Per Duff J.-Any physical object handled or directed can be a cause of damage within the meaning of article 1054 C.C.; an automobile, for example, containing within itself its own forces of propulsion causing harm by impact is a "thing" causing "damage"
within the meaning of that article.
Per Duff J.-As between the appellant and the respondent, it cannot be assumed under article 1054 C.C., but must be proved, that the machine which the respondent was operating was a thing in the care of the appellant.
Per Brodeur J.-The appellant is also liable under article 1053 C.C. Judgment of the Court of King's Bench (Q.R. 32 K.B. 443) affirmed, Davies C.J. dissenting.
*PRESENT:-Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.
55476-1 appeal side, province of Quebec (1), affirming the judgment of the Superior Court, Martineau J. and maintaining the respondent's action for $5,000.
The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.
Cook K.C. and Heney for the appellant. The use of goggles by the appellant's workmen in connection with the operation in question was impracticable and unnecessary. In any event, the appellant complied with its legal duty in regard to goggles by providing the same for the use of its skilled mechanics who thoroughly understood the character and dangers of the work in which they were engaged. No legal duty was placed on the appellant to force its expert workmen to wear these goggles.
The use of a guard over the cutting tool of the lathe was impracticable, unnecessary and unknown, and the failure of the appellant to devise such a guard which nobody else had devised or used on a machine which had safely been operated for over three years would not in law constitute an act of negligence attaching legal responsibility for injury.
The determining cause of the accident was the fault and negligence of the respondent himself in placing his head too close to the machine while the same was in operation and in not properly attending to his duty.
Ogden K.C. and Popliger for the respondent. Under Art. 1054 C.C., as interpreted by the Privy Council in Quebec Ry. L.H. & P. Co. v. Vandry (2), it was incumbent upon the appellant to exculpate itself by affirmative proof that it could not have prevented the accident, which evidence had not been made.
(dissenting).-After reading the evidence in this case, I am not prepared to hold that the suggested guard upon the machine which the plaintiff was operating when he was injured was practicable having regard to the working efficiency of the machine. There is no evidence which affirmatively establishes that proposition and it appears to me that the absence of such evidence is fatal to the plaintiffs claim.
The plaintiff, himself a skilled workman, aged about 28, admitted that it was not customary in factories for guards to be placed on machines of the kind he was operating when injured. No one else stated that such guards were customary or known.
The machine manufacturers had never supplied them. The provincial inspectors had never suggested their use. Neither in Canada nor elsewhere were they shewn to have been used.
I think the duty of proving that such a guard was feasible and practicable, having in view the efficiency of the machine, lay upon the plaintiff, and that the defendants could not be held liable for such an accident as happened to the plaintiff unless such evidence was given.
In the late-case of City of Montreal v. Watt & Scott (1), their Lordships of the Privy Council explained what was meant by them in the case of the Quebec Railway Light, Heat & Power Co. v. Vandry (2) as to the proper construction of article 1054 of the Quebec Civil Code, namely, that the words " unable to prevent the damage " meant It becomes then a vital question as to whether the suggested guard, having regard to the necessary efficiency of the machine being operated, was a reasonable means of preventing such damage as the plaintiff suffered here. In other words, was it practicable?
No evidence was given to shew that it was. And the universal absence of its use anywhere on similar machines would, it seems to me, lead to the conclusion that it was not.
As to the conclusion that it was the duty of the defendants to have compelled the workmen to wear goggles, the learned judge found that their use was impracticable and that no fault could be imputed to the defendants in that regard. I can only say that I agree with him and the learned dissentient judges of the Court of King's Bench on that point.
For these reasons, I would allow the appeal and dismiss the action.
J.-For the reasons assigned by the learned trial judge, and those in appeal agreeing therewith, I would dismiss this appeal with costs.
J.-As regards the merits of the appeal as a whole I do not dissent from the conclusion at which the court has arrived.
There are points, however, of great importance raised in the course of the discussion and to some extent considered in the judgments of the Court of King's Bench which cannot, I think, properly be passed over without an observation or two.
