Supreme Court of Canada
Eaton v.
Moore, [1951] S.C.R. 470
Date:
1951-02-26
The T. Eaton Co. Limited Of Canada (Defendant) Appellant;
and
Dame Lena Moore (Plaintiff) Respondent.
1950: October 30, 31, November 1; 1951: February 26.
Present: Rinfret C.J. and Taschereau, Estey, Locke and
Cartwright JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE,
PROVINCE OF QUEBEC.
Damage—Negligence—Bottle of liquid dropped on floor of
store by customer—Second customer slipped and fell—Fall of bottle witnessed by
clerk who advised caretaker but did not warn customers—Whether store
liable—Whether warning within functions of clerk—Art. 1053, 1064 C.C.
The respondent, a customer in appellant's large departmental
store in Montreal, fell on the floor after slipping on a patch of liquid
substance which had been in a bottle accidentally dropped by another customer.
The fall of the bottle was witnessed by a sales clerk in charge of the clock
counter and engaged at the time in serving a client. The clerk immediately
telephoned the caretaking department and then resumed his sale. Within three
minutes of the phone call a caretaker was on the spot, but in the interval the
accident had happened. The dismissal of the action by the trial judge was
reversed by a majority in, the Court of Appeal.
Held (Estey and Cartwright JJ. dissenting), that it was
not the clerk's duty in the performance of the work for which he was employed
to do more than what he did, and therefore the store was not liable under 1054
of the Civil Code. (Curley v. Latreille and Moreau v.
Labette applied).
Held also, (Estey and Cartwright JJ. dissenting), that
no positive fault could be attributed to the store since it had fully provided
for an elaborate and efficacious system to meet such emergencies.
Per Estey and Cartwright JJ. (dissenting): It was the
clerk's duty during the short interval that he knew must elapse before the
arrival of the caretaker to warn customers of the danger actually known to him
and his failure to do so rendered the store responsible; but if, whether by
reason of express instructions or the lack of instructions, this duty did not
rest on the clerk, then the store was directly liable for its negligence in
failing to provide for the warning of its customers during such interval.
APPEAL from the judgment of the Court of King's Bench,
appeal side, province of Quebec , maintaining,
[Page 471]
McDougall J.A. dissenting, the action of the customer of
a large departmental store who injured herself when she fell on the floor of
the store.
W. B. Scott K.C. and P. M. Laing for
the appellant.
F. P. Brais K.C. and A. J. Campbell K.C.
for the respondent.
The Chief Justice:—The
appellant owns and operates a large departmental store in Montreal. The
building consists of ten floors with a total floor area open to the public of
646,380 square feet. In the operation of the store the appellant employs
between 2,500 and 3,000 persons.
At about 11.00 a.m. on the morning of the 16th November,
1942, a store count disclosed that there were 1,283 members of the public in
the premises. The number would be slightly larger around noon when the accident
hereinafter mentioned happened.
Amongst the customers was the respondent, a nurse employed
by the Department of Veterans Affairs, aged s6. She had come to the store to
make some purchases and was walking on the ground floor, to leave by the St.
Catherine and University Streets exit. She slipped and fell, thereby incurring
injuries for which she claims compensation from the appellant. The cause of her
fall was that she slipped on a patch of liquid substance of sticky appearance
about six inches in diameter which was on the floor some twenty feet from the
exit. The respondent described it as lotion and said it was very slippery. The
presence of this substance was explained by the fact that half a minute, or a
minute before the respondent fell, an unidentified woman, evidently a customer,
had dropped a small bottle which broke on hitting the floor. The customer
"merely turned around and looked at it and then scampered off on her way."
By pure chance the dropping of this bottle was noticed by
Frank Bertrand, a sales clerk employed in the clock department of the
appellant, and who was at the time actively engaged with a customer in selling
clocks at his counter. He immediately picked up the house telephone and advised
the caretaking department. The caretaking
[Page 472]
department signalled to O'Doherty, one of its staff, who was
on the ground floor, by means of its system of signal lights and gongs
installed throughout the store. He at once called the caretaking department by
the house telephone and was instructed to go to the University and St.
Catherine Streets exit. He took one minute to get there, arriving in about
three minutes after Bertrand had put in his telephone call, but in the interval
the accident had happened.
The respondent said both feet slipped from under her and she
came down on the floor—no doubt heavily, because she was of unusual build,
being five feet four inches in height and 220 pounds in weight.
Following the accident the appellant provided first aid and
other treatment for the respondent. While she did not have to be hospitalized
she was, however, unable to resume her duties and she was superannuated at the
age of 57. This resulted in the reduction of her retirement pension to $747.50
per annum instead of the larger sum she would have received had she been able
to continue her work to retirement age.
The learned trial Judge (Loranger J.) dismissed the action.
The Court of King's Bench (Appeal Side) reversed that judgment and
assessed the total damages at $10,000. Counsel for the appellant stated that he
raised no objection to this finding as to quantum and that the appeal was
solely directed against the finding of the majority of the Court of King's
Bench (Appeal Side) that the appellant was responsible for this unfortunate
accident. Errol McDougall J. dissented in the Court of King's Bench (Appeal
Side).
As stated by this Court in Canadian National Railways Co.
v. Lepage :
It is a familiar principle that neglect may, in law, be
considered a fault only if it corresponds with a duty to act.
The learned trial judge found as a fact that
Il n'y a aucune preuve de faute par omission,,
négligence ou incurie de la part de la défenderesse.
Moreover, even if the duty to act is shown, that duty exists
only if the accident is foreseeable and, in turn, it must be foreseeable by a
man of ordinary and reasonable
[Page 473]
prudence. (Ouellet v. Cloutier ; L'Oeuvre des Terrains de Jeux de Québec v. Cannon per Rivard J.). It is absolutely certain
that, upon the record, no positive fault resulting from negligence, or lack of
foresight, could be imputed to the appellant. In the Court of King's Bench it
was thought the latter could be held responsible on the ground of what they called
abstention fautive by one judge, or connaissance retardée by
another judge. But, if there had been omission, which would make the appellant
liable, it can only be said that Bertrand did not desist from the selling of
clocks, in which he was engaged at the time, and go out into the aisle and
prevent the respondent from slipping on the substance on the floor. As for the connaissance
retardée of the employer, it is proven, as found by the learned trial
judge, that immediately the bottle of liquid fell upon the floor a signal was
given to the care-taking department to come and take care of it, and the
employees of that department answered the signal within a few moments, but the
accident had already happened. As a matter of fact, upon the evidence, the respondent
fell on the liquid any where between one-half a minute, or a minute, after the
bottle had been dropped.
