Supreme Court of Canada
Dozois v. Pure Spring Co. Ltd. and Ottawa Gas Co.,
[1935] S.C.R. 319
Date: 1934-06-06
George Dozois and Ida Dozois (Plaintiffs)
Appellants;
and
The Pure Spring Company
Limited and The Ottawa Gas Company (Defendants) Respondents.
1933: November 30; 1933: December 1; 1934: June 6.
Present: Duff C.J. and Rinfret, Smith, Cannon and Hughes JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Claim for damages for injury from alleged escape
of gas—Evidence—Directions in charge to jury—Construction of jury’s
findings—New trial—Absence of fume pipe on boiler—Liability of defendant which
installed gas appliances on the other defendant’s premises.
Plaintiffs sued P. Co. and O. Co. for damages for injury to
one of them (wife of the other) alleged to have been caused by escape of gas
from P. Co.’s premises (which were in the same building as plaintiffs’
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premises). O. Co. had, five years before the alleged injury,
installed gas appliances in P. Co.’s premises, and it supplied gas to P. Co. At
the trial the jury found that plaintiff was injured by gas; that it escaped
from gas appliances on P. Co.’s premises; that P. Co. had not satisfied the
jury that it was not guilty of negligence causing or contributing to the
escape; that O. Co. did not take the precautions it ought to have taken in
installing and maintaining the gas appliances; that its failure to take such
precautions caused or contributed to the causes of the injury; that O. Co. was
guilty of negligence in the installation or maintenance, causing in whole or in
part the injury, “in failing to install fume pipe on boiler when said boiler
was installed”; that there was a verbal agreement between P. Co. and O. Co. “to
install the aforementioned boiler and maintain same in good order”; and that
the companies failed to observe the terms of such agreement “by not insisting
on the installation of fume pipe on boiler at the time said boiler was
installed”; that O. Co.’s failure to observe its agreement caused or
contributed to the causes of the injury; and assessed damages. Judgment was
given against both defendants. The Court of Appeal for Ontario reversed the
judgment and dismissed the action. Plaintiffs appealed.
Held: There should be a new trial. Cannon and Hughes
JJ., dissenting, would restore the judgment at trial.
Duff C.J. and Smith J., while not entirely satisfied to go as
far as the Court of Appeal, held that on the record, including the evidence and
the judge’s charge to the jury, the trial and its result were so unsatisfactory
that the verdict should not stand and there should be a new trial. As to the
jury’s finding that defendants were both negligent in not insisting upon
setting up a fume pipe, they held that this finding meant that it was perfectly
well understood on all sides that the installation was incomplete, in that the
absence of a fume pipe might have the effect of allowing noxious gases to
escape which might do harm; and that the negligence found occurred when the
boiler was installed—five years before the alleged injury; and Duff C.J.
and Smith J. held that in such circumstances O. Co. would not be responsible (M’Alister
v. Stevenson, [1932] A.C. 562, at 578; Gregson v. Henderson Roller
Bearing Co., 20 Ont. L.R. 584; Farr v. Butters, [1932] 2 K.B. 606,
at 617; Caledonian Ry. Co. v. Mulholland, [1898] A.C. 216; and Bottomley
v. Bannister, [1932] 1 K.B. 458, at 472-3, referred to).
Rinfret J., while otherwise concurring with Duff C.J. and
Smith J., expressed an inclination to hold that the action as against O. Co. should
be dismissed—that the effect of the verdict was that its negligence occurred at
the time “when said boiler was installed,” five years before the alleged
injury; and, applying to the verdict the principle laid down in Dominion
Natural Gas Co. Ltd. v. Collins, [1909] A.C. 640, and having regard to the
jury’s answers with respect to the full knowledge of P. Co. concerning the
incomplete nature of the installation, the result was that O. Co. was not
legally liable; but, in view of the opinions of the other members of the court,
equally divided, he concurred in disposing of the case as proposed by Duff C.J.
and Smith J.
Cannon and Hughes JJ., dissenting, were of opinion that there
was reasonable support in the evidence for the jury’s findings; and that, applying
the law to the facts as found by the jury, the judgment at trial
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against both defendants should be restored. (With regard to
the liability of O. Co., reference was made to M’Alister v. Stevenson,
[1932] A.C. 562, at 611-612, 580-581, 595-597; Dominion Natural Gas Co. Ltd.
v. Collins, [1909] A.C. 640, at 646, 647.)
APPEAL by the plaintiffs from the judgment of the Court of
Appeal for Ontario, which reversed the judgment of McEvoy J. (given upon the
findings of the jury) in favour of the plaintiffs, and dismissed the
plaintiffs’ action (Magee J.A. dissenting as to the judgment at trial against
the defendant The Pure Spring Co. Ltd., which he would affirm). The action was
brought by the plaintiffs, husband and wife, for damages for injury to the
plaintiff, Mrs. Dozois, alleged to have been caused by gases escaping from the
premises of the defendant The Pure Spring Co. Ltd. (which premises were in the
same building as was the plaintiffs’ apartment), in which premises there were
certain gas appliances which had been installed by the defendant The Ottawa Gas
Co., which company supplied gas through a meter at the outer wall of the
premises of The Pure Spring Co. Ltd. The plaintiffs alleged that the alleged
escape of gases was caused by the negligence of the defendants, their servants
or agents.
