Lewis v. Nisbet & Auld Ltd.

that such is the intended use of the thing to which " defect " is imputed within the meaning of this principle (Jones v. Burford, LEWIS

1 T.L.R. 137).

The jury's findings established that the sill was being & used in a reasonable way for a purpose for which its use was permitted, when, owing to its condition, it gave way and so caused the fall. These facts brought the case within a. 119 (1) of the Act. Per Lamont J.: As respondent permitted, and therefore intended, that the sill be used as a base of operations for window washing, it was, within the meaning of the Act, "intended for or used in the business of his employer ". If it was, in its condition, unfitted for such use, or if its condition made it dangerous when reasonably so used, that condition constituted a "defect"

within the Act; and the jury had, by their findings, said that L.'s manner of use was reasonable.

Per Cannon, Crocket and Hughes JJ.: Having regard to the object of s. 119 (1) (reading it with the enactments following it in the Act), as a special enactment to extend the employer's liability in the workman's favour, and one, therefore, not to be narrowly construed against the workman, it cannot be said, if the workman is in fact injured by reason of a defect in the condition or arrangement of any portion of the building (the building being "connected with, intended for .or used in" the employer's business), that he is not to recover unless the defect be one which concerns the particular duties which his contract of service requires him to perform. That consideration may bear upon the question of the causation of the injury, but does not justify annexing to the ordinary meaning of "defect"

in its context, as applicable to a building or any of its parts, a condition or meaning which the language of the enactment does not express or necessarily imply. No significance to the contrary can be safely taken (in construing the Ontario Act) from the words in Walsh v. Whiteley, 21 Q.B.D. 371, at 378 (and supported in the dictum in Nimmo v. Connell, [19241 A.C. 595, at 606), that " it must be a defect in the condition of the machine, having regard to the use to which it is to be applied or to the mode in which it is to be used ", as those words proceeded rather from the consideration of the negligence of the employer as a necessary element in the existence of the defect causing the injury. Under the enactment now in question, all that is necessary is that the workman is injured by any defect in the building in which he is employed.

Under s. 119 (1) (and reading ss. 120 and 121 in connection therewith) it is sufficient to entitle the workman to recover, if the injury be in part directly attributable to the defect (and though the defect has arisen without negligence of the employer or his servants or agents); the fact that some negligence of the workman may have operated with the existence of the defect to produce the injury makes no difference as to the employer's liability, except (s. as to assessment of the quantum of damages. The jury's finding that the accident was caused by defect in the sill (its decayed condition) was conclusive as to respondent's liability

The question as to whether L. voluntarily and unnecessarily assumed a new and added risk independently of that attaching to his employment as janitor and caretaker and different in kind therefrom or whether he was simply doing something within the sphere of his employment in an improper or negligent manner, does not arise upon APPEAL by the plaintiff, Mary Jane Lewis as administratrix of the estate of John Lewis Lewis, from the judgment of the Court of Appeal for Ontario (1) which set aside the judgment of Kerwin J. (given in favour of the plaintiff on the findings of a jury) and dismissed the action. The action was for damages because of injuries suffered by the said John Lewis Lewis by his falling while cleaning windows in the office building of the defendant (respondent). The action was begun by the said John Lewis Lewis and his wife, Mary Jane Lewis, the latter claiming for loss of consortium and loss of support, which claim she abandoned at the trial. After the action was begun the plaintiff John Lewis Lewis died (from a cause not connected with the accident) and the action was revived and continued by his wife as administratrix of his estate, the present appellant.

. The material facts of the case, the findings of the jury, and the questions in issue on this appeal, are sufficiently stated in the judgments now reported (in more particular detail in the judgment of Crocket J.) and are indicated in the above headnote.

C.J.-I concur fully in the conclusions of my brother Crocket; and I think there is little, if any, real difference between us in relation to the actual grounds of the decision.

