Supreme Court of Canada
City of Quebec v. Picard, [1972] S.C.R. 227
Date: 1971-05-31
City of Quebec (Defendant) Appellant;
and
J. Lucien Picard (Plaintiff) Respondent.
1970: October 22, 23; 1971: May 31.
Present: Fauteux C.J. and Abbott, Martland, Ritchie and Hall JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Damages—Liability—Ruin of a building—Bursting of city watermain—Flooding of plaintiff’s cellar—Defect in construction of pipe—Watermain a building—Liability of City—Civil Code, art. 1053, 1054, 1055.
Following the bursting of a watermain in the defendant’s waterworks, the cellar of the plaintiff’s house was flooded. The flooding resulted from the bursting of a cast-iron pipe 12 feet in length and 14 inches in diameter, forming part of a watermain installed below the surface, and connected to another watermain having a diameter of 40 inches. The bursting occurred between the connection and the point where a cut-off valve had been placed on the 14-inch pipe. This pipe had been manufactured according to accepted standards by a manufacturing company with an international reputation. It had been in use for nearly 50 years. The experts attributed the bursting to a defect in construction. The trial judge held that the defect in the pipe could have been detected when the pipes were laid, if the defendant’s employees had exercised reasonable care, and awarded damages to the plaintiff. The operative part of this judgment was affirmed by a majority judgment in the Court of Appeal. The defendant was granted leave to appeal to this Court.
Held: The appeal should be dismissed.
The main in the water system, of which the broken pipe formed an integral part, was a building, a construction, within the meaning of art. 1055 of the Civil Code, and there was ruin of this building or construction. The evidence clearly establishes that the damage incurred by the plaintiff was caused by the ruin of the city’s construction, that this ruin was attributable to a construction defect, and that there was a cause and effect connection between this construction defect and the damage. Even if the facts alleged in the declaration do not permit
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the invoking of art. 1055, the city itself by the allegation in its pleadings, introduced the question into discussion. The liability of the owner of the building will yield only to a clear and positive proof of a fortuitous event or superior force, or of fault by the plaintiff. The evidence on record does not disclose facts to support any of these grounds for exoneration from the liability laid down by art. 1055.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec, affirming a judgment of Chief Justice Dorion. Appeal dismissed.
Claude Gagnon, Q.C., for the defendant, appellant.
Roger Thibaudeau, Q.C., for the plaintiff, respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—Following the bursting of a watermain in the Quebec City waterworks, which occurred on Boulevard Hamel on the morning of October 9, 1961, the cellar of respondent’s house was flooded and damage was caused. Picard brought an action against the city for damages. Chief Justice Dorion of the Superior Court, relying on the provisions of art. 1053 and 1054 of the Civil Code, awarded him the sum of $3,269.29 by way of damages.
This judgment was appealed, and its operative part was affirmed by a majority decision1. Forming the majority, Choquette and Montgomery JJ. were of the view that the provisions of the third paragraph of art. 1055 of the Civil Code (ruin of a building) applied to the case, while Owen J., dissenting, would have allowed the appeal and dismissed the action since, in his opinion, the latter could be entertained neither under the provisions of art. 1053 and 1054, in view of the evidence on the record, nor under the above-mentioned provisions of art. 1055, para. 3, because of the absence of allegations necessary for this purpose in the pleadings.
Appellant thereafter requested and was granted leave to appeal from the judgment to this Court.
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The damage sustained by respondent resulted from the bursting of a cast-iron pipe twelve feet in length and fourteen inches in diameter, forming part of a watermain installed five to six feet below the surface, and connected to another watermain having a diameter of forty inches. The bursting occurred ten feet from the connection, and twenty-two feet from the point where a cutoff valve had been placed on the fourteen-inch pipe, in short between the connection and the valve. As it burst, a piece six to seven feet long by about two and a half feet wide separated from the pipe, with the result that a million gallons of water coming from the larger main immediately escaped at this point, shooting thirty to forty feet up in the air, running over Boulevard Hamel and flooding, in particular, the land and cellar of respondent’s house.
