Trottier v. J.L. Lefebvre Ltée, [1973] SCR 609

Supreme Court of Canada

Trottier v. J.L. Lefebvre Ltée, [1973] S.C.R. 609

Date: 1972-05-01

Marcel Trottier (Plaintiff) Appellant;

and

J.L. Lefebvre Ltée (Defendant) Respondent.

1971: October 18; 1972: May 1.

Present: Fauteux C.J. and Abbott, Judson, 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 mincer’s knives—Inattention of the employee—Inadequate working conditions—Duty of the employer not to expose his employee to a danger—Damage not caused by the thing itself—Civil Code, art. 1053 and 1054.

The plaintiff was employed by the defendant who is a butcher and grocer. He was mincing meat with an electric mincer equipped with a pan having an opening in the middle, under which knives were located. The operation of mincing consisted of pushing the meat into the opening using a rammer. In view of the height of the pan, the plaintiff could not see the knives at the bottom of the opening. Furthermore, the lighting facilities were inadequate, and because of the distance of the operating switch from the operator it was difficult to reach it. The plaintiff who had been warned that to avoid any danger he was not to use the mincer except with the aid of the rammer, put his hand into the opening over the knives while the motor propelling the knives was still going, groping for the rammer which he mistakenly thought he had left there, and his hand was consequently seriously injured. The Court of Appeal reversed the judgment of the Superior Court allowing the action against the defendant for damages. Hence the appeal to this Court.

Held: (Fauteux C.J. and Abbott J. dissenting): The appeal should be allowed.

Per Judson, Pigeon and Laskin JJ: The presumption established by art. 1054 has no application to the present case in which the damage does not result from the thing itself which was functioning normally.

As to the liability based on art. 1053 of the Civil Code, it is not enough to say that the employee caused the accident by not being vigilant and attentive. The employer must also be found seriously at fault because the mincer was placed at a wholly unusual height and the plaintiff could not readily see inside the pan. Furthermore, the rammer which he

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had to use was too short and in order to pick it up the plaintiff had to put his hand into the opening under which the machine’s grinders were located. In the circumstances, the defendant must be made to bear two-thirds of the liability for the damages.

Per Fauteux C.J. and Abbott J., dissenting: The Court of Appeal was correct in holding that the real cause of the accident is attributable exclusively to the plaintiff who could appreciate such an obvious danger which was pointed out to him and the employer was not in breach of his duty not to expose his employee to a danger of which the latter was unaware. Consequently, the intervention by this Court is not justified.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], reversing a judgment of the Superior Court. Appeal allowed, Fauteux C.J. and Abbott J. dissenting.

L. Dansereau, for the plaintiff, appellant.

P. L’Heureux, Q.C., and A. Savoie, for the defendant, respondent.

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

THE CHIEF JUSTICE (dissenting)—This is an action for damages brought by appellant—the plaintiff en reprise d’instance—as the result of an accident suffered by him while performing the duties for which he had been employed for 17 months by respondent, who carried on the business of butcher and grocer. The task of Trottier, who was then 17 years old, was to do a little of everything, including from time to time, about three or four times a week, the mincing of meat with an electric mincer. This mincer was equipped with a pan having an opening in the middle, under which knives were located: The relatively simple operation of mincing consisted of placing the meat on the pan and then pushing it into the orifice using a rammer. The surface of the pan was about five feet above the floor, so that when appellant—who was 5’6” tall—stood in front of the machine, the edge of the pan reached him midway between his nose and

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the end of his chin. Unless he raised himself up on a stool or otherwise, he could not see the knives at the bottom of the orifice. The room where the mincer was situated was lit by three lights, one of which was five feet away diagonally from the machine, and the switch controlling the latter was located to the right of the operator on the wall facing him. Trottier had been warned that to avoid any danger he was not to use the mincer except with the aid of the rammer. On the day of the accident he was asked to mince a certain quantity of meat. After using the mincer for this purpose, he had to leave the room to obtain elsewhere the additional meat he needed to carry out this request. Contrary to his usual practice, he neglected before leaving the room to shut off the electricity so as to stop the machine. Having returned with the meat, Trottier, as he looked in another direction and while the motor propelling the mincer’s knives was still going, put his right hand into the opening over the knives, groping for the rammer which he mistakenly thought he had left there. At that point his hand came in contact with the knives and was consequently seriously injured. Hence the action against respondent for damages.

