Tanya Pender Plaintiff And: Kayla Squires First Defendant And: Jordan Hannam Second Defendant And: Larry Hannam Third Defendant And: City Sand v. Gravel Limited, 2019 NLSC 101

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Pender v. Squires , 2019 NLSC 101 Date : May 13, 2019 Docket : 200801T4163, 200901T0889 and 200901T3773 Between: Tanya Pender Plaintiff And: Kayla Squires First Defendant And: Jordan Hannam Second Defendant And: Larry Hannam Third Defendant And: City Sand and Gravel Limited Fourth Defendant AND: LONA HANNAM FIFTH DEFENDANT AND: RICHARD FLYNN and JOYCE SQUIRES SIXTH DEFENDANTS AND: SUZANNE PENDER FIRST THIRD PARTY AND: UNIFUND ASSURANCE COMPANY SECOND THIRD PARTY

- AND - Docket : 201101G0007 Between: KAYLA SQUIRES Plaintiff AND: Tanya Pender FIRST DEFENDANT AND: JORDAN HANNAM SECOND DEFENDANT AND: LARRY HANNAM and lona hannam THIRD DEFENDANTS AND: SUZANNE PENDER FOURTH DEFENDANT AND: CITY SAND AND GRAVEL LIMITED FIFTH DEFENDANT AND: Tanya Pender FIRST THIRD PARTY AND: LARRY HANNAM SECOND THIRD PARTY AND: CITY SAND AND GRAVEL LIMITED THIRD THIRD PARTY AND: DONALD Pender FOURTH THIRD PARTY AND: RICHARD FLYNN FIFTH THIRD PARTY AND:

JOYCE SQUIRES SIXTH THIRD PARTY Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 25, 27, 28 and October 1, 2018

Summary: Tanya Pender (15 years old) was the operator of an ATV she had borrowed from Jordan Hannam, a 13-year-old boy who was operating the ATV without his parents’ permission in a gravel pit operated by City Sand and Gravel Limited. Kayla Squires (16 years old) was a passenger on the ATV. Due to the negligent driving of Tanya, the ATV crashed into a large, stationary rock crusher. Both girls were thrown from the ATV and sustained serious injuries. Each girl claimed the other was driving the ATV. Each girl sued the other girl.

Each girl sued the boy who lent them the ATV, the boy’s parents, the parents of the other girl and the owner of the gravel pit. Four actions were commenced which spawned a number of Third Party claims, including claims against a number of insurers. Ultimately, the actions were consolidated for trial and only one insurance company remained on the record, Unifund Assurance Company, the home owner insurer of Kayla’s parents. Tanya and Kayla claimed Jordan Hamman, the 13-year-old boy who had lent them the ATV was negligent for having done so.

They each claimed Jordan’s parents were negligent in their supervision of him. Each girl claimed that the parents of the other was negligent in supervising that girl. Both girls claimed that City Sand and Gravel Limited was negligent in not keeping them out of the gravel pit. It was held that on the evidence Tanya Pender was the operator of the ATV. It was held that the sole cause of the accident and injuries was the negligent driving of Tanya Pender. All claims by Tanya Pender were dismissed. On the evidence and the law, the claims for lack of parental supervision were not made out by either Plaintiff.

Applying the standard of a barely 13-year-old child to the actions of Jordan Hannam, the claim of negligence in his lending the girls the ATV was not made out. The claim against City Sand for failure to keep the girls out of the gravel pit was dismissed. As the owner of a gravel pit, City Sand had no such duty. City Sand’s duty was to ensure that its premises were reasonably safe for the activity undertaken by the girls once they were on the property, i.e., operating an ATV on a flat, gravel surface. City Sand was found not to have breached that duty of care.

The action by Kayla Squires against Tanya Pender for damages was allowed subject to a 10 percent reduction for the failure by Kayla to wear a helmet she had been offered. All other claims by Kayla were dismissed as not being supported on the evidence. Kayla suffered skull fractures, clavicle fractures and pelvic fractures from which she fully recovered in three to six months. She was left with a slight bony protrusion in her chest due to calcification around one of the clavicle fractures. Otherwise, she had a full recovery.

Kayla was awarded $50,000 in general non-pecuniary damages, less the 10 percent for contributory negligence for a total of $45,000. All other claims for damages for loss of income, loss of housekeeping capacity and cost of future care were dismissed as not being supported on the evidence.

Tanya suffered a severe brain injury, including a left parietal depressed skull fracture with diffuse brain injury (a shearing injury),intraventricular blood and epidural hematoma. She also suffered a broken wrist. Following extensive rehabilitation, Tanya had a remarkable recovery and at the time of trial was employed and living a near normal life. Her damages were provisionally assessed at $125,000. She was found to be 20 percent contributorily negligent for failing to wear ahelmet which reduced her general non-pecuniary damages to $100,000.

All other claims for damages, including loss of income, loss ofhousekeeping capacity and cost of future care were dismissed as not being supported on the evidence. Appearances: Glenda C. Best, Q.C. Appearing on behalf of Tanya Pender in all actions Kenneth J. Mahoney Appearing on behalf of Kayla Squires Sarah E. Hogan in all actions F. Geoffrey Aylward, Q.C. Appearing on behalf of Larry Hannam in all actions Philip J. Buckingham Appearing on behalf of Lona Hannam in all actions Tracy Pasley Appearing on behalf of Jordan Hannam in all actions Rodney J.

Zdebiak Appearing on behalf of City Sand and Gravel in all actions Terry G. Rowe, Q.C. Appearing on behalf of Unifund in all actions in which it is named Authorities Cited: CASES CONSIDERED: Pender (Guardian ad litem of) v. Squires, 2011 NLTD(G) 23; Pender (Guardian ad litem of) v. Squires, 2013NLCA 37 , 2013NLCA 37; Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19; Jadhav v. Kielly, 2019 NLCA 5; Stacey v.Anglican Churches of Canada (Diocesan Synod of Eastern Newfoundland & Labrador) (1999), (NL CA), 182 Nfld.& P.E.I.R. 1, 554 A.P.R. 1 (Nfld. C.A.); Gallant v.

Roman Catholic Episcopal Corp. for Labrador, 2001 NFCA 22; Williams v. ThomasDevelopment

(1989) Corp., 2007 NLCA 54; Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311; Nespolon v Alford (1998), (ON CA), 110 O.A.C. 108, 80 A.C.W.S. (3d) 1123; Hodder (Guardian ad litem of) v. Waddleton (1993), (NL SC), 346 A.P.R. 222, 110 Nfld. & P.E.I.R. 222 (Nfld. S.C. (T.D.)); LeLarge v. Blakney, [1978] 3 A.C.W.S. 328, 44A.P.R. 669 (N.B. (C.A.)); Cooper v. Hobart, 2001 SCC 79; Taggart (Litigation Guardian of) v. Heuchert, 2013 BCSC 1248; M. (M.I.)v. H. (T.) (1991), (BC CA), 1 B.C.A.C. 120, 27 A.C.W.S. (3d) 928; Trahey v. Patten, 2006 NLTD 49; Ledez v.Health Care Corp. of St. John's, 2008 NLTD 60; Hodder v.

Lewis, 2015 NLTD(G) 50; Snushall v. Fulsang (2005), (ON CA), 142 A.C.W.S. (3d) 533, 202 O.A.C. 297; Driscoll v. Morgan, 2007 NLCA 39; Gravelle (Litigation Guardian of) v. Seargeant,2013 BCSC 536; Oates v. Morgan, 2005 NLTD 217; Allen v. Wal-Mart Canada Inc./Magasins Wal-Mart Canada Inc., 2009 NLTD 79;

Parnell (Guardian ad litem of) v. Singer, (NS SC), 1992 CarswellNS 504, 111 N.S.R. (2d) 127 (T.D.); Gray v.Macklin, [2000] O.J. No. 4603 (Sup. Ct.), [2000] O.T.C. 866; Ward v. Ward, 2010 ABQB 654; Oates v. Morgan, 2007 NLCA 40;Driscoll v. Morgan, 2007 NLCA 39; Harvey v. Swyer, 2007 NLTD 129; Grozelle (Litigation Guardian of) v. Sadler, 1993 CarswellOnt2502, 44 A.C.W.S. (3d) 1090 (Ct. J. (Gen. Div.)) STATUTES CONSIDERED: Highway Traffic Act, R.S.N.L. 1990, c. H-3; Mining Act, S.N.L. 1999, c. M-15.1; Motorized SnowVehicles and All-Terrain Vehicles Act, R.S.N.L.1990 c.

