Fleming v. Atkinson

Fleming v. Atkinson

The Supreme Court (majority) held that the rule in Searle v. Wallbank does not preclude imposing an ordinary duty of care in Ontario where an owner knowingly permits or affirmatively places animals in the highway; Ontario’s historical highway title and modern traffic conditions allow application of ordinary negligence principles to straying animals, so the owner may be liable for harm caused by animals he permits to be at large on the highway.

Citation
[1959] SCR 513
Parties
Appellant / Defendant: Leo Fleming; Respondent / Plaintiff: Floyd Atkinson
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
25 March 1959
Procedural Posture
Civil Appeal – Tort (negligence Involving Animals) / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal dismissed; judgment of the Court of Appeal for Ontario affirmed (majority); two justices dissented
Legal Topics
Straying Cattle, Duty of Care of Adjoining Landowners, Trespass, Causation and Proximate Cause, Comparative Negligence, Application of English Common Law in Ontario
Source Language
English
Torts Negligence Property/highway Law Animal Law Straying Cattle Duty of Care of Adjoining Landowners Trespass Causation and Proximate Cause +2 more

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Parties

Leo Fleming

Appellant / Defendant

Floyd Atkinson

Respondent / Plaintiff

Procedural Posture

Civil Appeal – Tort (negligence Involving Animals) / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether an adjoining landowner owes a duty of reasonable care to highway users to prevent domestic animals from straying onto the highway
  2. 2 Whether cattle grazing unattended on a highway are trespassers and effect of that status on liability
  3. 3 Whether the English rule in Searle v. Wallbank (no duty) applies in Ontario

Ratio Decidendi

The Supreme Court (majority) held that the rule in Searle v. Wallbank does not preclude imposing an ordinary duty of care in Ontario where an owner knowingly permits or affirmatively places animals in the highway; Ontario’s historical highway title and modern traffic conditions allow application of ordinary negligence principles to straying animals, so the owner may be liable for harm caused by animals he permits to be at large on the highway.

Court Disposition

Appeal dismissed; judgment of the Court of Appeal for Ontario affirmed (majority); two justices dissented

Orders

  • Appeal dismissed with costs
  • Judgment below affirmed (plaintiff awarded damages as per Court of Appeal)