Supreme Court of Canada
Hamel v. Chartré, [1976] 2 S.C.R. 680
Date: 1975-03-07
Paul Hamel (Defendant) Appellant;
and
Dame Cécile Chartré (Plaintiff) Respondent.
1974: March 20; 1975: March 7.
Present: Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR THE PROVINCE OF QUEBEC.
Negligence—Electrocution—Plumber’s apprentice—Defective electric pump—Warned by owner’s son—Checking defect without being asked to do so—Carelessness of the victim—Autonomous act of a thing—Owner not liable—Civil Code, art. 1054, 1056.
The son of appellant, Serge, occupied a house owned by his father. Serge told the husband of respondent, a handyman and plumber’s apprentice, that he received electric shocks from touching the tap and certain furniture in the house. Serge Hamel did not instruct him to locate the source of these shocks, but the husband of respondent went to the house and died of electrocution in the basement, while attempting to check the operation of an electric pump. The Superior Court found appellant liable under art. 1054 of the Civil Code for seventy-five per cent of the loss sustained by respondent. However, the Court of Appeal held that the carelessness of the victim was sufficiently serious for his liability to be fixed at fifty per cent. Appellant asks this Court to quash the judgment of the lower courts, while in a cross‑appeal respondent asks that the judgment at first instance be reinstated.
Held: The appeal should be allowed and the cross-appeal should be dismissed.
Per Ritchie, Spence and Beetz JJ.: In order to benefit from the presumption of art. 1054 C.C., respondent had first to show that her husband’s death was caused by the autonomous act of a thing in the care of appellant, as that thing existed prior to her husband’s intervention. If the repairs or work done by the victim were responsible for electrifying the objects through contact with which the victim was electrocuted, then it ceased to be the thing of appellant which killed the victim.
The fault of the victim may enable the keeper of the thing to escape liability, partially or completely, for his proven or presumed fault. The victim was not a trespasser. However, neither was he a servant or agent of
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appellant. He was acting as an independant contractor. His legal situation is not better, having acted on his own initiative, than if he had been asked to act. He knew the general nature and cause of the defective condition, the indications of which had been brought to his attention. He knew that one received shocks from touching the pump and tap. He went to appellant’s house specifically in order to locate the source of this defective condition, and to remedy it. He then undertook work beyond his capabilities, as was demonstrated by his carelessness: not disconnecting the current, failing to provide himself with a protective covering, being lightly clad and crawling over damp earth to check or repair the defective electrical system. The victim caused his own misfortune by his lack of skill and his extreme carelessness.
Per Pigeon J.: If the victim acted on his own initiative after being informed of the defective condition, his legal position can be no better than if he had been expressly requested to correct it, and the accident is wholly attributable to him.
Per de Grandpré J.: Before she could rely on the presumption of art. 1054 C.C., respondent had the burden of proving that the thing in the state in which it was found by the deceased caused his death; the weight of the evidence is that the thing would not have caused the damage without the intervention of the deceased. Moreover, the unexpected visit of the victim did not fall into the category of normally foreseeable eventualities, and appellant had no obligation towards him, at the time he went into the basement of the house, unknown to appellant or to the occupants of the house, to protect him from the danger of an accident of the kind which occurred because of his carelessness.
Trans-Canada Forest Products Limited v. Heaps, Waterous Limited et al., [1954] S.C.R. 240; Quebec Asbestos Corporation v. Couture, [1929] S.C.R. 166; Boiteau v. Bernard (1941), 70 Q.B. 237; Marois v. Syndicat Coopératif Immobilier (1939), 77 C.S. 279, referred to.
APPEAL from a judgment of the Court of Appeal for the Province of Quebec, affirming a judgment of the Superior Court. Appeal allowed.