M-20; Motorized Snow Vehicles and All-Terrain Vehicles Regulations, C.N.L.R.1163/96; Licensing and Equipment Regulations, C.N.L.R. 1007/96; Judgment Interest Act, R.S.N.L. 1990, c. J-2. REASONS FOR JUDGMENT Adams, J.: INTRODUCTION [1] It was a clear Sunday afternoon, at approximately 4:00 p.m. on 1 October 2006 when a group of young people, mostlyteenagers, congregated on the premises of City Sand and Gravel Limited (“City Sand”), a gravel pit, on the outskirts of Mount Pearl, justwest of St. John’s, for the purpose of having fun on their all-terrain vehicles (“ATVs”) and dirt bikes.

These vehicles included two-wheeldirt bikes and four-wheel machines sometimes called “quads”. [2] Unfortunately, the fun turned to tragedy as two of the teenage girls in the group borrowed an ATV from another child andwere seriously injured when the ATV they were operating crashed into a large rock crusher. The girls were thrown from the ATV andstruck either the base of the rock crusher or the ground and each of them sustained serious injuries. [3] The incident resulted in four separate actions being commenced by the two girls seeking damages for their injuries.

Each girlalleged the other was the operator of the ATV. Each girl sued the boy whose ATV they borrowed. Each girl sued that boy’s parents andthe parents of the other girl. Each girl sued the owner of the gravel pit. Each action spawned numerous third party claims seekingcontribution or indemnity from various parties and a couple of intervenor applications by insurance companies. [4] Following a decision in this Court on the duty of an insurance company to defend its insured (Pender (Guardian ad litem of)v.

Squires, 2011 NLTD(G) 23) which was overturned in part by the Court of Appeal (Pender (Guardian ad litem of) v. Squires, 2013NLCA 37 , 2013NLCA 37), the matter proceeded to trial as a consolidated action in which the girls were both plaintiffs anddefendants. During the course of the trial, various parties discontinued their third party claims. It is useful at this point to identify thevarious parties who participated in the trial, their respective capacities and a few uncontested facts about them: 1) Tanya Pender was one of the teenage girls on the ATV.

She was both a Plaintiff and a Defendant. 2) Kayla Squires was one of the teenage girls on the ATV.

She was both a Plaintiff and a Defendant. 3) Jordan Hannam was the boy who loaned the ATV to the girls. 4) Larry Hannam is the father of Jordan Hannam and was the owner of the ATV. 5) Lona Hannam is the mother of Jordan Hannam and the wife of Larry Hannam. 6) Richard Flynn and Joyce Squires are the parents of Kayla Squires. 7) Suzanne Pender and Donald Pender are the parents of Tanya Pender. 8) City Sand is the owner of the gravel pit. 9) Unifund Assurance Company was the insurer of Richard Flynn and Joyce Squires under a homeowner’s policy and had beenjoined as a third party in the consolidated action.

10) Donald Pender, Suzanne Pender, Richard Flynn and Joyce Squires were unrepresented litigants in the action. [ 5 ] Throughout my decision I have at times referred to the then infant Plaintiffs by their first names. By doing so I mean no disrespect. I do so for ease of reference since several parties bear the same last name.

While the original actions were commenced by the Plaintiffs, Tanya and Kayla by their guardians ad litem , and defended by Jordan by his guardian ad litem , all these parties have gained their majority and the actions have been continued in their own right respectively. facts [ 6 ] After nearly 13 years since the accident occurred the evidence on some aspects of liability is less than satisfactory. The principal witnesses were young adults in their teens or barely teenagers whose recollections of the facts were at times confused in respect of some details.

In some cases, they gave different versions of the events than were given in statements to the police or insurance adjustors. Because of the serious injuries sustained by both Plaintiffs and the social relationship between some of the families and friends there was considerable discussion among some of the witnesses, particularly Jordan Hannam, Larry and Lona Hannam and Kayla Squires to the extent that their testimony could be somewhat tainted or affected by those discussions. [ 7 ] Tanya Pender had no recollection of the accident and only scant memories of the events immediately prior to it.

This is completely understandable in light of the significant brain injury she sustained in the accident to which I will make greater reference later. Kayla Squires also suffered a head injury, although by all accounts not as serious as that of Tanya Pender. But nevertheless, her memory of the events was unclear. [ 8 ] The best evidence of the accident and the events leading up to it came from Gregory Hill and Jordan Hannam, although, again, their testimony was hampered by the lapse of time and the fact that they were testifying as adults about events that occurred over 12 years ago when they were teenagers. Mr.

Hill was 17 years old at the time and Jordan was just two days past his 13 th birthday. [ 9 ] However, taking this into account, and considering the only eyewitness account of the collision and the purely objective evidence of police photographs taken at the scene of the accident the same day or shortly after, I am satisfied on a balance of probabilities that the following facts have been proven.

I will expand on some of the evidence which led me to these findings of fact as I deal with various issues raised by the pleadings. [ 10 ] On 1 October 2006 Jordan Hannam was barely 13 years old having just had his birthday a couple of days before on 29 September. Tanya Pender was 15 years old (D.O.B.: 3 July, 1991). Kayla Squires was 16 years old (D.O.B.: 11 January, 1990). [ 11 ] Sometime in the afternoon, without permission, Jordan took his father’s ATV which was a 600cc Yamaha Grizzly model from the shed at his parents’ house. He and a friend, Gregory Pelley, put on helmets supplied by Jordan.

With Pelley as a passenger, Jordan drove the ATV to the City Sand gravel pit. [ 12 ] The Hannams lived in Paradise, a community on the outskirts of St. John’s and close to a pole line where young people congregated to socialize. The pole line also gave access to the nearby gravel pit of City Sand. Jordan drove the ATV along trails in the pole line and through a wooded area surrounding the gravel pit. [ 13 ] Jordan took the ATV without the consent or knowledge of his parents. Larry Hannam, Jordan’s father, owned the ATV. He stored it in a locked shed.

The key to the ATV was removed from the machine and stored in the house in various locations at different times. [ 14 ] On the afternoon of 1 October 2006 both Larry and Lona Hannam were away from their house. Jordan searched through the house looking for the keys where he found them in a clothes closet in his father’s bedroom.

He did not know they were there. [ 15 ] When Jordan and Greg Pelley arrived at the gravel pit, which they entered via a path through the woods at the back of the pit, a number of youths were already there, including Jordan’s good friend Gregory Hill, as well as Tanya Pender and Kayla Squires. Some of the young people who were there were using two wheel dirt bikes to do stunts driving up the steep sides of piles of aggregate stored at the pit.

Jordan and some of the others went there to watch the stunts. [ 16 ] Shortly after Jordan arrived at the pit, Tanya Pender and Kayla Squires (neither of whom had an ATV) asked if they could borrow his ATV for a ride. Most of the conversation was between Tanya and Jordan. Jordan initially refused the request but Tanya persisted and eventually Jordan agreed to lend them his ATV on two conditions: that they both wear helmets and that they not drive the ATV out of his sight.

The girls were given the helmets that Jordan and Greg Pelley were wearing but they refused to wear them stating that they did not want to mess up their hair. The girls then drove off on the ATV. Neither of them was wearing a helmet and they drove the ATV out of Jordan Hannam’s sight. [ 17 ] Within a couple of minutes, Jordan and his friend, Gregory Hill became concerned that the girls had not returned.

Gregory Hill got on his ATV and Jordan got on as a passenger and they drove around a pile of aggregate to look for the girls and to retrieve the ATV. [ 18 ] Hill spotted the girls on the ATV just as they were approaching a large stationary rock crusher. The girls drove the machine into the rock crusher and they were both ejected from the ATV. The girls struck either the ground or a large steel I-beam which formed the base of the rock crusher. They were both seriously injured. [ 19 ] Gregory Hill drove his ATV toward where the accident occurred and saw Tanya and Kayla on the ground.

He tried to render assistance and called 911. [ 20 ] Kayla, Tanya and Jordan knew that the gravel pit was private property of someone else and they did not have permission to be there. It was common for young people to use the gravel pit for recreational activities of the type in question. This was known by City Sand. Jordan entered the pit via an unauthorized opening made by persons unknown at the back of the pit.