It is advisable, perhaps, to say something upon the meaning of the statutory phrase:

It is, of course, a hazardous thing to attempt an exhaustive definition of the phrases used in a statute like this; and it must be understood that judicial expositions and paraphrases of the language of such a statute cannot properly be regarded as of universal application. They must not be applied as substitutes for the words of the statute. In the case before us, the man who was injured was cleaning windows, and, in doing so, was sitting upon the window sill, the greater part of his body being outside the window and his weight resting largely, if not mainly, upon the sill. He was using the sill in that way and for that purpose.

The evidence shewed that the sill had "become rotted" and the jury in effect found that, by reason of this, part of it broke away under pressure of the workman's weight and that this was the cause of his fall.

So far as presently relevant, the language of s. 119 (1) of the Ontario statute differs from that of s. 1 (1) of the Employers' Liability Act, 1880, in this that the words " arrangement ", " buildings or premises " and " intended for " are not to be found in the English Act.

This is a case in which the workman was making use of part of the building, of which he was caretaker, as a support for himself while engaged in the course of his duty in cleaning windows. And, I think, that for the purposes of this case, subject to one qualification, the exposition of "defect"

in Walsh v. Whiteley (1) by Lopes, L.J., and Lindley, L.J., correctly expressed the effect of the statute. Under the English Act the negligence of the employer is an essential element of the cause of action, and in Walsh v. Whiteley (1) that was held to be an essential term in the definition of "defect ". In Ontario this condition has been abrogated and it, therefore, no longer enters into the concept of the statutory "defect ". But, I think, in other respects, the definition holds, for cases to which it can be reasonably adapted.

This exposition in Walsh v. Whiteley (1) was expressly approved by the majority of the House of Lords in Nimmo v. Connell (2) per Lord Atkinson whose reasoning was adopted by Lord Shaw (at p. 607) and Lord Dunedin (at p. 623). Indeed, in Connell's case (3) there was an authoritative adoption of the judgment of Lopes and Lindley, L.JJ., in Walsh v. Whiteley (4).

At p. 606, Lord Atkinson (with, as I have mentioned, the concurrence of Lord Shaw and Lord Dunedin) said:

In Walsh v. Whiteley Lopes LJ. (delivering the judgment of himself and Lindley LJ.), in considering s. 1, sub-s. 1, and s. 2, sub-s. 1, together, said: "It must be a defect in the condition of the machine, having regard to the use to which it is to be applied or to the mode in NisEr & which it is to be used." He previously had said: "The negligence of the AuLD employer appears to be a necessary element without which the workman is not to be entitled to any compensation." And then he gives a defini- Duff CJ. tion of a defect to satisfy both of these sections, thus: " It must be a defect in the original construction or subsequent condition of the machine rendering it unfit for the purposes to which it is applied when used with reasonable care and caution, and a defect arising from the negligence of the employer." This judgment supports completely my contention that 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.

It will be observed that this view of the meaning of "defect"

was applied in Connell's case (2) where the " defect " in the " ways " and " works *

* * connected with or used in the business " of the employer consisted in an accumulation of inflammable gas in a section of a mine which "was being worked and traversed by workmen ".

There are two separate conditions, one of which is that there must be a "defect"

in the condition of the thing, " having regard to the use to which it is to be applied or to the mode in which it is to be used." That is a distinct condition imposed by the use of the word " defect " which has nothing to do with the negligence of the employer, which is another distinct condition. Lord Atkinson's last sentence, the basis- of the judgment of the House of Lords, ought to be emphasized,

This judgment supports completely my contention that 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.

It may be added that this view has been the generally accepted view of the profession in England, as is evidenced by Ruegg (8th Ed.) at pp. 118 et seq., 20 Halsbury, 142. It should, perhaps, be observed that when the employer or his deputy permits a particular use, that shews conclusively that such is the intended use of the thing to which " defect " is imputed within the meaning of this principle.

(Jones v. Burford) (3).

(2) [1924] A.C. 595.

(3) (1884) 1 T.L.R. 137.