This action was allowed in the Superior Court, on the basis of art. 1053 and 1054 of the Civil Code. As to art. 1053, it was held that there had been negligence by the employer in view of the lighting facilities, the height of the pan with relation to the height of Trottier, the distance of the operating switch from the operator and the difficulty of reaching it, the absence of a guard around the orifice of the mincer, and the instructions given to Trottier regarding the danger which could result from use of this machine. As to art. 1054, it was held that, as owner of the mincer which he had required the employee to use, the employer had not shown that he was unable to prevent the act which had caused the damage.

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This judgment was reversed in the Court of Appeal[2] and the action was dismissed. The reasons for this unanimous decision are stated for the Court by Owen J. as follows:

The damage was not caused by ‘le fait autonome de la chose’. Accordingly, there was no presumption under Art. 1054 C.C. to be rebutted by the Defendant.

Considering the matter in the light of the provisions of Article 1053 C.C. I am of the opinion that the facts proved do not show any fault on the part of Defendant or of any person for whose acts it is responsible, but rather that the accident was due entirely to the negligence of the victim. With the motor of the meat mincer running, the victim, while looking in another direction, put his hand down the opening leading to the cutting blades, while searching for the pestle or rammer. In order to reach the blades he had to insert his hand in the funnel for a distance of seven or eight inches below the level of the table.

Hence the appeal to this Court.

It has for so long been judicially settled that the presumption established by art. 1054 has no application to a case like the present one, in which the damage does not result from the thing itself, that I do not feel there is need to refer to the cases on the matter. Accordingly I shall dispense with it, as did the Court of Appeal, and move immediately to consideration of the appeal as it relates to art. 1053.

It is relevant here to note the judicial rule to the effect that, when a judgment delivered on the facts at the trial level is reversed by a first appellate court, a second appellate court will intervene only where it is clearly satisfied that the first appellate court’s judgment is in error. See especially Symington v. Symington[3] and Demers v. Montreal Steam Laundry Company[4]. With this rule in view I could not, for my part, justify intervention by this Court in the circumstances. I cannot hold—with all due respect to the contrary opinion—that the Court of Appeal limited itself to considering only the fault of the victim, when Mr. Justice Owen, speaking for the Court, cited verbatim all of that part of the trial court’s judgment dealing with the facts urged

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against respondent, and subsequently listed them one by one in the judgment a quo, before concluding that not only did the facts proved not establish any fault on the part of respondent or persons for whose acts it was responsible, but on the contrary, the accident was entirely due to the victim’s negligence.

Even assuming that the reproaches made against respondent by the trial judge are supported by the evidence—which is surely not the case with regard to the adequacy of the instructions given to the employee to guard against the only danger which the operation of this machine could involve—I would hold, together with all the judges on the Court of Appeal, that the real cause of this unfortunate accident is attributable exclusively to this young man, 17 years of age, who had used this machine several times a week for over a year, and was undoubtedly aware of the risk—obvious to anyone—which was involved in absent-mindedly putting his hand into the mincer and groping into it while the knives were in full motion.

I am not overlooking the fact that the employer has a duty not to expose the employee to danger. However, we must be specific about the standard to be used in determining whether this duty has been breached. In Attorney General v. Monette[5], Pratte J., speaking for all the judges, said on page 71:

[TRANSLATION] It must be clearly recognized, however, that the employer has a duty not to expose his employee to a danger of which the latter is unaware, or the seriousness of which he cannot appreciate, or against which he is unable to protect himself. But this duty does not extend to requiring the employer to station himself, or keep a guard, beside his employee to prevent the latter from being careless. In the case of a task which is not inherently dangerous, or which

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does only involve a danger known to the employee against which the latter is able to protect himself, the employer who has recommended caution and provided the required means of protection shall not be expected to foresee that his recommendations will not be followed. The employer is required to act with foresight, like a prudent administrator, but he cannot be required to possess the gift of prophecy. He may be required to protect his employee against the foreseeable acts of carelessness that may be committed by the latter, but not against other acts. To hold otherwise would make the employer’s position practically untenable.

Applying this standard to the case at bar, I could not conclude that the employer was in breach of this duty to the employee, who was old enough to appreciate such an obvious danger, a danger which was pointed out to him by giving him specific instructions which he failed to follow. If he had looked in the direction of the orifice of the machine instead of turning his head away, Trottier could have realized that the rammer was not there, since when it was left in the mincer, it projected beyond the opening by about ¼” or ½”. He put his hand in without looking. This emerges from his testimony, particularly pages 35 and 36:

[TRANSLATION] Q. Now, it is quite clear that by sticking your chin on the pan, you can see the opening?

