Rural Municipality of Scott v. Edwards

APPELLANT; * March 8 DECEASED (PLAINTIFF) ..................

* April 24 AND

NISBET & AULD LIMITED (DEFEND- RESPONDENT. ANT)..E...............................

ON APPEAL FROM THE APPEAL FOR ONTARIO L., as part of his work as janitor and caretaker of respondent's office building, was cleaning two upper windows, which were separated by a pillar inches wide.

He had finished one window on the outside, sitting on its sill and facing towards the inside of the building. He then proceeded to clean the other window on the outside by reaching over from the sill of the finished window, and, in doing so, changing from his former posture, when the outside sill of the finished window, from which he was reaching, gave way and he fell and was injured. Respondent was sued for damages, and the claim was treated, in the questions put to the jury, as one under ss. 119-121 in Part II of the Workmen's Compensation Act, RS.O. 1927, c. 179. The jury found that the accident was caused by defect in the window sill, being owing to its "decayed condition"; that at the time of the accident L. was acting within the scope of his employment; and that he was not guilty of contributory negligence; and judgment was entered for the damages found. The Court of Appeal for Ontario ([19331 O.R. 595) set aside the judgment and dismissed the action, on the ground that the case was not brought within the statute, L. being the author of his own injury by exposing himself to an unnecessary risk (Lancashire & Yorkshire Ry. Co. v. Highley, [1917] A.C. 352).

On appeal to this Court: Held: The judgment of the Court of Appeal should be set aside; and the jury's findings sustained (as being not unwarranted on the evidence) in all respects except as to the amount of damages awarded, which were excessive, and as to which there should be a new trial. On the facts in evidence and the jury's findings, the injury was "caused " by a "defect"

in the sill's condition, within s. 119 (1) of the Act. Per Duff CJ.: The exposition of " defect " (within such a statute) in Walsh v. Whiteley, 21 Q.B.D. 371, at 378, and Nimmo v. Connell, [19241 A.C. 595, at 606, is (subject to exclusion, under the Ontario Act, of negligence as an essential element of the cause of action) reasonably applicable to the present case.

" It is the use to which a thing is intended to be put and is being put which must be considered when the question whether or not there is a defect in its condition has to be determined " (Nimmo v. Connell, supra, at 606). When the employer permits a particular use, that shews conclusively CJ. and Lamont, Cannon, Crocket and Hughes JJ. S.C.R.]