1885

grounds of exception upon which this last mentioned. authority proceeded, understood as the Judicial Committee CITY OF explain them, have no reference to an action against a municipal corporation like the present appellants.

HALIFAX v.

WALKER.

The other class of exceptions referred to will be found Strong J. to consist of cases in which it has been held that, upon the proper legal construction of the statute, imposing the public duty, it sufficiently appears by implication, if not expressly, that it was the intention of the legislature that an individual suffering a special injury by reason of the neglect should not have a remedy by action, thus taking the case out of the operation of the general rule. In some cases it has been held that when the statute gives a penalty to be recovered by the party injured, that sufficiently shews it was intended to take away from him the right to any further indemnity by means of an action. Atkinson v. Newcastle and Gateshead Waterworks Co. (w), may be referred to as an example of cases falling within this category. The American case of Hill v. The City of Boston (ww) is also attributable to this latter class of exceptions. Though it has been doubted whether it was not carrying the doctrine too far to apply it as was done in that case. The weight of authority, however, in the different states and in the United States courts (Barnes v. District of Columbia (x)) is in favour of holding that when a duty to repair roads or streets is cast upon a municipal corporation, an individual to whom direct injury is caused by the neglect of the duty by the municipality may maintain an action, and Hill v. City of Boston (ww), and other cases which have followed it, seem to depend upon a state of the law peculiar to Massachusetts and other New England States.

Judge Dillon, in his work on Municipal Corporations, discusses the American authorities very fully and sums up the result as follows:

(w) 2 Ex. D. 441.

(ww) 122 Mass. 344.

(x) 91 U.S. 540.

1885

CITY OF HALIFAX

v.

Strong J.

the Board of Commissioners. McSorley v. City of St. John (y).

Then it is said that the duty to repair does not include the WALKER. keeping the streets in good order during the winter season, when the nature of the climate makes this impossible. I seen no reason why the streets, which have to be used for traffic whilst the snow is on the ground as well as at other times, should not be kept in a reasonable state of repair in the winter season as well as at other times. The question of what is reasonable repair is one for the jury, and this includes the removal of snow as well as other obstructions.

The city have the power of raising and applying money for this purpose, and the measure of their obligation must be that of their rights in this respect.

In the City of Providence v. Clapp (z), the same question was before the Supreme Court of the United States, though it related to an obstruction of the footway, not of the main street, by ice and snow, and the court held that the question was one entirely for the jury.

The evidence here was amply sufficient to warrant the Chief Justice in leaving the case to the jury, and it was found that the street was in a state which, to some extent at least, might have been remedied by levelling the hillocks which had been formed and which caused the damage the respondent complains of.

The forfeiture of the license is not pleaded as it should have been and the court below were manifestly right in holding that for this reason the point was not open on the record. Further, the by-law does not make the omission to paint the numbers and names of the streets on the vehicles a ground of forfeiture at all. The starting place, route and rates of fare, as Mr. Justice Thompson points out, are referred to in the license itself, as being annexed to it, and it must be presumed that this was the paper which was annexed to the license when produced at the trial. The Chief Justice's note of his charge is, of course, a (y) 6 Can. S.C.R. 531,

(2) 17 How. 161.

mere synopsis of what he said, but it sufficiently appears that the question of whether the corporation had done all they reasonably could to remedy the obstructions complained of was left to them, even if we suppose the note printed in the appeal book is a literal copy of the charge instead of a mere abstract of it, as I assume it to be. Then no objection or exception was taken to the charge, and it appears from what Mr. Justice Weatherbe says, in another case lately before this court, Anchor Ins. Co. v. Keith (zz). that the practice in Nova Scotia as elsewhere is to require objection of this kind to be taken at the trial. It does not appear that the Chief Justice withdrew from the jury any question which ought to have been left to them, and there was ample evidence to warrant the finding that the appellant had been guilty of negligence in omitting to keep the streets in a proper condition for traffic.

It was further contended that the evidence of loss of profits by the respondent ought not to have been receivedthat loss of profits was too remote to be a ground of damage and that the damages were excessive.