A. Bronstein, for the defendant, appellant.
B. Taillefer, for the plaintiff, respondent.
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The judgment of Ritchie, Spence and Beetz JJ. was delivered by
BEETZ J.—This case concerns an accident in which the victim, the husband of respondent, died by electrocution, in circumstances which Rivard J., of the Quebec Court of Appeal, describes as follows:
[TRANSLATION] In the forenoon of August 1, 1966 Hypolite Larivière, a handyman and the husband of respondent, Dame Cécile Chartré, went at the request of the son of defendant-appellant, Serge Hamel, into the garage operated by the latter and located behind the restaurant managed by him. Serge Hamel had asked him to repair a pump in this garage. Having completed his work, Larivière went to the restaurant of Serge Hamel, the son of defendant-respondent, to be paid.
Serge Hamel then told Larivière that in the house occupied by him, located next to the garage and owned by his father Paul Hamel, he received electric shocks from touching the tap and certain furniture in the house. The evidence does not show that Serge Hamel instructed Larivière to attempt to locate the source of these shocks, and remedy the condition.
As I have just observed, appellant Paul Hamel was the owner of the premises occupied by his son Serge.
Some time later, around noon, Serge Hamel when returning home, noticed Larivière’s automobile still parked in front of his residence, and below the flooring of the ground floor of his house, at a depth of about two feet, he discovered the body of Larivière, who had died as the result of an electrocution of which he had been the victim, while attempting to check or repair the malfunctions Hamel had mentioned to him.
Respondent, both personnally and in her capacity as tutrix to her minor children, sued appellant for damages resulting from the death of her husband.
In the first instance, the Superior Court found appellant liable for seventy-five per cent of the loss sustained by respondent, and it held that the victim had been guilty of negligence which had contributed to the accident in the proportion of twenty-five per cent.
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The majority of the Court of Appeal concluded that the carelessness of the victim was sufficiently serious for his liability to be fixed at fifty per cent. Brossard J., dissenting, would have dismissed the action of respondent: in his view, the unexpected visit of the victim to the scene of the accident, being unauthorized by either appellant or his son, constituted an unforeseeable event, against which appellant had no obligation to protect the victim; he considered that the carelessness of the latter was the sole cause of the accident.
Appellant asks this Court to quash the judgment of the Court of Appeal and that of the Superior Court, and to dismiss the action. In a cross-appeal respondent asks that the Superior Court judgment be reinstated.
The quantum of damages fixed by the Superior Court is no longer at issue, subject to a correction that should be made, if the conclusions of the Court differ from my own, to the calculation worked out by the Court of Appeal when it adjusted the proportions attributable to respondent and her children.
The house of appellant, which was occupied by his son, drew its water supply from an artesian well. An electric pump installed in the house drew water up into a tank, also located inside; the water circulated from this through a system of pipes, part of which was located under the flooring. The house had no basement; the flooring was separated from the bare earth by a distance of eighteen to twenty inches, an area which could only be reached by entering through ventilators from outside, and in which it was possible to move about by crawling next to the pipes. The electric pump was activated through an ordinary extension cord which was connected at will in the kitchen, and was sometimes disconnected at night. According to the testimony of the master electrician Colomban André, an exposed filament of this wire had come into contact with the metal of the pump, electrified the latter, and through it, possibly part or the whole of the water and sewer system.
The occupants of the house, insulated by the flooring and by a carpet, would only have felt slight shocks when, for example, they touched the
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tap, but a person crawling under the flooring without insulating protection, on the damp earth, risked being killed if he could not free himself from contact with objects which had been thus electrified.