A.W. Beament and G.M. Bleakney for the appellants.
E.J. Murphy K.C. and A.F. Moore for the respondent The
Pure Spring Co. Ltd.
G.F. Henderson K.C. and J.D. Watt for the respondent The
Ottawa Gas Co.
The judgment of Duff C.J. and Smith J. was delivered by
DUFF C.J.—The Chief Justice of Appeals in Ontario (Latchford
C.J.) and Mr. Justice Fisher, have unanimously held that, on the evidence as it
stands, that is to say, upon the facts admitted or not disputed, or necessarily
inferable, the plaintiffs’ action ought to be dismissed against both
defendants. I should have no hesitation whatever in coming to that conclusion
had it not been for the verdict of the jury and, although I think the case is
very near the line, I cannot express myself as entirely convinced that the
findings can properly be set aside upon these grounds. Other questions,
however, arise when the Court of
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Appeal finds the evidence in such a state that, as said in effect
by Lord Halsbury in Jones v. Spencer, the
court may find the trial so unsatisfactory on various grounds as to make it a
duty of justice to set aside the findings although granting the party affected
the right to bring the matter before another jury; or the court may specifically
find that matters, or a matter, or the matter, which the jury had to consider
were not brought so clearly and so fairly to the minds of the jury as to
justify them in allowing the verdict to stand. The court may think, on the
whole record as it stands, that there has been grievous error amounting to
injustice, and, consequently, that the verdict ought not to stand.
I am satisfied in this case that, regarding the case as a whole,
the verdict ought not to be permitted to stand. The judgment of Mr. Justice
Fisher develops the facts, though much might be added to what he has said, and
I have no hesitation whatever in saying that, examining the evidence in the
record, the result of this trial is to my mind entirely unsatisfactory; and so
unsatisfactory and on such grounds that there should be a new trial. I am not,
as I have said, entirely satisfied that we should go so far as the Appellate
Division has gone but, at least, the respondent should have an opportunity to
submit the issues to another jury.
There are one or two matters which would appear to require
special attention. The questions submitted to the jury as affecting especially
the liability of the Pure Spring Co. Ltd., respondents, were in these words:
1. Was the plaintiff Mrs. Dozois injured by inhaling
poisonous gases or fumes?—Ans. Yes.
2. If so, did the said gases or fumes escape from or emanate
from gas appliances upon the premises occupied by the defendant Pure Springs
Company?—Ans. Yes.
3. If the said gases or fumes escaped from the said appliances
on the premises occupied by the defendant Pure Springs Company, has the
defendant Pure Springs Company satisfied you that the Pure Springs Company, or
its servants or agents, were not guilty of any negligence causing or
contributing to the said escape?—Ans. No.
It is too obvious for comment that, under questions one and two,
the onus was on the appellants to establish that Mrs. Dozois was injured by
inhaling poisonous gases or
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fumes and, further, that such gases and fumes escaped from or emanated
from the gas appliances kept by the defendant Pure Spring Company. In addition
to that, the onus was on them also to prove that the Pure Spring Co. was guilty
of negligence causing or contributing to “such escape.”
Now, when one reads the charge of the trial judge as affecting
the issues raised by these questions, one receives at once the impression that
the respondents are burdened with an onus to rebut the charges which form the
basis of these issues. The learned trial judge begins his charge by saying that
the first thing that seems to him important is that the jury should get “into
their minds” how the case came about and then he says:
From that point of view, the first thing is you must
consider what is the nature of gas, and how does it diffuse itself, because
that is at the very foundation of this action. You have had a number of
gentlemen of experience who have given you an account how gas, not this gas,
but how gas travels from place to place.
Though not in explicit terms, yet by implication, it would rather
appear that the learned trial judge was asking the jury to assume that the
illness from which Mrs. Dozois suffered was derived from the escape of gas.
This, of course, was one of the most critical points of dispute in the action
and the learned trial judge ought to have been most careful to call the jury’s
attention to the fact that the onus was on the appellants and that they must be
satisfied by reasonable evidence that such was the case.
Then, the learned trial judge goes on to point out that an
attempt has been made by the Pure Spring Company to show that no gas fumes
escaped at all and, therefore, he says:
* * * it appears to me that it would be well for you to
commence your consideration of the matter by trying to determine upon this evidence
whether or not there was any gas, any poison gas, escaping from the Pure Spring
premises into the hall and up to the place where this woman lived. In weighing
that evidence and looking at it, you will not forget the importance to the
defendants of making it appear to the court and jury that there never was any
gas escaping from that place up to the place where this woman says she was
poisoned.
Observe that there is no caution that the very basis of the case
is, not merely that gas was escaping in some quantity, but that gas did escape
and that the gas which did escape caused the illness complained of.
