Supreme Court of Canada
Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456
Date: 1933-05-08.
Montreal Tramways
Company (Defendant) Appellant;
and
Paul Léveillé (Plaintiff)
Respondent.
1932: October 24; 1933: May 8.
Present: Rinfret, Lamont, Smith, Cannon and
Crocket JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Negligence—Tramway—Pregnant mother—Fall from
car—Company’s fault admitted—Infant born with club feet—Right of infant to sue
for damages after birth—Jury trial—Evidence—Reasonable inference—Whether
deformity of the child’s feet resulted from accident to mother.
The respondent’s wife, being seven months
pregnant, was descending from a tram car belonging to the appellant company
when, by reason of the negligence of the motorman, she fell, or was thrown,
from the car and was injured. Two months later she gave birth to a female child
who was born with club feet. The respondent, as tutor to his child, brought an
action against the appellant company, claiming that the deformity of the child
was the direct consequence of the negligence of the appellant company by which
the mother was injured. The action was tried with a jury who found in favour of
the respondent and judgment for $5,500 was rendered accordingly, which was affirmed
by a majority of the appellate court.
Held, Smith J.
dissenting, that the judgment appealed from should be affirmed and the appeal
dismissed.
[Page 457]
Held, also,
Smith J. dissenting, that there was sufficient evidence adduced at the trial to
produce in the jury’s minds a conviction that it was reasonably probable that
the deformity of the child resulted as a consequence of the mother’s injury,
and, consequently, their verdict should not be disturbed. The fact that the
appellant’s fault caused the deformity of the child cannot, from the nature of
things, be established by direct evidence. It may, however, be established by a
presumption or inference drawn from facts proved to the satisfaction of the
jury. These facts must be consistent one with the other and must furnish data
from which the presumption can be reasonably drawn. It is not sufficient that
the evidence affords material for a conjecture that the child’s deformity may
have been due to the consequences of the mother’s accident. It must go further
and be sufficient to justify a reasonable man in concluding, not as a mere
guess or conjecture, but as a deduction from the evidence, that there is a
reasonable probability that the deformity was due to such accident.
Per Smith J.
(dissenting).—The evidence of the medical experts called on behalf of the
respondent establishes that medical science has not yet discovered the cause of
club feet and such evidence has merely put forward more or less plausible
theories on that subject. Therefore, having regard to the scientific problem
involved, there was no evidence sufficiently positive and definite upon which
the jury could reasonably find as a fact that the child’s club feet resulted
from the injury to the mother.
Held, further,
Smith J. dissenting, that under the civil law, a child, who suffers injury
while in its mother’s womb as the result of a wrongful act or default of
another has the right after birth to maintain an action for damages for the
injury received by it in its pre-natal state.
Per Rinfret, Lamont
and Crocket JJ.—The answer to the appellant’s contention that an unborn child
being merely a part of its mother had no separate existence and, therefore,
could not maintain an action under article 1063 C.C., is that, although the
child was not actually born at the time the appellant by its fault created the
conditions which brought about the deformity to its feet, yet, under the civil
law, it is deemed to be so if for its advantage. Therefore when it was
subsequently born alive and viable it was clothed with all the rights of action
which it would have had if actually in existence at the date of the accident.
The wrongful act of the appellant produced its damage on the birth of the child
and the right of action was then complete.
Per Cannon
J.—The action in damages, and consequently the possibility of exercising it,
has its existence from the date the injured person has suffered prejudice. In
this case, the right of the infant child to claim damages was not entire before
its birth. The child, while in its mother’s womb, was not suffering any
prejudice nor inconvenience and no complete right of action then existed. Right
to damages was born at the same time as the child when the deformity was
revealed and therefore the respondent’s action was well founded in law.
Per Rinfret,
Lamont, Smith and Crocket JJ.—The great weight of judicial opinion in the
common law courts denies the right of a child when born to maintain an action
for pre-natal injuries; per Rinfret,
[Page 458]
Lamont and Crocket JJ., although it has been
held that the doctrine, which regards an unborn child as born if for its
benefit, had been adopted in England by the Ecclesiastical and Admiralty
courts, and to some extent by the Court of Chancery.
APPEAL from the decision of the Court of King’s
Bench, appeal side, province of Quebec, affirming the judgment of the Superior
Court, Duclos J., sitting with a jury, and maintaining the respondent’s action
in damages.
The material facts of the case and the
questions at issue are stated in the above head-note and in the judgments now
reported.
Arthur Vallée K.C. for the appellant.
H. N. Chauvin K.C. and J. Hélai for the
respondent.
The judgments of Rinfret, Lamont and Crocket JJ.
were delivered by
Lamont J.—On March 25, 1929, the respondent’s wife, then seven months
pregnant, was descending from a tram car belonging to the appellant
(hereinafter called the Company) when, by reason of the negligence of the
Company’s motorman, she fell, or was thrown from the car to the street and was
injured. Two months later she gave birth to a female child—now called
Jeannine—who was born with club feet. The respondent had himself appointed
tutor to the child and brought this action ès-qualité against the Company,
claiming that the deformity of the child was the direct consequence of the
negligence of the Company by which its mother was injured. The action was tried
with a jury who found for the respondent and awarded damages in the sum of
$5,500, for which amount judgment was entered. This judgment was affirmed by
the Court of King’s Bench (appeal side), Dorion and Hall JJ. dissenting. From
the judgment of the Court of King’s Bench the Company appeals to this court.
The appeal presents three questions for
determination:
1. Has a child, who suffers injury while in its
mother’s womb as the result of a wrongful act or default of another, the right
after birth to maintain an action for damages for the injury received by it in
its pre-natal state?
2. Was there evidence on which the jury could
reasonably find that the deformity of the child’s feet was the result of the
accident to its mother?
[Page 459]
3. Was the charge of the trial judge to the jury
sufficient in law?
These questions fall to be determined by the
civil law of the province of Quebec. The action is brought under article 1053
of the civil code, which reads:—
Every person capable of discerning right
from wrong is responsible for the damage caused by his fault to another,
whether by positive act, imprudence, neglect or want of skill.
For the Company it was contended that the first
question should be answered in the negative, because—
1. A child en ventre sa mère is not an
existing person— in rerum naturâ—but only a part of its mother and,
therefore, does not come within the meaning of the term “another” in article
1053 C.C., and
2. The Company’s liability was founded in
contract, express or implied, and there had been no contract with the child.
In support of its contention the Company cited
the case of Walker v. G.T.N. Rly. Co. of Ireland. In that case the plaintiff’s mother, while
a passenger on the defendant’s railway, was injured by the defendant’s
negligence, and the plaintiff, who was then en ventre, was subsequently
born deformed. After the child was born it brought an action for damages for
the deformity which it alleged was caused by the company’s negligence. On
demurrer, the court, which consisted of four judges, held that the child could
not maintain the action. The decision was based largely on the ground that the
company had only contracted to carry the mother to whom alone it owed a duty
not to be negligent. The broader ground, namely, the legal right of an unborn
child to personal security, was discussed at some length, but the views of the
judges on that point were against the recognition of the right; the Chief
Justice, however, expressly stated that he would leave the question open, and
based his judgment on the single ground that there were no facts set out in the
statement of claim which fixed the defendants with liability for breach of duty
as carriers of passengers.
During the argument in that case it was pointed
out that under English law a conceived but unborn child, for the purposes of
succession to property on an intestacy and for
[Page 460]
many purposes in connection with wills and their
construction, was deemed to be born at a particular time if it was for the
child’s benefit that it be so held, and that in The George and Richard, it was held that a child en ventre sa
mère at the date of its father’s death was capable, when born, of
maintaining an action under Lord Campbell’s Act. Reference was also made to the
language of Mr. Justice Buller in Thellusson v. Woodford, who, when replying to an allegation that a
child en ventre sa mère was a non-entity, at page 322, said:—
Let us see what this non-entity can do. He
may be vouched in a recovery, though it is for the purpose of making him answer
over in value. He may be an executor. He may take under the Statute of
Distributions. He may take by devise. He may be entitled under a charge for
raising portions. He may have an injunction; and he may have a guardian.
The court, however, took the view that the
doctrine which regards an unborn child as born, if for its benefit, was a
fiction of the civil law which had been adopted in England by the Ecclesiastical
and Admiralty courts, and to some extent by the Court of Chancery; but that the
common law courts had never recognized the fiction as applying so as to permit
a child to obtain damages for pre-natal injuries.