The evidence contains contradictions, not resolved by the trial judge, concerning the time when it was first noticed that electric shocks were being received in appellant’s house. Some witnesses stated that the situation had existed for several years, and others that it was only a few weeks old. Appellant’s son appears to have felt slight shocks in the house for about two weeks, but without knowing what caused them; and he might have regarded them as annoying rather than dangerous. One witness stated that he refused to do plumbing work under the house in about 1959 because certain pipes were electrified; appellant absolutely contradicted this testimony. Moreover, only a few days before the accident, plumbers had worked under the house for several hours without suffering any ill effects as a result. Appellant stated positively that he knew nothing of this defective condition. The trial judge found it “astonishing that the son did not speak to his father, who was living next door, and whom he must have been seeing daily… whereas he mentioned it to the victim…” The receipt given by the victim for repair of the first pump is made out in the name of appellant, who generally took care of repairs, and had retained effective control of the house, though his son could have been acting as his mandatory or agent. The trial judge also noted that appellant’s son contradicted himself by stating that he put oil in the pump every week without being incommodated, but admitting on the other hand that he told the victim he received shocks from the pump.
In the opinion of the master electrician Colomban André, the defective pump had not been installed in accordance with trade practice: the installation was done without a ground, and the cord through which electricity passed to activate the pump could also be disconnected at will; according to the witness, the pump should have been connected to the electricity source by a fixed cable provided with a circuit-breaker. However,
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the evidence does not establish that the pump was installed, to appellant’s knowledge, by incompetent persons: the testimony of Colomban André indicated that at the time it was installed, there was no clear requirement in the area where the accident occurred that such pumps should be installed with all the safety features required at the time of the hearing.
After the accident a wire was found with one end connected to the electric pump; the other end went into the floor through a newly pierced hole. When the corpse was removed from under the house, the policemen who investigated saw this wire, which was hanging under the house, not attached to anything. No one was able to give a definite explanation of the origins of the hole through which the wire passed. Appellant and his son were surprised to see the hole in the flooring. Someone, probably the victim, pierced the hole, attached the wire to the pump and pushed the wire through the hole towards the ground, with the intention of connecting the electricity source to the earth, an operation known as “grounding”. This was a safety measure in accordance with trade practice, the probable effect of which in the circumstances would have been to blow the fuses on the circuit. Though normal, however, this operation can be fatal if it is performed without taking the precaution of first disconnecting the current, or providing oneself with protective gloves, where there are unduly electrified components, for in such a case the operator risks grounding the current through his own body.
The individual who removed the body first received an electric shock when he touched the victim’s shoes. The head of the victim was lying a few inches from a pipe.
Three hypothesis come to mind: either a pipe had already been electrified, independently of the wire which had been pulled downwards to act as a ground; or a pipe became electrified by coming into contact with this wire; or, finally, the victim died as a result of touching this wire. The last hypothesis is the least likely, in view of the distance of several feet separating the corpse from the wire.
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The Superior Court and the Court of Appeal held that the presumption of art. 1054 of the Civil Code operated against appellant: he was presumed to be responsible for damage caused by the autonomous act of things under his care—the pump, the electricity, the piping.
The Superior Court also seems to have come very close to deciding that appellant did not act as a reasonable man (“bon père de famille”) in the circumstances. But it did not decide it clearly if it ever did. The decision of the Court of Appeal was in no way based on the proven fault of appellant: if refers only to art. 1054 C.C., and of course art. 1056. This being the case, and since the effect of the reasons for my opinion is to exonerate appellant completely, whether his fault is proven or merely presumed, it does not appear necessary for me to come to a conclusion as to the question of the proven fault which he might have committed. However, as the Superior Court and Court of Appeal decisions are both based on art. 1054 C.C., I feel certain observations on application of the presumption of fault contained in that article are in order.
That presumption would no doubt have applied if, for example, the victim had been one of the plumbers who crawled under the flooring a few days before, who were in no way cognizant of the danger, and did not undertake to alter the operation of the electrical system; it might then have been inferred that the accident was caused by a thing in the care of appellant.