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Then,
You will begin by considering that question; was there any
gas escaping up to that stairway at all, or was it, as has been boldly said,
something that has been framed up? The evidence of the defence began and
persisted largely upon the theory that there never was any gas came to this
place, and this woman never was gassed, and there was no gas there to gas her
anyway, and she could not be gassed. They seek to prove that in two ways at
least. One way is by calling a number of people who were about the place, and
who say, “We were there such and such a time and there was no gas.” Another way
is by seeking to satisfy the jury that this woman was not suffering from gas
poisoning at all * * *.
The trial judge seems, I think, to be conveying to the jury the
impression that the ultimate onus is on the respondents. His language is not
calculated to make the jury understand that the onus was plainly on the
appellants to show, not merely that there was gas escaping but that the
escaping gas did in fact injure the appellant. Then, later on, he puts the
matter in a more explicit form. He says:
You will remember that the task of the defendants is to show
that there was no gas escaping from their premises that was poisoning this
woman.
That seems to be a very plain misdirection and it is very
difficult indeed to think that the minds of the jury were not affected by it.
Then he goes on to say that during the few days including the day on which Mrs.
Dozois injury is alleged to have occurred the respondents were doing something
with the gas appliances. That in itself might have been an innocuous
observation, but, taken together with what immediately preceded it, viz., that
the “task” of the appellants was to negative the escape of gas, it strikes one
as being very far from innocuous. Then he proceeds to discuss what occurred in
the Pure Spring Company’s plant on the Sunday on which the accident occurred.
Three young men said they were playing cards there all day and that the plant
as usual was closed down and there was no sign of escaping gas. The learned
trial judge asked them to consider the likelihood of these three people playing
cards, as he describes it, “on ginger beer,” and he suggests to them that they
must consider very carefully whether something did not happen on that occasion
which would cause an escape of gas. All this must be considered in relation to
what the learned trial judge had already said as to the onus on the
respondents. It cannot, I think, be regarded as harmless.
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Then, there is a suggestion, which appears to be based upon
nothing, that this whole story of card playing is a pure myth because the other
side have said Mrs. Dozois was not sick from gas poisoning but sick from
something else, and that, therefore, her claim had no foundation. The learned
trial judge thought it proper to suggest that the jury might consider, in the
absence of any foundation in the evidence for such a suggestion, that these
young men were engaged in a conspiracy to defeat by false evidence the
appellants’ case.
Then, I find the learned trial judge, dealing with the evidence
given on behalf of the defendants by the letter carrier, Mr. White, to the
effect that he never smelt gas in the apartment, says:
But in that regard I have to say this to you, that under our
law a man who swears he does see something is considered very much stronger,
and a very much more important witness than a man who swears that he does not
see anything.
Now, that, I think, was a misdirection and a dangerous
misdirection. It is quite true that the jury may properly in the exercise of
their commonsense say to themselves that, other things being equal,
credibility, for example, being equal, etc., the evidence of a man who
remembers that he has seen something is of greater weight than the evidence of
the man who says, “I did not see it.” But, to lay down the broad proposition,
laid down by the learned trial judge as a proposition of law, is wrong, and a
misdirection, and, I think, in this case, was calculated to mislead the jury.
I shall not proceed further with the incidents of the conduct of
the trial except to call attention to the fact that the learned trial judge, in
effect, left the jury under the impression that if the respondents, the Pure
Spring Company, in whose premises the machine was installed, were negligent in
not insisting upon the installation of a fume pipe, that would not affect the
responsibility of the Gas Company. It is quite true that the learned trial
judge did not put the matter precisely in that way, but the jury found in most
explicit terms that the defendants were both negligent in not insisting upon
the setting up of a fume pipe. I do not think there can be any misconception
whatever as to the meaning of that finding. I think it meant that it was
perfectly well understood on all sides that the
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installation was incomplete, in that the absence of a fume pipe
might have the effect of allowing noxious gases to escape which might do harm;
and that the negligence found occurred when the boiler was installed, that is
to say, five years before the alleged injury. Now, as I understand the law laid
down in M’Alister v. Stevenson; Gregson
v. Henderson Roller Bearing Co.; Farr
v. Butters; Caledonian
Ry. Co. v. Mulholland; and Bottomley
v. Bannister; in
such circumstances, the Gas Company would not be responsible.
For these reasons I think the trial was most unsatisfactory, and
that the verdict cannot stand. The costs, including the costs of both appeals,
should be reserved to be disposed of by the trial judge.
RINFRET J.—On the issue between the appellants and the respondent
The Pure Spring Company Limited, I concur with my Lord the Chief Justice and
with Mr. Justice Smith; and, for the reasons stated by the Chief Justice, I
agree that there should be a new trial giving the appellants the opportunity to
submit the issue to another jury.
On the issue in respect of The Ottawa Gas Company, I would have
felt inclined to dismiss the appeal from the judgment of the Court of Appeal
for Ontario, which was unanimous in holding that the verdict of the jury could
not be upheld.
As I read the verdict, the negligence of the Gas Company was
found to have consisted only in the installation—not the maintenance—of the
appliances.
