J. 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, ‑and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties HEARD: at Kentville, Nova Scotia, before the Honourable Mr. Justice William J. Grant, Trial Division, on November 19, 20, 21, 1990. DECISION: February 20, 1991 COUNSEL: Mr. D. J. Kimball, Mr. Nash Brogan, for the plaintiff Ms. Heidi Foshay, Mr. J. Davies, for the Attorney General of Nova Scotia Mr. E. J. Flinn,Q.C., for Reddens and Lockharts 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, ‑and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties GRANT, J.: At about 3:00 p.m. on November 26, 1983 the plaintiff was in good health and driving his half ton truck on the Falmouth Back Road, so called, public highway, near Falmouth, Nova Scotia. A tree fell on his truck, crushing him inside the cab. He is now a paraplegic. The action had been presented in two steps, by agreement of counsel. Liability is to be tried now and the quantum of damages is to be determined later. This action was originally brought by the plaintiff against the defendants, Mr. Mrs. Redden, the owners of the property and the defendants, Mr. Mrs. Lockhart as the occupiers of the property on which the stump or trunk of the tree was located. It was originally framed in nuisance and negligence. separate action also in nuisance and negligence was started against the defendant, the Attorney General. The actions were consolidated and joined. The plaintiff's action against the defendants Redden and Lockhart was discontinued. The action against this defendant, the Attorney General, was not discontinued. This defendant, the Attorney General, did not consent to the discontinuance against the other defendants. This defendant has joined the defendants Redden and Lockhart as Third Parties seeking contribution and/or indemnity from them. The action against this defendant is now in tort for negligence. It is under the general duty of care and under special duty of care arising from its implementation of programme for the removal of trees which were an immediate hazard to the public. The Falmouth Back Road is public highway, it is paved and the right‑of‑way is 66 feet in width. It runs generally North and South from Falmouth to Route 14 leading to Chester. The Lockhart farm is located on the West side of the road. The third party Earl Lockhart is 82 years of age and not in good health. He is the husband of the third party Violet Lockhart. The third party Dorothy Redden is daughter of the Lockharts and the wife of the third party Reginald Redden. The property was the Lockhart homestead but was conveyed to the Reddens in 1974. The Lockharts continued to occupy the premises. The tree which fell was an Elm said to be about 110 years old. The stump was located about 2.9 feet beyond the highway right‑of‑way. It was estimated to be about 60‑70 feet tall. Its branches overhung the highway, probably at least to or beyond the centre line of the highway. This Elm tree was probably infected by Dutch Elm Disease (DED), although it had foliage, it may have exhibited some of the symptoms of DED. In addition it was infected by disease called Ganoderma applanatum. This was probably caused by mechanical wound in the base of the tree into which wound parasite had entered. The interior of the tree was killed and became pulpy, losing its strength, although the area near the bark was still healthy. On November 26, 1983 there was wind of about 37 km/hr. from the South West. It was cloudy but fine. The condition of the tree was such that even light wind (20 km/hr) could blow it over. It broke off from to 10 feet above the ground, leaving chair back stump, i.e., part of the outer layer of the tree was strong enough to partially hold. In the 1970's and early 1980's DED was causing extensive damage to Elm trees in this Province. The Town of Windsor appointed Tree Commission which took inventory of its trees and numbered and examined each one. If disease was suspected samples were sent to the Federal Forestry Lab in Fredericton to examine. If the tree was infected it was destroyed. Walter Stephens, age 73, is former member of the Windsor Tree Commission. He was Windsor fire chief in 1983 and attended at this accident scene. He had frequently driven past the Lockhart farm and had admired the stand of Elms. He knew they were old but prior to the accident he did not notice anything wrong with them. He did not notice symptoms of DED. During 1983 citizens were telephoning the local (Windsor) Department of Highways (Transportation‑D of T) office about dangerous trees overhanging the highways. Department of Transportation crews were doing what they considered they could do within their capabilities by using their chain saws in removing hazardous trees. There had earlier been maple tree problem but in 1983 the complaints related to Elms. In the Summer of 1983 the Divisional Engineer, Robert Colburne, decided to do an inventory of the trees which were dead and/or hazardous to the public. He appointed Gerald Allen, to examine the Elm trees. Allen came to of as foreman in the Summer of 1983. He had no training or expertise in trees or tree diseases. He was assigned survey technician, presumably to measure the location of the tree in relation to the highway. Allen was given no written instructions but was given notebook for log. He was to mark each such tree by numbered stake. The trees were to be noted in the log. If tree was considered by him to be an immediate hazard an asterisk was noted and that tree was examined by the engineer. took it some or most of those trees were removed. The engineer as well had absolutely no training or expertise relating to trees. In two or three weeks Allen located, staked and noted each Elm tree in the West Hants area which might be highway hazard. He examined the Elms at the Lockhart farm including the tree that fell. He marked as No. 150 an Elm about 400 feet from the tree that fell. It was not stated but Allen dealt principally with