The learned trial judge treated the mishap as a pure
accident resulting from the act of a third party, over whom the appellant had
no control whatever. There were several obstacles in the way of the success of
the respondent. First, the company itself cannot be saddled with any neglect in
the matter. It had provided a complete and elaborate system of cleaning the
floors under just some such circumstance.
Secondly, it had to be shown that Bertrand, upon whose
alleged negligence the respondent relied for the maintenance of her claim, if
he had himself attended to the cleaning of the patch of oil, would have been
acting "in the performance of the work for which he was employed"
(C.C., Article 1054). He did not belong to the caretaking department, whose
duty it was to clean the floor. He was the clerk in charge of the clock
counter. It was no part of his
[Page 474]
work to attend to the cleaning up of this small patch of
liquid on the floor, and it was so found by the learned trial judge, who
stated:
Il n'avait rien à faire avec l'entretien des
planchers.
In this case the learned trial judge rightly held that if
any negligence can be attributed to Bertrand, at all events it was not in the
performance of his work for the appellant.
Thirdly, as pointed out by McDougall J.:—
The time elapsed between the breaking of the bottle of
lotion on the floor and the accident was so short as to militate strongly
against the theory of negligence with which appellant was charged.
* * *
The two acts, fall and break of bottle and the fall of the
respondent, were so closely related in time as to extrude or negative the
factor of negligence …
* * *
No such immediate apprehension of danger could dictate any
greater precautions at that time.
The patch of liquid on the floor was described as being
about the diameter of one of the witnesses hands. It was not inherently
dangerous; it did not constitute a concealed danger, but was visible and did
not necessarily indicate the imminence or probability of an accident. Even if
it had been Bertrand's duty to provide against the eventuality, such
eventuality was unforeseeable.
Again quoting McDougall J.:—
It is, in my view, unreasonable to contend that the
precaution must be instantaneous with the event causative of the accident. Time
must elapse to transform what is normally a pure accident into actionable
fault.
Reduced to its simplest form and in its present connotation,
the test of negligence is hot whether greater precautions might have been taken
and the loss avoided, but whether ordinary precautions, those usual in the
circumstances, were taken.
Here, the finding of fact in the Superior Court on that
point was that the accident happened suddenly and almost at the same time as it
was discovered that the liquid had spilled on the floor, and the orders to
clean it up were given without delay.
In order to come to the conclusion that the appellant could
be held responsible in the premises the learned judges of the Court of King's
Bench (Appeal Side) referred to extracts from the works of commentators of the
Civil Code. One of them puts it on what he calls devoir moral, thus
[Page 475]
apparently assimilating the moral duty to the legal duty; but,
of course, that is not the law of the Province of Quebec. Another writer states
that the responsibility must be placed on those who can more easily sustain the
loss, and again that is not the law of the Province of Quebec.
The proposition that the knowledge of imminence of danger
might constitute a fault entailing responsibility if one neglects, or abstains,
from acting, could hold only if there was the time and the means of preventing
it, but, in this case, that is precisely what cannot be sustained on the facts
as they were held, upon ample evidence, by the learned trial judge.
In addition to what is said above on that point, there are
two considerations which must be taken into account. I cannot agree with the
proposition that Bertrand, consistently with his duties towards his employer,
should have immediately proceeded to the spot where the liquid had been spilt
on the floor and leave on the counter, within the reach of a customer whom he
did not know, valuable articles which he was then showing, with the risk that,
during his absence, these articles might disappear. It was, in my mind, his
paramount duty to remain, or at least, before doing anything else, to replace
the articles on the shelves. In such a case, the very time required for doing
so would have prevented him from arriving soon enough to bring any remedy in
the circumstances.
Moreover, even the man in charge of the cleaning department,
when he reached the so-called dangerous spot, found that he was not in a
position to immediately make the cleaning. He had to provide for it temporarily
by placing a piece of cardboard on the oily substance. It is not shown that Bertrand
knew of the existence of this cardboard in the vicinity of the store where the
cleaner took it.
The crux of the matter is that, in a given case, nobody can
be found negligent for having failed to foresee absolutely every possible kind
of happening. The law does not require more of any man than that he should have
acted in a reasonable way.
As to the attempt to hold the company itself responsible, it
was said that, if it cannot be attributed to anything
[Page 476]
that formed part of Bertrand's duty and the employer cannot
be found liable on that account, there was failure on the part of the appellant
to have instructed Bertrand, and presumably all other employees in the store,
that when they saw something of this nature drop, which might be dangerous,
they were to take immediate steps to protect customers from injury, which, in
effect, is a contention that there was a negligent system. We have not in the
Province of Quebec the distinction between the duty of the occupier towards an
invitee and towards a licensee as illustrated by Willes, J. in Indermaur v.
Dames , and where the latter judge says that the
occupier is expected to "use reasonable care to prevent damage from
unusual danger, which he knows or ought to know."
It is also expressed in slightly different language by Lord
Hailsham, L.C., in Addie v. Dumbreck , that to
those "who are present by the invitation of the occupier …", the
latter "has the duty of taking reasonable care that the premises are
safe," which is resumed in Salmond on Torts, 10th Ed., at p. 280, that the
duty is Usually stated as "to take care to make the premises reasonably
safe."
That statement, however, to my mind, expresses the utmost
duty which an occupier owes to a customer under the law of the Province of
Quebec. Nothing requires him to do anything beyond that; and he could not be
held negligent for having failed to provide against any eventuality however
impossible to imagine.