That pre-natal injury affords no foundation for
an action for damages on the part of a child was held in the following American
cases: Allaire v. St. Luke’s Hospital; Gorman v. Budlong; Nugent v. Brooklyn Heights Rly.
Co.; Drobner
v. Peters; Stanford
v. St. Louis-San Francisco Rly..
The only case to the contrary cited to us was Kine v. Zukerman. These were all cases under the common law
and it must be admitted that the great weight of judicial opinion in the common
law courts denies the right of a child when born to maintain an action for pre-natal
injuries.
The rights of an unborn child under the civil
law are based on two passages found in the Digest of Justinian, lib. 1, tit. 5,
ss. 7 and 26, as follows:—
[Page 461]
7. Qui in utero est, perinde ac si in rebus
humanis esset, custoditur, quoties de commodis ipsius partas quaeritur.
(An unborn child is taken care of just as
much as if it were in existence in any case in which the child’s own advantage
comes in question.)
26. Qui in utero sunt in toto paene jure
civili intelliguntur in rerum naturâ esse.
(Unborn children are in almost every branch
of the civil law regarded as already existing.)
The Civil Code of Quebec makes provision for the
appointment of a curator to the person or to the property of children conceived
but not yet born. Arts. 337 and 338 C.C.
Art. 345 reads as follows:—
The curator to a child conceived but not
yet born, is bound to act for such child whenever its interests require it; he
has until its birth the administration of the property which is to belong to
it, and afterwards he is bound to render an account of such administration.
This article practically embodies the Roman Law
rule first above quoted.
Art. 608 C.C. reads as follows:—
608. In order to inherit it is necessary to
be civilly in existence at the moment when the succession devolves; thus, the
following are incapable of inheriting:—
1. Persons who are not yet conceived;
2. Infants who are not viable when born;
Under this article the right to inherit is made
to depend upon civil existence. A conceived but unborn child, therefore, is
deemed to have civil existence if subsequently born viable.
Articles 771 and 838 C.C. deal with gifts inter
vivos and by will. The former article reads:—
771. The capacity to give or to receive inter
vivos is to be considered relatively to the time of the gift. It must exist
at each period, with the donor and with the donee, when the gift and the
acceptance are effected by different acts.
It suffices that the donee be conceived at
the time of the gift or when it takes effect in his favour, provided he be
afterwards born viable.
Article 838 C.C. contains a similar provision in
respect of a conceived but unborn child taking a benefit under a will.
It was contended by the Company that as the
civil code by express provision had declared that the conceived but unborn
child should possess the rights and capacities of a born child in respect of
the matters mentioned in articles 608, 771 and 838 C.C., it limited by
implication the cases in which a child en ventre would be deemed to be
born to those expressly mentioned. On the other hand the respondent contended
that the matters referred to in these articles,
[Page 462]
though specially dealt with in the civil code,
are merely illustrative instances of the rule that an unborn child shall be
deemed to be born whenever its interests require it, but that they in no way
limit the meaning of article 345 C.C., which is general in its terms.
The Code Napoléon of France contains articles
similar to articles 608 and 771 of the Quebec civil code. The French authorities
may, therefore, be helpful in determining whether or not, under the civil law,
the rule is of general application.
In Baudry-Lacantinerie et
Houques-Fourcadé’s Droit Civil Français, 3rd ed., tome 1, at page 270, the learned authors say:—
289. L’homme constitue
une personne dès le moment même de sa naissance. Jusque-là il n’est pas une
personne distincte, il n’est encore que pars viscerum matris. Pourtant,
en droit romain, on considérait, par une fiction de droit, l’enfant simplement
conçu comme déjà né, lorsque son intérêt l’exigeait. Ce principe, admis aussi
dans notre ancien droit, a été en ces termes: infans conceptus pro nato habetur, quoties de commodis ejus agitur. Le
code civil en consacre lui-même plusieurs applications, qui prouvent qu’il a
été maintenu dans toute sa généralité.
In Aubry et Rau, Droit Civil Français, 4th ed.,
tome 1, par. 53, page 262, the
author says:—
Dans le sein de sa mère, l’enfant n’a point
encore d’existence qui lui soit propre, ni par conséquent, à vrai dire, de personnalité.
Mais, par une fiction des lois civiles, il est considéré comme étant déjà né,
en tant du moins que son intérêt l’exige. En vertu de cette fiction, l’enfant
simplement conçu jouit d’une capacité juridique provisoire, subordonnée, quant
à ses effets définitifs, à sa naissance en vie et avec viabilité.
And in Mignault’s Droit Civil Canadien, we
find the following:—
Une vieille maxime dit que l’enfant conçu est
déjà réputé né toutes les fois qu’il s’agit de ses intérêts.
Then, after referring to the nomination of the
curator under article 345 C.C., the learned author continues:—
Il n’est pas nécessaire de citer les cas qui
nécessitent cette nomination. Elle se fait dans tous les cas où l’intérêt
de l’enfant l’exige.
In determining the generality of the application
of the fiction reference may also be made to the opinions expressed by certain
English judges familiar with that law.
In Burnet v. Mann, Lord Chancellor Hardwicke said:—
The general rule is that they (unborn
children) are considered in esse for their benefit not for their
prejudice.
[Page 463]
and in Wallis v. Hudson, the same judge, at page 116, stated that a child en ventre sa
mère “was a person in rerum naturâ.” Then, after referring to the
Statute of Distributions which he said was to be construed by the civil law, he
proceeded as follows:—
As to the civil law, nothing is more clear,
than that this law considered a child in the mother’s womb absolutely born, to
all intents and purposes, for the child’s benefit.
This statement as to the civil law was referred
to with approval by Lord Atkinson in Villar v. Gilby. See also Schofield v. Orrel
Colber.
In Doe v. Clark, Butler J. used this language:—
It seems indeed now settled that an infant en
ventre sa mère shall be considered, generally speaking, as born for all
purposes for its own benefit.
In many of the English cases in which effect was
given to the rule of the civil law it was applied simply as a rule of
construction by which the term “child” or “children” was held to include a
child en ventre sa mère. But in Doe v. Lancashire, the question was not one of construction
but of the revocation of a will by the birth of a child, and Gross J., at page
63, said:—
I know of no argument, founded on law and
natural justice, in favour of the child who is born during his father’s life,
that does not equally extend to a posthumous child.
These learned judges undoubtedly considered the
fiction to be of general application.
To the Company’s contention that an unborn child
being merely a part of its mother had no separate existence and, therefore,
could not maintain an action under article 1053 C.C., the answer, in my
opinion, is that, although the child was not actually born at the time the
Company by its fault created the conditions which brought about the deformity
of its feet, yet, under the civil law, it is deemed to be so if for its
advantage. Therefore when it was subsequently born alive and viable it was
clothed with all the rights of action which it would have had if actually in
existence at the date of the accident. The wrongful act of the Company produced
its damage on the birth of the child and the right of action was then complete.
The separate existence of an unborn child is recognized even at common law,
[Page 464]
for it is well established that if a person
wrongfully causes injury to a child before its birth which results in death
after it has been born alive, such person will be guilty of a criminal offence
although the wrongful act was directed solely against the mother. Rex v.
Senior; Russell
on Crimes, 8th ed., vol. 1, page 622. It was, however, urged that there is no
true analogy between crime and tort, as the punishment of crime is for the
public benefit, while the remedy in tort is for private redress. While in some
cases there may be no analigy yet there are, in my opinion, many cases in which
crime and tort are merely different aspects of the same set of facts and in
which there is so close an analogy that something more than the bare denial of
it is necessary to carry conviction. The wrongful act which constitutes the
crime may constitute also a tort, and, if the law recognizes the separate
existence of the unborn child sufficiently to punish the crime, it is difficult
to see why it should not also recognize its separate existence for the purpose
of redressing the tort.
If a child after birth has no right of action
for pre-natal injuries, we have a wrong inflicted for which there is no remedy,
for, although the father may be entitled to compensation for the loss he has
incurred and the mother for what she has suffered, yet there is a residuum of
injury for which compensation cannot be had save at the suit of the child. If a
right of action be denied to the child it will be compelled, without any fault
on its part, to go through life carrying the seal of another’s fault and
bearing a very heavy burden of infirmity and inconvenience without any
compensation therefor. To my mind it is but natural justice that a child, if
born alive and viable, should be allowed to maintain an action in the courts
for injuries wrongfully committed upon its person while in the womb of its
mother.
