Supreme Court of Canada
J. &
R. Weir Limited v. Lunham & Moore Shipping Limited, [1958] S.C.R. 46
Date:
1957-12-19
J. & R. Weir, Limited (Defendant) Appellant;
and
Lunham & Moore Shipping Limited (Plaintiff)
Respondent.
1957: October 31, November 1; 1957: December 19.
Present: Taschereau, Locke, Cartwright, Fauteux and Abbott
JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE,
PROVINCE OF QUEBEC.
Negligence—Sufficiency of evidence—Outbreak of fire in
ship undergoing repairs—Knowledge of presence of inflammable cleaning fluid.
The defendant company was engaged by the plaintiff company to
effect general repairs to a ship. While the repairs were under way, a fire
broke out, caused by the use of an acetylene torch by the defendant's employees
in close proximity to a highly inflammable cleansing fluid. This cleansing
fluid had been bought by the plaintiff and left lying on the top of a tank near
which the defendant's employees were working, and the defendant's officers and
employees had been specially engaged to pump out this fluid but had left a
quantity of it lying on the top of the tank.
Held: The defendant alone was responsible for the fire
and the consequent damage. The evidence revealed that it was negligent in not
taking the elementary precautions that a prudent man would have taken in
similar circumstances. Having a wide experience in the repairing and cleansing
of ships, the defendant knew or should have known that this particular fluid
was inflammable. It was not the plaintiff which undertook to flush out the fluid
and the ordering of this fluid for use on the ship did not constitute fault or
a direct cause of the fire, particularly in view of the fact that it was to be
handled and used by people who represented themselves as experts. Grobstein
v. Leonard, [1943] Que. K.B. 731 at 735; Gibson & Co. et al. v.
Grangemouth Dockyard Company, Ltd. (1927), 27 Lloyd, L.R. 338 at 340, 344,
quoted with approval.
APPEALS from two judgments of the Court of Queen's Bench,
Appeal Side, Province of Quebec
on appeal from a judgment of Smith J. Appeals dismissed.
The action was for damages resulting from a fire that
originated in a manner described in the reasons for judgment. The trial judge
found both parties equally at fault and awarded the plaintiff one-half of the
damages assessed. Both parties appealed and the Court of Queen's Bench, holding
the defendant entirely at fault, allowed the plaintiff's appeal, awarding it
the full amount of the damages, and dismissed the defendant's appeal. The
defendant appealed from both judgments.
[Page 47]
A. M. Watt, Q.C., and Lucien Tremblay,
Q.C., for the defendant, appellant.
R. C. Holden, Q.C., for the plaintiff,
respondent.
The judgment of the Court was delivered by
Taschereau J.:—The
respondent company, as assignee of Melan Shipping Company Limited, claims from
the defendant-appellant a sum of $10,516.37. It is alleged in the declaration
that on June 2, 1952, a fire occurred in the engine-room of the ship
"Anguslake", on which the appellant company was effecting general
repairs. As a result of the damages caused by the fire, the ship was detained
and unable to operate for a period of 16½ days, and the loss sustained was
established at $10,516.37. This amount is not challenged. It is the contention
of the plaintiff that the damage was caused by the fault, negligence,
imprudence and want of care and of skill of the defendant company and its
employees, in the performance of the work for which they were employed.
Mr. Justice Smith of the Superior Court, sitting at
Montreal, reached the conclusion that the responsibility must be shared equally
by both parties, and gave judgment in plaintiff's favour for $5,158.93. Both
parties appealed, and the Court of Queen's Bench allowed the appeal of the
present respondent, awarded the full amount claimed and dismissed the
cross-appeal of J. & R. Weir, Limited. We have to deal here with the two
appeals.
Before this Court, two points were raised. It was first
argued that the ship belonged to an English firm, the Melan Shipping Company
Limited, a parent company, having its head office in London, England, and that
there was no relationship giving rise to an action between the two parties. But
it has been shown that the English firm has been paid in full by the present
respondent, which is now the assignee of all the rights of the owner of the
ship. (Civil Code, arts. 1570-1582). During the argument, the Court
disposed of this contention and informed Mr. Holden, counsel for respondent,
that it was not necessary to hear him on this point.