Elms. On the log page in evidence 10 trees are noted and all of them were Elms. Allen identified 234 such Elm trees in West Hants. Tree No. 150 was noted, an asterisk was placed by it in Allen's log but it was not removed until the Fall of 1984 when Redden removed it himself. Tree No. 150 was dead, it had no leaves or foliage in 1983. In 1974 the Town of Windsor employed Stan Kochanoff, Falmouth horticulturist, to examine the Elms in the Town Core area, to prepare an inventory and survey the health of each tree. This took months and cost $1,200.00. Kochanoff is currently doing the same for the City of Dartmouth for $10,000.00. Kochanoff said there were trained forestry personnel at the Provincial Department of Lands Forests in Truro and Debert. There were Federal forestry personnel at Kentville, at Truro and at Fredericton. Kochanoff lived near the Lockhart Farm and passed the trees frequently. In 1981‑2 he thought some of the Lockhart Elms had DED. By 1986 he considered that one of these trees was dead or the DED was quite advanced in one tree. He did not closely examine any of these trees. His comments were based on his observations as he passed the property in his car prior to the tree falling on the plaintiff. Dr. Jorgensen: In 1989 the defendant employed an expert, Professor Erik Jorgensen. He is Professional forester with Masters Degree in Forestry. He received his early education in Denmark. He had been at the University of Toronto from 1962 to 1973. He had been an Assistant Professor from 1959 to 1965, an Associate Professor from 1963 to 1967 and Professor from 1967 to 1973. He was research scientist and Chief of the Urban Forestry Program, Forest Management Institute, with the Department of Environment, Ottawa from 1973 to 1978. He was Consultant to the National Capital Commission. He was Director of the University of Guelph Aboretum and Professor of Environmental Biology from 1978 to 1986. He taught Arboriculture at the University of Guelph from 1980 to 1986. He retired from teaching in 1986 and since then has been working as consultant on forestry related matters. Professor Jorgensen was retained in 1989 and attended at the site on November 3rd. He located the stump of the tree which fell on the plaintiff. This was confirmed by Lockhart. He examined the relevant stump and found it was severely decayed. The wood had turned into pliable soft fibrous mass of whitish, light brown, colour. It revealed the presence of dead fruiting body or dead fungus identified as Ganoderma applanatum, the Artists Conk. Professor Jorgensen located stump 150 (as marked with survey marker). It had two young conks, or years old. It was the opinion of Professor Jorgensen that the tree had not fallen due to DED but from Ganoderma applanatum, the Artists Conk, in combination with wind. He gave the following description of decay caused by Artists Conk (Ganoderma (Fomes) applanatum): It Ganoderma applanatum, the Artists Conk, is one of the most commonly occurring decay fungi on hardwoods in Eastern North America. The fruiting bodies are found commonly on dead tree trunks and stumps of all the species of hardwoods. However, it is also widespread wound parasite of living trees where it can cause extensive decay in sapwood and particuarly invade the heartwood of standing, living trees. Most often the infection takes place in mechanical wound close to the base of the trunk or on major root. The outer part of an infected mechanical wound is in most cases hard and the extent of the decay underlying such wound can only be measured in drilling. The hard crust gives no indication of severe internal deterioration unless conk (or fruiting body) is present. Conk formation always indicates severe internal decay, which often extends for to metres in the central core of the trunk. On occasions, the fungus will fruit in tree crowns or major branches, where it has infected branch wound. In such cases, the decay in general is extensive for 2‑3 metres above and below the conk. The rot produced is referred to as white mottled rot and the fungus hyphae are congregated in the white areas which consist of almost pure cullulose. The fungus readily breaks down and feeds on lignin in the cell wall, but where nitrogen is in short supply, the cellulytic activity is reduced preserving the cellulose. Where nitrogen is available, hollows will be formed as the fungus removes all cell wall materials. When one examines trunk of an infected tree, which has been broken in storm, the break is across the grain and the decayed wood has tendency to break into cubes (see photo #7). When decay proceeds beyond this point, the wood is turned into cream coloured fibrous mass without any structure (photos #2, 4)." It was the opinion of Professor Jorgensen, based on the presence of the disease in the remains of the stump and the evidence of those who described the tree at the time of the accident, that the cause of the fall was due to the disease. It was the opinion of Professor Jorgensen that arborists and foresters are familiar with the fact that infected trees with conks are to be classified as "hazard trees" and should be removed. However, even if no conks are present, the trees may be equally dangerous and tree in full leaf may suddenly collapse due to Ganoderma applanatum. Professor Jorgensen found the "most likely and probable cause was the basal infection and rot by the fungus Ganoderma applanatum found on the stump of the fallen tree". He was unable to say that conks of this fungus were present at the time of the accident. He considered the wind on that day to be sufficient to fell the tree. He noted that an unsupported tree with basal rot may fall with very little force being exerted. Professor Jorgensen expected there was an older mechancial wound (from tractor or farm machinery), as was on tree No. 150 nearby. He considered the wound would be "fairly large" (at least inches across), to serve as "an infection court". Professor Jorgensen said the presence of the