]here has been a tendency to raise the level of the occupancy duty owed
to licensees so as to make it nearly indistinguishable from that owed to
invitees.9
In similar manner, it seems that the gap between trespassers
and lawful visitors is also narrowing. Harris continues:
It is true that the occupancy duty owed to trespassers
is still very
minimal under our law; yet this has been mitigated partly by a disposi-
tion on the part of many courts to imply a licence.’0
Harris’ artiole states the situation as it existed until recently
the trespasser’s treatment differed from that of persons entering
lawfully. To mitigate the harshness of the law towards the tres-
passer, Canadian (and English) courts created another category –
the implied licensee. This is a tool which in the Veinot case was
used by the Trial Judge when putting the question to the jury and
again by Mr Justice Dickson of the Supreme Court in accepting the
jury’s findings. The law was further mitigated in the case of tres-
passing children. The theory of enticement was developed or else
simply a tacit preference was given to children, and in most cases
won by trespassers, the plaintiff was a child. A further refinement
which sometimes mitigated in favour of the trespasser was the
distinction made between injury resulting from a static condition of
the property and one resulting from an activity by an occupier on
his land;”- the owner is held more responsible for his activities .on
the land than he is for its static condition. This distinction was
maintained by Lord Denning M.R. in the Videan case, 2 but rejected
by Pearson L.J.13
Originally, as mentioned above, the law with respect to tres-
passers was unequivocally in favour of the owner or occupier, in
8 The Occupier’s Liability Act, S.A. 1973, c.79.
)E. C. Harris, “Occupiers’ Liability in Canada” in A. M. Linden, Studies in
Canadian Tort Law (1968), 250, 269.
10 Ibid.
“Winfield on Torts 8th ed. (1967), edited by J. A. Jolowicz and T. Ellis
Lewis, 173.
12Videan v. B.T.C. (1963) 2 Q.B. 650, 667.
13 Ibid., 678.
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keeping with the sentiments of the nineteenth century. In Canada,
the protection afforded the trespasser was summed up in Grand
Trunk Railway Company of Canada v. Barnett;14 it was a negative
definition. The duty of the occupier consisted in not injuring the
trespasser wilfully, and in not acting in reckless disregard of
ordinary humanity. In England, it was the Addie case 5 which in
1929 reaffirmed the trespasser’s disadvantaged position.
The position remained the same well into the sixties; examples
are Edwards v. Railway Executive’ and Commissioner for Railways
v. Quinlan.17 In the Quinlan case the Court ignored the statement of
Lord Denning M.R. in Videan (which had been decided only a year
before) to the effect that once the occupier foresees trespassers he
must take reasonable care to protect them against injury. Instead
they seized upon the principle of foreseeability expressed in that
case and hardened it into the statement that an occupier has a duty
of care only if “he actually knows” that a trespasser is there, or
if his presence is “extremely likely”.’8 Yet at this time in all common
law countries there was a move to eradicate the distinction between
trespasser and lawful visitor, although the English Occupiers’ Lia-
bility Act, 1957 still maintains the distinction:
The Rules … shall not alter the rules of the common law as to the
persons … to whom [a duty] is owed; and accordingly … the persons who
are to be treated as … visitors are the same … as the persons who would
at common law be treated as … invitees or licensees.19
Several critics have deplored the intransigence of this statute.
Shortly after it was passed, the Occupiers’ Liability (Scotland) Act,
1960, erased the common law distinction between visitors and tres-
passers:
The care which an occupier of premises is required … to show towards
a person entering thereon in respect of dangers … shall … be such care
as … is reasonable to see that that person will not suffer injury or
damage …
;0
On the other hand, the 1962 New Zealand Occupiers’ Liability Act 2
follows the principles of the English Act and extends the common
duty of care only to visitors. However, a report of the New Zealand
14 [1911] A.C. 361.
15 Supra, note 5.
16 [1952] A.C. 737.
“T [1964] A.C. 1055.
