Litjens v. Jean, [1973] SCR 723

Supreme Court of Canada

Litjens v. Jean, [1973] S.C.R. 723

Date: 1972-10-18

John Litjens (Plaintiff) Appellant;

and

Gerard Jean (Defendant) Respondent.

1972: February 23; 1972: October 18.

Present: Fauteux C.J. and Abbott, Martland, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Negligence—Employee’s hand injured on coming into contact with cutters of a planing machine—Moving pulley not turning at the normal speed—Employee knowing the danger—Responsibility of the employer towards the employee—Industrial and Commercial Establishments Act, R.S.Q. 1941, c. 175—Civil Code, art. 1053 and 1054.

The appellant en reprise d’instance was working for the respondent, a farmer, using a planing machine for the purpose of planing the surface of hardwood boards. The appellant was placing the boards on the front table of the machine and pushing them at and under the knives. The respondent was receiving them on the opposite table and placing them up on a cart to be later taken away. This machine was of an antiquated model and, due to a defect in the moving pulley which was preventing it from turning at the normal speed, there were accumulations of shavings. On the day of the accident, without having ever been requested by the respondent and without the knowledge of the latter, the appellant undertook to remove the shavings accumulated on the machine on the side where respondent was working, and putting his hand too close to the knives, knowing the direction in which they rotated, he had his fingers cut. The Superior Court dismissed the action brought by the appellant and this judgment was confirmed by the Court of Appeal. Hence the appeal to this Court. The appellant contends that the use of a machine of an antiquated model with a defect in the moving pulley which prevents the latter from turning at the normal speed would not be tolerated in an establishment covered by the Industrial and Commercial Establishments Act, R.S.Q. 1941, c. 175.

Held (Pigeon and Laskin JJ., dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott and Martland JJ.: It is beyond question that the accident was not caused by the machine itself and that the appellant’s manifestly serious fault was the cause of the damage suffered by

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him. The respondent’s farm was not an establishment covered by the Industrial and Commercial Establishments Act and, where there is no causal link between the violation of that Act and the damage incurred, such violation cannot be alleged as a contributory cause of the accident. Furthermore, it cannot be said that the farmer failed in his duty to act as a “prudent administrator” in not warning the victim against what was obvious.

Per Pigeon and Laskin JJ., dissenting: An employer must avoid anything likely to increase the risk of accidents, and he fails in a basic duty to his employee if he requires him to work on a machine which would not be tolerated for identical work in an industrial establishment as involving risks of accidents long ago eliminated from equipment in general use. Liability should be apportioned equally.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], affirming a judgment of Mr. Justice Mitchell. Appeal dismissed, Pigeon and Laskin JJ. dissenting.

P. Durand, for the plaintiff, appellant.

G. Turmel, Q.C., for the defendant, respondent.

The judgment of Fauteux C.J. and Abbott and Martland JJ. was delivered by

THE CHIEF JUSTICE—Appellant en reprise d’instance is claiming the sum of $71,500.25 from respondent as damages resulting from an accident which he suffered under the following circumstances.

At the time in question appellant had been working on respondent’s farm for about three years. The latter, who was a farmer, owned and used occasionally for his personal needs, sometimes for those of his parents and relations, a planing machine for the purpose of planing the surface of hardwood boards. Though of an antiquated model, planing machines of this type

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were used by other farmers. Appellant was quite familiar with the machine and its component parts, having looked after it and participated in the use of it six or seven times, or by his own admission possibly even more. When this planing was used appellant’s task consisted simply and strictly in placing the board lengthwise on the front table of the machine, and pushing this board at and under the knives, where rollers then mechanically moved it onto the opposite table, from which, the planing being thus complete, respondent took it up and placed it on a pile or loaded it onto a vehicle nearby. On the day in question, while respondent was loading a board which had just been smoothed onto the vehicle, with his back to the machine, appellant exceeded his duties and without having ever been requested or having any need to do so, undertook of his own initiative and without the knowledge of respondent, who had never seen him do such a thing, to remove the sawdust accumulated on the machine with his right hand, not on the side where appellant stood in the performance of his duties but on the opposite side where respondent took the boards off, and where the sawdust was in fact expelled by the action of the knives. As he was putting his hand too close to the knives, knowing the direction in which they rotated, he had his fingers cut. “It’s my fault, I know that!” he said to respondent when the latter, turning towards the planing machine, became aware with dismay of the accident which had just occurred.

Nearly a year later, just before it would have been prescribed, this action was brought.

In the Superior Court Mr. Justice Mitchell, after carefully considering the evidence, found not only that plaintiff had failed to prove any of the faults alleged against the defendant, but that the danger which resulted in the damage was created by plaintiff’s own act. Applying the rule stated in Ouellet v. Cloutier[2], by Robert Taschereau J., as he then was, the trial judge dismissed the action, and be it immediately noted, his judgment was confirmed by a unanimous

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decision of the Court of Appeal[3], then composed of Tremblay C.J. and Casey and André Taschereau JJ.

Hence the appeal to this Court.

