Geoffroy et al. v. Anglo Canadian Pulp & Paper Mills Ltd.

One Joseph Geoffroy was employed as helper to one Lvesque, a millwright, in repairing some part of the interior machinery of one of three electrically operated revolving separators which were usually kept in operation together on the floor of the respondent's mill next above the blow pit floor. These separators, which were round wooden vats, were placed over what are called in the case basins, the walls of the basins being 3 to 4 feet wide, and stood about 3 feet above the level of the basin floors.

There was an opening of about 18 inches diameter in the bottom of each separator.

Lvesque and another millwright, Tripanier, were instructed by one of the respondent's foremen, to make the repairs in question. The electric switch, by which it was set in motion and which was placed on a wall some 10 feet or more from the separator beside the switches by which the *PRESENT:-Duff C.J. and Rinfret, Smith, Cannon and Crocket JJ. two other separators were started and stopped, was shut to enable the repairs to be made. While the repair work was in progress the power suddenly went off, putting out the regular lights as well as stopping all the machinery in that portion of the mill.

The two millwrights resorted to an electric extension hand lamp to avoid delay in the repair work. Joseph Geoffroy was standing on the floor & of the cement basin with the upper part of his body inside the separator endeavouring to continue the work with the improvised light, while his boss, Lvesque, was standing outside the separator within the basin wall, when, the electric current having been restored, the switch controlling the shaft by which the separator in question was operated was opened by one of the respondent's employees, the separator began to turn and Joseph Geoffroy was so injured that, although he was able to get himself through the opening in the bottom of the separator, he died soon afterwards. The respondent, recognizing its responsibility under the Workmen's Compensation Act, c. 274, R.S.Q., (1925), without awaiting the appointment of a tutor to represent her infant children, paid the widow $3,000-the maximum sum payable under the Act except in those cases which fall within the provisions of sec. 6-and $50 additional for funeral expenses. Ladislas Geoffroy, one of the appellants, was subsequently appointed tutor to the infant children, and in his quality as such brought, with the widow of the deceased as co-plaintiff, this action to recover further compensation to an amount of $20,000 under section 6 of the Act, alleging that " the accident was due to the inexcusable fault of the" respondent.

Held, reversing the judgment appealed from, that the accident was due to the inexcusable fault of the respondent company within the meaning of the Workmen's Compensation Act.

The accident was one which would not have occurred if any precautions of any kind had been taken to protect the deceased in the dangerous position in which he was placed, and one for which there was no valid excuse-Dufresne Construction Co. v. Morin ([19311 S.C.R. 86) applied.

As to the amount by which the compensation should be increased, section 6 of the Act, in authorizing the Court to increase the compensation awarded where the accident " was due to the inexcusable fault of the employer," does not contemplate compensation estimated according to the standard of full reparation as in cases under arts. 1053 and 1054 C.C.-It is reasonable, in this case at all events, to limit the indemnity for the benefit of the children by reference to the principle of the enactment of section 4, ss. 2, by which compensation is payable " to the legitimate children * * * to assist them to provide for themselves until they reach the full age of sixteen years or more if they are invalids."

This Court, in exercising its statutory discretion, is of the opinion that a fair award would be the sum of $10,000 from which must be deducted the sum of $3,000 already paid, this amount to be apportioned one half to the tutor for the benefit of the infant children in equal shares and the other half to the deceased's widow.

APPEAL from the decision of the Court of King's Bench, appeal side, Province of Quebec, affirming the judgment of the Superior Court, Gibsone J., and dismissing the appellant's action to recover $20,000, as compensation for the death of one Joseph Geoffroy, who was killed while in the employ of the respondent company owing to the alleged inexcusable fault of the latter's employees.

The material facts of the case and the question at issue are fully stated in the above headnote and in the judgment now reported.

The judgments of Duff C.J. and Rinfret, Smith and Crocket JJ. were delivered by

J.-This is an appeal from the judgment of the Court of King's Bench of Quebec, confirming the judgment of Mr. Justice Gibsone of the Superior Court dismissing the appellants' action to recover compensation for the fatal injury of Joseph Geoffroy, father of the infants, represented by the above named tutor, and husband of the co-plaintiff, while engaged in the course of his employment in the defendant's paper mill in the city of Quebec.