Issues [ 21 ] The pleadings give rise to a number of issues: 1) Who was the operator of the ATV at the time of the accident? 2) What liability rests with whomever is determined to be the operator at the time of the accident? 3) What, if any, liability should rest with Jordan Hannam for lending the ATV to the girls? 4) What, if any, liability should rest with Jordan Hannam’s parents, either individually or jointly, for the manner in which they supervised Jordan Hannam’s activities and, in particular, his use of the ATV owned by Larry Hannam? 5) What, if any, liability rests with the respective parents of Tanya Pender and Kayla Squires for the manner in which they supervised the activities of their respective daughters? 6) What, if any, liability rests with City Sand for the manner in which it managed the gravel pit? 7) If either Kayla or Tanya establishes liability against any of the Defendants, is either of them contributorily negligent? 8) Is any Defendant against whom liability is established entitled to contribution or indemnity from any other Defendant (joint tortfeasor) or Third Party? 9) Is Unifund Assurance obliged to pay any damages found to be the responsibility of Joyce Squires and/or Richard Flynn? 10) What is the measure of damages of Kayla Squires and Tanya Pender? the law [ 22 ] The law of negligence is well settled.

In order to recover, a Plaintiff must establish that one or more of the Defendants owed the Plaintiff a duty of care, the Defendant breached that duty and the Plaintiff suffered damages as a result of the breach. [ 23 ] The Supreme Court of Canada recently succinctly restated the law relating to the finding of a duty of care in Rankin (Rankin’s Garage & Sales) v. J.J ., 2018 SCC 19 . Karakatsanis, J stated at paragraphs 19 – 24: 19. … The plaintiff bears the legal burden of establishing a cause of action, and thus the existence of a prima facie duty of care: Childs , at para. 13.

In order to meet this burden, the plaintiff must provide a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendant's conduct in the context of a proximate relationship. In the absence of such evidence, the claim may fail: [authorities omitted] 20.

Once the plaintiff has demonstrated that a prima facie duty of care exists, the evidentiary burden then shifts to the defendant to establish that there are residual policy reasons why this duty should not be recognized: [authorities omitted] 21. … Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered.

22. … The wrongdoing relates to the harm caused. Thus, foreseeability operates as the "fundamental moral glue of tort", shaping thelegal obligations we owe to one another, and defining the boundaries of our individual liability: [authorities omitted] 23. In addition to foreseeability of harm, proximity between the parties is also required: Cooper, at para. 31.

The proximity analysisdetermines whether the parties are sufficiently "close and direct" such that the defendant is under an obligation to be mindful of theplaintiff's interests: …In cases of personal injury, when there is no relationship between the parties, proximity will often (though notalways) be established solely on the basis of reasonable foreseeability: [authorities omitted] 24.

When determining whether reasonable foreseeability is established, the proper question to ask is whether the plaintiff has"offer[ed] facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiffthat was damaged": A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at p. 322 (emphasis added).

This approachensures that the inquiry considers both the defendant who committed the act as well as the plaintiff, whose harm allegedly makes the actwrongful. … [authorities omitted] [24] Implicit in the above discussion, of course, is that the Defendants’ conduct under consideration is wrongful not only in thesense that it caused reasonably foreseeable harm, but also in the sense that it failed to meet the standard of care expected in thecircumstances. [25] In Jadhav v.

Kielly, 2019 NLCA 5 the Court of Appeal discussed the principles respecting causation generally and, inparticular, in respect of a motorcycle accident. Welsh, J.A., referring to several recent Supreme Court of Canada decisions, stated for thecourt at paragraphs 11 – 14: 11. Principles regarding causation are discussed in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. McLachlin C.J.C., forthe majority, explained: [8] The test for showing causation is the "but for" test. The plaintiff must show on a balance of probabilities that "but for" the defendant'snegligent act, the injury would not have occurred.

Inherent in the phrase "but for" is the requirement that the defendant's negligence wasnecessary to bring about the injury — in other words that the injury would not have occurred without the defendant's negligence. This isa factual inquiry.

If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action againstthe defendant fails. [Italics in the original.] . . . [11] Where "but for" causation is established by inference only, it is open to the defendant to argue or call evidence that the accidentwould have happened without the defendant's negligence, i.e. that the negligence was not a necessary cause of the injury, which was, inany event, inevitable. ... 12.

For example, in Clements, the accident occurred when the rear tire on the defendant's motorcycle deflated suddenly due to a nailpuncture, causing loss of control with resultant injury to the passenger. At the time, the motorcycle was overloaded and the defendantwas traveling faster than the speed limit in order to pass a vehicle. The matter was remitted for a new trial because the trial judge had notconducted a proper analysis, applying the "but for" test. 13. In Benhaim v.

St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, Wagner J., for the majority, summarized principles regarding whatis necessary in order to prove liability in negligence: [54] In sum, the Court held in Snell [ (SCC), [1990] 2 S.C.R. 311] that "the plaintiff in medical malpractice cases — as inany other case — assumes the burden of proving causation on a balance of the probabilities": Ediger, at para. 36. Causation need not beproven with scientific or medical certainty, however.

Instead, courts should take a "robust and pragmatic" approach to the facts, and maydraw inferences of causation on the basis of "common sense": Snell, at pp. 330-31; Clements, at paras. 10 and 38. The trier of fact maydraw an inference of causation even without "positive or scientific proof", if the defendant does not lead sufficient evidence to thecontrary. If the defendant does adduce evidence to the contrary, then, in weighing that evidence the trier of fact may take into accountthe relative ability of each party to produce evidence: Ediger, at para. 36.

14. In the case of a motor vehicle accident, the correct standard against which to assess the conduct of the driver is that of areasonably prudent driver in the particular circumstances (McLoughlin v. Luff, 2003 NLCA 3, 221 Nfld. & P.E.I.R. 54, at paragraphs 27and 32). [26] The claims by Kayla and Tanya against City Sand also engage the law of occupier’s liability as it applies in this jurisdiction. They claim that City Sand failed to take reasonable steps to keep them off their property and failed to have proper signage erected on theproperty to warn of the dangers of using the property for riding ATVs.

These claims necessarily include the assertion that, but for thesefailings, the accident would not have happened. [27] In this province, recent appellate authority has confirmed that the liability of property owners (occupier’s liability) will beassessed in accordance with the general principles of negligence law – foreseeability, proximity and reasonableness in thecircumstances. (See Stacey v. Anglican Churches of Canada (Diocesan Synod of Eastern Newfoundland & Labrador) (1999), (NL CA), 182 Nfld. & P.E.I.R. 1, 554 A.P.R. 1 (Nfld. C.A.); Gallant v.

Roman Catholic Episcopal Corp. for Labrador,2001 NFCA 22; and Williams v. Thomas Development

(1989) Corp., 2007 NLCA 54.) [28] This approach and the applicable principles were summarized in Williams at paragraphs 17 to 21: 17. The trial judge considered the duty of care applicable to Thomas Development as an occupier of premises. For this purpose, hereferred to Stacey v. Anglican Churches of Canada (Diocesan Synod of Eastern Newfoundland & Labrador) (1999), (NL CA), 182 Nfld. & P.E.I.R. 1 (Nfld. C.A.), quoting from paragraph 26 which refers to a duty of care with respect to "foreseeable riskof harm from any unusual danger on the occupier's premises".

However, in Stacey , the Court moved away from the test quoted atparagraph 26. Gushue J.A., speaking for the Court, explained the need for an adjustment in the law and concluded: [29] ... Therefore, what we would propose as the test for the evaluation of the liability of an occupier is essentially a rewording of the testset out at para. 26 above.

It is that: An occupier's duty of care to a lawful visitor to his or her premises is to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes forwhich he or she is invited or permitted by the occupier to be there or is permitted by law to be there. 18. This approach was discussed further in Gallant v. Roman Catholic Episcopal Corp. for Labrador (2001), 2001 NFCA 22 ,200 Nfld. & P.E.I.R. 105 (Nfld.

