:
J.:-The learned trial judge considered that as the work in question could have been performed by the use of a perfectly harmless agent, and the appellant had no knowledge that other agents which were dangerous were also normally used, he was not liable. In the view of the majority in the court below, however, it was sufficient that the agent actually employed was one normally used. The governing principle is thus stated in the 11th edition of Salmond at p. 134, as follows:
The author, however, goes on immediately to say that These statements of the law are amply borne out by the authorities. It is sufficient to refer to Dalton v. Angus (1). Lord Blackburn, at 829, and to St. John v. Donald (2). As stated by Anglin J. in Donald's case, ubi cit, at 383, vicarious liability arises where the danger injurious consequences to others from the work ordered to be done is so inherent in it that "to any reasonably well-informed person who reflects upon its nature the likelihood of such consequences ensuing, unless precautions are taken to avoid them, should be obvious, so that were the employer doing the work himself his duty to take such precautions would be indisputable."
It is therefore not enough that the appellant himself did not know of the danger.
So long as the means employed was one commonly employed, he is taken to know what, to the person reasonably well-informed as to the nature of the al. work. would have been obvious.
The appeal should therefore be dismissed with costs. :
J.:-The facts out of which this appeal arises are as follows. The appellant was lessee of the ground floor of a building owned by the respondents and operated a restaurant in the demised premises. The lease was not put in evidence and neither party has suggested that the determination of the appeal depends on its terms. The appellant entered into a contract with the defendant DeLong, who is a painting contractor, to remove the paint from the restaurant booths and refinish them and to paint the walls and woodwork of the restaurant for a lump sum. This contract was an oral one. It is now common ground that DeLong was an independent contractor. The contract was silent as to the method which he should employ in doing the work but it was specified that the old paint was to be removed. There is no suggestion that the appellant acted negligently in selecting DeLong to undertake the work.
On February 8, 1950, DeLong commenced the removal of the paint using a non-inflammable liquid paint remover but, as the fumes from this proved objectionable and tended to make the workmen sick, he abandoned its use and continued the work using a paint remover known as "Taxite". This substance is inflammable and volatile. Its fumes when mixed with air are explosive.
During the progress of the work of removing the paint a fire occurred which spread with great rapidity and caused damage to the plaintiff's building which has been assessed at $9,979.91.
The quantum of this assessment is not questioned. There are concurrent findings of fact, amply supported by the evidence, that DeLong was negligent in that he failed to take adequate precautions to prevent the creation of a flame or spark in the room in which the work of paint removal was proceeding.
The respondent brought action against both DeLong and the appellant. At the trial judgment was given against DeLong but the action as against the appellant was disat.
missed.
On appeal to the Supreme Court of New Brunswick, Appeal Division, DeLong's appeal was dismissed unanimously and the appeal of the present respondent as against the appellant was allowed, Hughes J. dissenting, DeLong did not appeal to this Court and we are concerned only with the question whether or not the appellant was properly held liable.
The question whether the work of removing paint from woodwork in the interior of a building is necessarily attended with danger was fully argued before us. This does not appear to me to be a matter as to which the Court may take judicial notice and to determine it it becomes necessary to examine the evidence.
Every witness who was examined on this point stated that the usual method of removing paint from the exterior of a building is to employ blow-torches but that when paint is to be removed from the interior of a building the usual method is to use liquid paint removers.
Every such witness stated that some paint removers are inflammable and that he had used inflammable paint removers for this sort of work. Indeed the witness McGinnis who was described as a master painter of thirty-two years experience had never used a paint remover which was not inflammable. All such witnesses agreed that it was necessary to take precautions against fire when using these paint removers. It results from this evidence that a normal, and indeed the most usual, method of removing paint from the interior of a building is to use liquid paint removers which are highly inflammable and the fumes of which are explosive, but that there are other paint removers, not so frequently used, which are not inflammable. The appeal was argued on the basis that the appellant in fact knew nothing about the usual methods of removing paint and did not know that DeLong was using an inflammable paint remover.
For the appellant it is argued that as DeLong was an independent contractor selected without negligence and employed by the appellant to do a lawful act the appellant is not liable for his negligence.
Assuming this to be a correct statement of the general rule, it is a rule to which there are exceptions, one being that where the act which the independent contractor is employed to do is one which in its nature involves a special danger of injury to the property of another a duty is imposed upon the party employing the independent contractor to take special pre-OartwrightJ. cautions to prevent such injury and he can not escape liability for failure to discharge such duty by delegating its performance to another. I do not find it necessary to review the many authorities which were discussed on the argument for while it may not be easy to reconcile all the statements which they contain none of them appear to cast doubt on the existence of the exception to which I have referred. I am in respectful agreement with the majority in the Appeal Division that the facts of this case bring it within the exception mentioned. In my view the appellant ordered the doing of work which, if done by the usual method, would create a danger of fire in the respondent's building and he thereupon came under a duty either to provide that the dangerous method be not used or to provide that if it were used all necessary precautions against fire be taken, and he could not escape liability for the non-performance of such duty by delegating its performance to DeLong. It is contended that in view of the finding that the appellant was in fact unaware of the usual method removing paint and the danger attending it, it cannot be said that he ought reasonably to have foreseen the probability of danger and that consequently no duty to take precautions was imposed upon him. It may well be that the inquiry, as to whether the work which the independent contractor has been ordered to do involves in its nature a special danger of injury so as to bring the case within the exception referred to above, is a purely objective one; but, assuming for the purposes of this branch of the argument that a subjective element is involved, the question would be not what was the actual knowledge of the appellant but rather, to adapt the words of Anglin C.J.C. in St. John v. Donald (1), what would any reasonably well-informed person reflecting upon the nature of the proposed work have foreseen.
A person, employing an independent contractor to do work of such a nature that it is common knowledge in the trade to which the independent contractor belongs that