Dufresne Construction Co. v. Morin

J.-On the 11th of October, 1926, the respondent was engaged by the appellants to work in a compressed air caisson. He was quite without experience in such work; but after undergoing the usual medical examination by the appellants' doctor, he was set to work with a gang of caisson men and continued to work through the whole of an eight hour shift, from four o'clock in the afternoon till twelve midnight, minus an interval of about half an hour. At the end of this shift, on coming into the open air, he felt ill and made the comparatively short journey to his home with a good deal of difficulty.

His illness became progressively more distressing during the night, and in the morning he called in the appellants' doctor, who placed him in hospital and applied the treatment usual in such cases, but with little or no beneficial effect. The respondent is a man of thirty-four and it has been found by the courts below that his illness produced a permanent total disability.

The action was based upon the Workmen's Compensation Act, in force at the time, R.S.Q., 1925, c. 274. By that statute, persons suffering injuries in consequence of accident happening by reason of or in the course of their work as workmen or employees engaged in certain specified occupations (which include that in which the plaintiff was employed), are entitled to compensation according to the provisions of the statute. The maximum capital of the grant or annuity, to which a person is entitled under the Act, is, save in one case, $3,000.

The exceptional case is provided for in section 6 in these words:- At the trial the appellants admitted their liability for the maximum sum of $3,000; but denied their responsibility under section 6, as for " inexcusable fault." The court of first instance rejected the claim of the respondent under this latter head, and this judgment was reversed by the Court of King's Bench, which maintained the larger claim, and, upon that basis, awarded an additional indemnity of $7,000.

The question of substance is whether or not " inexcusable fault " has been established. It is not disputed that the respondent's disability is the result of " caisson disease," a term applied to groups of morbid changes met with among caisson workers, and divers working in diving dress.

Compressed air caissons are employed in the construction of bridge foundations, and the foundations of other structures in water bearing strata. A shaft and air lock afford access and exit for men and materials; and the air pressure is varied according to the head of water. In order to exclude water, this pressure, in subaqueous work, is increased by one atmosphere (or 15 lbs. per square inch) for every thirty feet or so (or I lb. for every foot) of submergence below the surface.

Exposure to such pressures may be followed by symptoms of various kinds, including pains in muscles and joints (" bends "), deafness, embarrassed breathing, vomiting, by paralysis and even by death. These symptoms do not appear while the pressure continues, but only after it has been removed; the generally accepted theory being that they are due to the effervescence of gases absorbed in the body fluids during exposure to pressure. When the pressure is suddenly released, gas is liberated in bubbles throughout the body. Set free in the spinal cord, these bubbles may give rise to partial paralysis, or, in the heart, to stoppage of the circulation. But if the pressure is relieved gradually, they are not formed as a rule, because the gas comes out of solution slowly, and is removed by the lungs. The evidence shews that some people are not fit subjects for these experiences, and any condition of body which may seriously impede the activity of the organs in eliminating, during the process of decompression, the gases absorbed, constitutes a disqualification. Where, on decompression, any symptom occurs indicating that elimination has not been completely effected, the subject ought to be immediately recompressed and the pressure withdrawn at a more gradual rate. If applied immediately on the appearance of the symptoms, this treatment is commonly effectual.

The respondent charged " inexcusable fault " in two respects. First, he alleged that decompression was effected too rapidly. Secondly, he averred that the appellants had been grossly negligent in failing to instruct him as to the risks attendant upon the work he was employed to do, and as to the necessity, in the event of untoward symptoms supervening, of resorting immediately to medical assistance; and moreover, that provision was not made at the MOIN. works themselves for prompt medical attention.

Duff J. As to the first of these allegations, the Court of King's Bench found in favour of the respondent, and undeniably there is much to be adduced, in support of that finding, from the evidence.

On the other hand, the learned trial judge did not reach the same conclusion. His opinion is expressed in these words:- Consid~rant que la preuve ne d6montre pas, de toute 6vidence, que le demandeur soit sorti de la chambre d'air comprim6 en moins de cinq minutes, le soir de 1'accident;

Consid6rant que la sortie des travailleurs de la chambre h d6oompressi6n semble bien s'6tre faite le soir de l'accident, dans les mimes conditions prbalablement 6tablies par les ingfnieurs de la compagnie d6fenderesse.

It is not necessary, as will appear, to pass upon the question whether or not, in view of these findings, the decision on this point of the Court of King's Bench ought to be disturbed.