One can but speculate how far the suggested duty of the
occupier is to be carried. Can it be held that the operator of a department or
chain store should be required to instruct all of his employees that, if they
see someone drop something over which customers may stumble or upon which they
may slip, they are at once to take steps to warn people of the danger—and, in
the present case, not a certain danger? And, if so, does it apply to clerks
working at nearby counters, truckers employed in bringing goods into the store
and to all employees who may see the occurrence or its results?
[Page 477]
The evidence is clear that the liquid was colourless, so
that it would have been impossible for Bertrand to know that the contents were
oily; though he undoubtedly learned that when he took up the injured woman. If
the liquid was not oily, it might be no more dangerous than if water was
present on the floor. Are the employees to take prompt steps to protect
customers, even though what has been dropped does not appear to them to be
dangerous, or are they to be required to immediately take steps to prevent
anybody stumbling or falling upon anything that has been dropped?
The trial judge did not consider that there was any.
negligence on the part of the Eaton Company, so that obviously he considered
the precautions they had taken, by maintaining the caretaking department and
the system of signalling when there was a mishap, reasonable precautions by the
employer. I cannot bring myself to think that this finding of fact should be
disturbed and that the contrary view should prevail. The extent of the duty of
the employer should not be carried further.
In the premises, I wish to express my complete agreement
with what was stated by McDougall J. in the extracts which I have quoted above.
Whichever view is taken of the special circumstances in which the accident
happened, I would say that the element of time is here decisive against the
admission of the Respondent's claim against the Appellant.
In the case of The Governor and Company of Gentlemen
Adventurers of England v. Vaillancourt , both Duff
J. (as he then was) and Mignault J. drew attention to the fact that the
doctrine of the moral duty or that the negligence should fall upon the
proprietor because he enjoys the profits arising from his enterprise are
considerations which may have found favour among the legal writers in France,
but they stated they did not think that considerations derived from this mode
of reasoning can legitimately be applied in controlling the interpretation or
the application of the text under discussion (to wit C.C. Article 1054).
For the several reasons enumerated; because no positive
fault can be attributed to the company itself; because it
[Page 478]
had fully provided for an elaborate and sufficient system to
meet such emergencies; because it was not Bertrand's duty in the performance of
the work for which he was employed to look after the cleaning of the floor (Moreau
v. Labelle ; Curley v. Latreille ;
because even assuming that Bertrand had a moral duty,
which is not admitted, such duty cannot be assimilated to legal duty towards
the respondent; because the time elapsed between the breaking of the bottle and
the accident was so short that, even granting the existence of a legal duty,
there cannot be negligence on Bertrand's part; because the theory of the modern
French writers does not form part of the law of the Province of Quebec (The
Governor, etc. v. Vaillancourt supra), the appeal should be
allowed with costs both here and in the Court of King's Bench (Appeal Side),
and the judgment of the Superior Court restored.
The judgment of Taschereau and Locke JJ. was delivered by
Taschereau, J.:—Pour réussir dans la présente action, la demanderesse-intimée devait nécessairement établir qu'il appartenait
à l'employé Bertrand de la protéger contre l'accident dont elle a été la
victime, ou alternativement, que l'appelante n'a pas pris les précautions
nécessaires pour empêcher les dommages qu'elle a subis.
Bertrand, un commis vendeur au rayon des
horloges, près de l'endroit où l'accident est survenu, a bien vu une bouteille,
qu'une tierce personne venait d'acheter, tomber sur le plancher du magasin à
rayons dont l'appelante est propriétaire, et réalisant qu'un accident pouvait
arriver, avertit aussitôt les autorités, et demanda qu'on envoie quelqu'un pour
enlever ce liquide huileux. Environ une minute plus tard, l'intimée qui se
dirigeait vers la sortie de la rue Université, glissa sur cette flaque d'huile
et fut sérieusement blessée. Deux minutes après, un nettoyeur préposé à cette
fin couvrit cette flaque d'huile d'un carton placé derrière le comptoir voisin,
et s'en retourna chercher les instruments nécessaires pour nettoyer le
plancher.
C'est la prétention de l'intimée que Bertrand
a commis une faute d'omission, qui engage la responsabilité de son employeur,
en négligeant d'alerter les clients du danger que présentait cette flaque
d'huile glissante.
[Page 479]
Il est certain que la faute d'omission peut
engendrer la responsabilité, mais il faut que la négligence d'agir corresponde
à un devoir d'agir (C.N.R. v. Lepage ). Ce devoir cependant doit être basé sur une obligation légale, et ne
doit pas reposer uniquement sur l'altruisme ou le' dévouement, que souvent la
charité commande envers le prochain. (Colin et Capitant, Droit Civil, Français,
10ème Ed., p. 221). Négliger de prendre les précautions
requises que prendrait un homme prudent, qui a l'obligation d'agir dans des
conditions identiques, constituerait cette faute d'omission. Mais pour que le
maître soit responsable de l'omission de son serviteur, il y a deux conditions imperatives
qui sont requises. Il faut que le préposé ait commis une faute,
et il faut qu'il l'ait commise dans l'exercice de ses fonctions. (Code Civil, 1054)
(Colin et Capitant, supra, page 257).
La première de ces propositions est
élémentaire. Le délit ou le quasi-délit du préposé est évidemment une condition
préalable à la responsabilité que la loi impose au maître, et comme conséquence
de ce principe, il résulte que le maître ou le commettant, a un recours contre
son employé coupable qui est l'auteur du fait dommageable, et qu'évidemment, la
victime elle-même, peut réclamer de l'employé les dommages qu'elle a subis.
(Colin et Capitant, supra, à la page 257). Comme le
disent Planiol et Ripert, (Droit Civil, "Les Obligations" Vol. 1,
page 883, No. 652).
Pour que le commettant soit responsable, il
faut non seulement que l'acte soit illicite mais encore que le préposé soit
responsable personnellement du dommage qu'il cause.
La responsabilité de l'employé est
délictuelle, celle du maître repose sur la loi, deux sources différentes
d'obligations (C.C. 983).