The jury did find the existence of a verbal agreement between The
Pure Spring Company and the Gas Company both to install the boiler and to
maintain it in good order. If, however, the other answers of the jury are
looked at, although the jury says that the Gas Company did not “take the
precautions it ought to have taken in installing and maintaining the gas
appliances on The Pure Spring Company’s premises,” and although the jury did
say that this failure caused in whole or in part the appellants’ injuries, it
will be noticed that Question No. 6, to which they gave this affirmative
answer, was put to them
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in the alternative, viz.: “Was the defendant gas company guilty
of any negligence in the installation or maintenance of any of the gas
appliances, etc.?” But the meaning of the answer to Question 6 is cleared up by
the subsequent answer to Question 7, where the jury is asked to state fully in
what such negligence consisted. The answer is: “In failing to install fume pipe
on boiler when said boiler was installed.”
This was not an oversight on the part of the jury, for their
attention was drawn to it by the presiding judge, who said: “That is originally
you mean, when they put it in five years ago, or something? You are all agreed
to that, are you?” And the jury assented.
This was again shown by the answer to Question 10.
10. In what respect, if any, did either party fail to
observe the terms of such agreement?—A. By not insisting on the installation of
fume pipe on boiler at the time said boiler was installed.
Again the attention of the jury was drawn by the trial judge to
this feature of their answer. He said:
You mean that The Pure Spring people were the ones that
neglected; that is, they did not insist on having it done? Is that what you
mean?
The FOREMAN: Yes, both companies, Your Honour.
His LORDSHIP: You do not seem to lay any fault to the Gas
Company for not doing it. The Pure Spring people did not insist on it, and you
think they ought to have insisted?
The FOREMAN: Your Honour, the jury feels that both should
have insisted—either one or both should have insisted on it.
His LORDSHIP: I think I must accept that explanation just
the way they give it.
In my view, the effect of the verdict is that, so far as the Gas
Company is concerned, its negligence occurred at the time “when said boiler was
installed”. In fact, those are the precise words used by the jury after their
attention was drawn to it by the presiding judge. Now, the installation was made
five years before the accident.
It being so, my view would be that, applying to the verdict the
principle laid down by the Privy Council in Dominion Natural Gas Company
Limited v. Collins, and
having regard to the answers of the jury with respect to the full knowledge of
the other defendant, The Pure Spring Company Limited, concerning the incomplete
nature of the installation, the result is that the Ottawa
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Gas Company is not legally liable and the action against that
respondent ought to have been dismissed.
As matters stand, however, two of my learned brothers are of
opinion that the appellants should succeed in toto and that the judgment
of the trial judge should be restored, while my Lord the Chief Justice and Mr.
Justice Smith think there should be a new trial against both respondents. Under
the circumstances, I shall concur in disposing of the case as proposed by the
Chief Justice (Carter v. Van Camp;
Littley v. Brooks & C.N.R.).
The judgment of Cannon and Hughes JJ., dissenting, was delivered
by
CANNON J.—The plaintiff and his wife complain by their action
that they suffered damages because the defendant, The Pure Spring Company
Limited, who occupied the basement and the ground floor of the building in
which they resided, for some time prior to the 21st December, 1930, allowed
dangerous and noxious gases to escape from their premises on to the premises of
the plaintiffs. They also allege that, on the night of the 21st December, 1930,
and all day the 22nd and in the morning of the 23rd, large quantities of gas
escaped from the premises of the defendant and the plaintiff Ida Dozois was
asphyxiated and poisoned.
The plaintiffs also aver that the Ottawa Gas Company distributed
this poisonous gas to, and had installed, two large gas water heaters operated
by The Pure Spring Company in the premises.
The plaintiffs further alleged that the escape of the said gas
was caused by the negligence of the defendant companies and that the
plaintiff’s wife, after being ill and confined to the hospital for sixteen
days, had suffered a great destruction of nervous tissues with a paralysis of
the lower extremities and consequent pain and suffering and great bodily
weakness
The Ottawa Gas Company denied all liability and claimed that,
although they delivered gas at the exterior of the premises of their
co-defendant, they had no control over it or its use after it entered the said
premises.
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The Pure Spring Company pleaded that no gas could escape, or had
escaped, from their premises; and also that if plaintiff Ida Dozois had
suffered illness, it was not from the effect of gases emanating from the
defendant’s premises but due to other causes. They also pleaded, in the
alternative, that if any gas emanated from their premises, injuring the
plaintiff, the same was due to the negligence of the Ottawa Gas Company, which
had sold and installed the gas equipment and fittings used in the said
premises.
Mr. Justice McEvoy, who presided at the trial, after hearing the
plaintiff’s evidence, refused the motions for non-suit submitted by the
defendants; and the case went to the jury, who answered the questions as
follows:
1. Was the plaintiff Mrs. Dozois injured by inhaling
poisonous gases or fumes?—Ans. Yes.
2. If so, did the said gases or fumes escape from or emanate
from gas appliances upon the premises occupied by the Defendant Pure Springs
Company?—Ans. Yes.