It is common ground that this pipe, like those of the main of which it was a part, had been manufactured according to accepted standards by a manufacturing company with an international reputation and giving, in the unanimous opinion of experts heard in court, all the qualities that could possibly be required in the manufacture of piping. In fact, at the time it burst the pipe in question had been in use for nearly 50 years. Upon examination the experts attributed the burst to a defect in construction consisting of an excrescence, porous and generative of corrosion, of about one-sixteenth of an inch, located on the inner surface at the centre of the pipe. The evidence of the experts is contradictory as to whether this small excrescence, located at the centre of this pipe fourteen inches in diameter and twelve feet long, could have been seen in daylight by an inspector when the pipe was being laid. The trial judge held that the existence of the excrescence could have been detected when the pipes were laid, if the City employees had exercised reasonable care. He further held that if the cutoff valve, affixed to the fourteen-inch pipe, had been located nearer to the connection of this pipe with the forty-inch main—instead of being, as it in fact was, twenty-two feet from this point—it would have been easier to reduce the amount of water that escaped, and this would have lessened, if not eliminated, the damage. These are
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the two reasons relied on by the learned judge in applying respectively art. 1054 and 1053 of the Civil Code, and holding the City liable.
The only member of the Court of Appeal to comment explicitly on the application of art. 1053 and 1054, Owen J., found that the evidence did not support their application. On art. 1053, he held that even if the cut off valve had been placed otherwise, it could not have been closed in time to prevent the resulting damage; and regarding art. 1054, he felt the City had established that it was not able, by using reasonable means, to discover, at the time the main was laid in 1914, the defect in this pipe which burst in 1961. I hardly see any reason to form a different opinion on these facts. However, it does not seem necessary for me to pursue the matter, in light of the opinion I have formed on the applicability of the provisions of art. 1055, para. 3.
These provisions, which are identical to those of the Code Napoléon, read as follows:
The owner of a building is responsible for the damage caused by its ruin, where it has happened from want of repairs or from an original defect in its construction.
The existence of the liability enacted by this provision thus depends on two elements: first, a “building” must be involved, and second, the damage must result from its ruin. As we see from the authorities cited in the reasons of Montgomery J., in which Choquette J. concurs, the word “building” is used here, under Quebec civil law as under French law, in its wide sense, and is synonymous with “constructions.” It is hardly necessary to dwell on this point, except perhaps very briefly. In Planiol et Ripert, Traité de droit civil, vol. 6, no. 608, it is stated that:
[TRANSLATION] …construction, whatever their ultimate purpose may be, made with any type of materials, assembled and artificially interconnected so
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as to produce a durable union, and on condition that they are incorporated to the ground or to an immovable by nature.
are buildings within the meaning of art. 1386 of the Code Napoléon. In Nadeau, Traité de droit civil du Québec, vol. 8, p. 446, no. 519, this definition is adopted as an accurate expression of the meaning of the word “building” under Quebec civil law. We can also see that in Pinatel Piece Dye Works Limited v. City of Joliette, George S. Challies J., now Associate Chief Justice of the Superior Court of Quebec, relied on this definition to condemn the City of Joliette under art. 1055, para. 3, on account of damage incurred by the plaintiff company, to which the City had supplied water contaminated with impurities attributable to a construction defect in its reservoir. This decision is quoted in the reasons of Montgomery J. in support of the judgment a quo.
In Dalloz, Jurisprudence générale 1950, Recueil périodique, at p. 105, we note with interest a decision of the Cour de Cassation, and the accompanying note. This was a case where land was flooded as the result of the outflow of water caused by the collapse of a dam. As we see from the true summary of the decision, the judgment of the lower court was quashed on the grounds that it had failed to
[TRANSLATION] …consider whether the breach in case was due to the ruin of the dam (which can be assimilated to a building), as the result of want of repairs or a construction defect.
I refer finally to a decision of the tribunal civil de Tours, reported in Gazette du Palais, 1940, vol. 2, at page 390. That case concerned a claim for damages caused by the breaking of a gas main. It was held that movable objects incorporated to immovables or built under the ground become immovable by the fact they are durable and permanent and assimilated to the building by the application of art. 1386 C.N.; and accordingly, the owner of the gas pipes incorporated to the ground is liable through the sole effect of the law for the damage caused by their breakage, where it had happened from want of repairs or from a construction defect.