In the instant case, however, the victim intervened, and might have altered the operation of the thing. In order to benefit from the presumption of art. 1054 C.C., respondent had first to show that her husband’s death was caused by the autonomous act of a thing in the care of appellant, as that thing existed prior to her husband’s intervention. If the danger was in fact created by the intervention itself, or in other words, if the repairs or work done by the victim were responsible for electrifying the objects, such as pipes, through contact with which the victim was electrocuted, then it ceased to be the thing of appellant which killed the victim. This explanation may as correctly identify the causes of the accident as the hypothesis that the pipes locat-
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ed under the house were already electrified before the victim intervened, and the evidence provides little basis for choosing between the two. As already noted, the record discloses one disturbing fact, namely that a few days before the accident plumbers went underneath the flooring for over three hours without being incommodated. The trial judge observed that the pump wire may not have been connected at the time. However, that is an assumption: we can just as readily assume the contrary; and if there were any basis for the assumption, some reference to it should appear in the examination of the plumbers. No such reference is to be found, though one of the plumbers stated that they were equipped with an electric light connected inside the house.
It is therefore conceivable that the repairs done by the victim had the effect of creating, increasing or extending the danger which caused his death, as for example by the wire which he inserted for the ground. In that case, respondent would not have adduced evidence permitting her to rely on art. 1054 C.C., and this would be a sufficient ground for dismissing her action, if it had no other basis than art. 1054. However, neither the Superior Court nor the Court of Appeal discussed this question, the solution of which ultimately concerns facts and their interpretation. Besides it is possible to decide the case in another way.
The defences relied on by appellant included the fault of the victim, as to which there is no doubt in the case at bar.
The fault of the victim may enable the keeper of the thing to escape liability, partially or completely, for his proven or presumed fault. The question is one of causation: either there is a single cause of the damage, and it is to be found entirely in the victim’s actions, in which case the keeper is completely exonerated, though he may have committed a fault, since the latter did not contribute to the damage; or there are two causes of the damage, the fault of the victim and the fault of the keeper, in which case the responsibility is shared.
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In the case at bar the Court must consider whether the fault of the victim was the sole cause of the damage.
Appellant contends that the victim was a trespasser, and that his trespass was the cause of the damage. The Superior Court rejected this argument, but it was accepted by Brossard J., dissenting in the Court of Appeal, while the other judges of the Court of Appeal did not expressly decide the point.
At common law the obligations of an occupier of premises toward persons entering them vary depending on whether such persons fall into the category of invitees, licensees or trespassers.
I doubt that these distinctions are part of the law of Quebec (P.B. Mignault, “Conservons notre droit civil”, (1936-1937) XV R. du D. 28), though in certain cases the trespass of the victim onto premises where the damage was sustained must be taken into account, not necessarily for purposes of an abstract measurement of the obligations of the occupier to a trespasser, but because such a trespass is part of the group of concrete circumstances which must be taken into consideration in deciding whether the householder acted as a reasonable man (“bon père de famille”) (Albert Mayrand, “A quand le trépas du ‘trespasser’?” (1961), 21 R. du B. 1).
However, it is unnecessary to decide the point, since in my view the Superior Court correctly held that the victim was not a trespasser: the incident took place in a small village where people knew each other, and in a house located right beside the restaurant where the occupier of the house had just been talking with the victim; there was a babysitter in the house; the occupant had known the victim for several years; he was on a first-name basis with the victim; he knew the victim to be a handyman; he had just entrusted the victim with repairs to another pump, and told him that he received electric shocks from the pump located inside his house. It is impossible to assume that the victim was motivated merely by curiosity, and if assumptions were permissible, I would assume, as did the Superior Court, that the victim simply
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wished to be of service to the householder, or to his father, the appellant. The Superior Court held that the victim was on the premises [TRANSLATION] “at least with the implied authority of the occupier. If he had not had an accident, no one would have reproached him”. Clearly it cannot be said that the occupant gave the victim instructions, or that an agreement for assistance, whether gratuitous or for consideration, was concluded between the occupant and the victim; the evidence does not support such a conclusion, and all the judges on both the Superior Court and the Court of Appeal, were unanimous on this point. But the combination of circumstances is such that it is impossible to conclude that the presence of the victim in the house was unlawful, or even, in my opinion, that he was a trespasser in a part of the house or with respect to the pump or the pipes. His presence in appellant’s house was not wholly unforeseeable in the circumstances of the case at bar: after the conversation which the occupant had just had with the victim, and keeping in mind the proximity of the premises, and their accessibility, it was not inconceivable that this workman might want to examine, and even repair, the defective pump, whether it was situated on the ground or in appellant’s house; what was unexpected was the way in which this tragic accident occurred, and the specific part of the house in which it occurred.