3. If the said gases or fumes escaped from the said
appliances on the premises occupied by the defendant Pure Springs Company, has
the defendant Pure Springs Company satisfied you that the Pure Springs Company,
its servants or agents, were not guilty of any negligence causing or
contributing to the said escape?—Ans. No.
4. Did the defendant Gas Company take the precautions they
ought to have taken in installing, and maintaining the gas appliances on the
Pure Spring Company’s premises?—Ans. No.
5. If you answer Question 4 “no,” then did the failure of
the gas company to take such precautions as they ought to have taken cause or
contribute to the causes of the plaintiff’s injuries?—Ans. Yes.
6. Was the defendant gas company guilty of any negligence in
the installation or maintenance of any of the gas appliances upon the premises
of the defendant Pure Springs Company, or of any of the attachments thereto,
which caused in whole or in part the plaintiff’s injuries?—Ans. Yes.
7. If you answer Question 6 “yes” state fully in what such
negligence consisted?—Ans. In failing to install fume pipe on boiler when said
boiler was installed.
That is originally you mean, when they put it in five years
ago, or something? You are all agreed to that, are you? (Jury assent.)
8. Was there any agreement between the Pure Springs Company
and the Gas Company in regard to the appliances in question?—Ans. Yes (verbal).
9. If so, what was the agreement?—Ans. To install the
aforementioned boiler and maintain same in good order.
10. In what respect, if any, did either party fail to
observe the terms of such agreement?—Ans. By not insisting on the installation
of fume pipe on boiler at the time said boiler was installed.
You mean that the Pure Spring people were the ones that
neglected; that is, they did not insist on having it done? Is that what you
mean?
The FOREMAN: Yes, both companies, your Honour.
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His LORDSHIP: YOU do not seem to lay any fault to the Gas
Company for not doing it. The Pure Spring people did not insist on it, and you
think they ought to have insisted?
* * * * *
11. If you find (that the Gas Company failed to observe its
agreement with the Pure Springs Company, did the failure of the gas company to
observe its agreement cause or contribute to the causes of the plaintiff’s
injuries?—Ans. Yes.
12. At what sum do you assess the damages to,—
(a) the plaintiff George Dozois $700.00.
(b) the plaintiff Ida Dozois $4,000.00
From the judgment rendered according to this verdict, an appeal
was brought to the learned judges of the Court of Appeal who unanimously
dismissed the action against the Ottawa Gas Company and by a majority against
The Pure Spring Company. Mr. Justice Magee found that the verdict of the jury,
as far as The Pure Spring Company Limited was concerned, could not be
disturbed.
After reading with care all the evidence, I have reached the
conclusion that there was abundant evidence for the jury to reach reasonably
the conclusion that the plaintiffs and their witnesses did smell gas on the
occasions in question; that such escape could come only from the premises of
The Pure Spring Company. The jury had a right and were in duty bound after the
way the trial was conducted by the respondents to believe or disbelieve the
denials of their witnesses and to accept or reject the evidence in support of
the action. Could they reasonably reach the conclusion that the plaintiffs had
proven their case? It was admitted that if gas was diffused in the apartment,
it could come exclusively from the Pure Springs’ plant, installed and served by
the Ottawa Gas Company—in that building. There was no gas leak on the street or
in the neighbourhood. The jury were duly warned by the learned trial judge that
the plaintiffs and the members of the family or immediate friends were to be
considered as interested witnesses, but they accepted as sufficient and acted
upon the evidence they gave as to the presence of gas on several occasions and
specially on the 20th, 21st and 22nd of December, 1930. They knew that on
several prior occasions, Dozois complained to the landlord who passed the
complaints to the Pure Spring Company. Louis Shapiro, one of the defendant’s
witnesses, stated that on the Sunday night at 10.30 Dozois complained to him
about the smell of gas.
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Moreover, several independent witnesses, Burgess, the bread
salesman, Belisle, the bread-driver, and Léo Chartrand swore that from the 1st
of October to the date of the accident they smelled cooking gas there.
There being gas in and about that apartment from the 1st of
October on, is it unreasonable to reach the conclusion that Mrs. Dozois was
injured by it? The jury had the admission by the medical expert for the defence
that it was quite possible that this woman, in the house almost all the time,
had before the accident built up a certain amount of carbon monoxide poisoning
which would make her more susceptible, especially after exertion, walking fast
and running upstairs, to the obnoxious results of the inhaling of illuminating
gas. This would reasonably explain why, of the whole family, she was the only
one who suffered seriously from the combination of carbon monoxide with the
blood.
The evidence of Dr. A. V. Kniewasser, who, previously unknown to
the plaintiffs, was called in and diagnosed monoxide poisoning and swore that
his diagnostic was correct, corroborated by Dr. Cairns, more than established
the plaintiff’s case. This medical attendant is the only one who spoke from
actual personal observation. The other medical witnesses gave only opinions to
the effect that the paralysis, if genuine, could be caused by a hemorrhage.
They could not give facts. The jury, amidst the obscurity which the expert
testimony often brings to a case, chose the evidence of the practitioner who
could and did swear to a constant positive fact—that his patient was suffering,
when he was called, from gas poisoning, and that he himself had smelt the gas
going upstairs to her apartment.