artists conk indicates severe decay and knowledge of this conk and its activity is prerequisite for its recognition. However, if there was no conk but wound, then the presence or absence of the disease could not be determined without drilling into the tree trunk. He concluded there would have to be an inspection by person trained in tree pathology to detect the disease and its extent, in the tree. He concluded that only by drilling into the wound, or the presence of fruiting body (fungus) could determine the extent of the decay and evaluate the hazard. accept the evidence of Professor Jorgensen that the tree which fell on the plaintiff was diseased and had extreme decay caused by Ganoderma applanatum. find that the wind blew the tree down. find the disease entered the tree through mechanical wound, probably from farm machinery. Was Conk present Before the Tree fell?: At the time of his inspection on November 3, 1989 Professor Jorgensen found dead fruiting body (conk) on the stump at soil level. (Para. 2.1 his report). It is described as "an old dead fruiting body of this fungus was found on the base of this stump". (para. 4.1 of his report). The stump of tree No. 150 exhibited large young conks at various levels from soil level. These were estimated to be to years old. Professor Jorgensen thought the conk on the tree that fell had been there for 3‑4 years. He described it having been there for considerable time, as the cells were dead when he inspected it. Professor Jorgensen said it would require person with some qualifications to recognize the symptoms. There would have to be careful inspection of each tree, looking for major wounds, cracks on the stem, dead branches, etc. If there was mechanical wound but no fungus present then the suspected area would have to be drilled and the drill core analyzed to see if the disease was present. highly qualified expert would be required to analyze the core sample. Professor Jorgensen agreed the of in Hants could employ an expert to supervise and train their own personnel. He agreed someone with minimal training could detect the mechanical wound. Such wound he said was major thing to look for. An expert should then examine the wound. If there was fungus the expert could determine the kind of fungus, the cause of the decay and the extent of the decay. If no fungus sample could be taken and examined, if required. Professor Jorgensen said that this decay, when examined, was 10‑12 years old and in his opinion resulted in the death of the tree. Professor Jorgensen thought there would be no fungus present in 1983. He said the fungus was common on stumps but rare on the area of wound parasite. He considered the fungus on this tree "most likely" formed on the stump rather than on the living tree. Findings on Tree that Fell: 1. accept the evidence of Professor Jorgensen and find that the tree which fell on the plaintiff was infected with Ganoderma applanatum and probably also had DED. 2. find the cause of the collapse was the Ganoderma applanatum combined with the wind and not caused by DED. 3. find the disease followed mechanical wound at the base of the tree. 4. find that at the time the tree fell there probably was no visible fungus or conk. 5. find that the mechanical wound left scar at least 3‑4 inches wide. 6. find the wound had probably been inflicted 8‑10 years before the tree fell, i.e. in 1972 to 1974. What was Probably visible in 1983?: Professor Jorgensen considered that there would be no fungus or conk present in 1983. The wound, however, would be visible. It may have been somewhat concealed by the overgrowth of the bark. As well the dead portion of the wound may not have been at the actual wound site. Was the Wound Visible Hazard?: am satisfied and find the wound would have been visible to be seen in an inspection of the tree. Professor Jorgensen thought an expert would have found the wound. However, he also said that it would not take an expert to find the wound. He said "it was plain to him" that it would not take an expert to find the wound. find with minimal training person could be qualified to examine the trees to check the foliage, to look for conks and to look for wounds. find that minimally trained person with instructions to examine tree for dead foliage (no new or green foliage); for fungi or fungus; or with wounds (mechanical or other) within feet of the ground, probably would have led to the identification of this tree as one requiring an inspection by more highly trained person. also find that once identified as tree requiring further inspection trained person would probably require core sample be sent for examination. Alternatively person with more expertise could be called in to look at the tree or if there were others with such wounds the person could examine all of them. find that upon examination of the core the disease would be identified and the extent of the disease would be determined. Had this been done in the Summer of 1983 find this tree would probably have been cut before it fell. The Law: The law in Canada was recently set out by the Supreme Court of Canada in Just v. British Columbia (December 1989) 1989 CanLII 16 (SCC), 64 D.L.R. (4th) 689. The case dealt with father and daughter who were driving from Vancouver to Whistler Mountain to ski. There had been heavy snowfall and they were forced to stop on Highway 99. While stopped large boulder weighing more than ton crashed down on their car from an embankment. The daughter was killed and the father was seriously injured. Action was brought against the Province for negligence in their maintenance of the highway. The Province had system for inspection and remedial work along that highway to safeguard traffic against rock falls. The action was brought in negligence. The Province submitted that its system of inspection and implementation were policy matters in respect of which no liability could arise. Cory, J. (speaking for the majority of the Court, Dickson, C.J.C., Wilson, La