En second lieu, il faut que l'employé ait
commis le fait dommageable dans l'exercice des fonctions auxquelles il
est employé. Comme le dit Mazaud, Vol. 1, "Responsabilité
Civile," 4ème Ed., à la page 835:
Si l'on consulte les travaux préparatoires du
Code Civil, l'hésitation n'est pas permise; Dès que le dommage a été causé non
plus "dans l'exercice des fonctions" mais seulement "à
l'occasion des fonctions," le commettant ne doit pas être déclaré
responsable.
[Page 480]
On ne peut en effet faire reposer la
responsabilité du maître sur le fait que l'omission ou l'acte fautif se serait
produit dans le temps et le lieu du service. Il faut nécessairement un rapport
entre la faute et la fonction du service, un lien qui rattache la faute à
l'exécution du mandat confié au préposé. (Mazaud, Vol. 1, 4ème
Ed., page 839).
Le commettant répond donc des actes fautifs
que le préposé a commis pour atteindre le but de ses fonctions, même si les
actes sont le fruit d'un abus des fonctions pour lesquelles il est employé.
(Savatier, "Traité de la Responsabilité Civile," Vol. 1, page 427) (Colin et Capitant, Vol. 2, 10ème Ed., page 258). Dans le cas contraire, le
commettant n'encourra aucune responsabilité. C'est la doctrine acceptée non
seulement par les auteurs, mais également par cette Cour dans The
Governor and Company of Gentlemen
Adventurers of England v. Vaillancourt , où Sir Lyman Duff dit ce qui suit:
Le fait dommageable must be
something done in the execution of the servant's functions as servant or in the
performance of his work as servant. If the thing done belongs to the kind of
work which the servant is employed to perform or the class of things falling
within l'exécution des fonctions, then by the plain
words of the text responsibility rests upon the employer. Whether that is so
or not in a particular case must, I think, always be in substance a question of
fact, and although in cases lying near the borderline decisions on
analogous states of fact may be valuable as illustrations, it is not, I think,
the rule itself being clear, a proper use of authority to refer to such
decisions for the purpose of narrowing or enlarging the limits of the rule.
De plus, dans Curley v. Latreille,
M. le Juge Mignault à la page 175, s'exprime
dans les termes suivants:
Etant donné que l'interprétation stricte
s'impose en cette matière, je ne puis me convaincre que le texte de notre
article nous autorise à accueillir toutes les solutions que je viens
d'indiquer. Ainsi, dans la province de Québec, le maître et le commettant sont
responsables du dommage causé par leurs domestiques et ouvriers dans
l'exécution des fonctions auxquelles ces derniers sont employés, ou, pour
citer la version anglaise de l'article 1054 C.C., in
the performance of the work for which they are
employed. Ceci me paraît clairement exclure la responsabilité
du maître pour un fait accompli par le domestique ou ouvrier à l'occasion
seulement de ses fonctions, si on ne peut dire que ce fait s'est produit dans
l'exécution de ses fonctions. Il peut souvent être difficile de déterminer si
le fait dommageable est accompli dans l'exécution des fonctions ou seulement à
leur occasion, mais s'il appert réellement que ce fait n'a pas été accompli
dans l'exécution des fonctions du domestique ou ouvrier, nous nous trouvons en
dehors de notre texte.
[Page 481]
Enfin, dans Moreau v. Labelle ,
M. le Juge Rinfret dit ce qui suit:
Ils font sentir d'une manière très nette
l'erreur qui assimilerait au délit commis dans l'exécution des fonctions du
préposé le délit commis pendant le temps de ces fonctions.
Bertrand, par faute, négligence ou inhabileté,
a-t-il commis un quasi-délit qui le rendrait personnellement responsable sous
l'empire de l'article 1053 C.C., et qui en conséquence,
obligerait l'appelante en vertu de 1054 C.C.? S'il a
commis une faute d'omission en négligeant de prévenir l'intimée d'un danger
imminent, était-ce au cours de l'exercice des fonctions auxquelles il était
employé?
Avec déférence, je dois répondre dans la
négative à ces deux questions. Bertrand, préposé au comptoir de la vente des
horloges, n'avait pas l'obligation légale d'avertir l'intimée qu'une tierce
personne, en quittant le magasin, avait échappé cette bouteille d'huile
graisseuse. L'exécution du mandat qui lui avait été confié n'avait aucune
relation avec la sécurité des clients, et je ne vois pas comment on pourrait
lui imputer une faute par suite d'une omission, alors que ni la loi ni les
termes de son emploi ne l'obligeaient à agir. Je ne doute pas du sort qui
aurait été reservé à une action intentée contre Bertrand, ou aux autres
vendeurs, témoins de l'accident, pour leur réclamer personnellement des
dommages à cause de cette prétendue omission. C'est avec raison, évidemment,
qu'ils auraient répondu que cette action ne repose sur aucun fondement
juridique, vu qu'ils n'avaient aucun devoir vis-à-vis l'intimée. Et pourtant,
cette responsabilité quasi-délic-tuelle de Bertrand est essentielle à la
responsabilité légale de l'appelante. Ce serait exprimer des vues contraires à
celles des auteurs et de la jurisprudence que j'ai cités, que d'étendre la
portée de l'article 1054, et de lui faire dire que
"l'exécution des fonctions" de Bertrand, comprend dans le cas qui
nous occupe, non seulement la vente des horloges, mais également la
surveillance de la sécurité des clients.
L'intimée a soumis comme alternative que si
Bertrand n'a pas commis de faute, la responsabilité de l'appelante est tout de
même engagée comme résultat de sa négligence à prendre les soins raisonnables
et les mesures nécessaires pour prévenir les accidents de ce genre.