C.A.), in which Cameron J.A., speaking for the Court, reiterated the test set out in paragraph 29 ofStacey , noting that: [14] ... The classification of the claimant as an invitee, licensee or trespasser is no longer relevant; neither is the question of whetherthere is an unusual danger. ... 19. Cameron J.A. also referred to the test in Waldick v. Malcolm, (SCC), [1991] 2 S.C.R. 456 (S.C.C.). In that case,Iacobucci J., speaking for the Court, stated, at page 472: ... That duty is to take reasonable care in the circumstances to make the premises safe.

That duty does not change but the factors whichare relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation — thus theproviso "such care as in all circumstances of the case is reasonable". One such circumstance is whether the nature of the premises is ruralor urban. ... [emphasis in original] 20. In Gallant , Cameron J.A. set out some general principles particularly relevant in the context of clearing walkways of ice andsnow, but having application more generally: [27] ...

The following is not an attempt to create an exhaustive list but a collection of principles which emerge from the cases under thecurrent, generally accepted view of occupiers' liability and which are relevant to the law in this province, post Stacey: 1. There is a positive obligation upon occupiers to ensure that those who come onto their properties are reasonably safe [citationsomitted];

2. The onus is upon the plaintiff to prove on a balance of probabilities that the defendant failed to meet the standard of reasonable care — the fact of the injury in and of itself does not create a presumption of negligence — the plaintiff must point to some act or failure to act on the part of the defendant which resulted in her injury [citations omitted]; 3.

When faced with a prima facie case of negligence, the occupier can generally discharge the evidential burden by establishing he has a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what is commensurate with reasonably perceived potential risk to those lawfully on the property. An occupier's conduct in this regard is to be judged not by the result of his errors (i.e. whether or not the plaintiff was injured) but by the efforts themselves [citations omitted]; 4.

The occupier is not a guarantor or insurer of the safety of the persons coming on his premises [citations omitted]. 21. Cameron J.A. concluded: [30] In

summary, it can be said that the experience in other jurisdictions where the general law of negligence has been applied to occupiers' liability has not been to place an onerous burden upon the occupier. Generally the courts examine the procedures used by the occupier to ensure reasonable safety for the visitor.

What is reasonable is determined in the context of the circumstances of each case. ... [ 29 ] Despite the use of the phrase “those lawfully on the property” used in Gallant at point 3 quoted above, I read the decisions, overall, as confirming that the fact, in and of itself, that the Plaintiff is a trespasser will not, as a matter of law, affect the duty or standard of care owed to that person.

Rather, when considering the issues of duty and standard of care, all of the circumstances must be considered, including the foreseeability and nature of the trespass. [ 30 ] This is the basic law which I will apply in this case in respect of the relevant issues. In addition, as I deal with each individual issue, I will refer to other authorities and make other findings of fact relevant to each issue. analysis Who was Operating the ATV? [ 31 ] Before the question of negligence in respect of the various Defendants can be decided, the central issue of who was operating the ATV must be resolved.

Tanya alleged in her actions that Kayla was the operator of the ATV at the time of the accident, while, in her action, Kayla alleges that Tanya was the operator. [ 32 ] Gregory Hill and Jordan Hannam were friends. They lived near each other. Despite their disparity in age (four or five years), they both frequently used dirt bikes to go to a pole line, through a series of trails through the woods. They built shacks in the woods. The City Sand gravel pit was close by. The gravel pit was a common hangout for people on ATVs and dirt bikes.

Hill said it took about 10 to 15 minutes to get to it. [ 33 ] Hill said it was easy to access the pit on a four-wheeler ATV through five or six entry points. He said at times there could be up to 100 various types of off road machines in the pit with some of them being operated by adults. He said he never saw any security there and can’t recall any signs telling him to keep out. Although, he knew he wasn’t supposed to be there. He said he used ATVs, dirt bikes and snowmobiles in the pit. He said he recalled the accident on 1 October 2006.

He didn’t recall having seen Kayla and Tanya at the pit prior to that occasion. He only knew them casually through mutual friends. [ 34 ] Hill said that at the time of the accident Tanya Pender was driving the ATV. He said he had a clear, unobstructed view of the ATV at the time. He saw the driver and recognized her as Tanya. He saw the ATV going out of control and, while he didn’t see the ATV hit the crusher, he saw Tanya being thrown into the crusher. He had no recollection of what happened to Kayla. He said he and Jordan drove to where Tanya and Kayla lay on the ground.

He saw that both of them were injured and he attempted to assist them. [ 35 ] I accept the testimony of Gregory Hill on who was the driver of the ATV at the time of the accident. As one would expect, his recollections were not without some concerns. It must be recalled that he was testifying respecting an accident which occurred 12 years before when he was 17. One would expect him to be vague on some details and to not even recall some others. In preparation for his testimony, he read over a statement he had given the police the day of the accident.

There were some inconsistencies with what he testified to at the trial. For example, he said in his statement that he couldn’t recall how the girls had come into possession of the ATV. But he had a better recollection of this in his testimony, although it was fragmentary. He said he couldn’t recall when his recollection of this came to him. He admitted to having called Jordan a few nights before the trial to say hello because they hadn’t spoken in years. He said he couldn’t recall if they discussed the accident.

Jordan was not asked about the phone call in cross-examination. [ 36 ] In any event, Hill testified that he had a clear recollection that Tanya was driving the ATV when the girls left the group and that Tanya was still driving it at the time of the accident. Hill was consistent and clear on this and I accept his testimony. [ 37 ] Hill’s testimony was confirmed in fact by Kayla who was consistent and clear that it was Tanya who operated the ATV at the time of the accident and that she and Tanya had never switched places during their ATV ride. I accept her testimony on this point.

While Kayla’s recollection of the discussions leading to the borrowing of the ATV is sketchy, she had a clear recollection of themoments leading up to the accident. She recalled being the passenger on the ATV borrowed from Jordan with Tanya driving. She saidthey approached the rock crusher and were about to go under a “big bar” attached to the crusher, which I conclude on the evidence was alarge conveyor belt built in close proximity to the crusher. She recalled that it didn’t feel like Tanya was driving too fast or that the ATVwas out of control prior to the accident.

She said that there were no obstructions such as rocks or deep mud puddles to navigate. Shetestified that she had very little memory of the accident initially but her memory returned in part over time but she doesn’t recall strikingthe crusher and she has gaps in her memory. [38] There is no dispute that it was Tanya who was driving the ATV when she and Kayla left the company of Jordan and the othersin the gravel pit to go for a ride on Jordan’s ATV. This is confirmed by the testimony of Jordan, Gregory Hill and Kayla.

Tanya has norecollection of the accident or the events leading up to it. [39] Shortly after starting their ride, Tanya and Kayla drove out of sight of Jordan and the others. Jordan and Gregory Hill got onHill’s ATV to go to look for the girls and to retrieve the ATV. Hill’s testimony was that they went around a pile of aggregate and sawthe ATV with the two girls on it about 200 to 300 feet away. Neither of the girls was wearing a helmet so it was likely that Hill was ableto recognize who was driving. Hill was clear and definite in his testimony that he recognized Tanya as the driver.

Moments later, Hillsaid he saw the ATV fishtail and collide with the rock crusher. He saw the girls being ejected from the ATV. He drove to the scene andsaw Tanya and Kayla lying on the ground. [40] Jordan’s testimony was that since he was a passenger on the back of Hill’s ATV his view of the girls on the ATV was obscuredas Hill was bigger than him. He was not able to say who was driving at the time of the accident. [41] Tanya had no memory of the accident at all or the events leading up to it.

Importantly, in her testimony she did not say that sheand Kayla had switched places after going out of sight of Jordan and that Kayla was the driver of the ATV at the time of the accident. The only evidence that the girls had switched places and that Kayla was the driver of the ATV at the time of the accident came from astatement Jordan gave to an insurance adjustor some two and one half years after the accident. [42] In his testimony, Jordan resiled from that statement.

He said that his indication that Tanya and Kayla had switched placescame from the influence of discussion with others, including his parents, following the accident. He said there was much discussionabout how the accident occurred because of some of the injuries sustained by Kayla, especially her fractured pelvis. The steeringcolumn of the ATV had become detached in the collision so he said people speculated that Kayla’s pelvic injuries likely came from hercoming into contact with the steering column of the ATV which would only likely have occurred if she had been driving the ATV at themoment of the collision.

He said this speculation by him and others coloured his thoughts and it was on this basis that he stated to theinsurance adjustor that Kayla was the driver. Jordan’s mother also testified that she thought Jordan’s statement may have been impactedby family discussions. [43] I accept Jordan’s explanation for this inconsistency and I put no weight on his statement to the insurance adjustor.