Appellant no longer maintains, and indeed one could not maintain, that this accident was caused by the machine itself, which was in respondent’s custody. So appellant’s claim must be dealt with according to the provisions of art. 1053 of the Civil Code, and not art. 1054.

It is also beyond question that appellant’s manifestly serious fault was the cause of the damage suffered by him. Then, in order to succeed in obtaining any compensation whatever from respondent for that damage, he had to show not only that the farmer was at fault, but in addition he had to necessarily establish that such fault, if any, was responsible for the damage. For this purpose it was alleged on behalf of appellant that the machine was an antiquated model and had a certain defect in the moving pulley, a defect which prevented it from turning at the normal speed, thus allegedly resulting in a tendency to cause accumulations of shavings. Similarly, it was also argued that use of such a machine would not be tolerated in an establishment covered by the Industrial and Commercial Establishments Act, R.S.Q. 1941, c. 175, and would constitute a violation of that Act and the Regulations made thereunder.

It may be that the machine in question—which, according to the trial judge, was not a dangerous machine per se, and which from all indications, even according to the testimony of one of appellant’s witnesses, involved no danger in terms of the work assigned to the appellant—is not one tolerated in an industrial or commercial establishment, an establishment which is certainly not of the same type as that of respondent’s farm. While an offence against the aforementioned Act or Regulations may result in a fine for the person responsible, it does not

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follow that where there is no causal link between the illegality committed and the damage incurred, such illegality can be alleged as a contributory cause of the accident: Dominion Glass Company v. Despins[4]. In the present case the Superior Court judge and the judges of the Court of Appeal were unanimous in attributing responsibility for this accident solely to the serious fault of this nineteen-year-old boy. I respectfully agree which these conclusions.

Although this finding on the question of causality suffices to dispose of the appeal, I would add, in relation to the duty of the employer, that the Court of Appeal correctly referred, as did the Superior Court, to the principle stated by this Court in Ouellet v. Cloutier[5], from which the Court of Appeal cited the following extract from the editor’s accurate headnote:

…The machine was not by itself dangerous. The boy was injured not on account of the nature of the work he was doing, but because he voluntarily committed an imprudent act which the appellant was not at fault in not foreseeing.

The fact that it was possible that an accident might occur is not the criterion which should be used to determine whether there has been negligence or not. The law does not require a prudent man to foresee everything possible that might happen. Caution must be exercised against a danger if such danger is sufficiently probable so that it would be included in the category of contingencies normally to be foreseen. To require more and contend that a prudent man must foresee any possibility, however vague it may be, would render impossible any practical activity.

With all due respect I can see no analogy between this case and General Trust of Canada v. St-Jacques[6], where the employee, who had the task of moving ashes at night with a wheelbarrow, needed for this purpose to walk over a gangway ten inches wide, raised off the ground, and leading to a platform from which the ashes were emptied. On the night in question

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St-Jacques was pushing his wheelbarrow over the gangway when, because of the poor lighting, due to the employer’s negligent failure to take corrective action in the preceding days, he mistakenly believed he had reached the platform and tried to set down his wheelbarrow, which overturned toppling him off the edge. Hence his claim for personal injuries suffered as a result. Nor can I find any analogy with Turmel v. Beaudet[7], in which while in the performance of their work Beaudet and his workmate were in the process of breaking the fastening securing a machine to the floor, using a tool supplied by the employer, namely an old cold chisel the end of which was flattened and bent. Beaudet, who was a student with no experience of the job, held the chisel against the bolt, and his companion was pounding it with a maul in order to break or cut the bolt, when a piece of metal suddenly flew off the chisel and hit plaintiff in his left eye, causing him to completely lose the use of it. It can thus be seen that in both cases the accident occurred when St-Jacques and Beaudet, not exceeding but acting in the performance of the specific task assigned to them, were the victims of dangers which a court did find sufficiently probable to fall within the category of normally foreseeable events. That such is the nature of the danger alleged in a given case is a question of fact which is left for the trial judge to decide, and his decision, according to well-established judicial doctrine, will not be disturbed by the Court of Appeal unless that Court can find that it contains a manifest error, which was not the case here. Moreover, I can see no grounds permitting this Court to intervene to alter this unanimous judgment of the Court of Appeal. It is worth referring to the decision of the Court of Appeal in Remy v. Deroy[8], in which were made, essentially, the following comments: because an event occurs, and therefore is possible, does not mean that it was reasonably and normally foreseeable. The fact that a danger is apparent and obvious does in itself constitute a warning to anyone whose

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intelligence is normally and reasonably alert. In the case under consideration the danger was apparent and obvious, and the employee, who was 16 years old—and not 19 as in this case—was more than sufficiently and normally intelligent to be aware of its existence. It cannot be said that the farmer failed in his duty to act as a “prudent administrator” in not warning the victim against what was obvious.

Before closing, I feel I should add that there is not to my knowledge any law in the province of Quebec which denies farmers the right to use equipment on their farms, for their personal use or that of their parents and relations, solely because use of such equipment would not be tolerated in an industrial or commercial establishment subject to inspection.

I would dismiss the appeal with costs.