As to the second charge, the learned trial judge has found as follows:- Consid~rant que bien que la d6fenderesse ait commis une faute en ne donnant pas au demandeur des instructions complites sur les moyens de diminuer autant que possible, les risques inhdrents A son genre de travail, cette faute n'est cependant pas inexcusable au sens de la loi et de la jurisprudence.

The pertinent considgrants in the judgment of the Court of King's Bench are these:- Consid6rant qu'il appert par la preuve que Pappelant r6cemment venu de la campagne pour avoir de l'ouvrage, n'avait aucune connaissance du travail qui lui a t6 assign6; que I'intimbe s'est compl~tement charg~e de l'appelant qui a 6 entre ses mains un automate se laissant entibrement conduire par elle; que pour se rendre A la chambre de travail du caisson oh il y avait une pression atmosph6rique de A 20 livres, I'appelant passait par une pike appel6e chambre d'6quilibre oi l'intim6e faisait la compression pour prdparer l'appelant h la pression de la chambre de travail et que pour en revenir, il passait dans la mgme pidce oii se faisait la d6compression, avant de rendre 1'appelant A 'air libre; que l'appelant ne soupponnait en aucune fagon la n6cessit6 de cette pr6paration physique nicessaire pour faire son travail ou pouvoir le quitter sans danger; qu'il ne connaissait rien des cons6quences que ces proc6dds de compression et de d6compression et des inconv~nients et dangers qui pouvaient en r6sulter, ni du traitement auquel il fallait recourir au cas qu'il en r6sulterait quelque l6sion; que le jour mime qu'il a commenc6 le travail en quittant le chantier, I'ppelant sentit un malaise qui est all6 s'accentuant et que c'est avec peine qu'il a pu gagner son domicile; qu'il a pass6 nuit dans des souffrances atroces et que ce n'est que le matin vers 7 heures qu'un camarade syant notifi6 la compagnie de l'tat de Pappelant, le m6decin est venu chercher l'appelant pour le mettre & l'hipital i1 a subi le traitement de la r6compression mais, sans succhs, parce qu'il 6tait tardif; Consid6rant que le travail assign6 h 1'appelant se faisait dans des conditions anormales dans un caisson, h une profondeur de 40 pleds sous l'eau et sous une pression atmosph6rique de A 20 livres; que ce travail, par sa nature, pr6sentait un danger consid6rable et continu aussi bien durant le trajet pour parvenir h la chambre de travail que pour en revenir par suite de la transition de I'air libre & I'air comprim6 par le proc6d6 de la compression et surtout de Fair comprim6 h l'air libre par le proc6d6 de la d~compression.

Consid6rant que le seul traitement connu pour les maladies engendries par I'air comprim6 et les 16sions qui peuvent en r~sulter est la recompression suivie d'une lente d6compression, qu'une condition essentielle du succs est le recours imm6diat A6 ce traitement et qu'h cette fin, Pintim6e avait sur son chantier un h6pital sous la surveillance continuelle d'un m6decin; qu'elle pritend avoir mis dans une salle r6serv6e aux ouvriers un avis que Pappelant n'a pu connaitre, les avertissant que 1orsqu'ils sen'tiraient un malaise m~me en dehors de l'ouvrage, d'appeler le m6decin de la compagnie et de prendre une voiture A ses d~pens.

Consid6rant que c'6tait l'imp6rieux devoir de Fintimbe de prendre tous les moyens que la science et l'exp6rience pourvaient sugg~rer pour prot6ger Pappelant contre tout accident possible, qu'il lui incombait de mettre l'appelant au courant des conditions dans lesquelles son travail se faisait, des cons6quences possibles de ce travail sur la sant6 et surtout du traitement imm6diat auquel il fallait recourir, que Fintimbe s'est volontairement abstenue de l'accomplissement de ce devoir sans justification ni excuse et qu'il apparait aussi par la preuve que la d6compression au sortir du travail de 1'apidint s'est faite trop rapidement et qu'il y a lieu de croire qu'en recourant au traitement appropri6 en temps opportun la marche du mal aurait 6t6 arritee et que Papp-'ant cut 6t6 guiri; Considirant que, dans les circonstances, Fintim6e a commis une faute inexcusable.

The reasons given by the majority of the Court of King's Bench shew that in their view both faults charged were proved, and that each of the faults, so established, constituted, in itself, " une faute inexcusable," within the statute.

The evidence shews that the risk of injury depends upon a number of factors: the intensity of the pressure, the duration of the exposure, the age of the workman and his physical condition in a variety of respects.