The accident occurred on the night of December 13, 1927. There is no dispute as to the material facts. The deceased was employed as helper to one L6vesque, a millwright, in repairing some part of the interior machinery of one of three electrically operated revolving separators which were usually kept in operation together on the floor of the mill next above the low pit floor. These separators, which were round wooden vats, were placed over what are called in the case basins, the walls of the basins being 3 to 4 feet wide, and stood about 3 feet above the level of the basin floors. There was an opening of about 18 inches diameter in the bottom of each separator. Livesque and another millwright, Tr6panier, were instructed by one of the defendant's foremen, to make the repairs in question. The electric switch, by which it was set in motion and which was placed on a wall some 10 feet or more from the separator beside the switches by which the two other separators were started and stopped, was shut to enable the repairs to be made. While the repair work was in progress the power suddenly went off, putting out the regular lights as well as stopping all the machinery in that portion of the mill. The two millwrights resorted to an electric extension hand lamp to avoid delay in the repair work. Geoffroy was standing on the floor of the cement basin with the upper part of his body inside the separator endeavouring to continue the work with the improvised light, while his boss, Lvesque, was standing outside the separator within the basin wall, pER when, the electric current having been restored, the switch controlling the shaft by which the separator in question was operated, was opened, the separator began to turn, and

Geofiroy was so injured that, although he was able to get himself through the opening in the bottom of the separator, he died soon afterwards.

When the power went off the mill superintendent sent an employee named Stapleton up to the separator room from the floor below to see to the return of the power and the light. The separator switches had nothing to do with the light. Stapleton after the return of the current proceeded to turn on the separator switches, first one and then the other, the last one being the switch connecting with the separator in which Geoffroy was working. He did so of course without knowledge that Geoffroy was working inside this separator, neither L~vesque or Tr6panier, who was standing outside the basin wall, having warned him, though both saw Stapleton open the first switch. When the latter turned on the third switch Tr6panier shouted that there was a man inside the separator, but it was too late.

The defendant, recognizing its responsibility under the

Workmen's Compensation Act, c. 274, R.S.Q., (1925), without awaiting the appointment of a tutor to represent her infant children, paid the widow $3,000-the maximum sum payable under the Act except in those cases which fall within the provisions of section 6, and $50 additional for funeral expenses.

Ladislas Geoffroy was subsequently appointed tutor to the infant children, and in his quality as such brought this action to recover further compensation under sec. 6, which reads as follows:- This Court in a judgment delivered by Duff J., in Dufresne Construction Co. v. Morin (1), without undertaking to lay down a definition of the word " inexcusable," as used in the Workmen's Compensation Act, unanimously declared the view that it is to be applied in its ordinary sense cAsioN in the light of the context in which it occurs and of the subject-matter of the statute, quoting the dictum of Lord Cave Mns in delivering the judgment of the Privy Council in Montj. real Tramways v. Savignac (1), that " each case must be judged from its own facts."

We are of opinion that the accident was due to the inexcusable fault of the defendant company, within the meaning of the Act. It is not pretended that the deceased was himself in any way to blame. The opening of the switch by which the separator was put in motion while the deceased was within it engaged in the work he had been directed to do is inexplicable on any other ground than negligence on the part of some one or other of the defendant's employees. Whether the fault was the fault of the superintendent or Stapleton or Tr6panier or Ldvesque or the foreman who directed the repairs to be made is a matter of no consequence, so far as the responsibility of the defendant is concerned. All were servants of the company acting in the course of their employment. Their acts and omissions were all alike imputable to the company as their employer under art. 1054 of the Civil Code. The accident was one which would not have occurred if any precautions of any kind had been taken to protect the deceased in the dangerous position in which he was placed, and one for which there was no valid excuse. That is all that is necessary to entitle the plaintiffs to have the maximum compensation prescribed by sec. 4 increased.

As to the amount by which the compensation should be increased, we accept in principle the view upon which Mr. Justice Dorion proceeded in his dissenting judgment that, in authorizing the Court to increase the compensation awarded where the accident " was due to the inexcusable fault of the employer," the enactment does not contemplate compensation estimated according to the standard of full reparation, or according to some principle entirely unaffected by any considerations derived from the nature of the scheme of the Act. For example, the Court would not, we think, be justified in guiding itself by a rule that should admit, where death has not ensued, reparation for the suffering of the victim as such, apart altogether from its effect upon the victim's earning power, or the cost of pro- A o viding for its alleviation. We think, moreover, that in this case at all events, it is reasonble to limit the indemnity for the benefit of the children by reference to the principle of the enactment of sec. 4, ss. 2, by which compensation is payable

In the present case the children are very young and whether or not any one or more of them may fall, while still of tender years, within the class of " invalids " within the meaning of the enactment, only the future can determine.