Forest, L'Heureuz‑Dube, Gonthier,JJ.) and Sopinka J. dissenting) said at pages 700‑709: "Test to be applied In cases such as this where allegations of negligence are brought against government agency, it is appropriate for courts to consider and apply the test laid down by Lord Wilberforce in Anns v. Merton London Borough Council, [1978 A.C. 728(H.L.). At pp. 751‑2 he set out his position in these words: Through the trilogy of cases in this House‑Donoghue v. Stevenson,[1932] A.C. 562, Hedley Byrne Co. Ltd. v. Heller Partners Ltd.,[1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004, the position has now been reached that in order to establish that duty of care arises in particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter‑in which case prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to be negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise: see Dorset Yacht case, [1970] A.C. 1004, per Lord Reid at p. 1027. .. Nevertheless, it is sound approach to first determine if there is duty of care owed by defendant to the plaintiff in any case where negligent misconduct has been alleged against government agency. .. All the provinces across Canada extol their attributes and attractions in the fierce competition for tourist business. The skiing facilities at whistler are undoubtedly just such magnificent attraction. It would be hard to imagine more open and welcoming invitation to use those facilities than that extended by the provincial highway leading to them. In light of that invitation to use both the facilities and the highway leading to them, it would appear that apart from some specific exemption, arising from statutory provision or established common law principle, duty of care was owed by the province to those that use its highways. That duty of care would extend ordinarily to reasonable maintenance of those roads. The appellant as user of the highway was certainly in sufficient proximity to the respondent to come within the purview of that duty of care. In this case it can be said that it would be eminently reasonable for the appellant as user of the highway to expect that it would be reasonably maintained. For the Department of Highways it would be readily foreseeable risk that harm might befall users of highway if it were not reasonably maintained. That maintenance could, on the basis of the evidence put forward by the appellant, be found to extend to the prevention of injury from falling rock. Even with the duty of care established, it is necessary to explore two aspects in order to determine whether liability may be imposed upon the respondent. First, the applicable legislation must be reviewed to see if it imposes any obligation upon the respondent to maintain its highways or alternatively if it provides an exemption from liability for failure to so maintain them. Secondly, it must be determined whether the province is exempted from liability on the grounds that the system of inspections, including their quantity and quality, constituted 'policy' decision of government agency and was thus exempt from liability. .. Once policy to inspect is established then it must be open to litigant to attack the system as not having been adopted in bona fide exercise of discretion and to demonstrate that in all the circumstances, including budgetary restraints it is appropriate for court to make finding on the issue. The functions of government and government agencies have multiplied enormously in this century. Often government agencies were and continue to be the best suited entities and indeed the only organizations which could protect the public in the diverse and difficult situations arising in so many fields ..... The increasing complexities of life involve agencies of government in almost every aspect of daily living. Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were person. However, the Crown is not person and must be free to govern and make true policy decisions without becoming subject to tort liability as result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of policy. Thus, the dilemma giving rise to the continuing judicial struggle to differentiate between policy and operation. Particularly difficult decisions will arise in situations where governmental inspections may be expected. The dividing line between 'policy' and 'operation' is difficult to fix, yet it is essential that it be done. The need for drawning the line was expressed with great clarity by Becker J. of the United States District Court in Blessing v. United States, 447 F.S. 1160. The case required him to deal with claim under the Federal Tort Claims Act, 28 U.S.C. para. 2689, which provides: The provisions of this chapter and section 1346(b) of this title shall not apply to- (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of statute or regulation, whether or nto such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform discretionary function or duty on the part of federal agency or an employee of the Government, whether of not the discretion involved by abused. He wrote, at p.1170: Read as whole and with an eye to discerning policy behind this provision, it seems to us only to articulate policy of preventing tort actions from becoming vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government and of protecting 'the Government from liability that would seriously handicap efficient government operations,' United States v. Muniz, 374 U.S. 150,163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963). Statutes, regulations, and discretionary functions, the subject matter of para. 2680(a), are, as rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions. Rather, the judiciary confines itself‑or, under laws such as the FTCA's discretionary function exception, is confined‑to adjudication of facts based on discernible objective standards of law. In the context of tort actions, with which we are here concerned, these objective standards are notably lacking when the question is not negligence but