A. Yes.

Q. The hole on top of the machine?

A. Yes.

Q. But, in fact, you did not look?

A. That’s just what I mean; in lifting my hand, I turned my head, I wasn’t seeing.

Q. You put in your hand before looking to see if the rammer was there or not?

A. Right, I turned my head as I was lifting my hand.

For all these reasons, I cannot conclude that this unanimous judgment of the Court of Appeal is in error. I would dismiss the appeal with costs.

The judgment of Judson, Pigeon and Laskin JJ. was delivered by

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PIGEON J.—This appeal is against a decision of the Court of Appeal which reversed a judgment of the Superior Court allowing appellant’s action for damages against the respondent.

Like the Court of Appeal[6], I shall begin by reproducing the statement of the facts made by the trial judge.

Plaintiff en reprise d’instance, Marcel Trottier, on the 10th of December, 1963, was 17 years old. He was employed by the defendant who is a butcher and grocer. He, young Trottier, was given the job of mincing meat. The mincing was done by a machine composed of a table, at its centre was a hole into which the meat to be minced was pushed; at the bottom of the hole was the mincing apparatus composed of sharp grinders or knives. The operation of mincing, a comparatively simple one, was to place the meat on the table, push it into the mincer by using a “rammer”, a pestle shaped wooden object, and, at times push, or tamp, it down onto the grinders. This table stood on a small platform making the surface thereof about 5 feet high. Behind the operator were lights; to his right and in front of him, across the full width of the table was the switch which activated the machine; that is in order to start the machine it was necessary to reach right across the table to engage or throw, the switch. At the time of the accident Marcel Trottier stood approximately five feet six inches high; consequently, when he stood in front of the mincing machine the edge of the table’s surface would traverse a line approximately midway between his nose and the end of his chin. The orifice into which the meat was pushed stood in the centre of the table. Young Trottier, therefore, unless he mounted a box or step of some kind when standing on the ground could see just over the rim of the orifice but not down into the cutting area. There was no guard around the hole at the bottom of which were the grinders. Accordingly on the day of the accident the machine and the operator, young Trottier were as above described.

It appears from the proof that there was little or no instructions given to young Trottier beyond instructions as to how to use the machine and that there were sharp instruments at the bottom of the hole, which were dangerous. He had also been warned that he must push the meat down only by use of the pestle or rammer.

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On the 10th of December, 1963, young Trottier was sent to grind a certain amount of meat; he was alone in the cellar in which the grinding operation took place. He had been occupied for sometime when he left the machine to go to the cold storage cupboard for a fresh supply of meat. Usually, he said, he stopped the machine when it was not being used. However, on this occasion he left it in motion having first put down the rammer. When he returned with the meat he could not find the rammer, so thinking it must be in the hole put his right hand therein and groped for it. His hand came in contact with the grinders which engaged it so that he could withdraw it only with great difficulty. He had to reach across the table with his left hand in order to throw the switch. His right hand had been badly mangled and subsequently the three centre fingers had to be amputated. He was taken to hospital and remained there for sometime. During the course of the next year he underwent some seven surgical operations.

The reasons on which the trial judge based his finding that the employer was wholly liable read as follows:

In the opinion of the undersigned the defendant’s responsibility for the accident is engaged both by the operation of articles 1053 C.C. and 1054 C.C. Undoubtedly the defendant was the owner of the machine and young Trottier had been ordered to operate it. There was negligence on the part of the defendant in view of the lighting facilities, the height of the table with relation to the height of the operator, young Trottier, the distance of the operating switch from the operator and the difficulty of reaching it, the insufficiency of the instructions to the young man and the fact that there was no sort of guard around the hole at the bottom of which was the grinding machine. Insofar as the responsibility under 1054 C.C. is concerned, from the evidence before the Court, defendant has failed to establish that he was unable to prevent the act which caused the damage.

Let it be noted at the outset that the Court of Appeal was correct in its finding that the trial judge had erred in holding that liability existed under art. 1054 of the Civil Code. It is well established in our jurisprudence that this liability arises only from the damage caused by the thing itself. In Lacombe v. Power[7], Anglin C.J. expressed the unanimous opinion of this Court on this question as follows: (p. 412):

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If the proper inference from the evidence was that the automobile started of itself, i.e., without the intervention of human agency, and owing to something inherent in the machine, the ensuing damage might be ascribable to it as a “thing” and be within the purview of art. 1054 C.C. But if its movement was due to an act of the deceased, conscious or unconcious, the damage was caused, not by the thing itself, but by that act, whether it should be regarded as purely involuntary and accidental or as amounting to negligence or fault. On the latter hypotheses, the provision of art. 1054 C.C., invoked by the appellant, does not apply; either the case was one of pure accident, entailing no liability; or, if there be liability, it must rest on fault to be proven and not presumed.

