Savage v. Wilby, [1954] SCR 376

Supreme Court of Canada

Savage v. Wilby, [1954] S.C.R. 376

Date: 1954-05-19

C. Roy Savage (Defendant) Appellant;

and

Joseph Wilby and Bessie Wilby (Plaintiffs) Respondents.

and

Roland E. Delong (Defendant) Respondent.

1953: November 30; 1954: May 19.

Present: Rand, Kellock, Estey, Cartwright and Fauteux JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Negligence—Landlord and Tenant—Principal and Agent—Liability of lessee for damages done leased premises by contractor’s negligence— Duty of Lessee to take reasonable precautions—Exclusion of defence of independent contractor.

S, who operated a restaurant in a building he leased from W, gave a contract to D, a painting contractor, to renovate the interior of the leased premises. It was specified in the contract that the old paint should be removed. In doing the work D used an inflammable paint remover. A fire broke out and damaged the building. In an

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action brought by W against S and D to recover damages, it was proved that the usual method of removing paint from the interior of a building was used, and that it was attended by the risk of fire, unless special precautions were taken. The trial judge gave judgment against D and dismissed the action against S. The appellate court found both defendants liable. S appealed on the grounds that he knew nothing about the usual methods of removing paint; he did not know that D was using an inflammable paint remover; and as D was an independent contractor, he was not liable for D’s negligence.

Held: That S was properly found liable. He had ordered the doing of work which if done by the usual method created a danger of injurious consequences and he therefore came under a duty to take reasonable precautions to avoid them. It was not enough that he himself did not know of the danger, since it was one which would be obvious to any reasonably well-informed person, nor could S escape liability for non-performance of such duty by delegating it to an independent contractor. City of Saint John v. Donald [1926] S.C.R. 371, applied.

Decision of the Supreme Court of New Brunswick, Appeal Division 32 M.P.R., affirmed.

APPEAL from that part of the judgment of the Supreme Court of New Brunswick, Appeal Division 1 whereby it was directed that judgment be entered against the appellant. The action was brought by the landlords, the Wilbys, against their tenant, Savage, and DeLong, an independent contractor retained by Savage, to recover damages to a building arising from a fire which occurred while the building was in the tenant’s possession and which was alleged to have been caused by the negligent use of a dangerous substance by the contractor in removing paint. The trial judge, Bridges J., gave judgment against the contractor and dismissed the action against the tenant. Both the landlords and the contractor appealed. The appellate court unanimously affirmed the judgment against the contractor, and allowed the appeal against the tenant. Hughes J. dissenting, against that part of the judgment maintaining the action against the tenant.

John E. Warner for the appellant.

C. J. A. Hughes, Q.C. for the respondents.

Rand J.:—The question in this appeal is whether a lessee is liable for damages done to the leased premises in the course of work negligently performed by an independent contractor. The work involved the removal of paint from

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the interior portions of a restaurant by means of a substance the use of which admittedly called for special care through its tendency to inflammability. On the container in which it was sold a clear warning made known the danger and the painting trade were well acquainted with its risks. Another composition could have been used without danger, but its fumes apparently caused nausea and for that reason, in this instance, after having been used for a short time, it was put aside and the other substituted. The latter was in ordinary use by the trade and the general employment of the contractor must be taken to have contemplated its use in this case. But the lessee in fact knew nothing about the substance, its dangers, or its use.

The rule of law applicable can be said to be well established although its statement is not always in the same terms. Among its earliest expressions was that in Bower v. Peate, 2, in which a contractor for building a house undertook to protect an adjoining house which was entitled to the support of the neighbouring land. In the course of the judgment, Cockburn C.J. said:—

The answer to the defendant’s contention may, however, as it appears to us, be placed on a broader ground namely, that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else—whether it be the contractor employed to do the work from which the danger arises or some independent person—to do what is necessary to prevent the act he has ordered to be done from becoming wrongful.

Although the reference is to consequences to a neighbour, the principle is not limited to that spatial application. In Grote v. Chester and Holyhead Ry. Co. 3 the defendant for negligence in the construction, under the direction of a competent engineer, of a bridge over which another railway company held running rights, was held liable to a passenger carried by the latter company. In the course of the argument Parke B., to the contention that having engaged the services of a most competent engineer the company had done its duty, interposed the remark:—

It seems to me that they would still be liable for the accident unless he also used due and reasonable care and employed proper materials in the work.