social wisdon, not due care but political practicability, not, reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political or economic decisions. The need for distinguishing between governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort. What guidelines are there to assist courts in differentiating between policy and operation? Mason, J., speaking for himself and one other member of the Australian High Court in Sutherland Shire Council v. Heyman (1985), 1988 ABCA 234 (CanLII), 60 A.L.R. set out what find to be most helpful guidelines. He wrote: Anns decided that duty of care cannot arise in relation to acts and omissions which reflect the policy‑making and discretionary elements involved in the exercise of statutory discretions. It has been said that it is for the authority to strike that balance between the claims of efficiency and thrift to which du Parcq LJ referred in Kent v. East Suffolk Rivers Catchment Board [1940] KP 319 at 338 and that it is not for the court to substitute its decision for the authority's decision on those matters when they were committed by the legislature to the authority for decision (Dorset Yacht Co. v. Home Office, [1970] AC 1004 at 1031, 1067‑8; Anns, at p. 754; Barratt v. District of North Vancouver (1980) 1980 CanLII 219 (SCC), 114 D.L.R. (3d) 577). Although these injunctions have compelling force in their application to policy‑making decisions, their cogency is less obvious when applied to other discretionary matters. The standard of negligence applied by the courts in determining whether duty of care has been breached cannot be applied to policy decision, but it can be applied to operational decisions. Accordingly, it is possible that duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other. This classification has evolved in the judicial interpretation of the 'discretionary function' exception in the United States Federal Tort Claims Act‑see Dalehite v. United States (1963) 346 US 15;...United States v. Varig Airlines, supra. The object of the Federal Tort Claims Act in displacing government immunity and subjecting the United States Government to liability in tort in the same manner and to the same extent as private individual under like circusmtances, subject to the 'discretionary function' exception, is similar to that of s. 64 of the Judiciary Act, 1903(Cth). The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of duty of care. But it may be otherwise when the courts are called upon to apply standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. The duty of care should apply to public authority unless there is valid basis for its exclusion. true policy decision undertaken by government agency constitutes such valid basis for exclusion. What constitutes policy decision may vary infinitely and may be made at different levels although usually at high level. The decisions in Anns v. Merton London Borough Council and Kamloops v. Nielsen indicate that government agency in reaching decision pertaining to inspection must act in reasonable manner which constitutes bona fide exercise of discretion. To do so they must specifically consider whether to inspect and if so, the system of inspection must be reasonable one in all the circumstances. For example, at high level there may be policy decision made concerning the inspection of lighthouses. If the policy decision is made that there is such pressing need to maintain air safety by the construction of additional airport facilities with the result that no funds can be made available for lighthouse inspection, then this would constitute bona fide exercise of discretion that would be unassailable. Should then lighthouse beacon be extinguished as result of the lack of inspection and shipwreck ensue, no liability can be placed upon the government agency. The result would be the same if policy decision were made to increase the funds for job retraining and reduce the funds for lighthouse inspection so that beacon could only be inspected every second year and as result the light was extinguished. Once again this would constitute the bona fide exercise of discretion. Thus, decision either not to inspect at all or to reduce the number of inspections may be an unassailable policy decision. This is so provided it constitutes reasonable exercise of bona fide discretion based, for example, upon the availability of funds. On the other hand, if decision is made to inspect lighthouse facilities the system of inspections must be reasonable and they must be made properly; see Indian Towing Co., 350 U.S. 61 (1955). Thus, once the policy decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care. At lower level, government aircraft inspectors checking on the quality of manufactured aircraft parts at factory may make policy decision to make spot check of manufactured items throughout the day as opposed to checking every item manufactured in the course of one hour of the day. Such choice as to how the inspection was to be undertaken could well be necessitated by the lack of both trained personnel and funds to provide such inspection personnel. In those circumstances the policy decision that spot‑check inspection would be made could not be attached.... Thus, true policy decision may be made at lower level provided that the government agency establishes that it was reasonable decision in light of the surrounding circumstances. The consideration of the duty of care that may be owed must be kept separate and distinct from the consideration of the standard of care that should be maintained by the government agency involved. Let us assume case where duty of care is clearly owed by governmental agency to an individual that is not exempted either by statutory provision or because it was true policy decision. In those circumstances the duty of care owed by the government agency would be the same as that owed by one person to another. Nevertheless, the standard of care imposed upon the Crown may not be the same as that owed by an