It was also argued that the respondent did not discharge the
burden of proving the negligence alleged in the declaration, that the cause of
the fire was due to an inflammable degreasing fluid, purchased by the
respondent, and dumped on to the tank tops by its own officers, who should have
[Page 48]
known that it was inflammable and who did know that
appellant's employees would be burning there the next day. And it was further
argued that the appellant in the circumstances took all reasonable precautions
for the safe performance of its work.
The facts may be summarized as follows. While the
"Anguslake" was laid up for general overhaul and repairs, it was
decided by the respondent that the condenser and some other equipment in the
engine-room should be degreased and cleaned. For that purpose, J. S. Porteous,
respondent's engineer superintendent, requested the services of Magnus
Chemicals Limited, which used a special degreaser called "magnusol".
One week before the fire, Magnus Chemicals started the work, using one part of
magnusol mixed with six parts of kerosene, which is an inflammable liquid.
Three hundred gallons of the mixture were put into the condenser, where it was
circulated for some days, and then pumped over into the feed filter tank, or
hot well, where water was added by hose. The mixture was then pumped and circulated
between the hot well and the feed filter, and on Sunday, June 1, it was drained
out onto the tank top.
The defendant-appellant specially pleads that on or about
Saturday, May 31, it was engaged by the plaintiff-respondent "to drain the
cleaning fluid out of the condenser and hot well into the sump in the tank top
forming the bottom of the ship, whence the said fluid was to be pumped
overside". (The italics are mine.) The appellant also adds in its plea
that this work was carried out on Sunday, June 1, by some of its own employees
under the supervision of engineer superintendent Mr. Porteous. One of
appellant's employees, Buchan, who was in charge, under Benson, of the work
appellants were doing on the "Anguslake", said that they were there on
Sunday specially to circulate the mixture and get rid of it.
It is in evidence that the mixture was not all pumped out on
Sunday, and Benson, one of the vice-presidents of the appellant and in charge
of the repairs, testified as follows:
Q. How much did you leave in? A. Lying on the tank top would
be 3 or 4 inches covering the full area down to nothing just astern of the
boilers.
(The italics are mine.)
[Page 49]
Saturday before the fire, one of the appellant's employees,
Jourdain, had been burning out bolts near the tank top with an acetylene torch
in the engine room, in order to remove a light steel screen bulkhead. He
returned on Monday morning to continue his work. He was lying on the floor-plates
which had been pushed back, leaving a space of about 8 to 10 inches between the
engine-room floor and the bulkhead, and he was operating from there, his torch
burning down near the tank top.
There can be no doubt, and it is the conclusion of the lower
Courts, that it is while in the process of this operation, that the torch
ignited the residue of the magnusol which was on the tank top, and which had
not been completely removed the previous day.
I do not think that appellant can escape liability. The
evidence reveals that it was negligent in not taking the elementary necessary
precautions that a prudent man should have taken in similar circumstances. It
was indeed negligence, entailing liability, for the appellant which had been
specially engaged to remove the magnusol and to pump it overside, to leave,
Sunday night, lying on the tank top over the whole area, a substantial quantity
of this inflammable liquid, and to allow its employee, Jourdain, Monday
morning, to burn bolts with his acetylene torch in the very near vicinity.
Knowing through its employees, of the presence of the fluid, the appellant
should have seen that this liquid was completely removed before the burning
operations were resumed.
Having a wide experience in the repairing and cleaning of
ships, the appellant knew, or should have known, that magnusol mixed with
kerosene is an inflammable liquid, exhaling an odour which Benson, the
appellant's employee, detected and which naturally would arouse one's
suspicions as to the dangerous nature of the material employed.
The learned trial judge reached the conclusion that both
parties were at fault and apportioned the damages that resulted from the fire.
He reached the conclusion that the defendant-appellant knew or should have
known of the presence and nature of this inflammable mixture, and should not
have operated the acetylene torch where it was operated without first having
taken all reasonable precautions to avoid the possibility of fire. He thought,
however, that the
[Page 50]
plaintiff, which selected the said degreasing compound,
"was also guilty of negligence for having failed to diligently and
thoroughly clean the said tank top of the mixture, or at least warn the
defendant of its presence there".