After all, hewas still only about 15 years old when he gave this statement and the evidence is that there was much discussion and speculation overthe previous couple of years about the accident in light of the serious injuries sustained by Tanya and Kayla. [44] On the balance of probabilities, I find that Tanya was the operator of the ATV at the time of the accident. The evidence isoverwhelmingly in favour of that conclusion.

Was Tanya Pender negligent in operating the atv? [45] On the balance of probabilities, I conclude that the cause of the collision by the ATV with the rock crusher was inattention anddriver error by Tanya Pender, as well as excessive speed in all of the circumstances. I base this conclusion on the followingcircumstances. [46] The evidence satisfies me that Tanya knew how to operate an ATV. By her own admission, she had done so dozens of timesthat summer in the pole line. She borrowed ATVs from boys who were operating them in that area.

When she left with Kayla on theATV in the gravel pit, Jordan testified that it appeared to him that she knew how to operate the machine. She did not ask for anyinstructions on operating it. [47] The photographs of the accident scene taken by Constable Gosse of the Royal Newfoundland Constabulary (“RNC”) whoinvestigated the accident and which were taken on the day of the accident show a reasonably flat surface at the pit. Constable Gossetestified that he followed the tracks left by the ATV from the point of the collision with the rock crusher back to about 200 to 250 feetfrom the crusher.

He marked the path of the ATV on several of the photos. These showed that there were no obstructions between theATV and the crusher. There was a shallow puddle of water near the rock crusher which it appeared Tanya may have tried to avoid. Thatmaneuver may have been what appeared to Gregory Hill as fishtailing by Tanya. There was no evidence of braking of the ATV untilimmediately before the collision with the rock crusher. [48] There were no mechanical problems with the ATV. This was confirmed by an inspection carried out under the auspices of theRNC.

This was also confirmed by Jordan and Larry Hannam. [49] The rock crusher was a large stationary object attached to the ground. It was about 20 feet high and 10 to 12 feet wide. Thearea around it was unobstructed and suitable for regular automobiles and certainly ATVs. It was no different than many dirt roads in theprovince. There was a large conveyor belt close to the crusher (about 75 feet away) which Tanya drove under. The conveyor belt was18 to 20 feet above the ground and did not present an obstacle to a driver operating an ATV.

Kayla testified that as they approached thecrusher they went under a bar coming from the rock crusher. There was no bar protruding from the crusher so I conclude that the bar shereferred to was the conveyor belt. [50] There was no direct evidence of the speed at which the ATV was being driven at the time of the accident. Neither was anyexpert evidence called on the issue. In Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, at paragraphs 29-31, the Supreme

Court directed that courts should take a ‘robust and pragmatic approach’ to the assessment of evidence, including the drawing of inferences where appropriate, even in the absence of expert evidence. At paragraph 33, the court stated: 33. These references speak of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence. I find it preferable to explain the process without using the term secondary or evidential burden.

It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. See: Cross, 6th ed., at p. 129.

In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted. [ 51 ] I conclude that speed was also likely a factor in causing the accident for a couple of reasons. Firstly, while Hill could not estimate the speed of the ATV, he said he saw the ATV fishtailing immediately before the collision.

While there was no expert testimony on this, I conclude from viewing the photographs of the accident scene and the nature of the collision that in order to have dislodged its steering column during the collision, the ATV was being driven at an excessive speed in all the circumstances. Photographs show that the right front tire of the ATV hit one of the large steel I-beams fastened into the ground which anchored the rock crusher.

The ATV then appeared to spin to the left tossing the girls off where they either hit the ground or another of the I-beams attached to the crusher. [ 52 ] I am quite comfortable, based on my assessment of all the evidence, that driver error and excessive speed in the circumstances caused the unfortunate accident. To put it another way, ‘but for’ Tanya’s negligent conduct, the accident – and Kayla’s injuries – would not have occurred. Tanya is responsible to Kayla for damages sustained by her in the accident.

However, I must also determine whether negligent conduct on the part of any of the other Defendants contributed to the accident and, finally, whether Kayla was contributorily negligent. Jordan Hannam [ 53 ] Both Tanya and Kayla allege that Jordan was negligent in lending the ATV to them, irrespective of who was driving. Some of the other Defendants made the same allegation in their pleadings. I reject this allegation. [ 54 ] Jordan Hannam had just turned 13 years old a couple of days before the accident.

He had gone to the City Sand gravel pit to watch others do stunts on their dirt bikes on the piles of aggregate. He knew how to operate the ATV because he had taken it previously and he was described by his father as a boy who appeared to have a natural ability to operate such machines. His father had purchased him a small 100cc two-wheel dirt bike earlier that year or perhaps the year before, together with a dirt bike for himself so they could go riding together. He had also purchased identical helmets for each of them to wear. It is those helmets that Jordan and Gregory Pelley wore on the day of the accident.

Larry Hannam said Jordan was quite safety conscious and he had all the safety equipment required for operating dirt bikes and ATVs. [ 55 ] Jordan testified that he enjoyed riding his dirt bike through the trails in the woods and along the pole line close to his home. He and Greg Hill, who was 17 years old and therefore several years older than Jordan, often rode their dirt bikes together. They also liked to build shacks in the woods and have campfires and such.

He said he occasionally took his father’s ATV when his parents weren’t home without their permission and it was usually to carry materials and tools to build a shack which he couldn’t do on his dirt bike. [ 56 ] Jordan testified that he took the ATV when he and Hill built forts or shacks in the woods or when they went ‘into mud’. He said he did not like taking the ATV to the City Sand pit because all one could do was ride around in the open areas and that was not much fun.

He said he sometimes carried passengers on the ATV when he took it. [ 57 ] Kayla testified that she and Tanya had borrowed Jordan’s ATV about a dozen times during the past summer. Tanya testified that the time of the accident was the first time she had borrowed Jordan’s ATV. Jordan said he had never loaned the ATV before the occasion in which he loaned it to the girls on 1 October 2006. Hill said he had never seen Jordan lend the ATV prior to this occasion.

Based on the evidence, I conclude this was the only time that Jordan had lent his father’s ATV to anyone. [ 58 ] On 1 October 2006 Jordan wanted to use the ATV. His reason for doing so was unclear from the evidence. But he had met up with a friend, Greg Pelley, with whom he decided to go to the City Sand gravel pit to watch the dirt bike riders do stunts. The gravel pit was a significant distance away and his dirt bike was too small to carry a passenger. [ 59 ] In any event, he decided to take the ATV. In order to do so he first had to find the key to it.

He searched through his house and eventually found it in his father’s armoire in his parents’ bedroom. He then had to locate the key to the shed where the ATV was kept locked. Once he was able to get the ATV, he took his helmet and the identical one belonging to his father and gave it to Pelley who became the passenger on the ATV. They drove through the trails, through the tunnel under the Outer Ring Road highway and onto the City Sand gravel pit where they met Greg Hill and a group of other teenagers who were watching the stunts. Among the group were Tanya and Kayla.

Tanya approached Jordan who was the youngest person in the group and asked if she could borrow his ATV for a ride. Jordan said no. He testified that one of the two cardinal rules his parents had imposed when he was given his dirt bike was that he was not to lend his bike. The other rule was that he was to wear his helmet at all times. [ 60 ] Tanya, however, was determined not to take no for an answer. She persisted in asking Jordan to lend her the ATV three times.

I accept Jordan’s testimony on this point. [ 61 ] Eventually, Jordan relented and allowed Tanya and Kayla to borrow the ATV with Tanya as the driver subject to two conditions: that they both wear helmets which he provided to them (his and his father’s which Greg Pelley had been wearing) and that they not go out of his sight. While there was no direct evidence on this point, I infer that Tanya who had been asking Jordan for the ATV agreed to these conditions as Jordan loaned her the ATV. [ 62 ] Jordan testified that he asked Tanya if she had experience operating an ATV.

He said she told him that she did, having driven

one at her uncle’s cabin. He then agreed that Tanya could take the ATV subject to his two conditions. However, upon getting on theATV Tanya and Kayla refused to wear the helmets which had been given to them as they said it would mess up their hair. According toJordan, they threw the helmets on the ground and Tanya drove off on the ATV with Kayla sitting on the back as a passenger. He said itall happened very quickly as he had left the keys to the ATV in the ignition.