I do not think I need delay upon a discussion of the applicability of this to the case of buildings. If an em- Vs

.& ployee is properly in the vicinity of his employer's plant, works or buildings, and owing to some defect in condition something falls upon the workman and injures him, that would, of course, be a consequence of a defect in condition within Lord Atkinson's language, because plant, works or buildings are not intended to fall to pieces or to collapse. The language of the judgments in Connell's case (1) and in Walsh v. Whiteley (2) seems reasonably applicable to the case before us. There is here no question of the arrangement of the "works, ways, etc."; the matter complained of is the condition of the window sill. Therefore, the plaintiff, if he was in truth using the sill upon which his body was resting for a purpose authorized by his employer, and the condition of the sill was such that it gave way and so caused him to fall, these facts bring the case within the purview of the enactment.

On the other hand, although he was engaged in cleaning windows, if, nevertheless, he was using the sill for a purpose not authorized, for example, for indulging in acrobatic feats, and it was this unauthorized and wrongful use of the sill which caused it to give way, then I should agree that his injury was not "caused" by the condition of the sill within the contemplation of the statute.

I do not think it necessary to proceed further in the discussion of the statute. The jury found that the appellant was engaged in executing the duties of his employment and they negatived contributory negligence.

Now, in form, these findings do not aptly comprehend the points I have discussed; but when you add the finding that the injury was, in substance, " caused " by the defect, they do so.

They negative by necessary implication the suggestion that the cause of Lewis' fall was some prank unconnected with his duties; and they establish that the sill was being used in a reasonable way for a purpose for which its use was permitted.

I shall add an observation as to the word "caused". The sole question is whether the injury was " caused " within the intendment of the statute. The jury's finding that Lewis was acting reasonably, necessarily, if there was evidence to support it, disposes of the contention that what he did was nova causa interveniens; that is so, because his case is, on that assumption, precisely the kind LEwIs of case envisaged by the statute.

& If " cause " is to be paraphrased or qualified, I prefer the AUI. paraphrase adopted by Lord Esher, M.R., in The Bernina Duff CJ. case (1):

(5) If, although the plaintiff has himself or by his servants been guilty of negligence, such negligence did not directly partly cause the accident, as if, for example, the plaintiff or his servants having been negligent, the alleged wrongdoers might by reasonable care have avoided the accident, the plaintiff can maintain an action against the defendant. (6) If the plaintiff has been personally guilty of negligence which has partly directly caused the accident, he cannot maintain an action against anyone; and chiefly for the reasons mentioned in the following passage in Lord Sumner's judgment in Weld-Blundell v. Stephens (2):

Everything that happens, happens in the order of nature and is therefore " natural ". Nothing that happens by the free choice of a thinking man is " necessary," except in the sense of predestination. To speak of "probable " consequence is to throw everything upon the jury. It is tautologous to speak of " effective " cause or to say that damages too remote from the cause are irrecoverable, for an effective cause is simply that which causes, and in law what is ineffective or too remote is not a cause at all. I still venture to think that direct cause is the best expression. Proximate cause has acquired a special connotation through its use in reference to contracts of insurance. Direct cause excludes what is indirect, conveys the essential distinction, which causa causans and causa sine qua non rather cumbrously indicate, and is consistent with the possibility of the concurrence of more direct causes than one, operating at the same time and leading to a common result as in Burrows v. March Gas & Coke Co. (3) and Hill v. New River Co. (4).

See Long v. Toronto Ry. Co. (5); Canada & Gulf Terminal Ry. Co. v. Levesque (6).

On the findings, since there was no nova causa interveniens, it is clear that the fall of Lewis was directly caused by the condition of the sill.

As to the evidence, I will not discuss it in detail. The questions were pre-eminently for a jury, and I think the evidence was sufficient.

What I have said will indicate with sufficient clearness why, with great respect, I am unable to agree with the judgment of the Court of Appeal. If Lewis's acts constituted a reasonable use of the sill, as the jury (as I think, on sufficient evidence) have found, then, as I have just (1) (1887) 12 P.D. 58, at 61.

(5) (1914) 50 Can. S.C.R. 224. (2) [19201 A.C. 956, at 983-4.

at 242-248

(3) (1872) L.R. 7 Ex. 96.

