Supreme Court of Canada
Swift v. MacDougall, [1976] 1 S.C.R. 240
Date: 1974-12-19
Guthrie Swift (Plaintiff) Appellant;
and
Luke MacDougall (Defendant) Respondent.
1974: October 25; 1974: December 19.
Present: Judson, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Negligence—Householder’s liability—Outer stairway in good condition—Guest on crutches fell on a patch of winter ice—Adequate clearing—Assistance refused by guest—Householder not bound to act so as to rule out any possibility of an accident—Civil Code, art. 1053.
Appellant, who long ago lost the use of his legs, went to visit respondent on a winter evening. On going up the outer stairway of respondent’s residence, which the latter had cleared, appellant observed a few drops of water falling from the roof on his left. His visit concluded, appellant left the premises, keeping to the side of the stairway where he had noticed water when he arrived rather than the side where there was a railing. When he put one of his crutches onto the first step, it slid out under him on a small sheet of ice and he fell, sustaining bodily injuries. The trial judge concluded that the accident was caused by the fault of both parties, and that appellant should bear one-third of the damages and respondent two‑thirds. Appellant did not appeal from this part of the judgment, holding him partly liable for the accident. The Court of Appeal concluded that respondent was not at fault. Hence the appeal to this Court.
Held: The appeal should be dismissed.
The trial judge made an error of law when he concluded that respondent ought to have taken steps to avert all accidents. This error of law vitiates the trial judgment, and the Court of Appeal properly intervened. The liability of respondent must be seen in the light of art. 1053 C.C., which imposes the standard of reasonable conduct. No one is bound to act so as to rule out any possibility of an accident. On appellant’s left as he descended the stairway there was a railing which he could have used. It is setting too high a standard to ask a householder who has taken reasonable care of his stairway to check at all times and ensure that there is not the slightest trace of ice in winter.
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APPEAL from the Court of Queen’s Bench, Appeal Side, Province of Quebec, partly setting aside a judgment of the Superior Court. Appeal dismissed.
O. Carter, Q.C., for the plaintiff, appellant.
P. Lesage, for the defendant, respondent.
The judgment of the Court was delivered by
DE GRANDPRÉ J.—This action results from the fall of appellant on the outer stairway of the residence occupied by respondent at the time.
The relevant facts are as follows:
—The accident took place at about 1 a.m. on February 4, 1966, in good weather;
—the day before there had been a very light snowfall of about two-tenths of an inch during the day, which ceased at about 3 p.m.;
—at about 6 p.m. on February 3 respondent completely cleaned the three steps of his stairway, as well as the gallery in front of his door;
—at about 8 p.m. on the evening in question appellant, who had lost the use of his legs for all practical purposes in an accident nearly twenty years before, arrived at respondent’s home for a card game;
—at the time appellant observed that the steps were in perfect order, except for a few drops of water from the roof on his left as he went up the stairway;
—after the card game, at about 12.30 a.m., two of the players left, offering to help appellant when they did so; the latter declined, and stayed at respondent’s home until about 1 a.m., for a cup of coffee with respondent and his wife;
—appellant then left, keeping to the side of the stairway where he had noticed water when he arrived;
—as he was putting one of his crutches onto the first step, it slid out under him and he fell, sustaining bodily injuries;
—the crutch slid because of having been placed on a small sheet of ice, described by appellant as “a
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slight patch”, “a thin film”, the rest of the stairway being in perfect order;
—the temperature at 8 p.m. on February 3 was 25 degrees, and at 1 a.m. on the 4th, 22 degrees.
To complete the summary of facts it must be added that respondent and his wife were positive, especially the wife, that they asked appellant as he was leaving if he needed help to descend the stairs, and he replied that he did not. However, appellant was certain that no such offer was made to him. I do not consider, despite the attention paid to it by the Quebec Courts, that this point has much bearing on the outcome.
The trial judge concluded that the accident was caused by the fault of both parties, and that appellant should bear one-third of the damages and respondent two-thirds. It may be noted forthwith that there is no appeal from this part of the judgment, holding appellant partly liable for the accident.
Regarding plaintiff-appellant the trial judge said:
[TRANSLATION] Plaintiff himself acknowledges knowing there was a risk of ice forming, and before venturing onto the steps, which according to the evidence were in shadow, he could have tried to check their condition, or have it checked by his host, by asking him to help him get down the said steps.
Further, in holding respondent two-thirds liable, the trial judge took into consideration the following facts:
Defective construction of the stairway
As to this I concur in the view of Lajoie J. in the Court of Appeal:
[TRANSLATION] The stairway on which Swift fell seems to me to be constructed in the usual manner, as may be seen from the photographs, and no expert testimony was heard to indicate that it was not constructed in accordance with industry practice or normal standards of prudence.
The photographs referred to by Lajoie J. clearly establish that on appellant’s left as he descended the stairway there was a railing which he could quite easily have used to facilitate his descent; it is
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true that this railing was not strictly speaking a handrail, but it was certainly enough to lend him the support he may have needed.
Defective maintenance of the stairway
This concerns the sheet of ice which produced appellant’s fall, and in this connection it must be remembered that this sheet was, in the words of appellant, “a thin film”, “a slight patch”, on a stairway for which, unfortunately, we do not have exact measurements, but which was apparently, judging from the photographs, about three feet wide. The presence of a small sheet of ice, formed after 8 p.m. that evening and located at the end of a step near the wall, can hardly be regarded as negligence. Here again I concur in the view of Lajoie J.:
[TRANSLATION] The weather conditions prevailing between the time the stairway was cleaned and the time respondent fell were not such that they ought to have induced the householder to clean it again that evening, having cleaned it properly the first time. In my opinion it is setting too high a standard to ask a householder who has taken reasonable care of his stairway to check at all times and ensure that there is not the slightest trace of ice, during the Quebec City winter.
Failure to offer assistance
As I have already observed, this does not seem to me to be a major point. The parties were friends at the time, and if appellant had needed assistance, he could clearly have asked for it, and it would have been forthcoming. On this point, as on the two others, Lajoie J. of the Court of Appeal accurately summarized the position:
[TRANSLATION] I also agree with Rivard J. that the weight of evidence is that MacDougall offered Swift his help in descending the few steps forming the stairway, and that the latter refused, being familiar with the steps, with their shape and lighting. In my view, MacDougall did not then have a duty to insist on accompanying Swift, and he certainly cannot be reproached for not doing so despite the latter’s refusal.
The erroneous conclusions of the trial judge as to the actions of respondent derive from the error of law which he made when he advanced the
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proposition that respondent [TRANSLATION] “ought, it would seem, to have taken steps to avert all accidents, by covering these steps with anti-slip material which would certainly have almost completely, if not totally, removed the danger” (emphasis added).
That standard has always been rejected by the courts; the liability of respondent must be seen in the light of art. 1053 C.C., which imposes the standard of reasonable conduct. No one is bound to act so as to rule out any possibility of an accident. This error of law vitiates the trial judgment, and the Court of Appeal properly intervened.
For these reasons, therefore, I would affirm the Court of Appeal judgment and dismiss the action, the whole with costs.
Appeal dismissed with costs.
Solicitors for the plaintiff, appellant: Carter & Richer, Quebec.
Solicitors for the defendant, respondent: Amyot, Lesage, de Grandpré, Colas, Bernard & Drolet, Quebec.