I conclude that Jordan told Tanya not to go out of his sight.Otherwise, it would not have made any sense for him and Hill to go looking for the girls only a minute or two after they went out ofsight. The ATV was apparently not designed to carry a passenger but it was supplied with a passenger seat. There was no evidencewhether this was a common practice with such ATVs or whether it presented a particular danger.

However, I conclude on the evidencethat it was common practice among young people in the area to take passengers on ATVs. [63] I accept Jordan’s testimony about the conversation with Tanya and Kayla leading up their borrowing the ATV. Jordan was 27years old when he testified. He is a student at the College of the North Atlantic. He was forthright and clear in his testimony. Where hecouldn’t recall some parts of the episode he said so. It was understandable that he might forget some details 12 years after an event thathappened when he was barely 13 years old.

I have already described the most significant inconsistency between his testimony and anearlier statement to an insurance adjustor and his explanation for it, which I accept. As well, some aspects of his testimony wereconfirmed by others. While he couldn’t recall the details, Greg Hill testified that he recalled a discussion between Jordan and Tanya andKayla about wearing helmets just before they borrowed the ATV. Kayla also confirmed that they were offered helmets which theyrefused for fear of messing up their hair.

Hill also confirmed that it was a standing rule by their parents of which he was aware that theydid not lend their dirt bikes and I conclude that Jordan would have been aware that this extended to the ATV if he took it. [64] Kayla also confirmed that Tanya had experience in operating ATVs as she had borrowed ATVs from boys over the pastsummer in the pole line and trails earlier described. However, I reject her testimony that she and Tanya had borrowed Jordan’s ATV adozen or more times over the past summer.

This is completely inconsistent with the rest of the evidence. [65] There was no reliable evidence that Jordan had ever loaned his father’s ATV to anyone before 1 October 2006 when he loanedit to Tanya. While Tanya could not recall the accident or the events leading up to it, her memory was clear on the events of the previoussummer. Tanya testified that she had never borrowed Jordan’s ATV before the events of 1 October 2006. I believe her. I also believeher when she stated that she had gained experience driving ATVs from borrowing them from other boys in the pole line that summer.

Ifind that her suggestion to Jordan that she had gained experience from riding an ATV at her uncle’s cabin was likely a momentarythought intended to convince Jordan to lend her the ATV. It is contrary to the evidence of Tanya’s parents. [66] Overall, I found Tanya was a credible witness who was straightforward and honest in her answers, even if they were contrary toher interests. I am satisfied that Kayla’s recollection that they had borrowed Jordan’s ATV a dozen times is incorrect. [67] So, the question remains whether Jordan was negligent in lending his ATV to Tanya and Kayla.

In doing so, he is not to bejudged by the standard of the reasonable person but whether he exercised the care expected from a child of like age, intelligence andexperience. This standard of care for children was stated in Nespolon v. Alford (1998), (ON CA), 110 O.A.C. 108, 80A.C.W.S. (3d) 1123, per Abella, J.A. (as she then was) at paragraphs 53 to 54. 53.

In determining the appropriate standard of care for children, the test is whether a child exercised the care expected from childrenof like age, intelligence and experience … This is both an objective and subjective standard, which acknowledges the need forindividualized treatment along with the need for consistency in the law... [authorities omitted] 54. This court has refined that test by holding that when children engage in adult activity, they will be held to the same standard asadults (McErlean v. Sarel, supra, at p. 412).

But it is the specific activity giving rise to the allegation of negligence one examines, notwhether the overall activity is normally an adult one. That means that in this case, although Alford and Berard were engaged in driving,an adult activity, the alleged negligent activity under examination was in dropping Kevin Snider off at the side of the highway in front ofthe Henesy home. This, in my view, cannot be said to be a particularly adult activity, and there is, therefore, no basis for holding theboys to an adult standard for their behaviour in this case. [68] In Hodder (Guardian ad litem of) v.

Waddleton (1993), (NL SC), 346 A.P.R. 222, 110 Nfld. & P.E.I.R. 222(Nfld. S.C. (T.D.)), Green, J. referred to the standard to be applied when considering an allegation of contributory negligence of ayouthful litigant. He stated at paragraphs 42 – 43: 42. In the case of children beyond tender age but below full maturity the standard of care expected is different.

In McEllistrum v.Etches (1956), (SCC), 6 D.L.R.(2d) 1 (S.C.C.), Kerwin, C.J.C., formulated the test at pp. 6-7 as follows: It should now be laid down that where the age is not such as to make a discussion of contributory negligence absurd, it is a question forthe jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience. … 43. Because the focus is on the age, intelligence and experience of the particular child, the standard of care becomes subjectivized.

Itis not sufficient simply to impose a standard equivalent to what a reasonable child of the particular age of the plaintiff could reasonablybe expected to do and to foresee under the particular circumstances. The court must consider not only age, but also intelligence andexperience of that particular child. In Heisler et al. v. Moke et al., supra, Addy, J., stated at p. 672:

All of the qualities and defects of a particular child and all of the opportunities or lack of them which he might have had to become aware of any particular peril or duty of care must be considered. The test is not completely subjective, however.

Once the intelligence and experience levels of the particular child have been ascertained, the question then becomes objectivized: the court must determine whether the particular child, in the words of Kerwin, C.J.C., in the McEllistrum case, exercised "the care to be expected from a child of like age, intelligence and experience". [ 69 ] In this case, Jordan Hannam was a child barely 13 years old who was the youngest in a group of older teenagers. Jordan described himself as an average student in school.

As an adult, he was still at 27 years of age trying to settle on a career path and was in school at the time of trial. I find that at best Jordan was of average intelligence and maturity at the time of the incident. He said he felt pressured in the circumstances to give into the persistence of Tanya in her efforts to borrow his ATV. Tanya was over 15 years old and Kayla was 16. In my view, it is understandable that a child of that age in such a setting might give in to the solicitations of a couple of older children who were as persistent as was Tanya, and Kayla to a lesser degree.

It is significant that Tanya did not ask to borrow the ATV of any of the other children who were there on ATVs as well, including Greg Hill who was 17. While Jordan was hanging around with older boys like Hill he cannot be judged by what they might have done if asked to borrow their ATVs.

As well, as in the Nespolon case, while Jordan was operating an ATV which is arguably an adult activity, it is not his driving which is under examination but his lending of the ATV which is not a particularly adult activity so I do not hold him to an adult standard in assessing his actions. [ 70 ] In the case at bar, I am satisfied that in lending the ATV to the girls, Jordan exercised the care to be expected from a child of like age, intelligence and experience.

While Jordan was only barely 13 years old, he had significant experience operating a two-wheel dirt bike and he had used his father’s ATV before this incident. He knew that he wasn’t to lend it. He knew that persons operating ATVs should wear a helmet as he always did. He put reasonable conditions on the lending of the ATV which both girls ignored. They refused to wear the helmets given to them. Tanya then drove the ATV out of sight of Jordan. In her testimony, Kayla did not say that at any point she asked Tanya to stop the ATV.

She willingly got on the ATV as a passenger and said she had no concerns about Tanya’s ability to operate the ATV. She had no concerns about Tanya’s actual operation of the ATV once they left the others for their ride. [ 71 ] In any event, as I’ve indicated, it was not the lending of the ATV which was the cause of the accident. It was the negligent driving of Tanya.

It was not reasonably foreseeable by Jordan that Tanya who told him that she had experience operating ATVs would disregard the condition that she not go out of his sight when the evidence is clear that there was plenty of space in which she could have operated the ATV within his sight.

And, more especially, it was not foreseeable to Jordan that, having told him that she had experience operating an ATV, Tanya would drive the ATV in a negligent manner over a relatively flat surface not materially different than an ordinary dirt road into a large stationary rock crusher which she testified she knew was in the pit and was clearly visible from at least 250 feet and likely as much as 1,000 feet away. (See also Rankin on the distinction between foreseeability of the act (theft in Rankin ) and the foreseeability of negligent driving). [ 72 ] In

summary, applying the standard of a barely 13-year-old boy of like age, intelligence and experience, it has not been established that Jordan failed to meet that standard. Neither is Jordan vicariously liable for the negligent driving of Tanya as there is no statutory or common law rule imposing such liability in the case of the use or operation of an ATV. I therefore dismiss Kayla’s and Tanya’s actions against him. Larry and Lona Hannam [ 73 ] Tanya and Kayla also sued Larry Hannam and Lona Hannam, Jordan Hannam’s parents, for negligent supervision of Jordan in his use of the ATV.