The argument that the Company’s liability is
founded in contract cannot, in my opinion, be maintained. This is not the case
of a person not a party to the contract suing for a breach of it. The
respondent does not seek to recover from the Company on the ground that it
failed to perform its contract with the mother, but on the ground that it
committed an independent tort against the child. The
[Page 465]
fault which constitutes a wrong to the child may
also constitute a breach by the Company of its contract with the mother, but,
under article 1053 C.C. the existence or nonexistence of the mother’s contract
is entirely irrelevant in tort.
There were two other matters to which our
attention was called; the first was that cases similar to the present one must
have arisen many times in the past, but that no decided case (or at most only
one) has been found in which the child’s right of action for pre-natal injuries
has been maintained. The paucity of decided cases is far from conclusive, and
may be largely accounted for by the inevitable difficulty or impossibility of
establishing the existence of a causal relation between the fault complained of
and the injury to the child. With the advance in medical science, however, that
which may have been an insuperable difficulty in the past may now be found
susceptible of legal proof.
The other matter to which we were asked to give
serious consideration was the practical inconvenience and possible injustice to
which the Company might be exposed if it were held that this right of action
could be maintained. It was urged that to so hold would open wide the door to
extravagance of testimony and lead, in all probability, to perjury and fraud. I
am not apprehensive on this point for, although in certain cases special care
will be required on the part of the judge in instructing the jury, I feel quite
confident that the rules of evidence are adequate to require satisfactory proof
of responsibility and that the determination of the relation of cause and
effect will not involve the court in any greater difficulty than now exists in
many of our cases.
For these reasons I am of opinion that the
fiction of the civil law must be held to be of general application. The child
will, therefore, be deemed to have been born at the time of the accident to the
mother. Being an existing person in the eyes of the law it comes within the
meaning of “another” in article 1053 C.C. and is, therefore, entitled through
its tutor to maintain the action.
Support for this view is, I think, furnished by
the fact that none of the judges below cast any doubt upon the right of the
respondent to sue. The point, it is true, does
[Page 466]
not appear to have been raised in either court
but I cannot think a point so important and outstanding would have been passed
without comment had not the judges below been satisfied as to the existence of
the right.
The next question is, whether there was evidence
on which the jury could reasonably find the existence of a causal relation
between the accident to the mother and the deformity of the child’s feet.
The general principle in accordance with which
in cases like the present the sufficiency of the evidence is to be determined
was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v.
Astley, as
follows:—
It is, of course, impossible to lay down in
words any scale or standard by which you can measure the degree of proof which
will suffice to support a particular conclusion of fact. The applicant must
prove his case. This does not mean that he must demonstrate his case. If the
more probable conclusion is that for which he contends, and there is anything
pointing to it, then there is evidence for a court to act upon. Any conclusion
short of certainty may be miscalled conjecture or surmise but courts, like
individuals, habitually act upon a balance of probabilities.
There was undoubtedly evidence to go to the jury
that the mother’s accident was caused by the fault of the Company, and the jury’s
finding on that point cannot be disturbed. That such fault caused the deformity
of the child cannot, from the nature of things, be established by direct
evidence. It may, however, be established by a presumption or inference drawn
from facts proved to the satisfaction of the jury. These facts must be
consistent one with the other and must furnish data from which the presumption
can be reasonably drawn. It is not sufficient that the evidence affords
material for a conjecture that the child’s deformity may have been due to the
consequences of the mother’s accident. It must go further and be sufficient to
justify a reasonable man in concluding, not as a mere guess or conjecture, but
as a deduction from the evidence, that there is a reasonable probability that
the deformity was due to such accident.
The distinction, I think, is well brought out by
a comparison between two cases of the province of Quebec: Boilard v. Cité
de Montréal, and Montreal
Tramways Company v. Mulhern.
[Page 467]
In the Bollard case, the young child of the plaintiff had been
compulsorily vaccinated in compliance with a city by-law. Shortly after the
vaccination, the child’s arm became paralysed and permanently useless.
Contending that the condition of the arm had been brought about as a result of
the vaccination, the plaintiff, as tutrix, sued the city in damages on behalf
of the child. At the trial, three different theories were advanced by the
medical experts. One was that it was a clear case of infantile paralysis in no
possible way to be attributed to the vaccination. Another theory ascribed the
cause either to infected vaccine or to infantile paralysis. The third theory
was that the use of infected vaccine was the sole possible explanation of the
condition of the arm. There was, however, no positive evidence of the fact that
the vaccine was actually infected. The jury held the city responsible on the
ground that the vaccine used was infected. The Court of King’s Bench set aside
the verdict. Sir Horace Archambault, then Chief Justice of the province of
Quebec, delivering the judgment of the court, said:—
Une chose est claire, au milieu de cette
obscurité, c’est qu’il s’agit ici d’une question d’opinion, et non d’une
question de fait constant, positif. Aucun témoin n’est venu jurer positivement
que le vaccin était infecté. Tout ce que certains d’entre eux ont pu dire, c’est
que le résultat produit tendrait à établir, ou ferait présumer, que le vaccin
était infecté. Les jurés n’ont donc pu que décider entre les diverses opinions
émises, et émettre eux-mêmes une opinion. Ce n’est pas là la décision d’un
fait; et les jurés n’ont pas d’autre juridiction que de décider les questions
de fait.
* *
*
Sans doute, il faut s’en rapporter à l’opinion
de médecins, d’experts, pour connaître les effets, les conséquences d’un
accident. Ainsi, une maladie nerveuse se déclare à la suite d’un accident; les
médecins seront admis à prouver que cette maladie a été produite par l’accident.
De même, on entendra des médecins pour savoir si la maladie est permanante ou
temporaire. Mais, dans ces cas, l’accident lui-même doit d’abord être prouvé,
ainsi que la faute de la partie que l’on veut tenir responsable des dommages
qui ont résulté de l’accident. En d’autre termes, le fait générateur de la
responsabilité doit être établi par témoins, qui en attestent l’existence. Les
conséquences de ce fait peuvent ensuite être établies par des experts.
In the Mulhern case, the question was whether the respondent
had established that the death of her husband was due to the bodily injuries
sustained by him in a collision several months previous to his death and which,
at first, did not appear to be serious. The autopsy had shewn that the death
was due to “thrombosis of the coronary
[Page 468]
artery.” The question was whether the thrombosis
had been caused by the accident. Three doctors testified that, in their
opinion, the accident had either caused or aggravated the condition of the
deceased. Other doctors, while admitting that possibility, said that it was not
the cause in the particular circumstances. Yet another one declared that it was
a scientific impossibility for the thrombosis to have been the result of the
accident. The jury found in favour of the plaintiff. The case came before the
Court of King’s Bench, in Quebec, which included four of the five judges who
had sat in the Bollard case (1). The court held that the finding of the
jury should not be interfered with. It distinguished Boilard v. City
of Montreal, as
appears by the head-note:—
In a jury trial where damages are claimed
for (an accident), a verdict cannot be founded only on medical controverted
opinions, but the case is different where the medical evidence is supported by
a proof of non contested facts. The jurors may then render their verdict by appreciating
the facts and opinion of medical men, which they have before them.
An affirmative verdict can be rendered upon
facts and probabilities only if they establish presumptions; and if these
presumptions are strong enough to bring about a reasonable conviction in the
mind of a jury, the Court should not interfere.
Mr. Justice Carroll delivered the judgment of
the court, and, referring to the Boilard case (page 459), he said:
Dans cette dernière cause,
il s’agissait d’un enfant qui avait été vacciné et qui, à
la suite de l’opération, avait perdu l’usage du bras vacciné. Le jury avait
déclaré que le vaccin était infecté, mais cette réponse ne résultait pas des
faits prouvés, elle résultait seulement d’opinions théoriques controversées
entre les médecins entendus comme témoins.
Ici (meaning in the Mulhern case), nous avons bien des théories
contradictoires, mais nous avons aussi des faits non contestés. Le défunt,
avant cet accident, jouissait d’une bonne santé et n’avait manifesté aucun
symptôme de la maladie dont il est mort. Il s’est plaint immédiatement après l’accident
de douleurs dans la région du coeur. Les témoins que l’ont connu nous disent qu’il
n’était plus le même homme d’affaires averti, consciencieux et travailleur, l’accident
en a fait une ruine physique.