18 Ibid., 1086.
19 Supra, note 7, s.1(2).
20 8-9 Eliz.II, c.30, s2(1) (U.K.).
21 Occupiers’ Liability Act, New Zealand Statutes, 1962, vol.1, No.31.
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COMMENTS – COMMENTAIRES
Torts and General Law Reform Committee issued in 1970 has
recommended certain amendments which would impose a duty to
treat trespassers with as much care as visitors 22
On the other hand, in Canada, The Occupiers’ Liability Act3 of
Alberta which was passed as recently as 1973 maintains the distinc-
tion between visitors and trespassers, imposing no duty of care on
the occupier towards the latter except in the case of wilful or reckless
conduct. This ignores the move towards mitigating the harshness
of the law vis-&-vis trespassers, and is reminiscent of the earlier
attitude expressed in the Addie case.14 However, the Alberta statute
does make an exception for child trespassers, towards whom the
occupier owes a limited duty of care. 5 In contrast to the Alberta
statute, the trend of treating all persons entering the property of
another alike is continued by the Ontario Law Reform Commission
in The Report on Occupiers’ Liability. It is recommended in section
2(1) that:
The provisions of this Act apply in place of the rules of the common law
for the purpose of determining the care that an occupier is required
to show towards persons entering on the premises…
During the sixties is was suggested that
… there may be serious difficulties involved in attempting to legislate
the categories out of existence, and it is possible and probably preferable,
to reach the same goal by evolution through decided cases.27
26
The ruling in the Veinot case is another step in just such an evolution.
It constitutes the logical sequel to the ruling in Commissioners of
Railway (N.S.W.) v. Cardy2 s where a likelihood of trespassers was
held to create a duty of care, to Videan v. B.T.C.2 9 where foresee-
ability of the victim was essential, and of course to the famous case
of B.R.B. v. Herrington. In this last case Lord Reid spoke of “a
substantial probability”‘ 0 that a child would touch the electric
rail in question. A decision which improved the position of the
trespasser still further by lessening the required degree of foresee-
22 Report of the Torts and General Law Reform Committee of New Zealand,
Occupiers’ Liability to Trespassers (1970).
=Supra, note 8.
24 Supra, note 5.
25Supra, note 8, s.13.
26 Ontario Law Reform Commission, The Report on Occupiers’ Liability
(1972), 11.
2 Supra, note 9, 268.
28 (1960) 104 C.L.R. 274.
29Supra, note 12.
80 Supra, note 2, 899.
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ability was Southern Portland Cement v. Cooper where “,a chance
that trespassers may come that way”31 was considered sufficient to
place the duty of care on the occupier.
Another aspect of ordinary negligence law was expressed in the
Cooper case when Lord Reid referred to the relative difficulty
involved in making the premises safe for trespassers. 32 This is a
consideration not really dealt with in the case under discussion
although it was felt by the majority of the Supreme Court that
safety would not have been difficult to achieve by the defendant
mining company. Concerning the problem of feasibility of protective
measures, Graham Hughes claims that treating trespassers under
ordinary negligence law would not greatly increase the responsibil-
ities of the owner 3 3 The owner usually cannot be expected to know
when and where a trespasser will step on his property. Due to the
uncertainty of the time and place of the trespasser’s appearance,
quite often the precautions necessary to protect him will be so out
of proportion as not to be reasonable. The Report of the Ontario Law
Reform Commission implied this in section 3(1) (a): The duty is
one “to take care… to see the person will be reasonably safe in
using the premises for the purposes contemplated by the occupier”.34
The continued adherence to the distinction between those lawfully
and unlawfully on the property of another tends to lead to the
use of fictions, a point made in a recent American case, Rowland v.
Christian.” One such fiction was the notion of the implied licensee
which was the consequence of treating alike all persons who were
not invited or tacitly tolerated. It was this concept which was
upheld by the Supreme Court in Veinot and which was the main
ground of the decision in favour of the plaintiff in that case.