And first, I am unable to agree with the suggestions which have been advanced as to the limited scope of Art. 1054. By that article there are three conditions of responsibility. One is that the plaintiff shall have suffered damage, another is that the damage shall have been caused by a " thing " and the third is that the " thing " causing the damage shall have been under the care of the defendant or of some person for whose conduct he is responsible vis & vis the plaintiff. The responsibility is the legal result of the concurrence of these factors unless the defendant brings himself within the exculpatory clause by shewing that the damage could not have been avoided by him through the use of means which he might reasonably have been expected to employ.
I confess I am unable to understand the contention that a physical object handled or directed (as an automobile, for example), cannot be a cause of damage within the meaning of Art. 1054. This view seems to me to involve the assumption that the more complete the control the defendant has over the physical object which is the cause of the harm the less cogent is the presumption against him of responsibility. I cannot understand why, for example, an automobile containing within itself its own forces of propulsion causing harm by impact may not be a " thing " CA ni causing " damage " within the meaning of Art. 1054. It is quite true that until recently the courts in France Sm"H seem to have been committed to the doctrine which limits the application of Art. 1384 to cases of damage caused by the " fait autonome " of the thing. That doctrine appears, however, to have been discarded and it is worth while I think to quote in full the note of M. Rend Demogue in 20 Rev. Trim. at p. 734 in the following words:
La Cour de Cassation (ch. civ. 6 nov. 1920, D. 1921. 1. 169) a rendu un arrUt qui marque une 6tape dans la th6orie de la responsabilit6 du fait des choses. Un incendie 6clatant dans une gare est aliment6 per des r6sines qui s'y trouvaient et il gagne des installations voisines. La cour a d6clar6 " qu'il n'est pas n6cessaire que la chose ait un vice inh6rent A sa nature susceptible de causer le dommage, I'art. 1384 rattachant la responsabilit6 h, la garde de chose, non h la chose elle-mame." Aussi a-t-elle cass6 l'arrit qui, pour refuser d'appliquer Particle 1384, d6clarait que la cause du dommage doit r6sider dans la chose et que la r6sine n'avait pu s'enflammer spontandment.
Cette solution est en opposition avec la jurisprudence ant6rieure des cours d'appel (v. Bordeaux, 26 oct. 1909, S. 1914, 2. 214 en note; Paris, 23 mars, 1911, S. 1913, 2. 302), La port6e de I'arrt actuel est consid6rable.
On pourra l'invoquer pour obtenir indemnit6 si un incendie se communique du mobilier d'une maison h la maison voisine, si un objet mani6 ou dirig6 cause un dommage. Ce sera donc Ia cons6cration de cette ide sociale: quiconque a le profit d'une chose mobilibre doit supporter le dommage qu'elle occasionne. Cette base donne h cette innovation une chance trbs s6rieuse de se consolider. L'arr&t pr6cise un autre point. La responsabilit6 de Particle 1384 ne peut ftre d6truit que par la -preuve d'un cas fortuit ou d'une force majeure non imputable au d6fendeur.
ne suffit pas de prouver que l'on n'a commis aucune faute ou que la cause du dommage est inconnue. Ainsi se trouve condamn6e l'opinion d'un arrat ant6rieur qui se contentait de l'impossibilit6 de d6terminer la cause de l'accident (Req. 30 mars, 1897, S. 98, 1. 65) Il faut prouver un fait d6termin6: ainsi le terme de pr6somption de faute parait insuffisante. Il y a une responsabilit6 l6gale ne comportant que des causes pr6cises d'exondration. Par RA encore Ia responsabilit6 se trouve 6tendue.
This note by the eminent commentator may well serve as a warning against the risk of adopting too readily as a guide for the application of Art. 1054 C.C. the decisions of the French courts on the subject of responsabilitg. The note also brings into relief the fact that the developinent of la jurisprudence on this subject in France has gradually come under the influence of a definite doctrine of social responsibility, a doctrine on its legal side known as le risque cri6. It cannot be too rigorously insisted upon that the natural meaning of the language of Art. 1054 cannot properly be expanded in deference to any such doctrine. Art. 1054 lays down a rule of the law and the scope of the rule must be ascertained by the usual means of interpretation.
in
That brings me to a point raised by this appeal in respect of which there has been no discussion but which I think it is my duty to mention.
