"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
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
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  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
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.
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