Until quite recently little was said about essentially different
forms of trespassers –
the prowler at one end of the spectrum and
the innocent wanderer who lost his way at the other. In between
are a number of situations which reflect various degrees of mis-
chievousness or innocence on the part of the trespasser. The re-
luctance of the courts to give much weight to the mental state of
the trespasser may be based on the frequently encountered difficulty
31 [1974] 1 All E.R. 87, 98.
_32Ibid.
M G. Hughes, Duties to Trespassers: A Comparative Survey and Revaluation
(1959) 68 Yale L.J. 633.
34 Supra, note 26, 13.
35 Supra, note 6.
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COMMENTS – COMMENTAIRES
of proving what was in the trespasser’s mind when he stepped onto
someone’s property, and on the concern of tort law with acts and
not with mental states. The implied license was a device used to
give better treatment to the unintentional trespasser. The result
was that a person entering the property of another might fall within
one of four categories: trespasser, trespasser with implied license,
invitee or licensee. The corollary was four degrees of increasing
responsibility owed by the occupier.
In the Veinot case the majority of the Supreme Court held that
the jury’s verdict of implied license should be accepted. The second
circumstance creating liability on the part of the defendants if
the plaintiff was assumed to have an implied’ license, was the
finding that the pipe gate was a hidden danger because it was un-
marked and unlighted. Admittedly, it was a danger only to snow-
mobilers, but once snowmobiles existed and might appear on the
road, it could be classified as such. However, even if Mr Veinot was
regarded as a trespasser, the Court held that, it was very likely
that he or some other snowmobiler might find himself on the
ploughed road at night. This conclusion was drawn from snow-
mobile tracks that had been found in this area by employees of
the mining company. Moreover, snowmobilers are now ubiquitous
in winter and must be expected where there were formerly neither
vehicles nor persons on foot. Mr Justice Dickson reviewed the
jurisprudence and noted the “two distinct, not easy to reconcile”
lines of authority which emerged: One regarded the right of owner-
ship as paramount; the other “gave effect to changing ideas of social
responsibility” and imposed a duty of care on the occupier vis-&-vis
the trespasser.3 The. Supreme, Court in a close decision (5-4), came
down in favour of the second argument.
The minority opinion, as expressed by Mr Justice Marfland;
agreed with the Court of Appeal in its view that there was no
evidence of implied license to go to the jury since the private road
was physically separated -into a more frequented part and into an
untravelled section on which the accident happened. This is in line
with Edwards v. Railway Executive where children had been known
to break through the fence around the railway embankment, and
though the jury found a tacit permission, the House of Lords did
not agree. In the Veinot case, the minority held that the owners, to
36 Supra, note 4, 549.
3 Supra, note 16.
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be liable on the basis of an implied license, must have been aware
of such intrusions and permitted them – not just tolerated them.
Mr Justice Martland went on to consider in the alternative
whether a duty was owed to the plaintiff qua trespasser. He dis-
tinguished the leading cases in favour of trespassers on a point
canvassed above –
they all have children as injured plaintiffs: the
Cardy case,38 Herrington case,39 and Cooper case,40 to some extent
even the Videan case4′ and back in 1930 the Excelsior Wire Rope
case,42 where no effort was made to determine whether children
were trespassers or licensees (or permittees). It appears that the
extended duty of the occupier was only towards child trespassers
up to now. Lord Wilberforce elaborated on this fact in the Herring-
ton case, as did Lord Reid in the Cooper case.
The minority in Veinot felt that in a situation where the occupier
was not actually aware of trespassers, he must know of “facts which
show a substantial chance that they might come there” 43 before he
could be found liable. Such facts did not exist in the present case.