[Page 482]
La preuve a révélé que l'appelante a organisé
dans son immeuble un système élaboré de nettoyage pour prévoir les éventualités
telles que celle qui a été la cause de l'accident dans le présent litige. Ce
système a été reconnu comme efficace par le juge au procès, et sur ce point, je
m'accorde avec lui. Mais, évidemment, il est impossible de prévoir tous les
accidents et de les prévenir. Il y aura toujours des accidents dommageables,
qui cependant n'engendreront la responsabilité de personne. La loi demande que
le propriétaire d'un immeuble agisse avec une prudence raisonnable. Ainsi, dans
L'æuvre des Terrains de Jeux de Québec v. Cannon ,
M. le Juge Rivard s'exprime de la façon suivante à la page 114:
Le plus sûr critère de la faute, dans des
conditions données, c'est le défaut de cette prudence et de cette attention
moyennes qui marquent la conduite d'un bon père de famille; en d'autres termes, c'est l'absence des soins
ordinaires qu'un homme diligent devrait fournir dans les mêmes conditions. Or,
cette somme de soins varie suivant les circonstances, toujours diverses, de
temps, de lieux et de personnes.
Dans Massé v. Gilbert ,
M. le Juge Létourneau dit ce qui suit:
De sorte que tout ce que la Cour doit se
demander, c'est si l'intimé Gilbert, en cette occasion et eu égard à la
situation des lieux, a bien pris le soin et les précautions qu'eut pris un
propriétaire prudent et diligent; si oui, l'on peut dire qu'un propriétaire
prudent et diligent n'eut rien fait de plus, rien fait de mieux pour éviter ce
qui est arrivé, l'intimé doit être exonéré en appel comme il l'a été en
première instance; …
Mais, ajoute l'intimée, même si le service de
nettoyage était efficace et prompt, l'appelante aurait dû donner à tous ses
employés les instructions qui s'imposaient pour prévenir tout accident de ce
genre. Comme dans le cas de service de nettoyage défectueux, la responsabilité
de l'appelante serait fondée alors, non sur l'article 1054 C.C., mais bien sur l'article 1053 C.C. Il
s'agirait alors clairement d'un cas où la faute de l'appelante doit
nécessairement être prouvée. La théorie du risque est inconnue d'ans la
province de Québec, et la faute sous l'article 1053, est
toujours la base de la responsabilité.
Comme je viens de le signaler, il y avait un
service d'alarme perfectionné, permettant d'avertir les préposés aux divers
services, pour qu'ils répondent à l'appel le plus rapidement possible. Au
moment de l'accident, c'est
[Page 483]
au moyen de ce système que le signal a été
donné, et qu'un employé s'est rendu sur les lieux en quelques minutes pour
faire disparaître la cause de tout danger. L'intimée cependant exige davantage
et prétend qu'en outre, les 2,50o, employés de l'appelante
préposés au service des comptoirs, auraient dû également être chargés de
veiller à la sécurité des clients, et qu'à leurs fonctions normales auraient dû
s'ajouter celles, déjà confiées par la direction de la maison, à un groupe
d'employés pourtant jugés compétents et efficaces par le juge de première
instance.
Le service existant n'était peut-être pas le
meilleur, et il ne fait pas de doute qu'il n'était pas suffisant pour prévenir
tous les accidents. Le système idéal proposé par l'intimée aurait peut-être été
plus efficace, mais l'appelante aurait été tenue de répondre à des exigences
que la loi ne requiert pas. On ne peut demander en effet à l'appelante
d'assigner tous ses employés à la sécurité des clients, quand dans une
entreprise comme la sienne, les tâches doivent être nécessairement réparties.
Les principes qui régissent cette cause doivent, il me
semble, être ceux auxquels est assujettie la responsabilité des muinicipalités,
dans la province de Québec, qui ont l'obligation d'entretenir leurs trottoirs
durant la saison d'hiver. Dans ce dernier cas, comme dans celui qui nous
occupe, demander plus que la prudence et la diligence raisonnables, plus que le
soin vigilant d'un bon père de famille, serait exiger un degré d'excellence, un
niveau ou un standard élevé de perfection bien au-dessus de la norme reconnue
de la responsabilité juridique, et qui, comme cette Cour l'a dit dans Ouellet
v. Cloutier , rendraient impossible
toute activité pratique.
Je ne puis me convaincre que la Compagnie
appelante n'a pas fait preuve de la prudence et de la diligence requises, et il
n'a été nullement démontré que son service de nettoyage était défectueux, ou
qu'il y ait eu des lenteurs à répondre à l'appel téléphonique de Bertrand.
Pour toutes ces raisons, je suis d'avis que
l'appel doit être maintenu et l'action de la demanderesse-intimée rejetée avec
dépens de toutes les cours.
Estey J.
(dissenting):—The respondent's claim for damages suffered
when she fell while a customer in the
[Page 484]
appellant's store was dismissed at trial. Upon appeal, the
Court of King's Bench reversed this dismissal (Mr. Justice
McDougall dissenting) and directed judgment in her favour for $10,000.
The respondent, a nurse 56 years of age, on the morning of
November 16, 1942, was a customer at the appellant's department store in the
City of Montreal. At about 11:45 she approached the exit to University Street
and, because of the presence on the main floor of a gooey, sticky liquid, she
slipped and fell, sustaining the injuries for which damages are here claimed.
The area covered by the liquid was about six inches in diameter upon a floor of
Italian marble called travertine. Many customers were coming and going along
that point on the main floor. The presence of this liquid was due to a handbag,
carried by a woman also leaving the department store, coming open and a bottle
of lotion dropping therefrom and breaking upon the floor. Bertrand,
a clerk in charge of the clock counter about 2½ yards from where the
bottle fell, was serving a customer when he observed the bottle break and the
lotion spread upon the floor. The lotion appeared to him to be a gooey, sticky
substance. The respondent herself described it as "very slippery,"
"white, transparent" and "the same colour … as the floor."
The woman carrying the handbag did not stop and Bertrand, apprehensive
lest some person might fall because of the presence of the liquid, telephoned
the caretaking department to come and "pick it up." The latter
department, through its signal system, communicated with O'Doherty, an employee
of that department, who was then near the rear of the main floor, and he
arrived at the spot, as Bertrand estimated, in about three
minutes from the time he telephoned. O'Doherty, as he had not been given any
particulars, came "to investigate the trouble" and "immediately
put a few cartons on the spot," which he obtained at Bertrand's clock
section, just as a "precaution … because of the possibility of
slipping." Bertrand himself continued waiting upon
his customer and within about a half to a minute from the time he telephoned
the respondent slipped and fell.