This is not a case where the jury had to infer from certain
elements of proof a certain conclusion; there was no hiatus to be bridged, but,
if they accepted the evidence of the plaintiffs, actual observations of facts
which, in their mind, brought practical certainty—or at least reasonable
probability, far above a mere guess or conjecture.
A court of appeal is not called upon to substitute its own views
of the evidence to set aside the verdict of a jury. The Court of Appeal and
ourselves have not to decide whether the jury were right or wrong in their
views of
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the facts. We are merely to determine whether there was evidence
on which reasonable men, properly instructed by the judge, could have come to
the conclusion at which the jury arrived. Metropolitan Railway Co. v. Wright;
Laporte v. C.P.R..
The judge’s instructions to the jury were acceptable to both
parties; and, moreover, the case was eminently one in which the question of the
credibility of the witnesses was specifically left to the jury, as all parties
went on the basis that evidence was fabricated by the other party and the
learned trial judge especially called the attention of the jury to this state
of affairs in his address.
It is impossible to say that there was no evidence, as contended
by the defendants, that Mrs. Dozois had been exposed to poisonous gases
and that her injuries resulted from such exposure. Moreover, Mirsky, heard for
the defendants, admitted that the appellants complained of gas. William
Delorme, another witness for the defendants, was called on the 20th December
because there had been a complaint of a gas leak. He admits that he smelled a
slight odour of fumes. Prindiville, another employee of the Gas Company, went
down to the premises and also smelled fumes, as a result of which he repeated his
recommendation that a gas fume pipe be installed in the basement. Up to that
time, the defendants’ installation was not complete. Mclntyre, the gas
company’s superintendent, says:
Q. No job is complete without a fume pipe?—A. I would say
no. No gas appliance is complete without a fume pipe.
Q. Suppose on the night of the 20th of December somebody had
gone out of those premises and inadvertently left the gas on in this boiler and
there had been a fume pipe—what would have happened?—A. The gas would have gone
through the building.
Q. Would it have been carried off through the fume
pipe?—A. Yes.
Q. If the fact was there was no fume pipe, and somebody left
the gas turned on what would happen to the gas?—A. It would go through the
building.
Q. It would go out of the apparatus into the atmosphere and
through the building?—A. That is if it was turned on.
Mr. HENDERSON: That is all elementary.
In fact, this fume pipe was installed only on the day that the
plaintiff Ida Dozois was taken to the hospital and was
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entered by her physician as suffering from carbon monoxide
poisoning.
There was evidence, besides the smell of unburnt illuminating
gas, of emanations of the product of the incomplete combustion of the said gas
which contains a high percentage of carbon monoxide.
I therefore reach the conclusion that the plaintiffs’ appeal
should be maintained against The Pure Spring Company Limited and the verdict
against it restored.
Now, what about the Gas Company?
Mr. Justice Magee says in his judgment:
As regards the Gas Company different considerations arise.
The Spring Company were not bound to use any defective appliances and thereby
allow the others to be injured. The Gas Company cannot be brought within the
principle of the so-called snail case of M’Alister (Donohue) v. Stevenson
where the manufacturer of ginger beer was held liable to the donee of a
purchaser from his retailed customer for injury to the donee’s health from the
concealed presence of a dead snail in the stone bottle nor is the Gas Company
in the position of the manufacturers of the Ross rifle as in Ross v.
Dunstall. In Gregson
v. Henderson Roller Bearing Co. the
defendant Company were tenants and the plaintiff was injured by the fall of a
wooden platform insecurely placed on edge by the employees of the co-defendant
Eckhardt who undertook to make some repairs and who happened to be landlord. It
was held that Eckhardt was not liable to the plaintiff but the tenants alone
were liable. I at least am bound by that decision and I think it applies to the
present case and relieves the Gas Company so far as liability to the plaintiffs
are concerned.
On this point, the trial judge says:
As it seems to me upon the findings of the jury the Pure
Spring Co. had gas upon its premises and allowed it to escape upon the premises
to the damage of the plaintiffs and thereby were guilty of a breach of duty to
take care of a dangerous substance which they had upon their premises to the
purposes of their business; and the Gas Company is guilty of a breach of duty amounting
to negligence by installing and maintaining this dangerous machine without a
fume pipe whereby the gas was allowed to accumulate and enter the plaintiffs’
premises doing damage.
The following abstract from the discussion as to the questions to
be submitted to the jury may explain, to a certain extent, the view taken by
the trial judge:
His LORDSHIP: You mean there is evidence that might make me
think, especially the evidence of Mclntyre, who says, supposing the cock had
been left partly open and the fume pipe has been there, the fume pipe would
have carried it out and it would not have circulated through the building.
Mr. BEAMENT: And Prindiville said the same thing.
Mr. HENDERSON: That is common sense anyway.
[Page 334]
His LORDSHIP: I thought Mclntyre’s evidence was that if
somebody did kick the top of one of these machines and knock it partially open,
and that raw gas began to circulate there, the fume pipe would carry it away.