Mr Justice Martland further distinguished the above cases from
Veinot on account of the type of danger involved. In the Herrington
case Lord Diplock referred to the lethal character of a danger which
holds the threat of serious injury. This lethal character may be
attributed to the live electric rail in Herrington, to the high tension
line in Cooper, and the mounds of hot ash in Cardy. There was no
such inherent danger in the pipe gate. The specific danger here was
that of high explosives used by the defendant mining company, of
which due warning was given; in fact, the pipe gate itself was part
of the warning system. It had not constituted a danger of any kind
for nearly twenty years, until the invention of snowmobiles. It
finally became “a danger because of the special use made of the
Company’s land by Veinot in the operation of his snowmobile”.44
Mr Justice Martland further emphasized that the jury’s finding that
the pipe constituted a hidden danger was of no concern once the
question of an implied license was negated.
3 8 Supra, note 28.
39 Supra, note 2.
40 Supra, note 31.
41 Supra, note 12.
42 Excelsior Wire Rope Co. v. Callan [1930] A.C. 404.
43 Supra, note 4, 546-7.
44 Ibid., 547.
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COMMENTS – COMMENTAIRES
The strongest argument in favour of the minority opinion is the
reference to Lord Atkin’s judgment in the Hillen case45 which was
quoted by Lord Pearson in Herrington:
[T]his duty to an invitee only extends so long as and so far as the
invitee is making what can reasonably be contemplated as an ordinary
.and reasonable use of the premises by the invitee for the purposes for
which he was invited.46
This would a fortiori apply to trespassers whose specific means of
transportation, speed, etc., may be wholly unorthodox and, there-
fore, unpredictable and unforeseeable. The minority felt that the
presence of snowmobilers on the defendants’ property was just
such an unforeseeable situation.
The majority were able to come to a different conclusion partly
because they felt that on the facts the defendant should have anti-
cipated snowmobilers. The opinion of Mr Justice Dickson mirrors
the modern trend towards improving the lot of the trespasser; in
this case the trespasser does better than the invitee in London
Graving Dock Co. v. Horton;47 he also does better than the licensees
in Phipps v. Rochestere” and Ottawa v. Munroe 9 (in both cases the
licensees were children). In Canada, it can now be said with some
degree of certainty that the occupier has a duty towards the tres-
passer. It is not necessary that the occupier know with certainty
of the trespasser’s presence, it is sufficient that this “could reason-
ably have been anticipated”. Once this test is met a duty arises
to treat the trespasser “with common humanity”.” While this duty
has been held to be less onerous than the duty owed to a lawful
visitor,” the Supreme Court has gone a long way towards closing
the gap between the two.
Finally it should be noted that the Supreme Court remarked on
the ease with which the defendants could have averted the danger
by painting the pipe or hanging a sign from it.” As Lord Wilber-
force observed in Herrington:
45Hillen v. I.C.I. Alkali Ltd [1936] A.C. 65.
4GSupra, note 2, 924.
47Although there the plaintiff had knowledge of the danger; [1951] A.C. 737.
48 [1955] 1 Q.B. 450.
49 [1955] 1 D.L.R. 465.
50 Supra, note 4, 544.
51 Supra, note 12, 680.
52 Supra, note 2, 922, quoted in Veinot v. Kerr-Addison Mines Ltd, supra,
note 4, 550-551.
53 Supra, note 4, 555.
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[A] compromise must be reached between the demands of humanity
[towards trespasserg] and the necessity to avoid placing undue burdens
on occupiers …. The law takes account of the means and resources of the
occupier
… what is reasonable for a railway company may be un-
reasonable for a farmer.54
This principle may also have been a tacit but decisive factor in
Veinot. But will it be respected in future cases? The adult tres-
passer Veinot replaced the children in Cardy, Herrington and Cooper.
Supposing the next step is that the mining company or Railway
Commission is replaced by an occupier who is a private individual?
The erosion of private property rights will continue.
Alberta may have found a solution by maintaining the distinction
between trespasser and lawful visitor, while demanding special care
towards children; and – what is equally important –
by laying it
down in a statute, thereby giving the present generally acceptable
compromise a degree of certainty and durability.
Dorothea Wayand*
54 Supra, note 2, 920.
* Assistant Professor, Carleton University.