They allege that they permitted him to use the ATV and they failed in their parental duty to supervise him in doing so. They allege that in allowing him to use the ATV they breached the provisions of the Motorized Snow Vehicles and All-Terrain Vehicles Act , R.S.N.L.1990 c. M-20 (the “ Act ”). [ 74 ] The Act prohibits anyone under the age of 16 from operating an ATV of the size of the one in this case unless accompanied by a person who is at least 16 years old.

However, while Larry Hannam was the owner of the ATV, unlike the Highway Traffic Act , R.S.N.L. 1990, c.H-3 , the Act does not make the owner of an ATV vicariously liable for negligent actions of the operator. The Act imposes penalties upon conviction for operating an ATV without due care and attention but no charges were laid in this case. [ 75 ] As already indicated, the Act in

section 12 prohibits the owner of an ATV from knowingly permitting a person under the age of 16 to operate an ATV. [ 76 ] While Larry and Lona Hannam were very conscious of safety for Jordan, I find they were poorly familiar with the laws governing the operation of an ATV, including age restrictions. But as stated earlier, the breach of a statutory provision is not in and of itself evidence of negligence. It is, however, a factor which can be taken into account in the court’s considerations which I have done in respect of all allegations.

The actions of the Defendants must be examined carefully. [ 77 ] In order to succeed against Larry and Lona Hannam, Kayla must prove that the Hannams owed a duty of care towards her. In some circumstances a parent may be held accountable for the negligent actions of a child. This concept was examined by the New Brunswick Court of Appeal in LeLarge v. Blakney , [1978] 3 A.C.W.S. 328 , 44 A.P.R. 669 (N.B. (C.A.)) where it was stated at paragraphs 12 to 13: 12. The parental duty of care is a duty personally imposed upon the parent irrespective of the wrongdoing or the liability of a child.

The duty is to supervise and control the activities of the child and in doing so to use reasonable care to prevent foreseeable damage to others. The extent of the duty varies with the age of the child. The degree of supervision and control required of a young child may be very different from that required of a child approaching the age of majority. As the age of the child increases and the expectation that he will conform to adult standards of behaviour also increases, the parental duty to supervise and control his activities tends to diminish. The

law on the subject was discussed in Streifel v. Strotz et al. (1958) (BC SC), 11 D.L.R.(2d) 667, where the parents of 3boys aged 14 and 15 years were sought to be made liable to the owner of a car which the boys had stolen. Whittaker, J. said at p.668: The common law rule is that a father is not liable in damages for the torts of his child. Moon v. Towers (1860), 8 C.B. (N.S.) 611, 141E.R. 1306. There are certain exceptions to the rule. They are thus stated by Boyd C. in Thibodeau v.

Cheff (1911), 24 O.L.R. 214 at p.218: "Uponthis rule exceptions are engrafted, that where the father has knowledge of the wrongdoing and consents to it, where he directs it, where hesanctions it, where he ratifies it, or participates in the fruits of it, he becomes in effect a party to it, and as such is liable to the injuredperson." And at p.221: "It may safely be laid down that the father is liable for the conduct of his young child, if he knows of the child's frequentwrongdoing in a particular direction and, by his attitude or his inaction (when he is able to restrain or confine the child), he indicates hiswillingness that the misconduct should be repeated." See also Carmarthenshire County Council v.

Lewis [1955] A.C. 549 (H.L.). 13. It is apparent therefore that some special circumstances must be proven before liability can be imposed upon the parent for thetortious actions of his child. … [78] In order to establish a duty of care, Kayla must prove that she was a person in sufficient proximity (as that term is understood inlaw) to Larry and Lona Hannam that they ought to have had her in their reasonable contemplation so as to guard against foreseeablenegligence which may harm her. As was stated by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, paragraphs 30 – 34: 30.

In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is bestunderstood as follows. At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeableconsequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the firstpart of this test, that tort liability should not be recognized here?

The proximity analysis involved at the first stage of the Anns testfocuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in thebroad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the secondstage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the partiesthat may negative the imposition of a duty of care.

It may be, as the Privy Council suggests in Yuen Kun Yeu , that such considerationswill not often prevail. However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeabilityand proximity of relationship, there are other policy reasons why the duty should not be imposed. 31. On the first branch of the Anns test, reasonable foreseeability of the harm must be supplemented by proximity. The question iswhat is meant by proximity. Two things may be said.

The first is that "proximity" is generally used in the authorities to characterize thetype of relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through theuse of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity isestablished by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meetthe needs of new circumstances. 32.

On the first point, it seems clear that the word "proximity" in connection with negligence has from the outset and throughout itshistory been used to describe the type of relationship in which a duty of care to guard against foreseeable negligence may be imposed."Proximity" is the term used to describe the "close and direct" relationship that Lord Atkin described as necessary to grounding a duty ofcare in McAlister (Donoghue) v. Stevenson , supra , at pp. 580-81: Who then, in law, is my neighbour?

The answer seems to be — persons who are so closely and directly affected by my act that I oughtreasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are calledinto question. . . . . . I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it wasintended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to bebound to take care would know would be directly affected by his careless act. [Emphasis added.]

33. As this Court stated in Hercules Management Ltd. v. Ernst & Young, (SCC), [1997] 2 S.C.R. 165 (S.C.C.) atpara. 24, per La Forest J.: The label "proximity", as it was used by Lord Wilberforce in Anns, supra , was clearly intended to connote that the circumstances of therelationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligationto be mindful of the plaintiff's legitimate interests in conducting his or her affairs . [Emphasis added.] 34.

Defining the relationship may involve looking at expectations, representations, reliance, and the property or other interestsinvolved. Essentially, these are factors that allow us to evaluate the closeness of the relationship between the plaintiff and the defendantand to determine whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant. [79] The standard to be applied is that of reasonable parents respecting the forseeable risks which may be created by their child.

Parents are not expected to be perfect. [80] The Hannams did not know Kayla until after this accident. To their knowledge, Jordan did not know Kayla. There was noevidence of “expectations, representations, reliance … or other interests” between either of the Hannams and Kayla as referred to inCooper, supra. [81] Larry Hannam had specifically prohibited Jordan from using the ATV. Implicit in this is a prohibition from letting anyone elseuse it if he took it without permission.

Larry had also prohibited Jordan from lending his dirt bike and I am satisfied that Jordan wouldhave understood this as extending to the ATV. Lona left the ordering of the use of the ATV to Larry but she testified that she would nothave permitted Jordan to use the ATV if he had asked her. [82] Larry and Lona Hannam were aware that Jordan had taken the ATV before. He was admonished on each occasion. Larry hadput the keys to the ATV in a reasonably concealed place in the pocket of a coat in his armoire in his bedroom. He had not told Jordanwhere they were.

The ATV was in a locked shed, the key of which Jordan also had to secure in order to access it. These werereasonable measures to guard against Jordan taking the ATV without permission when they knew that he occasionally did so. [83] Jordan took the ATV while his parents were out for the afternoon. He did not have their permission to do so and he did itwithout their knowledge.

They were not aware that Jordan went to the gravel pit and they testified that if they had become aware of itthey would have prohibited his going there. [84] I am not satisfied on the evidence that Larry and Lona Hannam were unreasonably permissive in the training and supervision ofJordan. Indeed, the evidence is that they took positive steps to impose limits on Jordan’s use of his dirt bike and prohibited his use of theATV.

The evidence is clear that many youths used ATVs and dirt bikes in the trails and the pole line into which the trails led and indeedused the City Sand gravel pit. [85] While the Hannams were aware that Jordan occasionally took the ATV, he was admonished for doing so each time. Jordan’sparents took reasonable steps to restrict access to the ATV by keeping it in a locked shed and by not leaving the keys to the ATV in themachine.

The keys were placed in different locations in the house. [86] Larry Hannam in particular took steps to familiarize himself with the use of the dirt bike and only granted Jordan unsupervisedoperation of it when satisfied that he demonstrated proficiency in using it. [87] In Taggart (Litigation Guardian of) v. Heuchert, 2013 BCSC 1248, N. Brown, J had this to say concerning the legal principlesrespecting parental negligence at paragraphs 189 – 191: 189.