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and Pollock C.B., in giving judgment, said:—

It cannot be contended that the defendants are hot responsible for the accident merely on the ground that they have employed a competent person to construct the bridge.

In Penny v. Wimbledon Urban Council 4, a case holding a district council liable for unlighted obstructions left in a highway being repaired for the council by a contractor, Romer L.J. at p. 78 says:—

When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions.

In such circumstances, inherent in the work itself are unusual risks which call for special precautions; and since they result from the act of setting the work on foot, a duty on the person so acting arises as a concomitant of the work, towards interests within the range of the risks, to see that reasonable measures are taken against them. The employment of an independent contractor does not discharge that duty, and if through his negligence there is a failure in it, the owner or person employing him incurs liability. Considerations supporting the rule are not far to seek. If the lessee had owned the premises he would have been remitted to the responsibility of the contractor; why then should he be relieved from dependence on that by transferring it to the landlord where he is dealing with or affecting the latter’s property? Since he has, in fact, imposed the dangerous agencies and their hazards on that property, it would be repugnant to principle that he should be permitted to relieve himself of repsonsibility by the introduction of an intermediary. This circumstance is not significant to the ordinary case since the risk there encountered is related to the actor and not the work, and as a matter of policy the promotion of such works is not to be discouraged by extending the liability of those for whom they are done to the delinquent conduct of other persons who have become virtually the necessary means of carrying them out. But such a breach is to be distinguished from that negligence in the course of the work which has been called “collateral”, that is, collateral to the risks annexed to the work itself.

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Difficulties may arise in determining when the circumstances present the degree of danger attracting the rule; but on the facts here I do not find it doubtful to conclude that the excess of risk was present, and that if chargeability with knowledge of it is requisite, that also must be laid against the lessee.

I would therefore dismiss the appeal with costs.

The judgment of Kellock and Fauteux JJ. was delivered by:

Kellock J.:—The learned trial judge considered that as the work in question could have been performed by the use of a perfectly harmless agent, and the appellant had no knowledge that other agents which were dangerous were also normally used, he was not liable. In the view of the majority in the court below, however, it was sufficient that the agent actually employed was one normally used.

The governing principle is thus stated in the 11th edition of Salmond at p. 134, as follows:

if an employer is under a duty to a «person or class of persons, he is liable if that duty is not performed and damage thereby results, and cannot evade that liability by delegating the performance of the duty to an independent contractor.

The author, however, goes on immediately to say that

Whether there is such a duty will depend upon whether the employer as a reasonable man ought to foresee that the persons who suffer damage are likely to be affected by the performance of the independent contractor’s acts.

These statements of the law are amply borne out by the authorities. It is sufficient to refer to Dalton v. Angus 5, Lord Blackburn, at 829, and to St. John v. Donald 6.

As stated by Anglin J. in Donald’s case, ubi cit, at 383, vicarious liability arises where the danger of injurious consequences to others from the work ordered to be done is so inherent in it that “to any reasonably well-informed person who reflects upon its nature the likelihood of such consequences ensuing, unless precautions are taken to avoid them, should be obvious, so that were the employer doing the work himself his duty to take such precautions would be indisputable.”

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It is therefore not enough that the appellant himself did not know of the danger. So long as the means employed was one commonly employed, he is taken to know what, to the person reasonably well-informed as to the nature of the work, would have been obvious.

The appeal should therefore be dismissed with costs.

The judgment of Estey and Cartwright JJ. was delivered by:

Cartwright J.:—The facts out of which this appeal arises are as follows. The appellant was lessee of the ground floor of a building owned by the respondents and operated a restaurant in the demised premises. The lease was not put in evidence and neither party has suggested that the determination of the appeal depends on its terms. The appellant entered into a contract with the defendant DeLong, who is a painting contractor, to remove the paint from the restaurant booths and refinish them and to paint the walls and woodwork of the restaurant for a lump sum. This contract was an oral one. It is now common ground that DeLong was an independent contractor. The contract was silent as to the method which he should employ in doing the work but it was specified that the old paint was to be removed. There is no suggestion that the appellant acted negligently in selecting DeLong to undertake the work.

On February 8, 1950, DeLong commenced the removal of the paint using a non-inflammable liquid paint remover but, as the fumes from this proved objectionable and tended to make the workmen sick, he abandoned its use and continued the work using a paint remover known as “Taxite”. This substance is inflammable and volatile. Its fumes when mixed with air are explosive.

