Mochinski v. Trendline Industries Ltd., [1997] 3 S.C.R. 1176
Her Majesty The Queen in Right of
the Province of British Columbia, as
represented by the Minister of
Transportation and Highways Appellant
v.
Anthony Dale Mochinski Respondent
Indexed as: Mochinski v. Trendline Industries Ltd.
File No.: 25474.
1997: October 7; 1997: December 11.
Present: Sopinka,* Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Torts ‑‑ Negligence ‑‑ Highways ‑‑ Crown liability ‑‑ Provincial ministry engaging independent contractor to perform road maintenance work ‑‑ Driver injured after block of ice fell on highway ‑‑ Contractor negligent in failing to remove overhanging ice block or failing to clear ditch ‑‑ Whether provincial ministry absolved from liability for contractor’s negligence.
The respondent was forced to veer off the highway he was travelling on into the ditch when a large block of ice fell on or in front of his truck. As a result of the accident, he suffered serious injuries which will permanently restrict the movement and use of his right knee and hand. The provincial Ministry of Transportation and Highways had engaged an independent contractor to perform road maintenance work in the area encompassing the accident site. The contractor was required to control roadside ice and snow, to remove overhanging ice from rock faces or tunnel walls, and to clear debris from the ditches along the side of the highway. It was also its responsibility to warn highway travellers of hazards including ice falls. The trial judge held that the contractor was negligent and had breached its duty of care to users of the highway by failing to remove the overhanging ice block or by failing to clear the ditch. He also held that the Ministry was originally and jointly liable for the contractor’s negligence because it owed a statutory duty to maintain the highways reasonably which, because of its nature, could not be delegated. The Court of Appeal dismissed the appellant Crown’s appeal.
Held: The appeal should be dismissed.
For the reasons set out in Lewis, the Ministry must remain liable for its contractor’s negligence. The applicable statutory provisions, sound policy considerations and the reasonable expectations of highway users all lead to the conclusion that the appellant cannot escape liability for negligence in maintaining and repairing the roads by delegating that work to an independent contractor.
Cases Cited
Followed: Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145, rev’g (1995), 12 B.C.L.R. (3d) 1.
APPEAL from a judgment of the British Columbia Court of Appeal (1996), 23 B.C.L.R. (3d) 291, [1996] 10 W.W.R. 445, 76 B.C.A.C. 174, 125 W.A.C. 174, 29 C.C.L.T. (2d) 1, 22 M.V.R. (3d) 44, [1996] B.C.J. No. 1071 (QL), dismissing the provincial Crown’s appeal from a decision of the British Columbia Supreme Court (1994), 5 M.V.R. (3d) 140, [1994] B.C.J. No. 1220 (QL), finding it liable for the plaintiff driver’s injuries. Appeal dismissed.
Thomas H. MacLachlan and William A. Pearce, Q.C., for the appellant.
David O. Marley, for the respondent.
The judgment of the Court was delivered by
1 Cory J. -- This appeal was heard at the same time as Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145, and raises the same issue. As in Lewis, the question to be resolved is whether by engaging an independent contractor to perform road maintenance work, the appellant is absolved from liability for the contractor’s negligence.
Factual Background
2 On April 9, 1989, the respondent Mr. Mochinski was travelling eastbound on a two‑lane highway. He moved into the westbound lane to pass a slow vehicle when a large block of ice fell on or in front of his truck and he was forced to veer off into the ditch. As a result of the accident, Mr. Mochinski suffered serious injuries which will permanently restrict the movement and use of his right knee and hand.
3 On October 20, 1988, the Ministry of Transportation and Highways placed highway operations in the area encompassing the accident site in the private sector by contracting with Trendline Industries Ltd. for maintenance services. The contract required Trendline to control roadside ice and snow, to remove overhanging ice from rock faces or tunnel walls, and to clear debris from the ditches along the side of the highway. It was also Trendline’s responsibility to warn highway travellers of hazards including ice falls.
4 The Ministry’s district highway manager examined the ice problem at the bluff in 1987 and 1988 and observed ice building up in the ditch below the bluffs. This was caused by ice creeping onto the shoulder of the road, melting and then freezing after sundown. He did not consider the ice on the road to be a problem since road crews applied chemicals and abrasives to prevent ice formation. However, the ice and rock build‑up below the bluff did require the ditches to be widened to hold slough and to provide drainage. The ditch at the accident site varied in width between 3.5 and 3.6 metres and was the widest in the area. The Ministry’s district manager did not think ice‑build‑up on the slope was a problem because he believed the ditch at the accident site was wide enough to take care of any ice that broke free of the bluff.