An error of judgment standing alone does not prove negligence if the parent's actions are those a reasonably careful parent mighthave taken, viewed by the standard of care generally accepted in the community. The standard of care is not one of perfection. It does notrequire a parent to take every possible step to ensure the safety of the child. It includes both an objective and subjective aspect. 190. The objective aspect requires a determination of the community standard at the time generally expected of a reasonably prudentparent.

The subjective aspect places the reasonably prudent parent in circumstances identical to those Ms. Taggart faced at time, andknowing only what she believed and understood. (See: Teno; and LaPlante (Guardian ad litem of) v. LaPlante, [1995] B.C.J. No. 1303(B.C. C.A.)). 191. The "community" is the community where the accident occurred. [88] Kayla further alleged that there was a heightened duty on Larry and Lona Hannam because Jordan had a propensity of whichthey were aware to take the ATV without permission. In M. (M.I.) v.

H. (T.) (1991), (BC CA), 1 B.C.A.C. 120, 27A.C.W.S. (3d) 928 two boys aged 13 and 14 were wards of the state living in a foster home. Over the course of a weekend they brokeinto several premises and stole things. Finally, they broke into a cabin and burned it. In overturning the trial judge’s decision, the Courtof Appeal held that, while the boys had a propensity to break into cabins and steal, they did not have a propensity to burn down cabins. On this basis, the Court concluded that the boys had no propensity to commit the act complained of and found that the foster parent

could not be held liable for the damage committed. [ 89 ] Such relatively infrequent use of the ATV by Jordan over a summer is not evidence of a propensity to take the ATV. It appeared to be more situational such as when he wished to go into the woods to build a fort which was apparently a common activity of him and Gregory Hill. The fact that he went into the pit on this fateful occasion with the ATV appears to have been an aberration. His evidence was that he would go to the pit on his dirt bike on occasion to watch people do stunts on the sand piles. He didn’t do these stunts himself as his bike was too small.

This accords with Kayla’s evidence that she saw Jordan at the pit that summer. [ 90 ] In any event, in this case, the alleged negligent act complained of by Kayla is not the taking of the ATV by Jordan but his lending of it to Tanya. Quite apart from the fact that that was not the proximate cause of the accident, Kayla did not prove that Jordan had a propensity to lend the ATV on the occasions that he took it. I have already rejected Kayla’s evidence that Jordan lent the ATV to Tanya a dozen or more times over the previous summer of 2006.

The most reliable evidence which I accept is that the only time Jordan loaned the ATV was on the occasion of the accident on 1 October 2006. There was, therefore, no propensity in Jordan to lend the ATV of which the Hannams could or should have been aware. [ 91 ] In Rankin the court held at paragraph 28 that when framing a category of harm captured by foreseeable risk, foreseeable physical injury in and of itself is too broad a category. The risk must be more specific.

In this case, there is no evidence that there was foreseeable risk that Jordan would lend the ATV to Tanya and Kayla, let alone that Tanya would operate the ATV in a negligent manner and cause injury to Kayla. To hold that such harm is foreseeable on the facts of this case would, in my view, extend the law of negligence of parents for the actions of their children too far. [ 92 ] To reiterate, it was not foreseeable by the Hannams that Jordan would lend the ATV to the girls, that Tanya would thereupon drive the ATV negligently, and that her negligent driving would cause an accident.

Foreseeability must be assessed before the accident and not with the aid of hindsight: see Rankin at paragraph 53. There was no proximity between Kayla and Larry and Lona Hannam. They did not owe her a duty of care. Further, if it were necessary to assess the Hannam’s conduct, I am not satisfied that it has been established that they breached the standard of supervision expected of parents of a 13 year old boy in semi-rural Newfoundland and Labrador. [ 93 ] I dismiss the claim of both Kayla and Tanya against them.

Richard Flynn and Joyce Squires [ 94 ] Tanya and other Defendants and/or third parties also alleged that Kayla’s parents, Richard Flynn and Joyce Squires, were negligent in supervising Kayla’s activities. At the time of the accident, Kayla was 16 years, 8 months old and in grade 11 at school. That summer, she spent almost every night at Tanya’s house. She was staying at Tanya’s house for the weekend of 1 October 2006.

Suzanne Pender testified that Kayla did not cause any problems and she saw nothing wrong or out of the ordinary with this arrangement between two teenage girls who are best friends. [ 95 ] Parents are not expected to supervise their older teenage children to the same extent as in the case of younger children. They are not expected to know their whereabouts every minute of the day or to know of their activities in detail. At Kayla’s age, they are young adults: LeLarge v. Blackney , supra . [ 96 ] In any event, by the time of the accident, the girls had returned to school and Kayla had returned to her own home.

There is certainly nothing unusual about a teenage girl having a weekend sleepover at the house of a friend as occurred on the weekend of 1 October 2006, particularly when her parents had the experience of the past summer with Kayla staying at Tanya’s house without any problems. [ 97 ] Kayla’s parents lived in Mt. Pearl, a community adjacent to Paradise but some considerable distance away from the pole line and gravel pit and Tanya’s residence. They had no knowledge that Kayla was hanging out at the “pole line” or that she was taking rides as a passenger on the back of ATVs belonging to other persons.

They did not know that Tanya often drove ATVs with Kayla as a passenger. In light of this, there was no reason for them to have instructed Kayla in the safe operation of an ATV. They did not own an ATV at the time. There was no reason for them to require Kayla to wear a helmet when on an ATV as they had no reason to think that she would be riding on one. In any event, Kayla testified that on 1 October 2006 she knew that she should wear a helmet when riding on an ATV in order to protect her head from injury in case of an accident.

The injuries to her were not foreseeable by her parents. [ 98 ] I therefore find that a case in negligent supervision against Richard Flynn and Joyce Squires has not been made out. I dismiss all claims against them. city sand and gravel [ 99 ] Tanya claimed that City Sand knew or ought to have known that its’ premises were being used by ATV riders and that it was ‘reasonably foreseeable that personal injury would occur as a result of such use’. She alleged that City Sand did not take any steps ‘to prohibit such use’ by posting signs or locking security gates.

She alleged that such ‘acquiescence’ to the use of its premises amounted to a breach of its duty of care. Specifically, Tanya alleged that City Sand failed to erect signage prohibiting use of ATVs on its premises; failed to secure the gate to its premises to prevent the entry of ATVs and, generally, failed to prevent the use of its premises by ATVs. [ 100 ] Kaya alleged compendiously that City Sand was negligent in not taking steps to prohibit the use of its premises by posting signs or locking its’ security gate.

She stated that City Sand ‘breached [its] duty of care as it ought to have known that personal injury would likely occur’. As already noted, these allegations necessarily include the assertion that but for these failings on the part of City Sand, the accident would not have happened. [ 101 ] Did City Sand owe Tanya and/or Kayla a duty of care? If so, did it fail to take all reasonable steps in the circumstances to ensure that the accident would not happen as it did?

Specifically, as alleged, did City Sand breach any duty of care owed to Tanya and or Kayla by failing to prevent their entry to the quarry area whether by signage, locked gates or otherwise? Based on the evidence, my

conclusion is that, in the circumstances, City Sand did not breach any duty of care owed to either of the girls. [ 102 ] The evidence is clear that the City Sand gravel pit was a common hangout for young people (and sometimes adults) on the weekends to operate their ATVs and dirt bikes. The pit was closed for operation on weekends and was often accessed by persons on ATVs and dirt bikes at those times.

City Sand was aware of this. [ 103 ] The City Sand property is a commercial quarry lawfully used to blast rock from the bedrock on the property and crush it into different sizes of smaller stone suited for various industrial purposes. The quarry is approximately 46 acres (18.5 hectares) in size and measures approximately 600 ꞌ x 1,000 ꞌ in dimension. It is located between Topsail Road and the Outer Ring Road in the Town of Paradise on the outskirts of St. John’s. [ 104 ] Robert O’Keefe, the Operations Manager of City Sand, testified on behalf of the company.

He said that City Sand has operated an industrial rock crushing business on the pit since the early 1990’s. Since that time, St. John’s, Mt. Pearl and Paradise have grown up around the pit. The Outer Ring Road wa

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