In my view, one method of resolving the issue is to analyse the very special circumstances of the case as if appellant or his son had expressly asked the victim to do the required checking, after telling him what according to the evidence he was told, namely that electric shocks were received from the pump and the tap; undoubtedly the victim received no such request, but his position is certainly not improved by the fact that he acted of his own initiative, without being requested to do so by appellant or his son.
On the assumption I have just mentioned, whether appellant is really at fault for having failed to keep his house in good repair or is merely presumed to be at fault in accordance with art. 1054 C.C., can he be blamed for wanting to have it repaired? Thus, where the damage occurs when the victim is actually in the process of examining
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the situation, and it is the defective condition that he was attempting to locate and ultimately correct, which finally injures him and causes his death, is it logical to invoke the presumption of fault in exercising care, or even proven fault—since the owner would have asked for this service specifically in order to carry out his duty? Then, if appellant could not have been blamed for asking the victim to do what was required, must he be blamed because he did not make such a request, and the victim attempted to investigate on his own initiative?
At first glance the only objection that may be raised to this reasoning is that appellant was wrong to call upon the victim’s services, rather than upon an electrician’s. However, though not an electrician, the victim was not a layman. His position was somewhat akin to that considered by this Court in a case from another province, Trans-Canada Forest Products Limited v. Heaps, Waterous Limited et al. which concerned the liability of an employer for a fire caused by its employee, where the latter, after repairing a diesel engine, used defective electric wires to start it. Estey J. described this employee as follows:
Martin had been a diesel engine mechanic for thirteen years… Though not an electrician, he had started many of these engines with this equipment and his evidence indicates that he had some knowledge as to composition of cables, the effect of oil and sawdust upon the insulation and the possibility of the copper strands penetrating the weakened insulation and causing a short circuit. p. 245
Cartwright J. (as he then was) observed:
…a person in the position of Martin is bound to exercise care not generally but in relation to the conditions which he finds. p. 273
In the case at bar, the victim was a carpenter, held a plumber’s apprentice card, and was regarded as a handyman. He was a tradesman acting as an independent contractor, and not the servant or agent of appellant. (Compare Quebec Asbestos
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Corporation v. Couture with Boiteau v. Bernard and Marois v. Syndicat Coopératif Immobilier; see also J. Cl. Civil, art. 1384, Part I, Book 3, Nos. 114 and 115). The victim appeared to be familiar with the operation of pumps, which nowadays are almost all run by electricity. Besides, he identified the pump as the source of the trouble, and attempted to ground it, which is in keeping with practice in the trade. These operations indicate some understanding of the subject.
In my opinion in such a situation—and we are concerned with the damage to which a workman exposes himself—, it is for the workman to decide as to the limits of his competence, rather than for he who hires him, since the latter cannot know those limits in the way that the workman can.
The victim was not obliged to assume the risk to which he deliberately exposed himself, without even being required to do so. He knew the general nature, and ultimately the cause, of the defective condition, the indications of which had been brought to his attention. He knew that one received shocks from touching the pump and tap under appellant’s care. He went to appellant’s house specifically in order to locate the source of this defective condition, and to remedy it. He then undertook work beyond his capabilities, as was demonstrated by his carelessness: he did not take the elementary precaution of disconnecting the current; he failed to provide himself with any protective covering; and thus lightly clad, he crawled over the damp earth to check or repair the defective electrical system. The victim caused his own misfortune by a lack of skill which ought to have prevented him from undertaking or continuing his work, and by his extreme carelessness. In my opinion, he was solely responsible for his misfortune.
