July 2007

"Common Carrier" of Passengers - Is it all fun and games?
A Case note of Mallais et al. v. D.A. Campbell Amusements Ltd. 84 OR (3d) 687

In this Ontario Court of Appeal decision, the Court held that an amusement park ride is not a "common carrier" for the purposes of Canadian tort law. In this decision, the Court provides useful insight as to what is a "common carrier" and what is the responsibility of a common carrier of persons.

The defendant set up its portable carnival temporarily at a local mall in Newmarket, Ontario. Ms. Mallais, the plaintiff, along with her five month year old daughter, were out for the afternoon. Ms. Mallais stopped at the carnival on their way home and went to take a ride on the "Sky Master." This is one of those amusement rides where the passengers are locked in with a shoulder restraint and the car is rocked to and fro until it makes a complete 360 degree revolution. Ms. Mallais claimed that the ride attendant did not ensure that she was properly restrained. She further claims that she was tossed about during the ride and was injured.

At trial, the plaintiff argued that the defendant's negligence should be analyzed at the standard of a "common carrier," thus arguably having a higher burden to establish that is used all due, proper and reasonable care and skill to avoid or prevent injury to the plaintiff and that the care required was a of a very high degree. The trial judge rejected this argument and charged the jury only on the standard law of negligence and the Occupiers' Liability Act, R.S.O. 1990, c. O.2. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal and in doing so, provided some valuable insight as to how the court assesses whether someone is a "common carrier" and what is a common carrier's responsibility.

With respect to level of responsibility of a "common carrier", the Ontario Court of Appeal cited approvingly the 1940 Supreme Court decision of Day v. Toronto Transportation Commission [1940] S.C.R. 433 as to the higher standard of care required by a common carrier, specifically stating that it is a "reverse onus".

"Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree"

The Court of Appeal also provided a definition for "common carrier" that is equally applicable to passenger and cargo carriers. The Court, after an exhaustive analysis of previous Canadian and American cases holds that the term "common carrier" should be given its natural and ordinary meaning, namely:

"… a person or company undertaking to transport any goods or passengers on regular routes at agreed rates"

The Court looked at the dictionary definition of the word "transport" - "to take or carry (people or goods) from one place to another by means of a vehicle, aircraft, or ship"

The Court found that for something to be a "common carrier," the primary focus should be on its natural and ordinary meaning. Specifically, whether Ms. Mallais ill-fated time on the "SkyMaster" fits within the dictionary definition. The Court ruled that an amusement park ride did not fit within that definition.

Furthermore, the Court also ruled that underlining policy rationale for imposing a higher duty of care did not apply to the case. Passengers place themselves in the care and control of a common carrier expecting that they will have a safe ride to their destination. Somebody agreeing to ride an amusement ride expects a "thrill." A safe "thrill" ride is inherently riskier than a safe ride. The amusement park patron is entitled to expect that the operator will take such care as in all the circumstances of the situation is reasonable to ensure his or her safety. To go beyond that and impose the higher duty owed by a common carrier was inappropriate.

Demetrios Yiokaris