During the progress of the work of removing the paint a fire occurred which spread with great rapidity and caused damage to the plaintiff’s building which has been assessed at $9,979.91. The quantum of this assessment is not questioned. There are concurrent findings of fact, amply supported by the evidence, that DeLong was negligent in that he failed to take adequate precautions to prevent the creation of a flame or spark in the room in which the work of paint removal was proceeding.

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The respondent brought: action against both DeLong and the appellant. At the trial judgment was given against DeLong but the action as against the appellant was dismissed. On appeal to the Supreme Court of New Brunswick, Appeal Division, DeLong’s appeal was dismissed unanimously and the appeal of the present respondent as against the appellant was allowed, Hughes J. dissenting, DeLong did not appeal to this Court and we are concerned only with the question whether or not the appellant was properly held liable.

The question whether the work of removing paint from woodwork in the interior of a building is necessarily attended with danger was fully argued before us. This does not appear to me to be a matter as to which the Court may take judicial notice and to determine it it becomes necessary to examine the evidence. Every witness who was examined on this point stated that the usual method of removing paint from the exterior of a building is to employ blow-torches but that when paint is to be removed from the interior of a building the usual method is to use liquid paint removers. Every such witness stated that some paint removers are inflammable and that he had used inflammable paint removers for this sort of work. Indeed the witness McGinnis who was described as a master painter of thirty-two years experience had never used a paint remover which was not inflammable. All such witnesses agreed that it was necessary to take precautions against fire when using these paint removers. It results from this evidence that a normal, and indeed the most usual, method of removing paint from the interior of a building is to use liquid paint removers which are highly inflammable and the fumes of which are explosive, but that there are other paint removers, not so frequently used, which are not inflammable.

The appeal was argued on the basis that the appellant in fact knew nothing about the usual methods of removing paint and did not know that DeLong was using an inflammable paint remover.

For the appellant it is argued that as DeLong was an independent contractor selected without negligence and employed by the appellant to do a lawful act the appellant is not liable for his negligence. Assuming this to be a correct statement of the general rule, it is a rule to which

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there are exceptions, one being that where the act which the independent contractor is employed to do is one which in its nature involves a special danger of injury to the property of another a duty is imposed upon the party employing the independent contractor to take special precautions to prevent such injury and he can not escape liability for failure to discharge such duty by delegating its performance to another. I do not find it necessary to review the many authorities which were discussed on the argument for while it may not be easy to reconcile all the statements which they contain none of them appear to cast doubt on the existence of the exception to which I have referred.

I am in respectful agreement with the majority in the Appeal Division that the facts of this case bring it within the exception mentioned. In my view the appellant ordered the doing of work which, if done by the usual method, would create a danger of fire in the respondent’s building and he thereupon came under a duty either to provide that the dangerous method be not used or to provide that if it were used all necessary precautions against fire be taken, and he could not escape liability for the non-performance of such duty by delegating its performance to DeLong.

It is contended that in view of the finding that the appellant was in fact unaware of the usual method of removing paint and the danger attending it, it cannot be said that he ought reasonably to have foreseen the probability of danger and that consequently no duty to take precautions was imposed upon him. It may well be that the inquiry, as to whether the work which the independent contractor has been ordered to do involves in its nature a special danger of injury so as to bring the case within the exception referred to above, is a purely objective one; but, assuming for the purposes of this branch of the argument that a subjective element is involved, the question would be not what was the actual knowledge of the appellant but rather, to adapt the words of Anglin C.J.C. in St. John v. Donald 7, what would any reasonably well-informed person reflecting upon the nature of the proposed work have foreseen. A person, employing an independent contractor to do work of such a nature that it is common knowledge in the trade to which the independent contractor belongs that

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the doing of the work by the usual method will necessarily be attended with danger to another’s property, cannot evade the resultant duty to take precautions because he lacks knowledge and fails to make any inquiry. In my opinion a reasonable man in the position of the appellant ought to have foreseen the danger which the work would create.

As the above reasons appear to me to be sufficient to dispose of the appeal I do not find it necessary to consider the effect of the existence of the relationship of landlord and tenant between the parties which is referred to by Harrison J. or the effect of the statutory provisions (1938 N.B. c. 42 s. 7) dealing with the liability of a tenant for both voluntary and permissive waste.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitor for the appellant: J. E. Warner.

Solicitors for the respondents: Inches & Hazen.