(6) [19281 Can. S.C.R. 340, at (4) (1868) 9 B. & S. 303.

347-351.

said, I find it too difficult to hold that his fall was not "caused ", within the intent of the statute, by the condition of the sill.

Au

J.-I agree that this appeal should be allowed with costs and that there should be a new trial for the assessment of damages upon the basis of the findings referred to by my brother Crocket in his judgment. The first question to be considered in this appeal is, were the injuries which Lewis received caused by a "defect" in the condition of the building or premises used in the business of his employer?

The " defect " alleged was that the window-sill was rotten and not properly attached to the building, and that, as a consequence thereof, it gave way when Lewis, whose duty it was to wash the window, was in the act of performing that duty, and he was precipitated to the roof of a building two storeys below, and was severely injured. That the window-sill was intended to be used as a seat, upon which the window cleaner might sit while actually washing the window, is not denied. The usual manner of washing the windows was for the washer to sit on the sill with his head and body outside of the window, facing inside, his feet on the inside and the window pulled down to his lap. Lewis had for many months washed the windows in this manner, to the knowledge of Gibson Brothers, who looked after the building for the respondent.

Thus the respondent, through its representative, permitted, and therefore intended, the window-sill to be used as a base of operations from which the washing of the window might be carried on. It was, therefore, "intended for or used in the business of his employer" within the meaning of the statute. If it was, in its condition, unfitted for such use, or if its condition made it dangerous to the workman when reasonably so using it, that condition constituted a " defect " within the contemplation of the statute. That the window-sill in question was bing used at the time of the accident as a base of operations from which to clean the window is clear. Was the manner in which it was being used by Lewis a reasonable one? The jury have said that it was, because they found that, at the time of the accident, Lewis was acting within the scope of his employment and was not guilty of any negligence which contributed to the accident. On the argument before us it was strongly contended that the evidence of Lewis taken on examination for discovery, and put in by counsel for the respondent, estabs & lished that the accident was the result of the reckless conduct of Lewis himself in attempting to clean the window Lamont, in a manner different from that usually adopted. It was pointed out that, in his examination, Lewis admitted that on this occasion he was not on the window-sill in a sitting posture, but had his right foot and left knee on the sill, and that this was not a reasonable position to take in washing windows and that, therefore, the accident must be attributed to his own recklessness.

Whether Lewis was sitting or kneeling on the sill at the time of the accident, the sill had to bear the, entire weight of his body and it was a question for the jury whether, if the wood in the sill had been sound and it had been properly attached to the building, it would have supported his weight in either of these positions. Whether the position adopted by him was a proper one to take was also a question solely for the jury, and the jury by their verdict have, as I have said, found that it was. Lewis had not been instructed how he was to wash the windows, that was left entirely to his own judgment. He could, therefore, perform the operation in any manner he chose, provided that manner was a reasonable one. And, in determining its reasonableness, the jury might properly have regard to the fact that Lewis did not know of any "defect" in the condition of the sill.

In my opinion, there was evidence upon which the jury were entitled to find that the injuries of Lewis were "caused", within the meaning of the statute, by a "defect" in the condition of the window-sill.

J.-The respondent, a wholesale dealer in woollen and other goods, purchased an office building adjoining its business premises on Wellington Street West, Toronto, in 1929, the management of which it delegated to a real estate agency. In November of that year the husband of the appellant administratrix was employed by this agency as janitor and caretaker of the newly acquired building at a wage of $65 a month with living quarters provided in the building for himself and his family. His employment included, among other things, attending the furnaces and the cleaning of the halls and windows.