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In accord with the majority judges, therefore, I would say that the main in the water system, of which the broken pipe forms an integral part, is a building, a construction, and add, with the learned judges, that there was ruin of this building or of this construction. It may be pointed out here that the ruin of a building, according to the view expressed by the Cour de Cassation in a decision dated May 19, 1953, must be taken to mean
[TRANSLATION] … not only its total destruction, but even the partial deterioration of any part of the construction, or of any movable or immovable element incorporated thereto in an indissoluble manner, (cf. Dalloz 1953, p. 515).
In the case at bar, it goes without saying that the bursting of the pipe represented not merely a partial deterioration of this part of the water system, but a factor wholly destructive of its usefulness.
In short, the evidence clearly establishes that the damage incurred by respondent was caused by the ruin of the City’s construction, that this ruin is attributable to a construction defect, and that there is a cause and effect connection between this construction defect and the damage. Furthermore, the City made a judicial admission of it by pleading in its defence, para. 5:
[TRANSLATION] 5. The bursting of the pipe is attributable to a latent defect and construction defect in the said pipe, which defendant could not reasonably expect, nor find nor know of.
In answer to the objection by counsel for the City, which objection was retained by Owen J., to the effect that respondent had not expressly pleaded art. 1055, para. 3, in his declaration, Choquette and Montgomery JJ. interpreted this allegation, in para. 5 of the defence, as sufficient to place the question of the applicability of art. 1055, para. 3 before the Court. I respectfully agree with this interpretation. Indeed, the least that can be said is that even if the facts alleged in the declaration do not permit the invoking of art. 1055, para. 3, the City itself by these allegations in its pleadings, has introduced the question into discussion.
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As is known, art. 1055, para. 3 does not create a presumption of fault against the owner; but once the plaintiff has proved that the ruin of the building, which caused the damage, results in particular from a defect in its construction—as is the case in this instance—the owner is liable, and his liability will yield only to a clear and positive proof of a fortuitous event or superior force, or of fault by the plaintiff. (Cf. Lalou, Traité pratique de la responsabilité civile, 6th ed., p. 655, no. 1149). The liability which these provisions create rests on special considerations described in the following citations. In H. & L. Mazeaud et André Tunc, Responsabilité civile délictuelle et contractuelle, 5th ed., vol. 2, p. 54, no. 1067:
[TRANSLATION] 1067. Where then is the basis for article 1386? It seems correct to say that article 1386 assumes that there was fault, either by the owner or a third party,1 and to facilitate suit by the victim, it makes in every case the owner liable or answerable.2 When the fault stems from the owner, article 1386 is only a particular application of article 1382; but, so that the injured party is not required to analyze legal situations in which he has no part, article 1386 relieves him of the task of ascertaining from whom the fault stems. Even if he is not the author of the fault, the owner is made answerable therefor, subject to his right to appropriate remedies.3
In Lalou, op. cit., p. 649:
[TRANSLATION] …The basis for the liability laid down by article 1386 is not necessarily fault by the owner; it may be fault by other persons (lessee, architect, contractor), against whom, moreover, the owner can proceed. However, article 1386 makes no distinction according to whether or not the owner has the building under his care.
* * *
In the cases decided by the Cour de Cassation, once a construction defect or want of repairs has been proved, the owner cannot be allowed, in order to exonerate himself, to show that he committed no fault (see infra, No. 1149). The only grounds for exoneration are superior force or fault by the injured party.
As the Court of Appeal found, the evidence on record does not disclose facts to support any of these grounds for exoneration from the liability laid down by art. 1055, para. 3.
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The parties are in agreement regarding the amount of damages awarded.
For all these reasons I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the defendant, appellant: Gagnon, de Billy, Cantin, Dionne & Lahaye, Quebec.
Solicitors for the plaintiff, respondent: Lachapelle, Roy & Richard, Quebec.
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