Wade v Canadian National Railway Company

A Dare Gone Awry

On a sunny afternoon in July 1974, eight-year-old Peter Wade and his nine-year-old friend, John Carter, were playing in some sand and gravel piles close to the mainline of the Canadian National Railway (CN). CN is Canada’s largest railway, with its transcontinental rail network spanning from the Pacific Coast in British Columbia, across approximately 32,000 km of track to Canada’s Atlantic Coast in Nova Scotia.¹ The piles of sand and gravel which Peter and John had chosen to explore were situated on railway property, merely 15 metres from a single-track line running through the City of Dartmouth in Nova Scotia, just a stone’s throw from Halifax Harbour.

Although employees of the railway company knew that children frequented the sand and gravel piles, no steps had been taken to keep the children away. As a freight train thundered into view, Peter and John raced toward it. John dared Peter to “get a little ride”. Peter, who was ‘a rather slow-witted child’,² accepted the challenge and made two unsuccessful attempts to board the train by leaping onto the ladder of a boxcar. On his second attempt, he fell directly under the wheels of the moving train and his leg was severed.

Peter Wade’s action against the Canadian National Railway Company was tried by judge and jury. The jury found the defendant liable in negligence. Peter was a licensee (rather than a trespasser), to whom a duty of care was owed. He had been lured to the site of the accident by the sand and gravel piles. The Canadian National Railway Company—fully aware of the frequent presence of children—had breached its duty of care, having failed to take basic precautions such as fencing the area, removing the attractive sand and gravel piles, or posting warning signs.

The railway company’s argument that Peter’s own failure to take reasonable care for his safety had contributed to his injuries was rejected by the jury. It was found that Peter lacked the capacity to be contributorily negligent. He did not possess sufficient intelligence or experience to appreciate the dangerous consequences of his actions. Particularly telling was evidence that as he lay on the ground immediately after his leg was severed, Peter childishly waved goodbye to the train.

The jury awarded Peter general damages of $150,000, which included $25,000 for the cost of a prosthetic leg and replacements over his lifetime.

On appeal, the Nova Scotia Supreme Court (Appeal Division) confirmed the jury’s verdict that the Canadian National Railway Company had been negligent.³ MacKeigan CJNS (Chief Justice of Nova Scotia) rejected the approach of older cases which had found that any child who jumped on board a moving train was entirely the victim of their own independent act, for which the railway had no responsibility, even if it had attracted the child to the site and was aware of their presence.⁴ According to MacKeigan CJNS, ‘[t]his cruel breaking of any causative link between the railway’s omissions and the child’s leap’ was exemplified by the decision in Canadian Pacific Railway Company v Anderson [1936] SCR 200. In that case, a four-year-old boy lost his leg after climbing aboard a stationary freight train that abruptly started to move after being assembled by a crew. He was deemed to be a trespasser and barred from pursuing a negligence claim. In contrast to cases of this nature, MacKeigan CJNS observed that ‘[s]ocial attitudes have changed, for example, as to the relative importance of a child’s life or limb balanced against the burden of protection placed upon a railway’.⁵

However, on the issue of contributory negligence, the Appeal Court overturned the jury’s verdict and found that Peter was 50% responsible for his own injuries. According to MacKeigan CJNS, a reasonable jury should not have rejected the railway company’s contributory negligence defence:

‘I find nothing in the evidence which shows that the boy had no realization that it was dangerous to jump on a train. On the contrary, he admitted that he “kind of” knew that “it was dangerous to jump on” the train. The fact that the jumping was induced by a bet or dare shows that both boys knew it was hazardous. I cannot imagine that a normal eight-year old boy would not know that it was highly dangerous to try to jump on a train.’⁶

The Appeal Court reduced Peter’s damages to $75,000.

On further appeal to the Supreme Court of Canada, Peter Wade sought to overturn the finding of contributory negligence. The Canadian National Railway Company cross-appealed, asking the Court to dismiss the entire action.

The Supreme Court of Canada Decides

The Supreme Court of Canada, by 6:3 majority, dismissed Peter Wade’s case entirely, finding that the Canadian National Railway Company did not owe him a duty of care. Although de Grandpré J, writing for the majority, recognised that the jury’s factual finding of negligence was ‘amply supported by the evidence’, the majority determined that, as a matter of law, the Railway Company did not owe a duty of care to Peter:

‘no reasonable occupier could have reasonably foreseen that a child playing on a pile of sand some fifty feet from the track when the engine went by, would leave this place of safety, run towards the track and attempt to jump on the ladder of a box-car. To find fault on the part of the Railway in those circumstances if really to say that, in law, the Railway is the insurer of all persons coming onto its land, a proposition I cannot accept.’⁷

Justice de Grandpré distinguished two previous cases involving similar railway injuries. In Mitchell v Canadian National Railway Company,⁸ a nine-year-old boy was seriously injured while riding a toboggan along a railway embankment. He tripped on a shrub protruding from the icy embankment and slid into the path of an oncoming train, resulting in the loss of his leg. Notably, this incident occurred just a few miles south of where Peter Wade was injured three years later. However, in the Mitchell case, the railway company was held liable in circumstances where the land itself was dangerous, given its icy and slippery condition.