Les jurés pouvaient-ils, eu égard à ces faits
prouvés devant eux, conclure que l’accident avait ou déterminé ou accéléré la
mort? Sans doute que l’autopsie a révélé des lésions au coeur, plus anciennes
que celles qu’auraient causées l’accident, mais si l’accident a fait évoluer
plus rapidement la maladie et abrégé la vie de Holman, la compagnie est
responsable.
Les faits qui ont été établis devant les jurés
produisent des probabilités, et cette, cause ne peut être décidé que sur des
présomptions basées sur ces probabilités. Si les présomptions ainsi créées sont
assez fortes pour produire une conviction raisonnable chez douze jurés, est-ce
qu’une cour doit intervenir? Je ne le crois pas.
[Page 469]
The judgment was affirmed by this court.
In Jones v. G.W. Rly. Co., the House of Lords had to consider
whether there was evidence on which a jury could properly find negligence on
the part of the defendant’s servants which caused or contributed to the death
of the husband of the first plaintiff. In stating the principles which should
govern in such a case, Lord MacMillan, at page 45, said:
The dividing line between conjecture and
inference is often a very difficult one to draw. A conjecture may be plausible
but it is of no legal value, for its essence is that it is a mere guess. An
inference in the legal sense, on the other hand, is a deduction from the
evidence, and if it is a reasonable deduction it may have the validity of legal
proof. The attribution of an occurrence to a cause is, I take it, always a
matter of inference. The cogeny of a legal inference of causation may vary in
degree between practical certainty and reasonable probability. Where the
coincidence of cause and effect is not a matter of actual observation there is
necessarily a hiatus in the direct evidence, but this may be legitimately
bridged by an inference from the facts actually observed and proved.
An instance of a case where this court “bridged
the hiatus” is that of Shawinigan Engineering Co. v. Naud. It is sufficient to refer to the judgment
of the court (Duff, Mignault, Newcombe, Rinfret and Smith JJ.), more
particularly to the passage from the foot of page 344 to the end of page 345,
to realize how strikingly similar the problem of the relation of cause and
effect happened to be both in that case and in the present case.
By article 1242 C.C. presumptions not
established by law are left to the discretion and judgment of the court. The
corresponding article in the Code Napoléon (art. 1353) is to the same effect
but with the limitation that the court will admit only such presumptions as are
“graves, précises et concordantes,” by which is meant presumptions in which
the connection between the facts established in evidence and the fact to be
proved is such that the existence of the known facts establishes by inference
or deduction the fact in dispute.
Article 1242 of the Quebec Civil Code does not
contain the limitation of the Code Napoléon but as a presumption to be admitted
as legal proof is necessarily a deduction from proven facts, there is, perhaps,
but little if any difference
[Page 470]
between the meaning to be ascribed to the two
articles. See the Montreal Rolling Mills v. Corcoran.
In the present case there was evidence from
which the jury could find that the mother fell on her stomach and that the fall
produced ecchymosis on the right side thereof; that, after the accident, she
suffered abnormal pains in her abdomen which continued until after her
confinement, and for the first time she had a leakage of fluid from the uterus
which, though slight and intermittent, continued until the birth of the child.
These leakages Dr. Benoit, the family physician, explained as coming from the
amniotic fluid. The doctor’s view was that the three membranes of the sac had
been slightly fissured, sufficiently to permit the fluid to slowly filter
through, but not sufficiently to bring about a premature confinement.
The jury had also before them the further
testimony of Dr. Benoit, who was present at the confinement, and who stated
that in delivering the mother he had to break the sac—that the water therein
had partly escaped and “l’accouchement a été presque à sec.” He examined
the child immediately after its birth and found that each foot was bent
inwards. Witnesses also testified that the child was born with a black mark on
its heel. There was also evidence that no members on either side of the family
had ever had club feet; that Madame Léveillé’s first child had been perfect in
health and form; that her carriage of Jeanine had been normal and that up to
the 25th of March, 1929, she had not suffered any accident or fright. This
evidence was uncontradicted. It was, therefore, for the jury to determine, in
the light of that evidence and the medical testimony, whether a causal relation
existed between Madame Léveillé’s fall and the child’s club feet.
Nine medical witnesses were examined at the
trial, three testifying for the respondent and six for the appellant.
For the respondent Dr. Langevin, a gynaecologist
and obstetrician professor at the University of Montreal, testified that in its mother’s
womb the child’s members were in a flexed position and their malformation would
be promoted by the absence of liquid in the uterine cavity which would cause
the walls thereof to contract and the flexing to increase. He further said that
in the last months of
[Page 471]
pregnancy, particularly from the seventh to the
ninth month, the calcification of a child’s bones greatly increases; that
during this period it requires twenty-two times more lime than during the first
months, and that with the extra pressure caused by the contraction of the
uterine cavity the chances of the bones calcifying in their flexed position
become greater. He also said that when the pressure is found in the uterine
cavity the probability is that a deformity will result. Dr. Langevin’s
conclusion was that while club feet may result from various causes, the only
satisfactory explanation, in the circumstances of this case, was that the
deformity resulted as a consequence of the mother’s fall. In fact he said that
scientifically there was no other explanation.
Dr. Letondal, professor of children’s clinic of
the faculty of medicine, and specialist in children’s diseases, testified to
the same effect as Dr. Langevin. He admitted that his conclusion was simply a
theory incapable of scientific demonstration but he expressed the opinion that
it was the most probable theory and there was no other that he could suggest.
Dr. Benoit also testified as follows:—
Q. Docteur, à quoi attribuez-vous cette condition
de pieds bots dont l’enfant souffre aujourd-hui?—R. Enfin, d’après les auteurs,......
Q. Docteur, dans le cas présent, qui nous
occupe?—R. Dans le cas présent
ici, je l’attribue par la pression utérine sur la position des membres,
pression qui a duré deux mois, au cours desquels il y a calcification des
membres et cette malformation a été causée par la position des membres qui a
été exagérée et je crois que le pied bot qui est ni plus, ni moins qu’une
exagération d’une position normale au moment où il y avait calcification. Et je
pourrais dire que le pied a été calcifié dans cet état-là.
* *
*
Q. Maintenant, voulez-vous me dire s’il y a
relation entre l’état que vous avez constaté et l’infirmité que vous avez vu
chez cet enfant?—R. Pour moi, c’est
l’état de contractibilité des membranes de l’utérus, et c’est dû au traumatisme
qu’elle a eu lors de sa chute.
On the other hand the medical witnesses called
on behalf of the appellant stated that the cause of club feet in children is
not known to the medical profession. They did not agree with the conclusion
reached by the respondent’s witnesses, some because they thought that if there
had been a rupture of the uterine cavity sufficient to permit leakage from the
amiotic sac it would have produced a premature confinement. Others thought the
fall of the
[Page 472]
mother would not cause club feet in the child
she was carrying at the time, and one added: that at seven months the feet of a
child have become so ossified that a fall which would injure them would be
likely to break the bones. The testimony given by these witnesses was largely
of a negative character and they could not suggest any reasonable hypothesis to
account for the deformity.
Does the evidence in this case take us beyond
the region of pure conjecture and into the domain of reasonable inference? It
was contended on behalf of the Company that, even if the accident to the mother
was the result of the Company’s fault, there was no evidence whatever to
connect the deformity of the child’s feet with the mother’s accident; that it
was just as reasonable to attribute the club feet to an unknown cause as to
attribute it to the consequences of the mother’s fall. I do not think this is
so. Ascribing the club feet to an unknown cause does not eliminate uterine
contraction as a probable cause. The Company’s medical witnesses by saying that
they do not know the cause of club feet do not negative the testimony of those
who find uterine contraction a very probable cause. In this case the cause
which produced club feet cannot be demonstrated to a certainty and the law does
not require that it should be. It is simply a question of drawing an inference.
Three medical witnesses for the respondent gave it as their opinion that the
contraction caused by the escape of amiotic fluid was not only sufficient to
account for the deformity in this case but that they could see no other
probable cause. The jury were entitled to accept the conclusion of these
witnesses and to infer from the whole evidence the existence of a causal
relation.