I entirely agree with the statement of the learned trial
judge when he says that the appellant is at fault because its servants failed
to take all reasonable precautions against fire, by permitting its employee to
operate the acetylene torch at a place and in the manner he did without having
taken all reasonable precautions. However, with respect, I do not agree with his
conclusion that the plaintiff-respondent also contributed to the accident. It
was not the respondent which undertook to flush off the material from the tank
top, but it was the employees of the appellant who performed that work, for
which they were specially engaged on the Sunday previous to the fire. If
Porteous, the respondent's representative who was present at the cleaning
operation, knew that some material had been left on the tank top, it was
unnecessary for him to tell Benson, who was in charge of the operation, and who
said that on Sunday night he left on the tank top between 3 and 4 inches of
this inflammable mixture.
In cases of contributory negligence, the existence of a
fault attributable to the victim must be examined and determined according to
the same principles applied in establishing the fault of the author of a delict
or of a quasi-delict. One of the main elements to be considered is a link
between the fault and the resulting damage. It is imperative that the damage
sustained be the direct consequence of the fault which has been committed. I
see this necessary link in the conduct of the appellant's employees, but I fail
to see that the fact that the respondent had ordered the magnusol on board its
ship, was a direct cause of the fire, particularly in view of the fact that
this mixture was to be handled and used by people representing themselves as
experts in the matter. As to the alleged negligence in that the appellant was
not warned of the presence of this mixture, I do not see that it is founded in
law. I know of no law that compels a person to tell a third party a fact of
which he is already aware, and which holds him liable in case of damages, if he
fails to do so.
[Page 51]
I entirely concur in the views expressed by Mr. Justice E. M.
McDougall in the case of Grobstein v. Leonard, where he says:
A skilled artisan who lights a fire in premises upon which
he is working must be bound to know the conditions prevailing. He must assure
himself of all the prerequisites to the successful and safe accomplishment of
what he sets out to do. Here, admittedly, he took no precautions whatever,
closed his eyes to obvious risks, and proceeded to do something to which he was
not directly bound. Does it lie in his mouth to disclaim negligence merely on
the statement that he did not know?
In Gibson & Co. et al. v. Grangemouth Dockyard
Company, Ltd.,
Lord Fleming, at pp. 340, 344, expresses identical views:
The first question to be considered is whether the pursuers
have proved that the fire was caused by sparks or particles of molten metal
from the oxyacetylene machine …
In this case the machine was used for the purpose of
removing metal and not for the purpose of welding. When used for the purpose of
removing or cutting away material, there are two well-recognized stages in the
process. The blow-pipe of the machine has a nozzle with two orifices, an
annular one and a central one within the annular. Through the annular orifice a
mixture of acetylene and oxygen at a comparatively low pressure passes, which,
when lighted, gives a flame with a high temperature of about 2500 deg. Fahr.
This flame is applied to the metal to be removed and gives it the necessary
heat. When the operator judges that this stage has been reached, he then opens
the central orifice through which a supply of pure oxygen at high pressure
flows. The supply of pure oxygen raises the flame to a very high temperature
and causes the metal to combust and blows it away in glowing sparks …
The defenders, however, contend that the pursuers, and in
particular the shipowners, are debarred from recovering damages because they
contributed by their own negligence to the happening of the fire. It was
suggested that there was a duty on the shipowners to inform the defenders of
the nature of the cargo that was being loaded in No. 2 hold and also to take
precautions for the safety of the cargo.
I think, however, that on the contrary it was the duty of
the defenders, before they used a machine which gave off sparks, to ascertain
whether there was any cargo in the vicinity of their operations which was
likely to be damaged by it and to take the necessary precautions to protect it.
Further, in point of fact, the man in charge of the squad and the operator knew
that jute was being loaded in No. 2 hold for at least an hour or so before the
fire actually took place.
* * *
I shall accordingly pronounce a finding that the defenders
are liable for the loss and damage sustained by the pursuers in consequence of
the fire which took place on the steamship Grangemouth on Apr. 24, 1925.
[Page 52]
I cannot escape the conclusion that the appellant is the
only party responsible for this accident, and I would therefore dismiss both
appeals with costs throughout.
Appeals dismissed with costs.
Attorneys for the defendant, appellant: Foster,
Hannen, Watt, Leggat & Colby, Montreal.
Attorneys for the plaintiff, respondent: Reward,
Holden, Hutchison, Cliff, McMaster & Meighen, Montreal.
Email this Content