1885 CITY OF HALIFAX v. WALKER. 'United Kingdom Electric Tel. Co. (i); Burns v. City of Toronto (j); Caswell v. St. Marys, etc., Road Co. (k); City of Providence v. Clapp (l); Horton v. Inhabitants of Ipswich (m); Stanton v. City of Springfield(n); Johnson v. City of Lowell (o); Luther v. City of Worcester (p); per Gwynne J., in Ringland v. City of Toronto (q); per Martin J., in Loker v. Inhabitants of Brookline(r). It must extend to all kinds of defects, as well as all seasons of the year, and an obstruction caused by snow is as clearly included as one caused by flood or tempest, or any other source of injury. Holes or excavations are non-repair: Reed v. Inhabitants of Northfield(s); Doherty v. Inhabitants of Waltham (t). The appellants were guilty of negligence in allowing the roadway to remain in its proved condition: Mersey Docks Board, etc., v. Penhallow (u); Boyle v. Town of Dundas (x); Colbeck v. Township of Brantford (z); Donaldson v. City of Boston (a). And see the cases collected in Harrison's Municipal Dig., pages 479 to 486, especially page 485. Where an indictment will lie against a corporation for non-repair, an individual who has sustained special damage has his action: Borough of Bathurst v. MacPherson, (b); explaining Henley v. Mayor of Lyme (c); Hartnall v. Ryde Commissioners (d); White v. Hindley Local Board (e); Burns v. City of Toronto (f), per Harrison C.J., at p. 566. In City of Providence v. Clapp (g), it was held that (i) 3 F. & F. 73, n. p. 76. (m) 12 Cush. (Mass.) 488. (r) 13 Pick (Mass.) 343. (8) 13 Pick. 94. (t) 4 Gray 596. (u) 7 H. & N. 329, L.R. 1 (x) 27 U.C.C.P. 129. there was no distinction between obstructions on a highway by fall of snow and any other obstruction, and this was held by the Supreme Court of the United States as being a correct exposition of the law. The plaintiff owned and operated a line of omnibuses running through the particular streets whose condition was complained of. He was obliged to confine his route to these streets in carrying on his business. His business was materially injured by the state and condition of these streets. Under the following authorities there was sufficient special injury to respondent to sustain this action: Winterbottom v. Lord Derby (1); Thomson on Negligence, p. 341. The only reasons for judgment delivered were the fo!lowing. STRONG J.-I am of opinion that this appeal must be dismissed. By section 264 of the Nova Scotia Statute, 27 Vict. ch. 81, it is enacted as follows: The city council or their committee shall remove all encumbrances upon the streets, prevent encroachments thereon, make alterations thereon as required. By section 265 of the same statute it is provided that the city council or their committee shall from time to time cause the streets of the city of Halifax to be cleaned, repaired, raised, sunk, altered or paved as they may deem proper. Section 281 is as follows: After the passing of this Act all sums required for street service within the city of Halifax shall be borne by and taken from the general revenues of the city. Section 283 enacts: that the moneys required for street purposes within the city of Halifax shall be raised by an equal ratiable assessment on the real and personal estate of the citizens as directed by the Act for that part of the city revenue to be raised by assessment. (1) L.R. 2 Ex. 316. 1885 CITY OF HALIFAX V. WALKER. 37-SUP. CT. CAS. 1885 CITY OF HALIFAX v. WALKER. Strong J. Section 284 is in these words: After the passing of this Act, the streets of the city of Halifax and the expenditure thereon shall be placed under the control of a committee of three aldermen to be annually appointed by the city council to be called the committee of streets and the superintendents of streets and their assistants, if any, shall be under the direction and control of such committee. By the Statute of Nova Scotia, 35 Vict. ch. 34: the making and repairing of the streets and street expenditure, drains and sewers of the city and all duties connected with the necessary draining and watering of the streets of the said city and clearing away the snow and other like duties (are) placed under the management and control of an alderman from each ward of the city, to be called a board of commissioners of city works to be named and elected by the city council of said city. By sec. 5 of the last mentioned Act the said commissioners, subject to the control of the city council, were, amongst other things, clothed with all powers and were authorized to exercise the same powers and perform all such acts which were heretofore entrusted to and performed and exercised by the committee of streets by any statute or bylaw. It cannot be disputed that by these enactments the duty of repairing the streets is cast upon the city, who are empowered to raise by assessment the funds necessary for the purpose, and it follows that for a breach of this duty an indictment could be