The argument advanced on behalf of the Company
in this case was advanced in the case of Craig v. Glasgow Corporation. In that case a farmer was found lying
beside the track of a tramway company with his head so badly injured that he
had no recollection of what had taken place. He remembered that he had been
driving two cows along the track, but had no recollection of having seen the
tram car. The questions were whether he had been struck by the car and, if so,
could it reasonably be inferred that the accident was due to the negligence of
the company’s
[Page 473]
driver? The driver testified
that he would have been proceeding more slowly if he had seen the man and the
cows. He did not see the man at all, nor did he see the cows until he was within
three feet of them. The Lord Ordinary found that the man had been knocked down
by the car as a consequence of the driver’s failure to keep a proper lookout.
This judgment was reversed on appeal but was restored by the House of Lords. In
his judgment in the House of Lords Lord Findley, at page 9, said:—
It is of course within the bounds of
possibility that the pursuer had a fit and fell and injured his head upon the
rail. It is within the bounds of possibility, as was suggested as a
hypothesis—not, I think, that it was put as a very likely hypothesis—that he
was knocked down by one of these cows. But what is the reasonable inference?
That is what we have to deal with.
The data furnished by the evidence which the
jury accepted and from which they deduced a presumption of causal relation,
were, in my opinion, more convincing in the case before us than those found in
the following cases in which the inferences drawn by the jury were upheld. McArthur
v. Dominion Cartridge Company;
Jones v. G.W. Rly. Co.; Grand
Trunk Rly. Co. v. Griffith.
I am, therefore, of opinion that the evidence
here does take us beyond the realm of conjecture and into the domain of
reasonable inference, in which case it was for the jury to say if the evidence
produced in their minds a conviction that it was reasonably probable that the
deformity of the child resulted as a consequence of its mother’s injury. They,
having said it was, their verdict should not be disturbed.
The only other question is as to the sufficiency
of the charge of the trial judge. Several objections were taken to the charge
but the only one requiring consideration is that the judge misdirected the jury
in respect of the law applicable to presumptions. The chief objection was that
he failed to instruct the jury that a presumption was admissible as legal proof
only when it was “grave, précise et concordante” or “weighty and serious”; that instead he instructed them
that they were entitled to accept presumptions that rendered only simply
probable or likely the existence of a causal relation between the deformity of
the child and the accident to the mother. As required in the
[Page 474]
case of mixed juries the judge charged them in
both the French and English languages. The following passages were referred to
as embodying errors in law:
Quand on examine les faits dans cette cause, ceux qui rendent même simplement probable
le résultat, c’est que l’accident rend probable que les pieds bots soit la
conséquence de la chute.
It is left to your discretion to find out
and decide whether from all the circumstances there is sufficient for you to
presume to create in your minds a likely presumption that the injury was caused
as a direct result of the accident.
In this case you could not have direct
proof. You must go by inference or presumption. More often the contested point
is not demonstrated, but is simply rendered possible, vraisemblable to a
more or less degree.
In this latter passage I take it the learned
judge having used the word “possible,” immediately substituted therefor, the
word “vraisemblable,” for he has not elsewhere instructed the jury that
the mere possibility of a causal relation was sufficient.
In support of his instructions the trial judge
quoted to the jury the following passages dealing with presumptions of fact from
well known French authors.
Planiol—9th ed.,
no. 36:
la preuve proprement dite, directe et absolue
n’existe presque jamais; le plus souvent il n’y a que des présomptions qui
pourront non pas démontrer mais simplement rendre la chose probable à un degré
plus ou moins fort.
Marcadé—vol. 5, art.
1353 C. N.:
Cette disposition de la loi est de la plus
haute importance; elle est l’une de celles qu’il faut se graver profondément
dans l’exprit, pour ne les jamais perdre de vue.
Sa portée est, en effet, immense puisqu’elle
érige en preuves légales pour tous les cas où le témoignage est admissible, les
simples conjectures du magistrat, les simples probabilités que les dépositions
des témoins ou les diverses circonstances de la cause peuvent faire naître dans
son esprit.
Does the law as stated by these authorities
differ from that laid down in the above mentioned cases? In my opinion there is
practically no difference for, under either the French or English
jurisprudence, the presumptions or inferences to be receivable as proof must be
a deduction from established facts which produces a reasonable conviction in
the mind that the allegation of which proof is required is probably true. That
conviction may vary in degree between “practical certainty” and “reasonable probability”
or, as Planiol puts it, may render “la chose probable à un degré plus ou moins
fort.”
[Page 475]
In the Jones case Lord MacMillan points out that a
conjecture is of no legal value “for its essence is that of a guess,” while Marcadé
would accept as proof “les simples conjectures du magistrat.” In my
opinion these are not inconsistent views for as I read Marcadé he was not using
the word “conjecture” in the sense of “guess.”
In Littré—Dictionnaire de la Langue Française, the first meaning given for “conjecture” is “opinion établie sur des probabilités”; and in Larousse
pour tous, the meaning given is: “présomption, supposition, opinion fondée sur des probabilités.” This appears
to me to be the sense in which Marcadé used the word “conjecture.” It, therefore,
is simply a conviction founded on probabilities. For all practical purposes I
see no reason why the principle stated by Lord MacMillan in the Jones case
is not just as applicable to Quebec law as to English law. The objection,
therefore, that the trial judge misdirected the jury in the observations
referred to cannot be maintained.
The question, however, is whether he instructed
the jury sufficiently? In a case such as this it is, in my opinion, essential
that the judge should instruct the jury that the presumption which they are
entitled to admit as proof must not be a mere guess on their part, but must be
a reasonable deduction from such facts as they shall find to be established by
the evidence. The learned trial judge did not in so many words give the jury
this instruction but I think, in effect, he conveyed it to their minds. He
called their attention to the uncontradicted evidence of the respondent’s
witnesses—to the reasoning and conclusions drawn from that evidence by Dr.
Langevin, and then he said:—
Si vous croyez, si vous en venez à la
conclusion que les faits dont les témoins ont parlé constituent dans votre
esprit une présomption raisonnable, et si vous adoptez le témoignage de M.
Langevin qui est le seul qui nous donne une opinion un peu formulée, si vous
adoptez son opinion, vous répondrez à cette question: oui.
Dr. Langevin had stated the inferences which he
drew and the reasons why he drew them. In leaving it to the jury to say if they
drew the same inferences the trial judge was practically instructing them that
the presumption to be admitted as proof must be a deduction and not a guess.
[Page 476]
After considering the charge as a whole I agree
with the majority of the court below that there was nothing in the charge to
mislead the jury.
I would dismiss the appeal with costs.
Cannon J.—Le demandeur, en sa qualité de tuteur à sa fille Jeannine, née le 25
mai 1929, réclame les dommages soufferts par cette enfant, venue au monde avec
des pieds bots, et poursuit la défenderesse parce que la négligence d’un de ses
préposés, en causant la chute, le 25 mars 1929, de la mère de l’enfant, alors
enceinte de sept mois, serait la cause de cette infirmité dont l’enfant souffre
préjudice depuis sa naissance. La faute de la compagnie a été affirmée par le
jury et n’a pas été mise en doute devant nous.
Trois points seulement sont soulevés, dont le
premier n’a pas été invoqué devant les autres juridictions:
1. L’on nie que cette enfant puisse recouvrer des
dommages qu’elle aurait soufferts comme conséquence d’un accident causé à sa
mère avant sa naissance et dont elle aurait, par ricochet, elle-même souffert;
2. Les présomptions sur lesquelles le jury s’est
fondé pour établir la relation de causalité entre cet accident à la mère et l’infirmité
de l’enfant ne sont pas suffisantes en droit pour justifier le verdict du jury;
3. La charge du juge n’a pas suffisamment éclairé
le jury sur cette question de droit.
I.
Il est à remarquer que devant la Cour Supérieure et
devant la Cour du Banc du Roi l’on n’a pas soulevé le point qui nous a été
soumis quant à l’existence du droit d’action dans les circonstances révélées en
détail dans les notes de mon collègue, l’honorable juge Lamont.