On May 21st, 1930, he went to clean two windows in the hall on the fourth floor, which is the top floor of the building. These windows, it appears, are placed side by side in the sloping Mansard roof of the building but are separated from each other by a pillar 12 inches wide. The two windows are the same size, each measuring in width 2 feet 8 inches from one side of the window frame to the other, and containing an upper and lower sash which are moved up and down by pulley ropes and weights. Although the evidence throughout is most confusing with its references to the two windows as one window and to the sill of the window frame proper as the subsill, it appears from the explanations made during the argument that the sill of the window frame proper rested partly at least upon a piece of wood about 4 inches thick which was inserted in a recess in the top of the outside brick wall to which the sill of the window frame proper was nailed. The sill of the window frame proper extended about 4 inches beyond the outside of the lower window sash when closed. The finished inside sill from its inner edge to the window stop was 9- inches wide, so that, allowing for the width of the window stop and the thickness of the window sash, there was a width of 18) inches from the inner edge of the finished inside sill to the outer edge of the sill of the window frame proper. The inside sill was 20 inches above the hall floor.

Lewis, it seems, had cleaned the upper and lower sashes of one of these windows on the outside while sitting on the window sill facing towards the inside of the building, and was reaching over to clean the other window to his right, when the outside sill, upon which he had been sitting while cleaning the first window and from which he was then reaching, gave way and he fell to the roof of a shed two stories below, sustaining serious injuries to his back and spinal cord for which he was under treatment in an hospital for nearly eight months. Ten days after his discharge as a patient for these injuries he returned to the hospital for a mastoid operation and remained as a patient again for several weeks. This trouble, however, had no connection with the injuries suffered from the fall from the window. This action was brought by himself and his wife on November 23rd, 1931, the latter claiming damages for loss of consortium and loss of support. Lewis died of pneumonia on December 3rd, 1932, his death, according to the medical evidence, having no connection whatever with the fall. The action was revived in February, 1933, and tried soon afterwards before Mr. Justice Kerwin and a jury, Mrs. Lewis j. during the trial abandoning her claim.

Although the plaintiffs in their statement of claim alleged that the window sill broke away owing to the negligence of the defendant, its agents, workmen or servants

" in that the said window sill was rotten and was not firmly attached to the said building and was neglected by the said defendant while in a dangerous condition which was known or ought to have been known by the defendant," and the whole action was apparently based upon negligence, no question was submitted to the jury by the learned trial judge touching any negligence upon the defendant's parit, the plaintiff having apparently abandoned that branch of his case and relied entirely upon Part II of the Workmen's

Compensation Act, R.S.O. 1927, ch. 179, ss. 119 and 120.

The questions put to the jury with their answers were as follows:

On appeal by the respondent the Appeal Court set this verdict aside and ordered that the action be dismissed with costs upon the ground, as appears by the written reasons of

Middleton, J., that the case had not been brought within the statute, the deceased being the author of his own injury by exposing himself to an unnecessary risk on the principle of the case of Lancashire & Yorkshire Ry. Co. v. Highley

No one other than Lewis himself witnessed the accident Ixws and the only evidence as to what actually happened on the & occasion in question which is to be found in the record are those portions of his discovery examination which the decrokt . fendant's counsel offered on the trial. I have already sufficiently set forth the deceased's statement as to how he cleaned the two sashes of the first window and the position in which he was when he reached over to clean the second one. The only further questions and answers which appear in the record and which bear upon the precise position in which he was when the window sill collapsed are as follows:

Whether Lewis, when reaching with his right hand for the second window, was straddling the sill in a sitting position or kneeling with his right knee on the outside portion of the sill, his statement does not make clear, but it would seem to be quite evident that, whether he was sitting or kneeling, his principal weight would be on the outside part of the sill and that he was bending or leaning over from the sill of this window to the other when he went down with the giving way of the sill.

It is not disputed that the deceased's contract of service created the relationship of employer and workman between the defendant and the deceased and brought the latter within the class of workmen for whose benefit ss. 119-121 of Part II of the existing Workmen's Compensation Act were enacted. Neither is it disputed that s. 119 (1) imposes on the employer a liability to make good the damages sustained by the deceased in consequence of his injuries if such injuries were in fact caused by reason of any defect in the condition or arrangement of the window sill, whether the existence of such defect at the time the accident occurred was or was not due to any negligence on the part of the, employer.

The jury's answer to question 1 is, therefore, decisive of the whole question of the respondent's liability if there is sufficient evidence to warrant it and no error in law in connection therewith.