5 Trendline’s maintenance foreman ‑‑ who had also been the Ministry’s area foreman before maintenance was entrusted to the private sector ‑‑ testified that the site had bad ice formation during the winter of 1988 and spring of 1989. At the time of the accident, solid ice about 50 metres in length, 30 metres high and 1.3 metres thick covered the rock bluff above the accident site. Temperatures fluctuated widely in the days prior to the accident and it was readily apparent that spring thaw conditions prevailed. On the day of the accident, one of Trendline’s maintenance employees had already used a front‑end loader to remove ice and debris from the highway that had fallen from the bluffs. The foreman had then parked the front‑end loader about half a kilometre from the accident site expecting that it would have to be used again to remove debris from the highway. He testified at trial that he was not surprised that the accident had occurred.
6 The Ministry was responsible for the installation of permanent warning signs, while Trendline was responsible for emergency warning signs. The Ministry installed a permanent warning sign alerting westbound traffic that the area was prone to falling rock. Trendline did not install an emergency sign for eastbound traffic.
Decisions Below
The Supreme Court of British Columbia (1994), 5 M.V.R. (3d) 140
7 McKinnon J. held that Trendline owed a duty of care to Mr. Mochinski based on its contractual obligation to remove overhanging ice or snow from the rock face and tunnel walls. He held that the block of ice fell on the highway either because it was overhanging or because the roadside ditch had not been cleared of rock and debris and as a result it could no longer fulfil its designed purpose of catching and retaining the ice. He held that Trendline was negligent and had breached its duty of care to users of the highway by failing to remove the overhanging ice block or by failing to clear the ditch. McKinnon J. dismissed the plaintiff’s claim based on a failure to warn of the danger on the highway. He found that the Ministry’s failure to post a permanent warning sign for eastbound traffic was not a proximate cause of the accident, since Mr. Mochinski testified that he believed such a sign existed.
8 The trial judge held that the Ministry had imposed a reasonable standard of care on Trendline with its contract and had taken reasonable steps to ensure that Trendline was fulfilling its contractual obligations. He also found that the Ministry was not vicariously liable for Trendline’s negligence because Trendline was an independent contractor. However, McKinnon J. held that the Ministry was originally and jointly liable for Trendline’s negligence because the Ministry owed a statutory duty to reasonably maintain the highways which, because of its nature, could not be delegated.
The Court of Appeal of British Columbia (1996), 23 B.C.L.R. (3d) 291
9 Legg J.A. dismissed Trendline’s appeal from the trial judge’s finding of negligence. He found that the contract between Trendline and the Ministry showed that Trendline had agreed to control traffic on the highway, to maintain safe conditions and to warn highway users of impending hazards. He noted that Trendline had failed to position traffic control devices, had not posted temporary emergency signs and had not broadcast advisories after it had cleared the debris from the earlier ice fall on the day of the accident, and thus knew of the potential for a serious slide. Legg J.A. held that the accident would not have occurred if Trendline had restricted the flow of traffic to the eastbound lane. He therefore concluded that Trendline had breached its duty of care to users of the highway.
10 With respect to the Ministry’s joint liability, Legg J.A. held that the Ministry had a statutory and common law duty to reasonably maintain the highways. He rejected the Ministry’s argument that the Ministry had to have actual notice of Trendline’s failure to warn of the hazard in order to be found jointly liable. He observed that pursuant to the Court of Appeal’s reasons in Lewis (1995), 12 B.C.L.R. (3d) 1, the Crown may be found to have discharged its non‑delegable duty to users of the highway even if its contractor is negligent, and that an evaluation of the Crown’s liability involves a consideration of the circumstances in their entirety. In light of this decision he held that the Crown should not be held automatically liable for every maintenance failure. However he held that an automatic finding of liability had not been made. He concluded that, in view of all of the circumstances, the failure by Trendline to warn the public of hazardous road conditions was a breach of the Ministry’s statutory duty to maintain the highway reasonably.
Analysis
11 The trial judge found that Trendline negligently failed either to remove overhanging ice or to clear debris from roadside ditches, as it was required to do under its contract with the Ministry. The Court of Appeal dismissed Trendline’s appeal from this finding of negligence. The only question to be resolved on this appeal is whether the appellant is absolved from liability to the respondent as a result of engaging an independent contractor to perform the road maintenance work.
12 For the reasons set out in Lewis, the Ministry must remain liable for its contractor’s negligence. In accordance with these reasons it can be stated that the applicable statutory provisions, sound policy considerations and the reasonable expectations of highway users all lead to the conclusion that the appellant cannot escape liability for negligence in maintaining and repairing the roads by delegating that work to an independent contractor.
Disposition
13 In the result, the appeal is dismissed with costs to the respondent throughout.
Appeal dismissed with costs.
Solicitor for the appellant: The Ministry of Attorney General, Victoria.
Solicitors for the respondent: Hean, Wylie, Peach, De Stefanis, Burnaby.