The appellant's is a large department store in which a count
made at 11:00 o'clock upon the morning in question
[Page 485]
disclosed 1,283 customers upon the premises. Forty-five
minutes later the respondent, one of many customers passing to and from the
busy University Street entrance of that store, as already stated, slipped and
fell. In these circumstances the respondent did not see the liquid upon the
floor and it is not suggested in this appeal that she should have. No fault is,
therefore, attributed to the respondent.
Art. 1053 of the Quebec Civil Code reads:
|
Toute personne
capable de discerner le bien du mal, est responsable du dommage causé par sa faute à autrui,
soit par son fait, soit par imprudence, négligence ou inhabileté.
|
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.
|
The duty under art. 1053 upon those who invite others to
come upon their premises for business purposes has been discussed in The
Quebec Liquor Commission v. Moore ; C.N.R. v. Lepage
; and, among others in the Quebec courts, L'Œuvre des Terrains de Jeux de Québec v. Cannon ès qual ; Caza v.
Paroissiaux et al ; Desjardins v. The Gatineau Power Company ; Brownstein
v. Barnett .
Sir Lyman Duff (later C.J.), in The
Quebec Liquor Commission v. Moore supra, at p. 548 stated:
I should be sorry indeed to think that the scope of Art.
1053 C.C. could be so restricted as to exclude the responsibility of occupiers
of business premises for failure to give warning of traps known by them to
exist, exposing persons invited by them to enter the premises for the purposes
of their business to injury in consequence thereof.
and further at p. 549:
I have the greatest difficulty in assuming that Art. 1053
C.C. does not contemplate as an act of negligence involving fault an invitation
to customers by a shopkeeper who is aware that on entering his shop they will,
if not warned, be exposed to serious risk of grave injury, without a suspicion
of the existence of it, and who presents this invitation without any warning as
to the existence of the risk. I cannot but think that to state the proposition
is sufficient.
That the appellant corporation under art. 1053, as
interpreted by the foregoing authorities, owed a duty to take reasonable care
that the respondent should not be exposed to danger or peril known to the
appellant, the
[Page 486]
existence of which, in the exercise of
reasonable care, would not be known to her, has been accepted by all of the
learned judges in the courts below and the appellant, upon the hearing of this
appeal, has not contended otherwise. There has been a difference of opinion in
the application of this principle to the circumstances here present.
That the lotion upon the floor, where so many people were
walking, constituted such a peril as would, under the authorities, be
classified as a trap, is not seriously disputed. Bertrand himself
realized immediately the possibility of someone slipping thereon and telephoned
the caretaking department, as he explained, to prevent such an accident as
suffered by the respondent. Carmichael, the manager of the caretaking
department, said he would have put sawdust upon it, of which there was a
quantity "in containers at convenient locations." He had himself
under like "circumstances placed a piece of furniture over things like
that." O'Doherty, who arrived to clean it up, said it was "grease or
oil or something on the floor" and he "immediately put a few cartons
on the spot" which he obtained from Bertrand's clock section.
The presence of this lotion upon the floor in that crowded
portion of the store made the premises at that point unsafe and immediately the
appellant became aware thereof its duty under art. 1053 required that it take
reasonable steps to protect its customers from possible injury. The appellant
contends that it knew thereof only when Carmichael's department received the
telephone call from Bertrand and as a consequence it acted
promptly and effectively, thereby performing the duty imposed upon it by law.
The respondent, on the other hand, contends that it was, in the circumstances,
a part of Bertrand's duty to take reasonable steps to protect customers and,
therefore, his knowledge was that of the appellant. It is not suggested that Bertrand was under a duty to remove the lotion, but that it was
his duty to take steps to warn the customers by some reasonable measure such as
covering the spot to prevent their stepping thereon.
[Page 487]
Art. 1054, in part, provides:
|
Les maîtres et
les commettants sont responsables du dommage causé par leurs domestiques et
ouvriers dans l'exécution des fonctions auxquelles ces derniers sont
employés.
|
Masters and employers are
responsible for the damage caused by their servants and workmen in the performance of the work for which
they are employed.
|
The knowledge which Bertrand acquired
in the performance of the work for which he was employed would be imputed to
and become the knowledge of the employer. It is, therefore, important to
ascertain if Bertrand was required, in the performance of
the work for which he was employed, to take reasonable steps to protect the
customers from injury.
The appellant contends that Bertrand was
a clock salesman and he had no duty, in the circumstances, to protect customers
or, if he did have a duty, he discharged that when he telephoned the caretaking
department. The evidence does establish that as a salesman he was in charge of
the clock counter, but it does not specify his duties as such. Whatever
instructions he may have been given at the time of or throughout his employment
are not disclosed in the record except that it is conceded he was given no
instructions with respect to any duty he owed toward customers. In fact, he
stated that upon this occasion his conduct was
Just based on common sense. I took the initiative. I didn't
want an accident to happen. I just 'phoned the caretaker to clean it.
The absence of instruction to the employee is not
conclusive. In The Governor and Company of Gentlemen Adventurers of England v.
Vaillancour , the master was held liable, though no
relevant instructions had been given by the employer. In that case Sir Lyman
Duff (later C.J.), referring to art. 1054, stated at p. 416:
If the thing done belongs to the kind of work which the
servant is employed to perform or the class of things falling within l'exécution des fonctions, then by the plain words of the text
responsibility rests upon the employer.
It is impossible, in any practical sense, for an employer in
the position of the appellant to provide instructions to its sales staff that
would cover every conceivable circum-
[Page 488]
stance. It has, therefore, been recognized that there are
well known attributes of certain positions, such as that of salesman, which
both the employers and the public have a right to expect the incumbent will
perform. It is, in this regard, the duty of the salesman to be courteous and
concerned for the comfort, convenience and safety of the customers upon the
premises. An owner selling clocks as Bertrand was would be
at fault within the meaning of art. 1053 if he did not take reasonable steps to
prevent a customer from sitting upon a chair, stepping upon a trap door or a
portion of the floor he knew to be unsafe. Bertrand, as a
salesman employed by the appellant-owner, was under the same duty. It was one of
the attributes of that position. In fact the evidence of the senior employees
called on behalf of the appellant would support that view.