maintained. The appellant, however, contends that no action can be maintained for a breach of this statutory obligation towards the public, by a person specially injured in consequence of the neglect of the city. The first question we have to determine is whether the respondent, assuming that he brings himself within the condition of shewing that he is a person who has received special damage, in consequence of the neglect to repair the streets, is entitled to maintain an action. It appears to me that we must hold that the action will lie. In England, at common law, the duty of repairing highways was imposed upon the inhabitants of the parishes in 1885 CITY OF HALIFAX v. WALKER. which they were situated and, in like manner, the repair of bridges was cast upon the county, and it was held in both cases that the only remedy for non-repair was by indictment and that no action was maintainable by a person specially injured by the omission to repair. This common law Strong J. rule was also applied in cases where, by statute, the maintenance of highways and streets was transferred from the parish to particular public officers or public bodies, such as surveyors of highways; Young v. Davis(o); local boards of health: Gibson v. Mayor of Preston (p); or metropolitan vestries: Parsons v. Vestry of St. Mathew (q), it being held in such cases, as a matter of statutory construction, that no greater measure of liability was imposed upon such persons and bodies than parishes had been formerly subjected to. On the other hand, it is a well settled general principle of law that when either a statute or the common law imposes a duty for the benefit of the public upon an individual or a corporation an action will lie for a breach of that duty by a person suffering a direct and particular injury by reason of a neglect to perform the duty. Authority for this proposition is abundant, but it will suffice to refer to the cases of The Mayor of Lyme Regis v. Henley (r), in the House of Lords; McKinnon v. Penson (s); and to the case of Borough of Bathurst v. MacPherson (t), cited in the judgment of Mr. Justice Thompson and relied on by the respondent in the argument here, and the authorities referred to in the judgment of the Privy Council in that case, which was decided as recently as 1879, and which affirms the general doctrine just stated. There are, however, exceptions to this general rule which will, I think, be found to be included in one or the other of two classes. It is held in some cases that no action will lie when the public duty is required to be performed by an unincorporated body, a body which is fluctuating and unde (0) 2 H. & C. 197. (p) L.R. 2 Q.B. 218. (q) L.R. 3 C.P. 56. (r) 1 Bing. N.C. 222. (t) 4 App. Cas. 256. 1885 CITY OF terminate like a parish or a county. In such a case the inconvenience, indeed the impossibility of finding a person to be sued and of giving a remedy by action without gross injustice to individuals, is held to be conclusive against the Strong J. right. v. WALKER. This, as Mr. Justice Thompson in his very able judgment in this case has pointed out, was the real ratio decidendi of the case of Russell v. The Men of Devon (u), and has been recognized as such in similar cases which the learned judge has collected and given extracts from, particularly in McKinnon v. Penson (v), where both Pollock C.B., and Alderson C.B., assign this as the true ground of that decision, and also in Mayor of Lyme Regis v. Henley (vv), where in all the courts through which the case passed, including the House of Lords, Russell v. Men of Devon (u) is distinguished in the same way; and in Borough of Bathurst v.MacPherson (vvv) the Judicial Committee also attribute the decision in Russell v. Men of Devon (u) to the same principle; their Lordships say: The principal objection taken by the learned Chief Justice in New South Wales and by the learned counsel for the appellants here to the maintenance of the action was founded upon the nature of the supposed obligations on a liability to repair public roads, and upon the authority of the case of Russell v. Men of Devon (u) and several others in pari materia. In these cases the principal objection to the maintenance of the action was that the inhabitants of the county or parish, as the case might be, were not a corporation capable of being sued as such. There are no doubt dicta to the effect of the inconvenience that might result, from the multiplicity of actions and increase of litigation, if it were held that every individual aggrieved by the non-repair of a public road might sue either the county or parish or individual members of it; but such inconvenience was never admitted as a reason why an action should not be maintainable. And upon this explanation of Russell v. Men of Devon (u), the Privy Council determined the principal point in the appeal before them. It is obvious, therefore, that the (u) 2 T.R. 667. (vv) 1 Bing. N.C. 222. |