I would allow the appeal, dismiss the cross-appeal, quash the judgments of the Court of Appeal and of the Superior Court, and dismiss the
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action of respondent, with costs in all courts except for the costs of the cross-appeal.
PIGEON J.—I agree with Beetz J. that this case can be decided as though appellant had expressly asked the victim to take the necessary action to locate and correct the defective condition in the electrical installation, as a result of which shocks were received from the pump and the tap. If the victim acted on his own initiative after being informed of this defective condition, his legal position can be no better than if he had been expressly requested to correct it. For the reasons given by Beetz J. on this point, I agree that on this assumption liability for the accident is wholly attributable to the victim, and accordingly, the appeal should be allowed and the action dismissed.
DE GRANDPRÉ J.—I have had an opportunity of reading the reasons prepared by Beetz J., and I have no hesitation in concurring in his conclusion that the appeal should be allowed.
It is common ground that the facts in evidence do not permit respondent to base her claim on art. 1053 C.C. We therefore have to consider two questions:
(1) has respondent established, on a balance of probality, that the cause of the accident was the autonomous act of a thing under the care of appellant?
(2) if so, can appellant properly maintain, on the basis of the evidence as a whole, that the accident was not foreseeable?
Before respondent could rely on the presumption of art. 1054 C.C. she had the burden of showing that it was the thing, as found by the deceased, which caused his death. A few days before the accident, plumbers had worked for several hours in the basement where the husband of respondent met his death. It is therefore clear that at that stage the thing of appellant was not dangerous. Further, the evidence reveals nothing as the period which elapsed between the work done by the plumbers and the accident under consideration here.
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The only explanations given in the testimony as to how the basement, which presented no danger to the plumbers, became a source of danger to the husband of respondent a few days later, are linked to the activities of the latter. After attaching a metal wire to the pump and piercing a hole in the floor, he passed the wire through this hole into the basement. As [TRANSLATION] “strong presumption” exists, as the trial judge observed, [TRANSLATION] “that the fatal contact occurred on this wire”. The weight of the evidence is, therefore, that the thing of appellant would not have caused the damage without the intervention of the deceased himself, and for this reason the action must fail.
Even if the thing of appellant, left to itself, really was the cause of the damage, I do not see how, in the circumstances disclosed by the record, this could have been foreseen. The only relevant conversation between the deceased and the son of appellant is summarized by Rivard J., speaking for the majority of the Court of Appeal:
[TRANSLATION] Serge Hamel then told Larivière that in the house occupied by him, located next to the garage and owned by his father Paul Hamel, he was receiving electric shocks from touching the tap and certain furniture in the house. The evidence does not show that Serge Hamel instructed Larivière to attempt to locate the source of these shocks, and remedy the condition.
In view of these facts, I adopt the following extract from the reasons of Brossard J., dissenting on the Court of Appeal:
[TRANSLATION] In my opinion the unexpected visit of Larivière did not fall into the category of normally foreseeable eventualities.
In view of the foregoing, appellant had no obligation towards Hypolite Larivière, at the time the latter went into the basement of the house, unknown to appellant or to the occupants of the house, to protect him from the danger of an accident of the kind which occurred, the sole cause of which, in my view, may be deduced from the evidence as being the carelessness of the victim, itself unforeseeable in the circumstances.
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I would therefore allow the appeal and dismiss the action of respondent with costs in all courts.
Appeal allowed with costs; cross-appeal dismissed.
Solicitors for the defendant, appellant: Chait, Solomon, Galber, Reis, Bronstein & Litvack, Montreal.
Solicitors for the plaintiff, respondent: Beaupré, Trudeau, Sylvestre & Taillefer, Montreal.
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