& Two objections are relied upon by the respondent as _"m errors in law: 1st, that s. 119 (1) contemplates only a defect in respect of the purpose for which the thing is provided, whether it be a way, a machine or any part of a building, and that, the purpose of an outside window sill having no relation to the deceased's work as a janitor or caretaker, there was no defect within the meaning of the section; and, 2nd, that if the sill did constitute a defect within the meaning of the enactment, the deceased's injuries cannot rightly be attributed upon the evidence to such defect as their immediate or direct cause.

As the solution of the questions raised by these two objections depends entirely upon the construction of ss. 119 and 120, it is perhaps well that the material provisions should here be set out. In so far as the language of s. 119

(1) bears on these questions, it is as follows:- Then, as pointed out by Middleton, J., in the judgment appealed from, the common law defences of common employment, voluntary assumption of risk, negligence of fellow-servants and contributory negligence are done away with by the following subsections and by s. 120, as bars to the right of action and recovery which 119 (1) expressly gives to the workman, though s. 121 provides that contributory negligence is to be taken into account in assessing the damages.

It will be seen at once that the enactment is a special one which was clearly passed to extend the liability of the employer in favour of the workman. -It is an enactment, therefore, which ought not to be narrowly construed against the workman. No court has any right to add to it any condition which its language does not clearly express or necessarily imply. Rather is it the duty of a court, as said by

Brett, M.R., in Gibbs v. Great Western Ry. Co. (1), in construing a section of the Imperial Employers' Liability & Act (1880) to construe it " as largely as reason enables one to construe it in their [the workmen's] favour and for the CrocketJ. furtherance of the object of the Act."

Approaching then the construction of s. 119 (1) from the standpoint of the object of the whole enactment, what is there in its language to suggest that the words " any defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises connected with, intended for or used in the business of his employer " necessarily implies a defect in respect of the purpose for which the way, machine, plant, or building was provided? Assuming that the building in which the deceased was employed as janitor and caretaker comes within the provisions of the statute as a building " connected with, intended for or used in the business of his employer," as the Appeal Court has held, and as the respondent's counsel has not here questioned, can it be said, if the workman is in fact injured by reason of a defect in the condition or arrangement of any portion of the building, that he is not to recover for his injuries, unless the defect be -one which concerns the particular duties which the workman's contract of service required him to perform? I do not think so. That consideration may bear upon the question of the causation of the injury, but it has no sound basis as an argument for ignoring the ordinary meaning of the word "defect"

in the context in which it is used, as applicable to a building or to any of its parts, and annexing to it a condition or a meaning which the language of the enactment itself in no manner expresses or necessarily implies.

The latter expressly provided, as the Ontario statute, ch. 146, R.S.O., 1914, formerly did also, that the workman should not be entitled to any right of compensation or remedy against the employer by reason of any such defect as mentioned in s. 1 (1) unless that defect arose from, or had not been discovered or remedied owing to, the negligence of the employer or of some person entrusted by him with the duty of seeing that the condition or arrangement of the ways, works, machinery, plant, building or premises was proper. His Lordship then immediately proceeded:in it

Their Lordships concluded that " the defect in the condition of the machinery must be such as to shew negligence on the part of the employer " and that "there was no evidence of negligence to go to the jury." The cases of Heske v. Samuelson (1), and Cripps v. Judge (2), and others were referred to in this judgment, and it was pointed out that they were all cases where there was evidence of a defect shewing negligence of the employer.

Mr. Robertson stressed the words I have underlined as applying to the meaning of the word "defect"

as used in the English statute. The whole quotation and the whole judgment, however, make it perfectly clear, I think, that these words cannot safely be given the significance contended for but proceed rather from the consideration of the negligence of the employer as a necessary element in the existence of the defect causing the injury for which the statute gives the remedy to the workman.