It is suggested that the employees of the caretaking
department (two of whom patrolled the ground floor in question while the
foreman and assistant foreman had to "keep their eye on the conditions
throughout the store") were charged with the protection of the customers
against injury from a situation such as created by this lotion. It is the duty
of the employees of that department to remove the cause of the danger, but it
cannot be suggested, upon the evidence, that these employees, few in number, of
all the employees in this large department store, alone have a duty to warn
customers of the danger.
Counsel for the appellant stressed the presence in the store
of a system under which the cleaning department would be immediately
communicated with by any employee who became aware of a situation such as that
created by this lotion. This communication is made through the telephones
placed here and there throughout the store. Bertrand used
the telephone at his counter and the employees in the cleaning department acted
promptly and effectively. An employee who did not telephone would be remiss in
his duty and his failure to do so would not be excused upon his statement that
he had not been instructed. Bertrand's statement that in telephoning to the
cleaning department he took the initiative and acted upon his own common sense
does not detract from the fact that in doing so he was performing the duty
[Page 489]
that, in the circumstances, must be regarded as an essential
attribute of his position. It is just the type of conduct that an employer has
a right to expect of his responsible employees without specific instructions.
We are, in this case, concerned primarily with the vital and
inevitable time that must elapse between the employee becoming aware of the
danger and the removal thereof by the cleaning department. Throughout the whole
of that period, which may be of short or substantial duration, the danger
exists and the customers are exposed thereto. The appellant's position is that,
though a salesman in charge of a counter is not only aware of the danger but
fully conscious of the possibility of a customer suffering an injury, that
salesman has no duty to warn the customers. The duties of a salesman such as Bertrand arise out of his position as a representative of the
employer in selling and dealing with customers. The employer puts him forward
to conduct business on his behalf and as if he were conducting the business
himself.
An employer in the position of Bertrand and
with his knowledge of this danger would not have performed his duty to his
customers in merely telephoning the cleaning department. His plain duty would
have been to immediately take reasonable steps to warn his customers of that
danger.
The duty upon the employer's salesman is, in such
circumstances, no less. It is part of his duty to be concerned for the care and
safety of the customers. Specific instructions to that effect are not
necessary. That duty would, by the very nature of his employment, as already
stated, be an essential attribute. The law imposes that duty upon the employer
to be discharged by either himself or his agent and where injury results from negligent
omission of the performance of that duty the liability rests upon the employer.
Where, as here, the employer is a limited company, the duty can only be
discharged through its agents. A salesman in charge of a counter is such an
agent. That it did not give specific instructions to do so, but took it for
granted, as it had a right to do, that such
[Page 490]
a salesman would perform that duty, does not alter its
liability in the event of non-performance on the part of the employee.
It is negligence on the part of a salesman in the position
of Bertrand to observe a dangerous condition, telephone
the cleaning department and still allow the danger to persist, when reasonable
conduct on his part would either minimize or entirely eliminate that danger.
The time between Bertrand's telephoning and the respondent's fall was estimated
to be a minute to a minute and a half. In some circumstances that might well be
too short a time, but in this particular case it is not contended that Bertrand did not have time in which to take the necessary
precautions to warn the customers of this danger before the respondent fell. In
not doing so he failed to perform that duty which his position required of him
and his failure in that regard was a direct cause of the injury.
It is pointed out that any act on Bertrand's part to provide
a reasonable guard or notice would require that he "desist from the
selling of clocks in which he was engaged at the time." That the selling
of clocks should supersede the protection of customers from imminent danger by
a clerk who had the means at his hand to protect these customers is a
suggestion that cannot be accepted. Bertrand left the
customer to telephone and also to assist the respondent after she had fallen. A
very short space of time would have been sufficient for him to place cartons
from his counter, a chair or some other appropriate warning over the lotion and
it would have avoided the accident and his conduct would have been well
understood and probably appreciated by the customer he was serving.
There are cases where the danger is created unbeknown to the
occupier of the premises. In that event the occupier has a reasonable time to
become aware thereof. Once, however, he knows of the existence of the danger he
must proceed at once with reasonable steps to protect his business guests. In
this case the appellant knew immediately of the danger through Bertrand,
who had at his counter the means which his position required should be
used to protect the respondent and other customers.
There are other employees, possibly salesmen, whose
knowledge of a danger such as this could not be attributed
[Page 491]
to the appellant. Bertrand, however,
was the salesman in charge of the nearby clock counter when he saw the danger
and appreciated the possibility of injury. His duty, as above indicated, cannot
be restricted to customers upon whom he was waiting, but would include those
within a reasonable distance of his counter. The danger here created was within
a few feet of his counter. Such knowledge, acquired by so responsible a
salesman, must be attributed to the appellant. Bertrand had
at his hand the means the use of which would have guarded and thereby warned
the customers of the danger until such time as the employees of the caretaking
department might remove it. His falure to take these reasonable steps
constituted a fault in the sense indicated by My Lord the Chief Justice (then
Rinfret J.) in C.N.R. v. Lepage .
It is a familiar principle that neglect may, in law, be
considered a fault only if it corresponds with a duty to act.
Counsel for the appellant contended that the majority of the
learned judges in the Court of King's Bench based their decision upon the
modern French construction of art. 1384 of the Code Napoléon, under
which liability is predicated upon what has been described as a social
responsibility or, as stated by Anglin J. (later C.J.):
There is no doubt that the tendency in recent years of the
French courts and the text writers has been to hold the master answerable for
any wrong committed by his servant while in his employment, unless the act
complained of be wholly foreign to his functions as servant. They hold the
master liable if the servant's act be in any way connected with his employment.
Curley v. Latreille .