Après avoir examiné avec soin les raisons que Ton a
fait valoir de part et d’autre, il me semble qu’il n’est pas nécessaire en l’espèce
de discuter les droits de l’enfant dans le sein de sa mère, entre sa conception
et sa naissance. L’action en responsabilité, et partant la possibilité de l’exercer
devant la juridiction compétente, naît, en principe, du jour où la victime a
subi le dommage; et une faute ne suffit pas pour agir. Le préjudice est l’un
des trois éléments essentiels de la responsabilité. Sans lui, pas d’action en
responsabilité possible. Quelle réparation pourrait réclamer
[Page 477]
un demandeur s’il n’avait subi encore aucun
dommage? Si, en principe, le demandeur ne peut agir dès l’instant où la faute a
été commise mais seulement à l’instant où cette faute lui a causé un dommage,
il me semble que le droit à réparation de Jeannine Léveillé n’a commencé à
exister qu’après sa naissance, lorsque l’infirmité corporelle dont elle souffre
s’est révélée. Avant cette date, aussi longtemps qu’elle était dans le sein de
sa mère, il est évident qu’elle ne souffrait aucun dommage, aucun inconvénient
et aucun préjudice. Aucune action en responsabilité n’était ouverte. Ce n’est
que lorsque le préjudice certain a été souffert que ses droits ont été lésés,
qu’elle est devenue une victime ayant des droits à réparation. C’est de ce
moment, après sa naissance, que son droit a commencé. On peut dire que son
droit est né en même temps qu’elle. Elle pouvait donc, assistée de son tuteur,
intenter la présente action pour essayer de démontrer que le préjudice dont
elle souffre a été causé antérieurement à sa naissance par la faute de la
défenderesse et de son employé.
Il n’est pas nécessaire de discuter la maxime: “Infans
conceptus pro nato habetur quoties de commodis ejus agitur,” ni l’application
des articles 345, 608, 771, 838 et 945 du Code civil. Il ne s’agit pas d’un
droit que l’enfant avait dès sa conception, mais d’un droit à réparation qui a
commencé à sa naissance.
II
Le demandeur ès-qualité avait à établir en fait que
la chute de la mère, deux mois avant la naissance de l’enfant, a causé l’infirmité
de cette dernière, c’est-à-dire établir un lien de causalité entre la faute et
le préjudice. Si le préjudice est la conséquence de l’acte illicite, l’auteur
du quasi-délit doit réparer, même si cette conséquence était imprévisible au
moment de la faute.
La Cour de cassation, en France, pose en principe
que l’appréciation du rapport de causalité est une question de fait; mais nous
pourrions intervenir et mettre de côté la décision du fait par le jury si nous
en arrivions à la conclusion qu’elle est déraisonnable. Dans l’espèce, la faute
n’aurait atteint la victime qui se plaint devant nous que par ricochet. Sans
doute, peut-on dire que l’analyse du lien de causalité ne nécessite pas une
distinction entre les
[Page 478]
causes prochaines et les causes lointaines; toutes
sont équivalentes au point de vue de la responsabilité. Mais devonsnous dire
que les principes de la causalité conduisent à ordonner la réparation de
dommages indirects? Je ne le crois pas; car dans la série des préjudices, il y
a un moment où nul ne peut plus affirmer avec certitude que sans la faute le dommage ne se serait pas produit. A
partir de ce moment, l’existence du lien de causalité n’est plus établie; la
faute initiale ne peut donc plus être tenue comme cause du préjudice.
Comme le disent MM. Henri et Léon Mazeaud, dans
leur Traité de Responsabilité Civile, 1931, no. 1673,
* * * l’auteur de la faute initiale ne répond
dans la chaîne des préjudices que de ceux qui sont la conséquence certaine,
nécessaire de son acte. L’expression de “dommage nécessaire”, ou de “suite
nécessaire qu’employait déjà Pothier, est préférable à celle de “dommage direct”
ou de “suite immédiate”; elle marque plus exactement la nature du lien de
causalité qui est exigé et le point où s’arrête le responsabilité du défendeur.
Elle ne laisse pas en effet supposer que seul le premier préjudice doit être
réparé: le deuxième, le troisième, le quatrième, etc., sont susceptibles d’engager
la responsabilité de l’auteur de la faute initiale: il en est ainsi chaque fois
qu’ils ont un lien certain de causalité avec cette faute; mais, plus ils
s’éloignent dans la chaîne des conséquences, plus la certitude diminue.
Ces mêmes auteurs soulignent le fait que la
jurisprudence en France, avec raison, ne voit dans la nécessité d’un préjudice
direct que l’application du principe d’après lequel la relation de cause à
effet doit exister avec certitude entre la faute et le dommage.
Dès que cette relation existe, le préjudice
doit être réparé, si lointain soit-il; et cela montre assez que les expressions
“dommage indirect” et “suite immédiate” exprimaient fort mal l’idée générale qu’elles
recouvrent. Il n’est pas question de proximité dans le temps ou dans d’espace,
mais seulement de l’existence d’un lien de causalité.
Dans la cause actuelle, avons-nous réunis les trois
éléments de la responsabilité: préjudice, faute, rapport de causalité, de façon
a établir un lien de droit entre la victime du préjudice et l’auteur de la
faute?
Ici, l’on a dû nécessairement, pour établir ce
rapport de causalité, avoir recours aux présomptions découlant des
circonstances prouvées: chute de la mère, symptômes anormaux avant et pendant
la naissance, qui ne s’étaient pas produits chez elle auparavant; marques de l’enfant;
constations du médecin traitant et témoignages médicaux. Les présomptions que
le jury a tirées des faits légalement établis devant lui sont, en principe,
suffisantes dans le procès en
[Page 479]
responsabilité. Le juge du fait est souverain quant
à leur appréciation (arts 474-475 C.P.C.); mais il a le devoir de conscience de
n’admettre que des présomptions graves, précises et concordantes. Il faut donc,
dans chaque espèce, scruter les faits invoqués par le demandeur en
responsabilité pour établir la faute, le dommage et le lien de cause à effet;
et une fois que le juge de première instance, assisté d’un jury, a constaté les
faits, a établi cette relation comme certaine et non problématique, un tribunal
d’appel ne peut, en vertu du code de procédure civile, intervenir que si le
verdict est contraire au poids de la preuve; et l’article 501 C.C. nous dit que
le
verdict n’est pas considéré comme étant
contraire à la preuve, à moins qu’il ne soit de telle nature que le jury, en
examinant toute la preuve, n’aurait pu raisonnablement le rendre.
ou, suivant l’article 508 C.C., un jugement
différent peut être rendu
lorsque les faits, tels que constatés par le
jury, exigent que le jugement soit en faveur de l’appelant.
La Cour du Banc du Roi a refusé d’en venir à cette
conclusion; et je ne vois aucune raison valable pour mettre de côté cette
décision. Les conclusions des docteurs Langevin et Letondal à l’effet que les
circonstances de cette cause indiquaient comme seule explication satisfaisante,
que la chute de la mère et ses conséquences avaient amené la difformité de son
enfant, ont été acceptées par le jury. Est-ce un verdict déraisonnable? Il n’aurait
peut-être pas été celui d’un jury de médecins ou de spécialistes; mais il a
reçu l’approbation du tribunal choisi et désigné par le loi pour décider souverainement
du fait suivant sa conscience; et rien au dossier ne démontre que ce tribunal a
erré. Le verdict du jury ne règlera pas la controverse médicale engagée devant
lui. Mais la loi ne peut attendre que les médecins soient unanimes pour décider
la question de fait soulevée en cette cause. L’on n’a pas établi que l’infirmité
de l’enfant provenait d’une autre cause que l’accident causé à sa mère pendant
la période de gestation par la faute maintenant admise du préposé de la
défenderesse. Je ne crois pas qu’en présence d’un verdict du jury, approuvé par
le juge de première instance et par le tribunal d’appel, nous puissions, sur
une question de fait, mettre de côté ces jugements concordants, à moins que l’on
puisse nous indiquer
[Page 480]
une erreur manifeste qu’il serait de notre devoir
de corriger. On ne l’a pas fait.
Comme dans Shawinigan Engineering Co. v. Naud,
le fait que les médecins de la compagnie, tout en
soutenant que l’infirmité de l’intimée n’est pas le résultat de la chute de la
mère, se déclarent incapables d’en découvrir une autre cause, affaiblit la
valeur probante de leur opinion, et l’affirmation contraire me paraît mieux s’accorder
avec l’enchaînement logique des circonstances et la succession des symptômes
qui se sont manifestés. Ces circonstances et ces symptômes sont suffisamment
graves, précis et concordants pour nous permettre de décider que l’intimée a
fait la preuve qui lui incombait, de la relation entre l’infirmité dont elle
souffre et l’accident que sa mère a subi par suite de la négligence de l’appelante.
III
Quant au troisième point, je crois, comme mon
collègue, l’honorable juge Lamont, et pour les mêmes raisons, que le juge avait
suffisamment indiqué au jury les règles à suivre pour tirer des déductions des
faits établis devant lui.