Indeed it is obvious, quite apart from the quoted context, that no court or jury could at all determine whether a defect in a machine was a defect arising from negligence of the employer without considering the use to which the machine is intended to be applied and the mode in which it is intended to be used. It can hardly be said that such an expression could in any view be similarly applied to an entire building or to a window frame or window sill or other piece of wood or metal placed in the foundation or wall or roof of a building as a permanent fixture.

Once such a fixture is permanently placed, whether it be to strengthen the foundation or the walls or support the roof or to make an opening for light or ventilation, or to shed water off the walls, as was suggested was the purpose for which the window sill in question was provided, no question could possibly arise as to any use or mode of use of such a fixture by or for the occupying employer. Yet the fixture may none the less be a defective fixture and constitute a defect by reason of which personal injury is caused to a workman employed by the employer in or about the building. If a portion of a wall or of the roof fell in by reason of the unsoundness or defective condition of any of its parts and a workman should thereby be injured, is he to be excluded from the benefit of the statute because the defect existed in a portion of the building which his contract of service did not require him to use? To my mind it was the clear purpose of this part of the enactment to entitle the workman to recover damages from his employer for any personal injuries caused to him by reason of any defect in any part of the building in which he is employed. If the workman is injured by reason of any defect in the building in which he is employed, that is all that is necessary. No other condition is expressed or implied by the language of the section.

We were referred to British Columbia Mills Co. v. Scott (1), Wood v. Can. Pac. Ry. Co. (2), and other cases in this court and in Ontario in support of the proposition which it was contended was laid down in Walsh v. Whiteley (3), but all these cases will be found, in so far as they concern the question of injuries caused by defective plant or machinery, to have dealt with that question, as in Walsh v. Whiteley (3), from the standpoint of defects arising from the negligence of the employer, as provided by the former Ontario and other similar Acts containing the .same provisions as the English Employers' Liability Act, and the decisions to have been.based on the same grounds. My attention has been called to a dictum of Lord Atkinson in Nimmo v. Connell (1), commenting on the decision in Walsh v. Whiteley (2), which emphasizes the importance of the use to which a thing is intended to be put and is being put in determining whether or not there is a Crocket J. defect in its condition. An examination of this case shews that the decision was based on considerations of the defect there relied on arising from negligence, precisely as in Walsh v. Whiteley (2), though in the earlier case it was held there was no defect arising from negligence and in the later case that there was.

In the Nimmo case (3) the majority of the Law Lords held that the accumulation of inflammable gas in a section of a mine which was being worked and traversed by workmen in such quantities as to become explosive if a light were applied to it was a defect in the condition of the way within the meaning of s. 1 (1) of the Employer's Liability Act of 1880. As I read his judgment, the point of Lord Atkinson's dictum was that the word "defect" as used in the English Act of 1880 does not refer solely to a material defect in the structure or substance of the way, but covers as well such a development as the accumulation of poisonous gas or the development of any other dangerous condition which might have been detected by the exercise of due care on the part of the Coal Mining Co. Indeed His Lordship distinctly held that the neglect of the company's inspector to do his inspection duty was the main cause of the accident in that case. The dictum, in my judgment, goes no further than that already quoted from Walsh v. Whiteley (2).