Art. 1384 of the Code Napoléon corresponds
to art. 1054 of the Civil Code, but the language of the latter is different in
important respects from that of the former and has been construed not to
support liability upon such a basis. This was emphasized in Curley v. Latreille
supra; The Governor and Company of Gentlemen Adventurers of England v. Vaillancourt
;
and Moreau v. Labette . Mignault J. in the Vaillancourt case at
p. 427 stated:
Je suis encore du même
avis, et il ne me semble pas inutile de le dire encore à raison de certaines
solutions de la jurisprudence française
[Page 492]
qu'on a invoquées pour donner à l'article 1054
C.C., quant à la responsabilité des maîtres et commettants, une
interprétation extensive qu'il ne comporte pas dans mon
opinion. Il faut bien reconnaître que la jurisprudence française a pris depuis
quelques années une orientation qui l'écarte de plus en plus de la doctrine
traditionnelle. Elle admet de nouvelles théories en matière de responsabilité
civile, comme l'abus du droit, l'enrichissement sans cause et la responsabilité
des irresponsables, enfants en bas âge et insensés (Planiol t. 2, no. 878). On peut même dire qu'elle tend à faire
abstraction de la faute et à la remplacer par la conception du risque. Mais
n'oublions pas que nous avons un code dont le texte doit nous servir de règle,
et que si les opinions des auteurs et les décisions de la jurisprudence
française ne peuvent se concilier avec ce texte, c'est le texte et non pas ces
opinions et ces décisions que nous devons suivre. Je ne serais certainement pas
partisan d'une interprétation de notre code qui en ferait prévaloir la lettre
sur l'esprit, mais quand le texte est clair et sans équivoque on n'a pas besoin
de chercher ailleurs.
The formal judgment in the Court of
King's Bench quoted from the reasons of the learned trial judge:
C'est un pur accident dont
la Demanderesse doit subir les conséquences, vu qu'il lui est impossible d'en
rechercher l'auteur et encore moins d'en attribuer la responsabilité à la
Défenderesse. Il n'y a aucune preuve de faute par omission, négligence ou
incurie de la part de la Défenderesse.
and then set out that the lotion constituted
a danger or trap from which the appellant was under a duty
to protect respondent, that Bertrand had failed in his
duty to do so and his failure must be attributed to the absence of instructions
on the part of the appellant. The failure to give these instructions
constituted a breach of duty to the respondent and, therefore, the appellant
was liable. The formal judgment, therefore, does not support the contention of
counsel for the appellant and, moreover, Mr. Justice Bissonnette, who quotes
more extensively from the French authors, states near the end of his judgment:
La seule proposition légale
que j'ai voulu soutenir, c'est que la connaissance et l'imminence d'un danger,
lorsqu'il y a temps utile et moyen efficace pour y parer, constituant une faute
pouvant engendrer responsabilité si l'on néglige ou s'abstient d'agir. Et ce
principe, en outre de la doctrine que j'ai citée, me paraît conforme à la
jurisprudence de nos Cours, même de celles qui sont autorisées à juger selon la
Common law.
If Bertrand had not a duty to warn the
respondent as I have above indicated, then I am in agreement with the view
expressed by my brother Cartwright, under which the appellant is liable, apart
from any question of vicarious liability, for its own negligence in failing to
properly instruct its employees, as he has indicated.
The appeal should be dismissed with costs.
[Page 493]
Cartwright J.
(dissenting):—For the reasons given by my brother Estey I agree with the
conclusion at which he has arrived.
As he has pointed out, it is established by authority, and
indeed was not questioned before us, that the appellant owed a duty to the
respondent, as a customer in the store, to take reasonable care that she should
not be exposed to unusual danger of which it knew or ought to have known.
The colourless and slippery lotion upon the travertine floor
constituted an unusual danger and was the cause of the injury of which the
respondent complains. The appellant, being a corporation, could have knowledge
of this danger and could take such steps as might be reason ably necessary to
protect its customers only through its servants or employees.
The appellant had provided a department whose duty it was to
keep the store in a condition of cleanliness and safety and to remove dangers
which might from time to time arise. The evidence indicates that this
department operated efficiently and in the case at bar actually removed the
source of danger within a few minutes after its creation. It is clear from the
evidence, however, that in case of a danger arising suddenly and fortuitously,
as happened in this case, the members of the cleaning department were dependent
on the employees in the vicinity of such danger to notify them of its
existence. In a store so large and serving so many customers as that of the
appellant it is reasonable to suppose that such dangers would from time to time
arise and this probability was recognized by the appellant, as is evidenced,
amongst other things, by its installation of a system permitting prompt
communication with the members of the cleaning staff. It is also clear that in
the case of such a danger arising there would inevitably be an interval of time
between the summoning of the members of the cleaning department and their
arrival. In my opinion the appellant's duty to protect its customers from
unusual danger was not discharged by setting in motion a system, however
efficient, designed for the removal of the danger. It was, I think, part of its
duty to warn the customers during the interval of time mentioned above which
must necessarily elapse before the danger could be removed.
[Page 494]
It appears to me that the appellant is upon the horns of a
dilemma. If, as my brother Estey holds, it was part of the duty of employees
such as Bertrand to notify the members of the cleaning
department and, pending their arrival, to warn customers of the danger, it is
clear that Bertrand failed to perform the latter of such
duties and the appellant would be responsible for his failure. If on the other
hand the arrangements between the appellant and Bertrand (whether
resulting from express instructions or from lack of instructions) were such
that these duties did not rest upon him then I think that the appellant was
negligent in failing to make reasonable provision for the warning of its
customers of an unusual danger during the interval between the time of its
obtaining knowledge of such danger and the time of its removal, and the
appellant would be liable to the respondent not vicariously for the negligence
of its employee but directly for its own negligence in failing to properly
instruct its employees.
I would dismiss the appeal with costs.
Appeal allowed with costs.
Solicitors for the appellant: Scott, Hugessen,
Macklaier, Chisholm, Smith & Davis.
Solicitors for the respondent: Brais, Campbell
& Mercier.
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