Je crois donc que l’appel devrait être renvoyé avec
dépens.
Smith J. (dissenting).—The respondent sues on behalf of his infant child
for injuries alleged to have been sustained by the child by reason of the
mother having fallen in alighting from the appellant’s car at a time when she
was seven months pregnant of the child. The child was born two months later,
with club feet. The allegation is that the club feet were the result of the
fall, which the jury has found was caused by the appellant’s negligence.
The first question to be determined upon the
appeal is whether or not any action lies on behalf of the child.
My brother Lamont has reviewed authorities on
this point at length, and concludes that the great weight of judicial opinion
in the common law courts denies the right of a child, when born, to maintain an
action for prenatal injuries, but that such right of action exists under the
Civil Code of Quebec.
[Page 481]
In my view, the provisions of the Civil Code in
reference to appointment of curators to unborn children or as to the right of
such children to inherit or take, by gift or will, do not help to distinguish
the law under this code from the common law, as all these rights exist also
under the common law, and are entirely different in character from the right of
action in tort set up in this case.
It seems to me that in the various citations
made by my brother Lamont as to the civil law, the reference is to rights
concerning property, and not to rights such as here claimed. Neither under the
common law nor under the Civil Code of Quebec does the law on this point seem
to have been definitely settled by authority; but, while admitting that the
point is a doubtful one, my view is that the action does not lie.
I am further of opinion that, having regard to
the scientific problem involved, there was not evidence upon which the jury
could reasonably find as a fact that the child’s club feet resulted from the
injury to the mother.
The medical evidence offered by the respondent
to shew that the deformity of the child’s feet resulted from the accident is
that of Doctors Langevin, Letondal and Benoit.
The two latter do not pretend to have formed any
independent opinion of their own. Dr. Letondal says:
* * * évidemment que ce témoignage du docteur Langevin m’a
excessivement impressionné. Mais il s’agit simplement d’une hypothèse et pas d’une
chose qu’on peut démontrer scientifiquement.
Mais dans le cas particulier c’est vraiment l’hypothèse
la plus probable, et il n’y en a pas d’autre que je puisse assigner, dans ce
cas particulier, je n’en vois pas d’autres.
Dr. Benoit attended the mother from the time of
the accident until after the birth of the child, two months later, and says:
on n’aurait pas pu en
faire la preuve mais j’ai entendu le témoignage cet après-midi, du docteur
Langevin, des causes qui amènent le pied bot, et je crois que c’est l’hypothèse
la plus plausible. Il y a de certains cas où l’on ne peut pas affirmer.
Cependant, je n’ai jamais fait d’études spéciales parce que je ne suis pas un spécialiste.
It may be noted here that he learned of no
causes from Dr. Langevin except the one, as that witness mentioned no others.
These two doctors therefore add nothing to the testimony of Dr. Langevin, but
merely accept what he says, but both, on the strength of what Dr. Langevin has
said, proceed to confirm his opinion.
[Page 482]
Dr. Langevin is a “gynécologiste,” and “médecin
en chef de la Maternité,” professor at the University of Montreal, and has
charge of the obstetrical course. He is asked if there is a relation between
the accident and the club feet of the child, and answers:—
C’est une possibilité. D’ailleurs, dans l’analyse
du processus psychologique, ce qu’il faut se rappeler, c’est que naturellement
l’enfant a les membres fléchis dans la cavité utérine. Deux causes peuvent
favoriser surtout la difformation des membres normalement, l’absence de liquide
dans la cavité de l’utérus venant contracter l’enfant, le fléchissement s’accentue.
Then the following question is asked:—
Q. Docteur, au cas où
vous auriez un enfant, et la preuve démontre ceci que la femme était
parfaitement bien jusqu’au moment où elle est tombée sur le ventre alors qu’elle
portait depuis sept mois, qu’elle est arrivée chez elle immédiatement après
être tombée presque sans connaissance, et qu’elle s’est sentie immédiatement
des douleurs dans l’abdomen, qu’en arrivant chez elle sa mère a constaté que
ses habits étaient souillés, qu’il y avait des marques rouges; que depuis elle
a continué de perdre un peu et de tacher son linge jusqu’au moment de l’accouchement
et que ces pertes qui arrivaient chez elle c’était des eaux et que à part de
cela elle était parfaitement bien; et maintenant j’ajouterai, par la preuve que
nous allons faire, que l’accouchement s’est fait comme l’on dit, à peu près à
sec; et que l’enfant, à sa naissance, portait des marques noires, comme des
contusions à l’endroit ou ce traumatisme ce serait produit à l’extérieur; ces
faits étant donnés, dites-moi donc, docteur, si vous trouvez qu’il y a relation
entre l’accident et puis l’état de l’enfant à sa naissance.—R. Je le crois.
Asked if there might be any other cause, he
answers:—
Il peut y avoir un nombre de causes, mais du moment qu’il y aurait eu pression dans la
cavité utérine il est probable qu’il y a eu difformation. Il peut y avoir d’autres
causes que cet accident, mais cet accident, dans le moment, qui s’est produit,
par suite du traumatisme, peut expliquer le cas.
The doctor is not a specialist on club feet, and
does not pretend to have made any special study on their cause. He says there
may be many causes, but tells us nothing of what these other causes are, or of
what medical science has discovered about the causes that lead to club feet.
Dr. Letondal, one of the respondent’s witnesses,
says that it is not exactly known in medicine what leads to club feet and, so
far as he is concerned, it is not determined what is the cause of club feet.
According to the last answer of Dr. Langevin,
quoted, if the mother was well before the accident, and not well after it, it
is a satisfactory conclusion to say that any defect in the child when born is
the result of the accident.
[Page 483]
One of the basic facts submitted in the question
is that the child, at its birth, carried black marks like contusions at the
place where this “traumatisme” would be produced at the exterior. The
only evidence of any marks on the exterior of the woman’s body after the
accident is that given by her mother, Justine Therrien. She is asked:—
Q. Et puis, après cela, avez-vous constaté
qu’elle avait des marques rouges.—R.
Un petit peu sur le ventre.
The injured woman gave evidence, and makes no
mention of any marks; and Dr. Benoit, who was called in to see her the next
day, and presumably examined her, although he does not say so, makes no mention
of any such marks.
When the child was born, Madame Beaulieu, a
sister of the injured woman and an attendant at childbirth, discovered that the
child had club feet, and called the doctor’s attention to it; and then the
mother and the doctor examined the child; and all three gave evidence as to
what they saw. Madame Beaulieu says:—
* * * j’ai constaté que l’enfant était infirme, et alors qu’il
avait des taches sur les pieds.
* * * Quel genre de
taches?
Des bleus, des ecchymoses * * *.
The mother of the child says:—
* * * j’ai regardé les
marques.
Q. Des marques?—R. Bien. Je sais qu’il avait des taches noires en arrière, des marques
que j’ai vues.
Dr. Benoit examined the child, and found that it
had club feet but says not a word about marks, either black or blue, on the
back or on the feet. I have
quoted every word of evidence that there is in reference to marks on the mother
and on the child, and, as will be seen, there is nothing connecting these blue
marks on the feet, or these black marks en arrière (perhaps meaning on
the back of the feet—that is, on the heels—with the petit peu red marks
on the body of the mother referred to in the evidence of Justine Therrien
quoted, either as to position or otherwise. The marks mentioned in the question
are black marks, and the only black marks mentioned in the evidence are those en
arrière.
One of these facts, therefore, upon which Dr.
Langevin’s theory is built, is not established by evidence.
Another of the basic facts, submitted in the
question, is that on arriving home, the mother of the injured woman
[Page 484]
discovered that her clothes were soiled, that
from that time she continued to lose a little, and to stain her linen, up to
the moment of the birth; and that this loss, which’ happened with her, was of
water; that is, fluid. In addition to what is stated in the question, Dr.
Langevin states, that he has heard the evidence giving the description of the
symptoms which were present in consequence of the accident. The description, as
given in the evidence, is entirely different from what is stated in the
question.
As to the loss of fluid, the mother of the child
says she had no loss up to the time of the accident, and, being asked if she
had any such loss immediately after, answers that she cannot tell, as she was
too nervous, and that they might ask Dr. Benoit. Two months passed from the
date of the accident until the birth, during which time these alleged losses
continued, saturating the woman’s clothes; but she says not a word about it.