Mr. HENDERSON: It is common ground between my friend and
myself. I would not attempt to deny it for one moment, if that happened through
carelessness or design, if you like. That is why a fume pipe is necessary, to
make a job complete. A fume pipe makes the apparatus practically fool-proof.
The fume pipe is unimportant as regards merely the fumes from burnt gas because
they don’t hurt anybody.
Mr. BEAMENT: That is for the jury to decide.
The jury found the following against the Gas Company:
1st. That they did not take the precautions they ought to have
taken in installing and maintaining the gas appliances on these premises;
2nd. That the failure of the Gas Company to take such precautions
as they ought to have taken caused or contributed to the cause of the
plaintiff’s injury;
3rd. That the Gas Company was guilty of negligence in the
installation or maintenance of the appliances which caused the plaintiff’s
injuries in failing to install a fume pipe on the boiler when the said boiler
was installed;
4th. That there was a verbal agreement between the Pure Spring
Company and the Gas Company in regard to the appliances in question to install
the aforementioned boiler and maintain same in good order; and the jury found
that both parties should have insisted on the installation of this fume pipe at
that time.
In Dominion Natural Gas Co. v. Collins,
Lord Dunedin, speaking for the Privy Council, said that the findings of the
jury must be the basis of consideration, unless it can be said that these
findings are incapable of support by the evidence.
In this case, it is shown and it is practically common ground
that the Gas Company took special care in looking after its appliances and sent
an inspector to look them over, even without being called upon to do so. It is
also abundantly shown that Prindiville, their employee, insisted, at the time
of the installation and after, and also on the day on which the female
plaintiff went to the hospital, on the necessity of a fume pipe. As in the Collins
case,
[Page 335]
The gas company were not occupiers of the premises on which
the accident happened. Further, there being no relation of contract between the
company and the plaintiffs, the plaintiffs cannot appeal to any defect in the
machine supplied by the defendants which might constitute breach of contract. *
* *.
On the other hand, if the proximate cause of the accident is
not the negligence of the defendant, but the conscious act of another volition,
then he will not be liable.
Can it be said in this case that the Gas Company owed a duty to
all the occupiers of the building in which they introduced an admittedly
dangerous thing? Were they bound to take all precautions to prevent its escape
or to neutralize the danger to such occupiers in case of an accident causing
such an escape? Therefore, were they not bound, as found by the jury, to insist
and complete the installation and make it safe by installing the fume pipe
which would have brought the noxious gas into the open air, instead of allowing
its diffusion into the building? If so bound, did they satisfy the onus cast
upon them of proving that the proximate cause of the accident was not their
negligence, but the conscious act of another volition?
Very recently, after the trial of the present case, Lord
MacMillan, in M’Alister v. Stevenson, says:
The exceptional case of things dangerous in themselves or
known to be in a dangerous condition has been regarded as constituting a
peculiar category outside the ordinary law both of contract and of tort. I may
observe that it seems to me inaccurate to describe the case of dangerous things
as an exception to the principle that no one but a party to a contract can sue
on that contract. I rather regard this type of case as a special instance of
negligence where the law exacts a degree of diligence so stringent as to amount
practically to a guarantee of safety.
In the same case, Lord Atkin, speaking for the majority of the
House of Lords, gave us the present state of the law of England as follows:
At present I content myself with pointing out that in
English law there must be and is some general conception of relations giving
rise to a duty of care, of which the particular cases found in the books are
but instances. The liability for negligence, whether you style it such or treat
it as in other systems as a species of “culpa,” is no doubt based upon a
general public sentiment of moral wrongdoing for which the offender must pay.
But acts or omissions which any moral code would censure cannot in a practical
world be treated so as to give a right to every person injured by them to
demand relief. In this way rules of law arise which limit the range of
complainants and the extent of their remedy. The rule that you are to love your
neighbour becomes in law, you must not injure your neighbour; and the lawyer’s
question, Who is my neighbour?