The judgment of Pigeon and Laskin JJ. was delivered by

PIGEON J. (dissenting)—This appeal is against a decision of the Court of Appeal[9] of Quebec which affirmed the Superior Court judgment dismissing appellant’s action for damages brought by his tutor against respondent.

The case concerns a work injury sustained on July 31, 1962; at that time the appellant, aged 19, had been employed for three years by defendant, who is a farmer. The latter had purchased from the owner of a sawmill a very old planing machine, made around 1918, of a type the use of which therein was prohibited by provincial regulations since 1937. This machine was operated from a tractor engine by means of a long belt. It was used to plane hardwood boards which appellant had had sawn up the

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preceding year and then stacked for drying. Appellant’s duties consisted of putting the boards in the machine; respondent received them at the other side and placed them on a cart one by one to be later taken away. The accident occurred when appellant tried, using his gloved right hand, to clear the machine of shavings which were in the way, and has his fingers cut by the cutters rotating at high speed.

The trial judge dismissed the action, saying:

In order to succeed the plaintiff was bound to show that the defendant committed a fault by creating or tolerating a state of danger that he knew of. The case of Ouellet vs Cloutier 1947, S.C.R., p. 521 is in point. The machine was not dangerous in itself. It was the action of the plaintiff which created the danger. The manner in which this action was carried out by the plaintiff was negligent. He should have warned the defendant of his intention or arranged to stop the machine. I find that it was the plaintiff’s own fault which caused the damage.

The Court of Appeal correctly observed that in the circumstances appellant could not rely on art. 1054 of the Civil Code as he sought to do, because the damage was not caused by the thing within the meaning of that provision. In this Court counsel for the appellant admitted this interpretation, based on the decisions of this Court which hold that this damage is only such as is caused by the thing itself. Also he did not deny that his client had committed a fault as found by the trial judge and the Court of Appeal. There is thus only one question to be considered, and that is the following: was appellant’s imprudence in fact the only cause of the damage, or was respondent also at fault? In my view, it is not enough to say that by being alert and attentive the employee could have avoided the accident, whatever danger might otherwise have been present at the installation where he was required to work. An employer must avoid anything likely to increase the risk of an accident. As André Nadeau states (Traité de droit civil du Québec, Vol. 8, p. 283):

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[TRANSLATION] He must foresee not only habitual but possible causes of accident, and is bound to take appropriate steps to avert them…

In Trust Général du Canada v. St-Jacques[10], a decision which this Court upheld with a slight variation[11], Galipeault J. said (at p. 22):

[TRANSLATION] It is the employer’s duty to protect employees, even against their own imprudence, neglect, weakness and want of skill.

There seems to me to be an important distinction between the facts of the present case and those in the case of Ouellet v. Cloutier, cited by the trial judge. There was no question in that case, as there is here, of an obsolete machine constituting a greater danger than those in current use. In the case at bar the evidence clearly indicates that the planing machine used by respondent was of an outdated type and of such a dangerous nature that its use was not permitted in a workshop. There are embodied in current machines safety features that make accidents such as that which befell appellant impossible. Further, it was established that this machine was in bad repair. The driving pulley was splintered and it could not be turned at the normal speed, which tended to cause shavings to accumulate.

In my opinion an employer fails in a basic duty to his employee if he requires him to work on a machine involving risks of an accident which have long since been eliminated from equipment in general use. This does not mean the employer is obliged to use only the best equipment as soon as this becomes available, but that he does not have a right to use equipment which ought to be considered obsolete, and would not be tolerated in an establishment subject to inspection. As respects civil responsibility, the absence of regulations governing agricultural establishments must, in my opinion, be considered in the same way as for animal-

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drawn vehicles driven at night without a light or reflector (Gagné v. Côté[12]).

Here the work to which respondent assigned appellant was in effect an industrial, not an agricultural, operation. I cannot accept that persons working on a farm where they do not benefit from the protection of the Workmen’s Compensation Act may be exposed with impunity to working conditions which would not be tolerated for identical work in industrial establishments. In my opinion respondent must here incur the same blame as the employer who, in Turmel v. Beaudet[13], was held responsible for half of the damage sustained by a young man nineteen years old put to work with an old tool in bad condition, a cold chisel which splintered injuring his eye. In my view, as in that case, liability should be apportioned equally.

At the hearing counsel for the appellant restated his claim as follows:

Agreed medical expenses	$          508
Pain, suffering, loss of enjoyment of life	7,000
Disfiguration	5,000
Future medical expenses	3,000
Permanent partial disability, 40%	27,000
Total	$     42,508

In my opinion the evidence does not support the claim for future medical expenses, and an amount of $10,000 for general damages in addition to the permament partial disability would be adequate. That makes a total amount of $37,508, half of which comes to $18,754.

For these reasons I would allow the appeal with costs against respondent in all Courts, and

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condemn him to pay appellant the sum of $18,754, with interest at 5% from July 9, 1963.

Appeal dismissed with costs, PIGEON and LASKIN JJ. dissenting.

Solicitor for the plaintiff, appellant: Robert Dulude, Montreal.

Solicitors for the defendant, respondent: Bertrand, Turmel, & Meunier, Cowansville.