ALFRED WILLIAM LUDDITT Vs. GINGER COOTE AIRWAYS LTD

JUDGEMENT

(1.) The three appellants were, on 29 November 1940, being carried as passengers for reward on an aeroplane operated by the respondent Company which was flying from the City of Vancouver to Zaballos on Vancouver Island. During the flight the aeroplane caught fire. Owing, as is not now contested, to the negligence of the respondents' servants, each of the appellants was injured. The appellants severally brought action in the Supreme Court of British Columbia claiming damages for the injury which they had sustained. They succeeded in their claim before the trial Judge and damages were assessed under the judgment in their favour dated 25 June 1941; but that judgment was set aside by a majority of the Judges of the Court of Appeal for the Province of British Columbia. On an appeal from that judgment to the Supreme Court of Canada, that Court in its turn by a majority affirmed the decision of the Court of Appeal. From that judgment the present appeal has been brought before this Board pursuant to special leave.

(2.) There is now no dispute on the facts or as to the amount of damages. The sole question is whether an express condition contained in the ticket issued to each of the appellants which exempted the respondent from liability is valid so as to exonerate that Company from any obligation to compensate the appellants for their injuries; or whether it is illegal and void. The answer to the question depends on the express terms of the ticket, the general law, and the relevant conditions of the Transport Act, 1938, and the Orders of the Board of Transport Commissioners established under S. 3 of the Act, which has for one of its purposes the control of contracts of this type.

(3.) The express contract was embodied in a single trip ticket from Vancouver to Zeballos dated 28th November 1940, which was issued by the respondents to each of the appellants, the fare being $25 for the carriage. Each passenger signed the ticket before a witness and the most material provision is as follows: "This ticket is expressly subject to the conditions below: In consideration of the Ginger Coote Airways Ltd. of Vancouver, B. C., permitting me, at my own risk against all casualties to fly as a passenger in any aircraft owned or operated by the said Ginger Coote Airways Ltd., I hereby agree with the Ginger Coote Airways Ltd. that such flight is, and shall be at my own risk against all casualties to myself or my property and that I take all risk of every kind, no matter how caused, and I hereby release and discharge the Ginger Coote Airways Ltd. and indemnify it of and from all actions, claims and demands of every nature and kind whatsoever, which I, or my heirs, executors, administrators or assigns may now, or may or can at any time hereafter, have against the Ginger Coote Airways Ltd., for or on account of any loss, damage or injury to me, my person or property while so flying, and whether in or on any such aircraft or getting to or from, into or off, or in or out thereof; or in any manner in connection with or in consequence of such flight, and whether any such loss, damage or injury be caused by negligence, default or misconduct of the Ginger Coote Airways Ltd., itself, servants, agents or members, or otherwise howsoever."