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receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The answer seems to
be—persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question. This
appears to me to be the doctrine of Heaven v. Pender
as laid down by Lord Esher (then Brett M.R.) when it is limited by the notion
of proximity introduced by Lord Esher himself and A.L. Smith, L.J., in LeLievre
v. Gould. Lord
Esher says: “That case established that, under certain circumstances, one man
may owe a duty to another, even though there is no contract between them. If
one man is near to another, or is near to the property of another, a duty lies
upon him not to do that which may cause a personal injury to that other, or may
injure his property.” So A.L. Smith, L.J.: “The decision of Heaven v. Pender19
was founded upon the principle, that a duty to take due care did arise when the
person or property of one was in such proximity to the person or property of
another that, if due care was not taken, damage might be done by the one to the
other.” I think that this sufficiently states the truth if proximity be not
confined to mere physical proximity, but be used, as I think it was intended,
to extend to such close and direct relations that the act complained of
directly affects a person whom the person alleged to be bound to take care
would know would be directly affected by his careless act. * * * I do not find
it necessary to discuss at length the cases dealing with duties where a thing
is dangerous, or, in the narrower category, belongs to a class of things which
are dangerous in themselves. I regard the distinction as an unnatural one so
far as it is used to serve as a logical differentiation by which to distinguish
the existence or non-existence of a legal right. In this respect I agree with
what was said by Scrutton, L.J., in Hodge & Sons v. Anglo-American Oil
Co., a
case which was ultimately decided on a question of fact. “Personally I do not
understand the difference between a thing dangerous in itself, as poison, and a
thing not dangerous as a class, but by negligent construction dangerous as a
particular thing. The latter, if anything, seems the more dangerous of the two;
it is a wolf in sheep’s clothing instead of an obvious wolf.” The nature of the
thing may very well call for different degrees of care, and the person dealing
with it may well contemplate persons as being within the sphere of his duty to
take care who would not be sufficiently proximate with less dangerous goods; so
that not only the degree of care but the range of persons to whom a duty is
owed may be extended. But they all illustrate the general principle. In Dominion
Natural Gas Co. Ltd. v. Collins and Perkins,
the appellants had installed a gas apparatus and were supplying natural gas on
the premises of a railway company. They had installed a regulator to control
the pressure and their men negligently made an escape valve discharge into the
building instead of into the open air. The railway workmen—the plaintiffs—were
injured by an explosion in the premises. The defendants were held liable. Lord
Dunedin, in giving the judgment of the Judicial Committee (consisting of
himself, Lord Macnaghten, Lord Collins, and Sir Arthur Wilson), after stating
that there was no relation of contract between the plaintiffs and the defendants,
proceeded: “There
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may be, however, in the case of any one performing an
operation, or setting up and installing a machine, a relationship of duty. What
that duty is will vary according to the subject-matter of the things involved.
It has, however, again and again been held that, in the case of articles
dangerous in themselves, such as loaded firearms, poisons, explosives, and
other things ejusdem generis, there is a peculiar duty to take
precaution imposed upon those who send forth or install such articles when it
is necessarily the case that other parties will come within their proximity.”
This, with respect, exactly sums up the position. The duty may exist
independently of contract. Whether it exists or not depends upon the subject matter
involved; but clearly in the class of things enumerated there is a special duty
to take precautions. This is the very opposite of creating a special category
in which alone the duty exists. I may add, though it obviously would make no
difference in the creation of a duty, that the installation of an apparatus to
fee used for gas perhaps more closely resembles the manufacture of a gun than a
dealing with a loaded gun. In both cases the actual work is innocuous; it is
only when the gun is loaded or the apparatus charged with gas that the danger
arises.
After the jury had retired and after taking up this matter and
discussing the above quoted Collins case
with counsel for the Gas Company, the jury returned for further instruction and
was told:
His LORDSHIP: Counsel for the gas company points out to me
that I said to you that in installing and handling gas, it was a dangerous
substance, and that they had a duty to exercise of precaution and care, which
they ought to exercise in order to prevent somebody being hurt by their gas. I
think I did say that to you and I ought to have said in that connection to you
that if some independent person other than the gas company, somebody by his
volition did something which caused the accident that is complained of, that would
relieve the gas company so far as that duty was concerned. If the Pure Spring
Company, for instance, did something that really caused the accident, and did
it voluntarily by their own volition, then that would be a thing that would
discharge the gas company from the liability from that doctrine of duty.
Mr. BEAMENT: And the gas company must prove that, my Lord.
His LORDSHIP: And before you can apply that rule you must be
convinced from the evidence, not that the gas company must prove it, but from
the whole evidence as you have it before you—if you conclude that the Pure
Spring Company did do something in connection with that gas after the company
had done their whole duty, and been as careful as they ought to have been, and
did everything they ought to have done—if the Pure Spring people, or anybody
else, did some act voluntarily intentionally, that really caused the harm that
is complained of, then you would be right in acquitting the gas company from
any liability on that branch of the case.
The answers of the jury show that they did not find that the
accident was entirely caused, independently of the negligence of the Gas
Company, by the conscious act of another volition against which no precaution
could really avail; on the contrary, they found joint negligence; and in
[Page 338]
apportioning the blame, the jury considered that 60% of it should
be assigned to the Gas Company for failing in their duty to protect the
plaintiff’s wife, as one of the persons who were so closely and directly
affected by the introduction of poisonous gas in the building that they (the
company) ought reasonably to have had her in contemplation as being immediately
affected by the acts or omissions called in question—and they evidently found
that the Gas Company had not exculpated itself by establishing that the
accident had been caused by the independent conscious act of another volition.
The instructions of the learned trial judge to the jury have not been
challenged and the latest authorities confirm his directions in law.
Applying the law to the facts as found by the jury, I reach the
conclusion that the appeal should be allowed with costs throughout and the
judgment of the trial court restored against both respondents.
Appeal allowed; new trial ordered.
Solicitor for the appellants: George M. Bleakney.
Solicitor for the respondent Pure Spring Co. Ltd.: Allan
F. Moore.
Solicitors for the respondent Ottawa Gas Co.: Henderson,
Herridge & Gowling.
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