And that is the question, whether or not, as between the appellant company and Smith, the machine which Smith was operating was a thing in the care of the appellant company. In France it has been assumed that in such circumstances the machine was in the care of the employer, but the assumption rests upon an application of the doctrine above referred to-the doctrine that the person who derives the profit from the operation of a movable thing must incur the loss incidental to the operation of it. That is not an admissible ground upon which a similar view as to the effect of Art. 1054 can be based.
Whether or not in the particular circumstances of this case the conclusion that the machine was in the company's care within the meaning of this article is a point upon which I express no opinion. We have had no argument upon it.
J.-In my opinion this case falls within the purview of Art. 1054 C.C. It is a case of damage caused by a thing under the defendant's care. Not only is all contributory fault on the part of the plaintiff negatived, but human intervention, either by him or by any other person, was not a factor in the causation of the injury. Montreal Tramways Co. v. Frontenac Breweries
The plaintiff was operating the defendant's lathe in the normal way necessary for the work on which he was engaged: the flying off of the metal chips was an inevitable consequence of such operation. As put by Mr. Justice Dorion:- That he can do, as held by their Lordships of the Judicial Committee in Quebec Railway, Light, Heat and Power Co. v. Vandry (1) only by
-which, as their Lordships' later judgment in City of Montreal v. Watt & Scott (2), explains, implies " unable by reasonable means."
The burden of establishing this exculpation falls on the defendant. The learned trial judge found that the plaintiff had affirmatively established that the absence of a guard on the machine constituted fault sufficient to entail responsibility under Art. 1053 C.C. The majority of the learned judges of the Court of King's Bench approved of that finding and also held that failure of the defendant to insist on the workman operating the machine in question using goggles amounted to actionable fault.
There is evidence in the record to support both findings. The efficiency of the precautions which were found to have been wrongfully omitted is probably established; their practicability seems to be much more open to question. I am by no means satisfied that I should have found that it had been affirmatively established. On the other hand, giving to the findings made below the weight to which they are entitled, I am not prepared to say that it is so clearly proven that the defendant was unable by the use of one or other of these means-both certainly reasonable in themselves if efficient and practicable-to prevent the act (le fait) that caused the damage for which the plaintiff seeks to -recover that the judgment in his favour, affirmed on appeal, should be set aside here.
J.-Que cette cause soit d6cid6e sous l'autorit6 de l'article 1053 ou de l'article 1054 du code civil, je suis d'opinion que la d6fenderesse, la compagnie Vickers, a engag6 sa responsabilit6.
Y a-t-il eu faute de la part de la compagnie? Je n'h6site pas A dire que oui.
Cette machine h laquelle travaillait Smith 6tait incontestablement dangereuse.
La preuve a 6t6 contradictoire sur ce point, mais le juge qui pr6sidait au procks a ordonn6 une expertise; et l'expert, dont la comp6tence ne saurait tre mise en doute, vu qu'il est h la tote de 1'6cole technique, a fait fonctionner cette machine et a rapport6 que dans sa marche normale elle pouvait causer l'accident dont le demandeur Smith a td le victime.
Le patron d'un 6tablissement industriel est oblige de protiger ses ouvriers contre les dangers qui peuvent 6tre la consequence de leur travail; il doit privoir non-seulement les causes habituelles mais mime possibles des accidents, et il doit prendre les mesures propres h les 6carter. Sirey, 1878. 1. 412.
Dans le cas actuel, il est en preuve que cette machine dont se servait Smith a projet6 de menues parcelles ou brindilles d'acier qui lui ont atteint l'ceil et qui en ont n6cessit6 l'ablation.
La compagnie aurait dfi installer un 6cran ou un appareil qui aurait pu prot6ger l'ouvrier contre ce danger. Elle ne 'a pas fait.
Elle a pr6tendu que l'installation de cet appareil n'aurait pas permis une production aussi consid6rable.
Cette pr6tention ne saurait la relever de sa responsabilit6. Est-ce que la vie ou la sant6 de l'ouvrier ne demande pas une protection constante de la part de son patron; et ce dernier a-t-il le droit de sacrifier son ouvrier pour avoir une production plus consid6rable?
C'est l faire parade d'un 6goisme qui ne saurait avoir grAce devant les tribunaux. Le patron doit veiller h la sareth de son employ6.