This last is a point which, we think, cannot be entirely neglected by the Court in exercising its discretion under section 6.

The majority of the court below have not afforded us any guide. We think that, keeping in view the limitations suggested by the provisions of the Act, a fair award would be the sum of $10,000 from which must be deducted, however, the sum of $3,000 already paid, this amount to be apportioned one-half to the tutor for the benefit of the infant children in equal shares and the other half to the co-plaintiff, deceased's widow.

The appeal will therefore be allowed and judgment entered accordingly against the defendant for $7,000, to be apportioned as stated, with costs throughout.

J.-Je crois, comme mon colligue, I'honorable juge Crocket, que les circonstances de cette cause r6v6lent que 1'accident est arriv6 par une faute inexcusable du patron et de ses prdpos6s. Si ces derniers avaient, en connaissance de cause et intentionnellement agi comme ils l'ont fait, ils auraient 6t6 coupables d'une acte criminel; il n'en faut pas autant pour conclure & l'existence d'une faute inexcusable.

Je crois cependant, vu qu'il ne s'agit pas d'appliquer les articles 1053 et 1054 du code civil, que nous devons augmenter I'indemnit6 en restant dans le cadre de la loi des accidents du travail, essentiellement contractuelle et forfaitaire, bas6e entibrement sur le salaire que gagnait la victime; par cons6quent, on ne peut r6clamer quoi que ce

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soit qui ne reprisente pas une partie ou, tout au plus, le total du salaire perdu par la victime. L'article 2 de la loi donne droit A une indemnit6 r6gl6e conform6ment A ses dispositions.

II faut dire cependant que, en cas de mort, la loi pourvoit une indemnit6 de manibre A aider A pourvoir aux besoins J. des enfants jusqu'A 1'Age de seize ans r6volus, ou plus s'ils sont invalides. D'apris l'article 4 du chapitre 274 S.R.Q. 1925, l'indemnit6 comprend une somme 6gale A quatre fois le salaire moyen annuel du d6funt au moment de 1'accident, ne devant dans aucun cas, sauf le cas de faute inexcusable du patron, 6tre moindre que $1500 ni exc6der $3000, plus $50 pour les frais de m6decins et de fundrailles.

La victime de la faute inexcusable de l'intim6e gagnait $4.25 par jour, soit, pour 300 jours d'ouvrage, $1,275 par annie. Mais, d'apris l'article 7, si la r6mun6ration annuelle de l'ouvrier d6passe $1,000, elle n'est prise en consid6ration que jusqu'A concurrence de ce montant. Pour le surplus, et jusqu'h $1,500, elle ne donne droit qu'au quart des indemnitis. Au-delh d'un salaire annuel de $1,500, la loi ne s'applique pas. Pour rester dan-s le cadre de la loi, le capital accord6, en case de faute inexcusable du patron, ne devrait, dans aucun cas, d~passer le montant requis pour payer une rente viagbre de $1,500 A un individu de l'Age de la victime. L'honorable juge Dorion aurait accordd, en se basant, non sur le salaire de 1'ouvrier, mais sur les besoins de la mhre et des enfants, $6,300.

Tout en exergant notre discretion pour augmenter l'indemnit6 statutaire, car il ne s'agit pas dans 1'espbce de fixer le montant des dommages subis, je crois que nous devons surtout tenir compte du salaire que l'ouvrier gagnait au moment de 1'accident, soit $1,275 par annie. Le dossier ne nous donne pas le chiffre qu'une compagnie d'assurance exigerait pour fournir une rente de ce montant. De plus, il ne faut pas oublier que le capital que nous accordons, tout en 6tant susceptible d'gtre plac6 A int6rit, en tout ou en partie, demeurera la propridtd de la veuve et des enfants. Jusqu'A seize ans, les enfants vivront des revenus et entameront probablement le capital. D'aprbs la loi, A seize ans, A moins d'invalidit6, ils sont cens6s pourvoir eux-mimes a leurs besoins et m~me 6tre en mesure d'aider leur m6re. Cette dernibre devra tout probablement encore compter sur