I take the rule as to the recovery of damages in respect of loss of profits in actions of tort to be that such damages are recoverable if the loss is a direct result of the injury and if the amount can be ascertained with reasonable certainty (Sedgwick on Damages (7 ed.), vol. I., p. 131; Lancashire & Yorkshire Ry. Co. v. Gidlow (a), per Cairns, L.C.), and applying that principle to the facts of the present case, it seems to me that the loss of profits here was quite as much an immediate and natural consequence of the injury as was the loss of custom in the case just cited, for which Lord Chancellor Cairns and Lord Chelmsford held the plaintiff in that case entitled to recover. Further, I think the damages on this head were proved with reasonable certainty, and that the loss in this respect was not too speculative, as it had been held to be in the case of the loss of professional practice and other analogous cases. Here the (22) 9 Can. S.C.R. 483. (a) L.R. 7 H.L. 517.

1885

CITY OF HALIFAX

v.

WALKER.

Strong J.

1885

CITY OF HALIFAX

v.

WALKER.

Strong J.

The duty or burden must appear upon a fair view of the charter or statutes to be imposed or to rest upon the municipal corporation as such and not upon it as an agency of the state or upon its officers as independent public officers. This power in general appears sufficiently when the municipality sought to be made liable exists under a special charter or general act which confers upon it peculiar powers as respects streets, their control and improvement, not possessed throughout the state at large under its general enactments concerning ways.

It is impossible to suggest any grounds for bringing this case within the exceptions last referred to. Nothing in the statutes can be pointed to as warranting an inference that it was intended to exempt the corporation of the city of Halifax from the ordinary liability to individuals which the law recognizes in such cases.

The case of Borough of Bathurst v. MacPherson (y) is. also a direct authority for the proposition that there is no distinction in applying the general rule established by Mayor of Lyme Regis v. Henley (z), and the cases which have followed it, between cases of non-feasance or omissions to repair and cases of misfeasance when the injury is caused by some positive act of negligence on the part of the corporation.

Sir Barnes Peacock, speaking for the Privy Council, says (at page 267):

In their Lordships' opinion there is no principle upon which a distinction in this respect between nonfeasance and misfeasance can be supported.

Indeed, the injury for which the action was held maintainable in this last case was the direct result of an omission to repair. The case of Borough of Bathurst v. MacPherson (y) is in truth a case so exactly in point on all the questions raised here as to the liability of the appellants to a remedy by action, that, bound by it as we are, I am of opinion that we must regard it by itself, and irrespective of

(y) App. Cas. 256.

(c) 1 Bing. N.C. 222.

other reasons and authorities, as concluding this ground of appeal against the city.

1885

CITY OF HALIFAX บ.

WALKER.

There can be no pretence now for saying that as in some of the English cases this was merely the common law liability shifted to the municipality, and that, therefore, Strong J. as at common law, no action would have lain, none can be maintained against the city. Here the liability was quite as much an original liability as was that of the municipality of Bathurst in Borough of Bathurst v. MacPherson(y), and the opinion of the dissenting judge in the court below on that case, which was held erroneous by the Privy Council, was expressly rested on this point. Then the burden which by these statutes was cast upon the city was coupled with a power of raising money for the purpose by assessment, in a manner entirely unauthorized at common law, which is conclusive to shew that the statute created a new and original obligation and did not merely transfer a previously existing common law liability to the municipality.

It is contended in the appellant's factum that the duty of repairing the streets is imposed upon the Board of Commissioners created by the Statute of 1872. This point was but faintly pressed at the argument and requires but little notice. This Board of Commissioners, it will be observed, from the clauses of the statute already quoted, is in effect a committee of the aldermen, being composed of an alderman from each ward in the city, and is elected by the city council. It is, therefore, a body representing the ratepayers not immediately elected by them, but chosen by the direct representation of the ratepayers. It is also expressly made subject to the control of the council. The commissioners, therefore, are the executive officers of the corporation, and upon the same principle that the acts or omissions of the city council are the acts or omissions of the city, and that the city are responsible for any injury resulting from their neglect of duty, so must they be answerable for the consequences of any neglect of their legal obligations by

(y) 4 App. Cas. 256.