individual. An individual is expected to maintain his or her sidewalk or driveway reasonably, while government agency such as the respondent may be responsible for the maintenance of hundreds of miles of highway. The frequency and the nature of inspection required of the individual may well be. different from that required of the Crown. In each case the frequency and method must be reasonable in light of all the surrounding circumstances. The governmental agency should be entitled to demonstrate that balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in light of all the circumstances including budgetary limits, the personnel and equipment available to it and that it had met the standard duty of care imposed upon it. It may be convenient at this stage to summarize what consider to be the principles applicable and the manner of proceeding in cases of this kind. As general rule, the traditional tort law duty of care will apply to government agency in the same way that it will apply to an individual. In determining whether duty of care exists, the first question to be resolved is whether the parties are in relationship of sufficient proximity to warrant the imposition of such duty. In the case of government agency, exemption from this imposition of duty may occur as result of an explicit statutory exemption. Alternatively, the exemption may arise as result of the nature of the decision made by the government agency. That is, government agency will be exempt from the imposition of duty of care in situations which arise from its pure policy decisions. In determining what constitutes such policy decision, it should be borne in mind that such decisions are generally made by persons of high level of authority in the agency, but may also properly be made by persons of lower level of authority. The characterization of such decision rests on the nature of the decision and not on the identity of the actors. As general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that duty of care is owed by the government agency and no exemption by way of statute or policy decision‑making is found to exist, traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered. The manner and quality of an inspection system is clearly part of the operational aspect of governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment. Turning to the case at bar it is now appropriate to apply the principles set forth by Mason J. in Sutherland Shire Council v. Heyman, supra, to determine whether the decision or decisions of the government agency were policy decisions exempting the province from liability. Here, what was challenged was the manner in which the inspections were carried out, their frequency or infrequency and how and when trees above the rock cut should have been inspected, and the manner in which the cutting and scaling operations should have been carried out. In short, the public authority had settled on plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described as 'the product of administrative direction, expert or professional opinion, technical standards or general standards of care'. They were not decisions that could be designated as policy decisions. Rather they were manifestations of the implementation of the policy decision to inspect and were operational in nature. As such, they were subject to review by the court to determine whether the respondent had been negligent or had satisfied the appropriate standard of care. At trial the conclusion was reached that the number and frequency of inspections, of scaling and other remedial measures, were matters of policy; as result, no findings of fact were made on the issues bearing on the standard of care. Since the matter was one of operation the respondent was not immune from suit and the negligence issue had to be canvassed in its entirety. The appellant was therefore entitled to finding of fact on these questions and new trial should be directed to accomplish this." The appeal was allowed and the case was remitted back to the trial level for new trial to make findings of fact to determine in all the circumstances if the respondent Province had met the standard of care that should reasonably be imposed upon it relating to the frequency and manner of inspections and the cuttings and sealing operations carried out on the rock. The Just v. British Columbia (supra) case sets out the criteria to be used in determining if such duty of care arises under the existing facts and law. If such duty of care arises, then the standard of care of that duty must be examined. If the standard of care has not been met then the duty of care has been breached. Duty of Care: Statutory: The Public Highways Act, R.S.N.S. 1967, c. 248 (R.S.N.S. 1989 c. 371): "Section The Minister has the supervision, management and control of the highways and of all matters relating thereto R.S.,c.371,s.4 Section (1) The Minister may appoint in each municipality one or more superintendents of highways who shall, under the direction and control of the division engineer, supervise the work and expenditures made upon the highways of the municipality or portion of the municipality for which he is appointed." Proceedings against the Crown Act, R.S.N.S. 1967, c.239 (R.S.N.S. 1989, c.360): "Right to enforce claim against Crown Section Subject to this Act, person who has claim against the Crown may enforce it as of right by proceedings against the Crown in accordance with this Act in all cases in which (c) the claim is based upon liability of the Crown in tort to which it is subject by this Act.R.S.,c.239,s.3." "Tort liability of Crown Section (1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were person of full age and capacity, it would be subject (a) in respect of tort coniniitted by any of its officers or agents; (b) in respect of any breach of the duties that person owes to his servants or agents by reason of being their eniployer; (c) in respect of any breach of the duties attaching to ownership, occupation, possession