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Rail Carrier’s Liability as Occupier of Right of Way
Published in the September 2008 issue of Transportation Notes - View Article
In a decision of August 25, 2008, the Court of Appeal for British Columbia released the first appellate decision to consider the 1998 amendments to that province’s Occupiers Liability Act. The 1998 amendments create a lower standard of care where specified conditions are met. The general purpose of these amendments, which find corresponding provisions in a number of jurisdictions, is to encourage rural landowners to open their properties to recreational use by lowering the legal responsibility they may be required to shoulder in respect of injuries caused by dangerous conditions on their property. The case of Skopnik v. BC Rail raises the question of whether a rail company should enjoy the lower standard of care in respect of conditions existing on the right of way associated with its tracks. The Court of Appeal, in a split decision, has decided that it should.
The case arose out of an accident which occurred in April 2000. Larry Skopnik was riding an all terrain vehicle along the right of way of BC Rail in the foothills of the Rocky Mountains. As he crested an excavated area his vehicle took to the air. It landed with enough force to cause a serious spinal injury. It was accordingly necessary to consider the standard of care to which BC Rail should be held for the purpose of allocating responsibility for the accident.
The original occupiers liability statute imposed a high standard of care but this was twice modified, once in 1989 and most recently in 1998.
The 1989 amendments introduced the idea of a reduced duty applicable to a defined class of persons. That class consisted of all those who willingly accept risks as well as those who enter property used primarily for agriculture, provided, in the case of the latter, they would be trespassers under the Trespass Act. The reference to the trespass legislation is significant as one may well be a trespasser at common law without being a trespasser under the Act. The reduced duty applicable to this class is the duty not to create dangers with intent to harm and not to show reckless disregard for the safety of a member of the class.
The 1998 amendments did not change the definition of the duty owed, but did expand the class of persons to whom this more restricted duty is owed. This expansion, which has as its primary purpose the encouragement of recreational activities in relatively undeveloped areas, is achieved by a two step process.
First, to be included in the class, a person must be a trespasser (and there is no reference to the Trespass Act) or must have entered for a recreational purpose without payment to the occupier of the lands. If this condition is met, one must next consider the nature of the lands. Only if the first condition is met and the lands fall into one of the denominated categories will the lower duty apply. Among the denominated categories, the most relevant for the purposes of the case is defined as follows: “utility rights of way and corridors excluding structures located on them”.
The first question, namely whether Skopnik falls within the class of persons who might be entitled to only the lesser standard, was decided on the basis that he was indeed a trespasser. The Court did not consider whether he might fall within that class by reason of recreational use.
The trial judge had decided that he was not a trespasser, although that comment was obiter. The Court of Appeal pointed to the difference between the 1989 and 1998 amendments. As noted above, the first made reference to the Trespass Act to define “trespasser”. The latter makes no reference to the Act. At common law trespass is an absolute, that is, it does not depend on the knowledge of the trespasser. You may be a trespasser even if completely unaware of the fact, and even if you have an honest belief you are not trespassing. However, under the Act, you cannot be a trespasser unless the lands are enclosed or marked by notices. Skopnik would not have been a trespasser under the Act, but he was at common law. Thus, the first condition was met.
That being the case, BC Rail would be held to the lower standard of care provided the lands on which the accident occurred are comprised in one of the designated categories. There were two candidates: rural lands which are vacant or undeveloped and utility rights of way.
The case was decided on the basis of the latter category. What was necessary then was to decide whether BC Rail qualified as a “utility”. The trial judge approached the definition of utility by reference to the purpose of the amendments. This was to accommodate “an expressed willingness by representatives of recreational users to accept greater risks on unmanaged ‘wilderness’ type of lands in exchange for greater access to those lands”. The judge was of the view that when defining “utility” he could consider whether the particular right of way was on lands which had the necessary “wilderness” character. He found the lands did not have this characteristic as they were subject to regular inspection.
With respect, it appears to us illogical to define the nature of the land occupier (i.e. whether it is a utility or not) by reference to the character of the land constituting the right of way. Nevertheless, as the Court of Appeal pointed out, the judge also conducted the analysis of the character of the land on the basis of an incorrect understanding of the evidence. The rights of way extended some 100 feet on either side of the track. The mandatory inspections were of the track itself and to a very limited degree some of the surrounding right of way. The picture the trial judge painted of a highly regulated right of way was simply false. Having countered the judge’s argument in this fashion, the Court of Appeal went on to find that BC Rail was indeed a utility. That being the case, the second condition was met. As there was no evidence that BC Rail had intentionally or recklessly contributed to the accident, the claim was dismissed.
One justice, in dissent, favoured a more restrictive reading of the conditions under which the reduced standard would apply. She would have sent the matter back to a new trial for determination of liability on the original occupiers’ liability standard.
Skopnik v. BC Rail
2008 BCCA 331