As to the second ground of alleged error in law, viz: that the injury claimed for was not caused by the alleged defect, there is no doubt that, in order to entitle the workman to recover from the employer under the first part of s. 119 (1), it must be proved that the injury was caused by reason of the defect. That this does not mean that the injury was solely attributable to the defect is conclusively shewn by the express provision of s. 120 that contributory negligence on the part of the workman shall not afford a defence to the action " for the recovery of damages for an injury sustained by the workman while in the service of his employer for which the employer would otherwise have been liable," though s. 121 enacts that contributory negligence on the part of the workman shall be taken into account in assessing the damages in any such Crocket j. action. Reading sections 120 and 121 in connection with 119 (1), the clear intention is that the workman shall be entitled to recover from the employer for a personal injury sustained by him while in the service of his employer, whether the injury be caused by reason of a defect arising without negligence on the part of the employer or his servants or agents, or whether the injury be caused by reason of the negligence of the employer or of any person in his service acting within the scope of his employment, notwithstanding that the injury may have been in part brought about by some negligence on the part of the workman. All that is necessary, therefore, to entitle the workman to recover, is that the injury be in part directly attributable to the defect. The fact that some negligence of the workman may have operated with the existence of the defect to produce the injury makes no difference so far as the liability of the employer is concerned except as to the assessment of the quantum of the damages. No other conclusion is possible upon the evidence, I think, than that if the window sill had been sound and securely fastened to the wall of the building the accident would not have happened. It may, of course, be said with equal truth that had Lewis not applied his weight to it while washing the first window and reaching over from it to wash the second the accident would not have happened either. Obviously the two facts-the defective condition of the sill, which the evidence shews was not visible on superficial inspection, and the deceased's placing his weight upon it-combined to cause it. The jury found that it was caused by the decayed condition of the sill and that the deceased was not guilty of any negligence contributing to it. That there was ample evidence to warrant the finding that the sill was decayed and that the accident was caused, at least in part, by that fact, I have no doubt. The fact of a section of the sill of the window frame proper breaking away with the piece of wood underneath in the recess at the top of the brick wall to which it was nailed, and dropping to the shed roof when the deceased himself fell, itself affords strong evidence of its defective and insecure condition. In addition to this, however, there was positive testimony that the sill was dozy or rotten and that it was insecurely nailed to the piece of wood which was inserted TD in the wall as its support. The jury's first finding, in my view, is conclusive upon the question of the respondent's liability under the special provisions of the statute, for the reasons hereinbefore stated, whether the deceased in making use of the sill for the purpose of washing the windows was guilty of contributory negligence or not.

The question as to whether the deceased voluntarily and unnecessarily assumed a new and added risk independently of that attaching to his employment as janitor and caretaker of the building and different in kind therefrom, or whether he was simply doing something within the sphere of his employment in an improper or negligent manner, does not arise, in my opinion, upon the special provisions of s. 119.

The principle affirmed in Lancashire & Yorkshire Ry. Co. v. Highley (1), upon which the Appeal Court relied, and other cases cited on the argument, is applicable only to claims for compensation for personal injuries caused to a workman " by accident arising out of and in the course of the employment," which are the governing words giving the right to compensation under the English Workmen's

Compensation Act. The same words are used in Part I of the Ontario Act. The test, as it is called, has no application to the enactment here in question, which gives a right of action to a workman for personal injury caused to him

" by reason of any defect in the condition or arrangement of the ways, * * * buildings or premises connected with, intended for or used in the business of his employer,"

while in the service of his employer.

I feel bound to say, however, that had the deceased been a workman in any of the industries to which Part I of the

Act applies, 'and the question been whether his injuries were caused by accident arising out of and in the course of his employment within the meaning of these words as used in

Part I, I should not have been able to recognize any analogy between the facts in any of the English cases cited in support of the respondent's contention and those in the present case, where Lewis had not moved from the defective window sill, which almost at the very moment when it broke down under him he was quite properly using in the washing of the outside glass of the window of which the defective piece J. was a part. I should have thought the case of Pepper v. Sayer (1), decidedly more applicable.

As to the finding that the deceased was not guilty of negligence contributing to the accident, this finding, as already pointed out, affects only the assessment of damages. We are not prepared to hold that it was a finding which was not warranted in any reasonable view of the evidence, and are of opinion, therefore, that it must stand.

We think, however, that the damages awarded by the jury are so manifestly excessive as to entitle the respondent to a new trial, but that in the circumstances such new trial should be limited to the assessment of damages only and upon the basis of the findings expressed in the answers to questions Nos. 1, 2 and 3, which are left undisturbed. The order will therefore be that the appeal be allowed, that the judgment of the Court of Appeal be set aside and that there be a new trial, limited to the assessment of damages on the basis of the findings above mentioned. There will be no costs on the appeal to the Court of Appeal to either party. The costs of the former trial shall abide the event of the new trial, and the appellant administratrix shall have the costs of the appeal to this Court.

Appeal allowed with costs. New trial ordered, limited to assessment of damages.