or control of property; (d) under any statute, or under any regulation or by‑law made or pased under the authority of any statute." Finding: I find there is a prima facie duty of care owed by the Department of Transportation to users of the highways against reasonably foreseeable hazards, including the falling of trees onto the highway. find the parties are in relationship of sufficient proximity to warrant such duty. Is there an Exemption?: Having found there was prima facie duty of care must next consider if the defendant enjoys or has an exemption from that duty of care. (a) Statutory Exemption: find there was no statutory authority exempting the defendant from this duty. (b) Was it "Policy" decision?: Past Practice: Robert Colburne, the divisional engineer, considered such hazardous trees to be an "obvious" problem in the area. Highway crews under his direction had been removing dead trees which might be hazard for some years. He used the term "very often". They had been doing this within their own capabilities without additional funding. At least from 1978 on there had been problem necessitating removal of trees. At one time Colburne requested advice from the provincial Department of Lands and Forests. In 1983 Colburne had tree survey done to determine the number of hazardous trees in West Hants. Allen was appointed head of the tree inspection group. He was to identify the trees he considered were priority for removal. Once identified by Allen, Colburne would look at them and make decision on them. Perhaps Colburne would also consult Boyd, the Super. They did have their own resources to remove some trees, presumably those which were an imminent hazard. Allen identified 234 trees for removal. Most of these were also inspected by Colburne who presumably decided they could await additional funding. At least he did not use his own available forces to remove them all. Presumably those which Allen, Colburne and/or Boyd considered priority were removed immediately. The tree marked No. 150 was identified by Allen and examined by Colburne and probably also by Boyd. Although dead it was not deemed to be such hazard that they would use their own forces to immediately cut it down. All 234 trees were identified within 2‑3 weeks by Allen. No. 150 is in the same area as the tree that fell. conclude that the tree that fell was examined by Allen during the first week or so of the Summer. Colburne said that had he known then what he knew at trial he would have acted differently. interpret that answer (in cross‑examination) to mean that had. he known the tree that fell was in the condition it in fact was in, he would have immediately cut it down. Budget: There was $600,000. budget within and from which the Divisional Engineer and/or Superintendent could interchange their own priorities. Boyd said that sometimes money was taken out of the budget and spent and request for extra funds would be made later on. Cost: There is presently removal programme by tender at $250.00 per tree. Presumably in 1983 it would have been considerably less. The cost of examining the tree would be negligible. Allen was on staff. The only extra cost would be to train Allen and have expert backup upon which Allen could call, if required. Closure: Boyd said he would close the highway if there was tree which was an immediate hazard until the tree was removed. The project to remove all the 234 trees was one which Colburne considered required departmental approval for funding. That is, it was beyond his capacity as the divisional engineer. However, find it was within the scope and capability of the divisional engineer to remove with his own forces those trees which constituted an immediate hazard. It was also within his scope and capability to get some reasonable training and backup expertise for Allen. Had this tree been properly identified it could have been removed immediately and probably would have been moved immediately. Removal of the tree by the Department of Transportation would be at negligible cost. Inspection Team: consider must also look at the inspection team. What would such team cost or what would it cost to instruct Allen? There was government expertise at Kentville one half hour away. There was government expertise at Truro and Debert less than two hours away. There was government expertise in Fredericton. In addition there was private expertise in the area. The cost to train Allen would be negligible, certainly lot less than having Professor Jorgensen attend to inspect the stump or attend at trial. find there was no policy decision exempting this defendant from this duty. In fact the opposite is true. There was the will, the plan and the money to remove trees which were an immediate hazard. Standard of Care: Having found there was duty upon the defendant must next examine the standard of care one would reasonably expect. I find the reasonable standard of care required would be that which would determine from an examination of the Elm trees those which posed an immediate hazard. This find, would require an examination for obvious signs of death such as no living leaves or branches, those with outside fungi and those with visible mechanical wounds in the trunk. As in Just v. British Columbia (supra) those were not policy decisions but were "manifestations of the implementation of the policy decision to inspect and were operational in nature"(p.709). find that with minimal instruction Allen could have isolated and identified trees which were an immediate hazard. find that minimal training would have enabled Allen to either have an expert look at wounded trees or drill bore sample to be sent to either Kentville, Truro or Debert to be examined. At the minimum he would be able to consult an expert on trees with wounds and/or fungi. Summary: find the operational implementation of programme of removal of hazardous trees had been in place for some years prior to 1983. find in the Summer of 1983 the manner of implementing or carrying