Mais le patron dit: Nous n'avons jamais eu d'accidents sur cette machine, et 1'6cran qu'on me demande d'installer n'est en usage dans aucune usine. Sur ce point, il y a conflit dans la preuve. Le demandeur a prouve que pour des machines semblables offrant le mime danger, on se servait d'une couverture ou d'un 6cran. De plus, il a demand6 de rouvrir son enquite pour prouver que des machines absolument semblables 6taient munies de cet appareil protecteur. Le juge n'a pas cru n6cessaire d'accorder cette demande, 6tant convaincu 6videmment que la preuve 6tait d6ji assez forte pour donner gain de cause au demandeur.
Si cette cause doit 6tre d6cid6e sous 1'autorit6 de larticle 1054, si le dommage a 6t6 cause " par une chose qui 6tait sous la garde " de la compagnie Vickers, il incombait h cette dernibre de prouver qu'elle n'a pu empicher le fait qui a caus6 le dommage.
La pr6somption de faute 6dict6e dans ce cas ne peut etre d~truite que par la preuve d'un cas fortuit ou de force majeure ou d'une cause 6trangbre qui ne lui soit pas imputable. Dalloz, 1920.1.169.
La d6fenderesse n'a pas 6t6 en position de ditruire cette pr6somption de faute qui 6tait 6dict6e contre elle. Elle a, je crois, mis au dossier tous les faits qu'il lui 6tait possible d'invoquer. Et cependant, non-seuilement elle n'a pas 6t6 capable de repousser cette pr6somption, mais le poids de la preuve est plut6t en faveur du demandeur et est L 1'effet qu'il y a eu n6gligence de la part de la d6fenderesse.
Pour ces raisons, son appel doit 6tre renvoy6 avec d~pens.
J.-The case established here clearly falls within Article 1054 of the civil code as construed by the Judicial Committee in Quebec Railway, Light, Heat & Power Co. v. Vandry (1), and City of Montreal v. Watt & Scott (2), being a damage caused by a thing under the care of the defendant. The lathe which caused the injury was in perfect order and was operated as it should have been, the plaintiff being a skilled and experienced workman. In the proper and normal use of the lathe, particles of steel, the evidence shews, would fly in all directions from the eccentric rod which was being pared down, and one of these particles struck the plaintiff's right eye and it had to be removed. The damage here was therefore caused by the thing, to wit the lathe, which the defendant had under its care, and not by any human agency negligently setting the thing in motion.
See the distinction made by my brother Anglin in Curley v. Latreille (3), in which I fully concur.
In the Watt & Scott Case (2), their Lordships explained the meaning of their decision in the Vandry Case (1), and these two decisions should be read together. It is therefore authoritatively determined that article 1054 establishes, for damages caused by a thing which a person has under his care, a liability which is defeasible only by proof of inability to prevent the damage. Further, in the Watt & Scott Case (1), in addition to the views they had expressed in the Vandry Case (2), their Lordships stated that " It will be interesting to compare the construction placed by the Judicial Committee on article 1054 of the Quebec code with probably the latest pronouncement of the Cour de Cassation in France as to the effect of article 1384 of the French code. See Cass. civ., 16th November, 1920, Dallox, 1920.1.169. with annotation by Mr. R. Savatier. The first paragraph of article 1384 is construed as establishing a presumption of fault which the defendant can only rebut
The exculpatory paragraph of article 1384 C.N. is by its terms restricted to the specific cases therein mentioned, In Quebec, in a matter coming within the first paragraph of article 1054, it suffices for the defendant to prove that he was unable, by reasonable means, to prevent the damage complained of.
Was this defendant unable by reasonable means to prevent the damage complained of? The learned trial judge thought that the defendant should have placed a guard over the lathe to prevent the chips from flying in the operator's face. It is urged that to do so would have been impracticable, that it would have interfered with the proper working of the lathe. I would be very slow to hold that the person having machinery under his care should resort to impracticable or unreasonable means to prevent injury occurring by reason of the normal working of the machinery. But having carefully read the evidence, I think it stops short of clearly shewing that it would have been impracticable to place a guard over this lathe to stop the flow of clippings. The non-use of goggles was not considered as a fault by the learned trial judge, and it is unnecessary to say whether it would have afforded a reasonable means of preventing the injury. In my opinion, the S. " defendant has not succeeded in placing itself within the protection of the exculpatory paragraph of article 1054.
I would dismiss the appeal with costs.
Appeal dismissed with costs.