By the practice of the appellants, each workman undergoes a medical examination before he is accepted.as an employee. Nevertheless, there is evidence, which I regard as satisfactory, that no such examination can be considered an entirely reliable test of the fitness of the subject. Therefore, it is not surprising to find that, at all events, in some quarters, a practice prevails by which a workman is not accepted as qualified, until his suitability has been proved by experience. Sometimes, the workman is subjected to a compression test in a hospital lock; and this it appears was at one time the practice of the appellants, a practice which was abandoned, because, according to the doctor's evidence, it frightened the men. In other works it is the rule not to permit an inexperienced hand to serve more than half a full shift without a second medical examination. No such precautions were observed by the appellants.

It was not disputed that no workman should be subjected to the risks attending caisson workers, in ignorance of the nature of those risks, or of the necessity of seeking medical aid immediately on the appearance of unpromising symptoms. Nor can it be successfully disputed that no instruction in these matters was given to the respondent or that he was ignorant in respect of them; nor again that, had he been properly instructed, the character of his symptoms must have apprised him of the necessity of seeking medical aid immediately; nor, once more, if he had applied to the appellants' doctor and the usual procedure had been followed, that his chances of escaping the injuries from which he now suffers, would have been greatly increased; the evidence establishes in my view the probability that he would have escaped.

Dr. Riopelle fi tempted to account for the absence of insiructions and to justify his failure to give any, on the ground that they were unnecessary; because, he said, all the n orkmen were fully informed as to these matters; knowledge of them was, so to speak, in the air.

This unfortunately is an excuse which cannot be accepted. As I have said, the evidence leaves no doubt that there are cases where the weakness or idiosyncrasy of the workman unfitting him for exposure to the ordinary risks of such work, is not revealed upon the preliminary examination. No further test is provided for by the practice of the appellants. The necessity ought therefore to have been apparent of making sure that proper preventive measures would be applied in cases which should prove to be exceptional; and, since the practice of the appellants was to leave it to each workman to take care of himself, it was imperative that he should know what to do and when to it. There was therefore a rigorous duty to impart in- CO.do struction. To trust to the chance of this knowledge being gained from some fellow workman was simply to leave the duty unperformed.

The evidence, indeed, does not leave us in doubt upon this point; the only fellow workman, who became aware of the respondent's condition, made light of it.

Unnecessarily and knowingly to expose the respondent, as the appellants did, to the risks adverted to above, without putting him in possession of the knowledge that would have enabled him to take effectual prophylactic measures, was a fault, and a fault without excuse. It is difficult, short of conduct involving deliberate intention to injure, to think of a plainer case.

The answer of the appellants, the answer in point of substance, to the case thus made against them, is twofold. First, it is said that the respondent and his wife were informed by a fellow workman, at half-past two in the morning of the necessity of having the respondent sent to the appellants' hospital; but that there was unnecessary delay in calling a taxi, and that, in consequence, he did not reach the hospital until after seven. The evidence makes it clear beyond dispute that the workman in question, Cadorette, did not at all appreciate the gravity of the risk the respondent was running in not having him taken immediately to the hospital. Cadorette says most explicitly that he made light of the respondent's sufferings, as I have mentioned above. Indeed, the attitude of Cadorette is significant as indicating that the appellants' workmen did not realize the necessity of resorting promptly to preventive measures on the appearance of suspicious symptoms. Secondly, it is said that the phrase " inexcusable fault" connotes, not indeed an intention to commit a wrong, but an element of intention, of voluntary conduct, as well as an appreciation of the danger which such conduct may entrain. Without expressing any opinion upon the point whether, applying such a standard, the appellants have succeeded in this court in acquitting themselves of " inexcusable fault," it seems necessary to observe that in the statutory phrase the word " inexcusable " is not a juridical term of art or a word to which any special technical significance can attach. It must therefore be applied in its ordinary sense as determined by the common usage, in light, of course, of the context in which it occurs, and of the subject matter of the statute. It is no part of the function of the courts to restrict or fix its meaning by paraphrases derived from text writers or other sources. In Montreal

Tramways Co. v. Savignac (1), Lord Cave, delivering the judgment of the Privy Council, said:

It is perhaps desirable to take notice of an argument addressed to us touching the responsibility of the appellants under section 6 in respect of an " inexcusable fault "

of an employee. The decision of the Privy Council above referred to (see especially the observations of Lord Cave at pages 413 to 415), precludes controversy upon this point.

The general rule of responsibility laid down by article 1054

C.C. governs the application of section 6:

The " inexcusable fault " of a servant or workman " in the performance of the work in which he is employed," within the meaning of article 1054 C.C., is imputable to the employer.

The appeal should be dismissed with costs.

Appeal dismissed with costs.