out the programme was beefed up. Instead of using their regular crews new man was brought in to head up this team. Allen was hired in the Summer of 1983 and in the Summer of 1983 was appointed to survey the area for hazardous trees. His background was working with I.G.A. He had absolutely no training or expertise on Elm trees or other tress or tree diseases or DED. He was given no written material to study or read, he was given no instruction and was given no backup of available expertise. He was to report to Colburne who likewise had absolutely no training, no instructional material and no expertise relating to trees or tree diseases. However, within half hour drive there was local expertise, both governmental and private. Within two hours was more governmental expertise and all of this was available by picking up the phone. There was equipment and personnel on staff to remove Elm trees which were an immediate hazard. If tree was identified as an immediate hazard Boyd would have found the money to remove it. Training for Allen: From my observations of Allen find he could have been instructed on what to look for in very short period. In about hours Professor Jorgensen gave out sufficient information to permit one to inspect Elms for dead branches, crowns, fungi and mechanical wounds. Upon detection of fungi or such wounds call would have identified the fungus and the type of wound. drill sample would have identified this disease and the extent of the damage to the tree. In two or three weeks Allen had inspected all the roads in West Hants for hazardous Elm trees and in the course of doing so, find, he examined the tree that fell. Had Allen been reasonably well informed or instructed he would have, find, identified the wound on the tree that fell and sought advice on it. Had he sought such advice and sent core sample am satisfied and find that the true condition of the tree would have been known. Had the true condition of the tree been known, find, Colburne would have ordered it immediately removed. It is not unreasonable to assume that would have been in late July or August 1983. find the inspections would require an inspector with reasonable level of expertise, within the normal capacity of the Department of Transportation. Instructional and training expertise was available here in Government departments nearby. The cost would be negligible, at least well within the capacity of Colburne and/or Boyd. Professor Jorgensen said it would take about an hour to inspect tree. Working 40 hour week Allen would come to the tree in issue by week four, probably in late July or early August. I find the defendant has not met a reasonable standard of care in carrying out the inspection duties it had assumed. find someone with at least minimal relevant training or expertise should have been employed as the inspector. Alternatively Allen should have been given some relevant training and/or instruction. As well there should have been someone with additional expertise upon whom Allen or whoever was the inspector, could call. Finding: I find the defendant was negligent in the implementation of its system of inspection of trees which posed a hazard to users of the highway. find the manner of inspection, including the use of totally untrained inspector with absolutely no trained backup was not reasonable in the circumstances. find the claim against the defendant relating to the general duty of care has not been made out. disallow the claim on this issue. find, however, that the claim of the plaintiff succeeds in relation to the standard of care under the programme for removal of trees that were an immediate hazard to the public. I find the defendant has not met a reasonable standard of care in its duty of care to the plaintiff. Third Party Claim: The third party claim is based on contribution and indemnity in the event the defendant was found to be negligent in its ordinary duty of care to the plaintiff. have found that the defendant was negligent but that the negligence was in the manner in which the inspection was carried out, in particular the fact that the inspector was totally untrained. This was matter totally encompassed by the defendant with no input from the third parties. In fact the third parties did not even know the programme was going on until after the loss. I dismiss the third party claim of the defendant against the third parties. The third parties shall have their costs to be taxed. find there was no prejudice flowing from the fact that the plaintiff's action against those third parties was dropped without the consent of the defendant. The third parties shall have their costs against the plaintiff up to the time the plaintiff discontinued against them. From then on their costs shall be against the defendant. Finding: The plaintiff shall have judgment against the defendant for damages, to be assessed. The plaintiff shall have his costs of this determination of liability. J. Halifax, Nova Scotia February 20, 1991 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties DECISION OF GRANT, J.
A large diseased elm tree fell on a truck and injured the plaintiff driver. For some years prior to the accident, the defendant had operated a hazardous tree removal program. An inspector had examined the tree that fell. The inspector had no expertise relating to trees or their diseases, nor did his immediate superior. For the plaintiff, that there is a prima fade duty of care owed by the Department of Transportation to users of highway against reasonably foreseeable hazards, including the falling of trees onto the highway. Further, the defendant had a duty to use a reasonable standard of care in the operation of the hazardous tree removal program. The defendant was negligent in failing to train the inspector properly. The Court referred at length to the Supreme Court of Canada decision in Just v. British Columbia. The defendant's claim against the third parties (owners/occupiers of property on which tree stood) was dismissed.