In the case at bar, it is clear that the damage sustained by appellant was not caused by the thing itself. There was no abnormal functioning. Appellant had his right hand crushed because he put it into a machine the function of which is precisely to crush what is put into it. These were not, as in Shawinigan Carbide Co. v. Doucet[8] and Canadian Vickers v. Smith[9], injuries caused by dangerous substances thrown out by the equipment itself. Here, appellant was the author of the accident of which he was the victim, by putting his hand into the opening intended to take meat for mincing at a time when the machine was in operation and when he could not be unaware of the risk he was running in doing so. With respect, I feel that the trial judge erred in saying:

There might be some question of contributory negligence had it been demonstrated clearly to the Court that plaintiff had been warned of the possible consequences, beyond saying that it was dangerous, should he put his hand into the hole. It is true that he had been told only to put the pestle into the hole but that is all. Consequently I can find no contributory negligence.

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On the contrary it seems to me that it was correctly held on appeal that appellant had committed a fault, as Mr. Justice Owen said in the following terms:

With the motor of the meat mincer running, the victim, while looking in another direction, put his hand down the opening leading to the cutting blades, while searching for the pestle or rammer. In order to reach the blades he had to insert his hand in the funnel for a distance of seven or eight inches below the level of the table.

With respect, however, I must add that it seems to me the Court of Appeal erred in concluding that this fault by the victim was the sole cause of the accident. Although he listed the specific faults which the trial judge ascribed to the employer, Mr. Justice Owen does not appear to have considered them to any extent. He seems to have been satisfied to examine the victim’s own fault. This, in my opinion, was an error. It is pot enough to say that the employee could have avoided an accident by being vigilant and attentive, regardless of the danger which the installation where he was required to work otherwise represented. An employer must, avoid anything which tends to increase the risk of accident. As André Nadeau puts it (Traité de Droit civil du Québec, vol. 8, p. 283):

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

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

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

Here, I feel the trial judge correctly found the employer seriously at fault. The mincer in question, which was exhibited at the trial/was placed at a wholly unusual height. The witness Lefebvre, president of the company employing appellant, testified that the table on which the machine was placed was of such a height that

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the rim of the pan in which meat was put for mincing was five feet two inches above the ground. As appellant was only five feet six inches tall, it is obvious that he could not readily see inside this pan, in the centre of which was the orifice under which the grinders were rotating.

Further, the wooden rammer which appellant had to use to push meat for mincing into the duct was so short that, as the witness Lefebvre admitted, when this rammer was placed in the duct as usual, the top extended only a quarter or half an inch beyond the opening. It is thus clear that in order to pick up the rammer where it was left, appellant had to put his hand in the opening under which the machine’s grinders were located. Further, due to the height at which the equipment was installed, the poor boy had to do this without seeing. In such circumstances it is very easy to understand how the habit which he had been induced to form, of putting his hand in the opening in the middle of the pan to pick up the rammer, could cause him to get his fingers caught in the grinders when, unfortunately, the rammer happened not to be in the usual place.

In my opinion the trial judge’s conclusion as to the faults committed by the employer, under art. 1053 of the Civil Code, was fully supported by the evidence, and there was no basis for the Court of Appeal to reverse it. Indeed, the latter gave no reason for doing so, devoting its attention only to considering the fault of the victim himself.

In the circumstances, I find that the more serious fault is that of the employer, and I feel he must be made to bear two-thirds of the liability for the damages, which the trial judge set at $24,812.50.

For these reasons, I would allow the appeal, reverse the judgment of the Court of Appeal and restore the judgment of the Superior Court, reducing the amount, however, to $16,541.67,

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with interest from November 25, 1964, and costs in all courts.

Appeal allowed with costs, FAUTEUX, C.J. and ABBOTT J. dissenting.

Solicitors for the plaintiff, appellant: Robert, Proulx, Dansereau, Barré & Latraverse, Montreal.

Solicitors for the defendant, respondant: P. L’Heureux, Montreal, and Lacoste, Savoie, Joncas, Smith & Léger, Montreal.