There is the evidence of Justine Therrien,
mother of the child’s mother, who undressed her on her arrival home after the
accident, and who says she discovered that the patient was wetted, that she was
very nervous, and had a headache. Asked if these losses of fluid lasted a long time,
she answers: “Non, monsieur, pas trop longtemps.” Then asked if she remarked,
following this, losses of fluid, she answers, “Plusieurs jours.” To the
question, “Elle égouttait?” she responded, “Oui, monsieur.”
Next we have the evidence of Madame Beaulieu,
already mentioned. She saw her sister the second day after the accident. She
saw fluid on her sister’s clothes and her linen soiled, and this condition
continued; and at the birth there was no fluid at all. She is asked if, before
the birth, her sister “était avec un gros ventre?” to which she replied, “Pas
du tout.” She is asked if this was due to the loss of fluid, and answers that,
before the accident her sister was very big, but after, this diminished. She
was so big before the accident as not to be able to button her coat, and after
the accident “ca tout diminué.” At the birth, she says, there was no fluid at
all, that it was “un accouchement à sec, dans le sang.”
Dr. Benoit, who was called in to see the patient
the day after the accident, and who attended her regularly, as he says, for the
following two months, is asked if he dis-
[Page 485]
covered that she lost fluid, and answers, “I did
not discover it myself.” Asked if the patient spoke to him on the subject, he
says, “Frankly, I do not remember that.” He says not a word about the bigness
of the patient having diminished; and this sister of the child’s mother, who
went to see her every day, and who must have come in contact with the doctor
very frequently, never mentioned either the loss of fluid that she was
observing nor the diminution of bigness to the doctor; and the doctor himself
never heard of these conditions until some time after the birth, never was told
of them by anybody; but he does say that he observed at the time of the birth
that there was very little fluid.
He builds up, however, in his own mind a theory
and says the fluid flowed away gradually by an opening very slight, and even,
he believes, that it was some membranes of the sac which were torn. There are
three of them, and he believes that one of the membranes had an opening
lengthwise in one tissue and probably there was also an opening a little
further away; and the fluid would run like that between the membranes, but the
sac was not much open. Then he says that this is an anomaly, on which he would
not rely if there had been no accident.
It will be noticed that all this is not founded
on anything that he observed. He never knew, until the birth, that there was
any loss of fluid; he then discovered, he says, that there was very little
fluid, which did not even draw from him a remark about its loss at the time,
nor a little later, when he discovered the club feet. If he had thought at the
time that the small quantity of fluid had anything to do with the club feet,
surely he would not have left all this theory about small openings in different
plies of the walls of the sac to conjecture afterwards; but would have examined
the sac there and then, when it was before him, to ascertain if there was any
rupture at all. This was the sure method of determining the fact, but, instead
of adopting this very obvious method, he waits until he gets into the witness
box, and then propounds a conjecture about it, which has no basis whatever in
fact, and which is entirely improbable. If a blow from the outside tore these
membranes, why should it tear only one ply at one place, and another ply at
some distance off? The
[Page 486]
doctor was not accepting the evidence of this
sister of the patient, because, on his theory, there could have been no diminution
of the bigness from the time of the accident. If such a thing occurred, it
could only occur gradually, in accordance with the gradual loss that the doctor
speaks of, and would be most significant at the time of the birth; and at that
time the doctor noticed nothing of the kind.
What, then, under all these circumstances, was
the state of fact upon which Dr. Langevin’s answer is based? He heard the
evidence of the three women; then he heard what was stated in the question. We
have it in evidence by Drs. Gray and Dubé, called for the defence, that if
there had been a loss of fluid as described, causing the pressure assumed,
there would have been a miscarriage, and matters could not have gone on for two
months, to the completion of the birth in the natural way in the natural time.
The conditions spoken of did not hasten the birth by a day, the child was born
without any complications, and in perfect health. Did Dr. Langevin, in his
answer, assume that there was such a great loss of fluid that the largeness
disappeared almost immediately after the accident, and brought about the
pressure that he speaks of from that time? If he did, he is not basing his
answer upon what is stated in the question, as he was bound to do. If he did
not accept that as the condition, but accepted the statement in the question as
indicating a gradual loss of fluid, then when does he think the pressure that
he relies on commenced? It must have been, on that view of the case, a very
considerable time, probably at least a month, before pressure, to any practical
extent, would commence. The doctor’s theory, of course, is utterly denied by a
number of doctors as prominent as himself, called by the defence; but if the
doctor’s opinion, under the circumstances mentioned, is sufficient evidence to
sustain a verdict, it is useless to place the contrary opinion of other doctors
against his, because it is the province of the jury to decide as to the weight
to be attached to a number of conflicting opinions; and, in order to discard
Dr. Langevin’s evidence, and the verdict founded on it, one must go further.
As already stated, Dr. Langevin is not a
specialist in the matter of club feet. His specialty in obstetrics has no more
to do with club feet than it has to do with insanity.
[Page 487]
If this child had been born an idiot, Dr.
Langevin could just as well have said that he believed it was caused by
pressure on the skull, and, knowing no other reason, he would consider that one
sufficient. He does not pretend to have formed his opinion on anything of the
kind that he had observed in his own experience, does not pretend that he had
made any special study as to the causes of club feet, or that he formed his
opinion on anything that he learned from medical science. He does not say that
he ever heard of such a case.
Dr. Benoit and Dr. Letondal, witnesses for the
respondent, say that the cause of club feet is not known to medical science,
and the same statement is made by Dr. Gray, Dr. Ferron, Dr. Nutter and Dr. De
Martigny, and this is not denied by Dr. Langevin. All he says is that there are
a number of causes, without naming a single one of them except the one that he
propounds in this case.
What force or probability, then, is there in Dr.
Langevin’s opinion? As already stated, it is not based on anything that he has
observed, on any study of the matter that he has made, or on anything that has
been discovered by medical science. Such an opinion, to be worth anything, must
be based on a definite state of facts of which there is evidence, and here it is
impossible to tell what particular state of facts he had in mind as the basis
of his opinion. Did he, from the statement in the question, conclude that the
black marks mentioned indicated that the feet, perfectly formed, were subjected
to violence at the time of the fall, that twisted or distorted them, and that
they were subsequently held in that position by pressure?
Perhaps he discarded all statements about marks,
and relied only on the pressure. The greatest pressure would be suggested by
the evidence of the sister, who discovered the mother’s bigness practically
gone when she saw her, a little after the accident, and which was never
recovered. Did Dr. Langevin take his theory of pressure from this testimony,
which he says he heard? If so, his answer is not based on the statements in the
question, and he must have rejected Dr. Benoit’s theory of gradual leakage between the plies of tissue of the walls of the
sac.
Again, did the doctor disregard the evidence of
Dame Beaulieu about great loss of fluid, causing at once the loss
[Page 488]
of bigness, which he had heard, and which Dr. Benoit
also heard and evidently disbelieved? If so, with the gradual leakage that
otherwise took place, such as described by Dr. Benoit, when did pressure begin
sufficient to twist the bones of the feet already formed at seven months? The
pressure necessarily would come gradually, following the gradual loss of fluid
that extended over the whole two months. On this supposition there would be for
some time the rapid calcification of the bones of the feet that the doctor
dwells upon as going on so rapidly during the last two months, before the
pressure could become sufficiently great to have effect. I wonder at what time
the doctor settled in his mind as the basis of his theory that pressure
sufficient to twist the bones of the feet commenced? He was at liberty to
choose in his mind any one of many different conditions as the basis of his
theory, and no one can tell what the basic conditions on which he built were.
Then there is the evidence of the two doctors
called for the respondent, and the other doctors already referred to and not
controverted by Dr. Langevin’s evidence, that medical science has not
discovered the cause of club feet, and has merely put forward more or less
plausible theories, of which Dr. Langevin’s does not seem to be one.
For the reasons indicated, I think that there
was no evidence sufficiently positive and definite to warrant the jury in
finding that the club feet resulted from the accident. Dr. Langevin’s theory is
a mere guess.
In coming to this conclusion, it is a
satisfaction to me to feel that I am doing no injustice to this unfortunate
child, because on the evidence, including that of Dr. Langevin, I am fully
convinced that there is not the slightest probability that his theory is
correct.
The appeal should be allowed, and the action
dismissed, with costs throughout.
Appeal dismissed with costs.
Solicitors for the appellant: Vallée, Vien,
Beaudry, Fortier & Mathieu.
Solicitor for the respondent: Joseph Hélai.
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