British Railways Board v Herrington⁹ was also distinguished by de Grandpré J. In that case, an electrified railway line ran between public meadows and a park, posing a concealed danger that was not obvious to children. The British Railways Board (BRB) was found liable after a six-year-old boy was electrocuted and severely burned when he wandered onto the railway through a gap in a fence. The BRB had known about the gap for several months. Justice de Grandpré noted that this case also differed from the circumstances of Peter Wade’s injury, where there was no dangerous condition on the property, concealed or otherwise.

Justice de Grandpré further observed that preventing Peter’s injury would have required the railway company to station ‘sentries in every railway yard and by every crossing, and at every other point to which mischievous or venturesome children could lawfully or unlawfully gain access to rolling stock.’¹⁰

It must be noted, however, that this goes to the question of whether the railway company breached its duty of care. Indeed, de Grandpré J’s reasoning has been strongly criticised for focusing on matters unrelated to the existence of a duty of care, which was the stated basis upon which the majority of the Court reached its decision.¹¹ The question of whether reasonable and practical measures could have been taken by the railway—matters within the competence of the jury—should have been irrelevant to the question of whether Peter, a licensee and foreseeable entrant on the land, was owed a duty of care by the Canadian National Railway Company. Writing in the Canadian Bar Review, Dale Gibson has criticised the majority’s decision for ‘bestow[ing] jurisdiction on itself with respect to matters within the jury’s purview by simply labelling them “duty of care”’.¹²

The Dissent

The dissenting judges (Laskin CJ and Spence and Dickson JJ) were of the view that the Canadian National Railway Company was negligent, and Peter Wade lacked the capacity to be contributorily negligent. Laskin CJ, who delivered the judgment for the minority, observed that:

‘The overriding consideration in this case is the force and, indeed, the faith that is to be accorded to the verdict of a jury.’¹³

On the issue of negligence, the minority held that the defendant’s operations posed a foreseeable risk of harm to children in an area where the defendant knew that children played. According to Laskin CJ, there was no reason to overturn the jury’s finding on the defendant’s liability.

On the issue of contributory negligence, the dissenting judges found that the Nova Scotia Appeal Court should not have substituted its own view for that of the jury:

‘The jury had the advantage of seeing and hearing the boy and it was the jury alone that was in a position to act on that very important advantage in coming to a conclusion on the question of capacity. The capability of a particular child should not be considered only on a normal basis of age if the evidence shows that the child’s intelligence and education point to a capacity below that of other children of his age.’¹⁴

Of particular significance, according to Laskin CJ, was evidence presented to the jury that Peter was repeating grade two at the time of his accident, did not know his date of birth and, as noted above, waved goodbye to the train after it severed his leg.

Conclusion

The decision of the majority of the Supreme Court that Peter Wade was not owed a duty of care has been strongly criticised for doing ‘violence to the law of tort’.¹⁵ As argued by Gibson, the decision seems largely driven by a desire to avoid imposing liability on the defendant railway company, rather than by sound legal reasoning.¹⁶ A preferable approach would have been for the court to clearly articulate the reasons why a duty of care was not owed to young Peter—for instance, by holding that the boy’s license to be on the property did not extend to climbing on a moving train¹⁷—without muddying the waters by conflating this issue with matters that go to whether the defendant breached its duty.

The different approaches taken in relation to the issue of contributory negligence in Peter Wade’s case are also noteworthy. In determining whether a plaintiff has been contributorily negligent, consideration is given to whether the plaintiff’s conduct fell below the standard of a ‘reasonable person’.¹⁸ This is an objective assessment. Where the plaintiff is a child, their conduct is judged according to the standard of a ‘reasonable’ child of the same age.¹⁹ In some jurisdictions, such as England, the standard for children is determined solely by their age. This is also the approach that appears to have been taken by the Nova Scotia Supreme Court (Appeal Division) in overturning the jury’s findings on this issue and holding that Peter was contributorily negligent by reference to the fact a ‘normal eight-year old boy’ would surely understand the dangers of attempting to jump on board a moving train.

In some common law jurisdictions, however, the individual child’s intelligence and experience are also considered. This more subjective approach was clearly favoured by the dissenting judges who heard Peter Wade’s case in the Supreme Court of Canada.²⁰ In Australia, the High Court has divided on this point.²¹

As illustrated by the cases discussed in this post, it is regrettably not uncommon for children to sustain injuries while playing near train tracks. Young Peter Wade suffered a horrific injury in circumstances where one of the world’s largest railroad companies, fully aware of children near its tracks, failed to take any measures to prevent harm. As the Nova Scotia Supreme Court acknowledged:

‘It is tragically trite to say that no sum of money can replace this boy’s leg. Despite the wonders of surgery and modern prostheses, he will suffer extreme handicap, at best restricting his activities and his choice of occupation and condemning him to a lifetime of inconvenience, discomfort, and often of pain.’²²