Supreme Court of Canada
Vaillancourt v. Jacques, [1975] 1 S.C.R. 724
Date: 1974-04-29
Réal Vaillancourt (Plaintiff) Appellant;
and
Armand Jacques (Defendant) Respondent.
1973: December 13; 1974: April 29.
Present: Abbott, Ritchie, Spence, Pigeon and Dickson JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUÉBEC
Negligence—Minor child—Eye lost while playing—Sharp end of broken toy used.
Appellant’s son, Mario, about 12 years old was playing cowboys with respondent’s son Christian, about fourteen years old. Mario was acting as the “deputy” of Christian, the “sheriff”, who had a plastic toy pistol in his hand. The end of this toy had been broken off during the game and had a sharp point at that time. When the “deputy” found the “outlaw”, he turned back quickly to report to the “sheriff”, and his eye came in contact with the pointed toy pistol held by the “sheriff”, apparently on a level with Mario’s face, and the latter lost his eye. The Superior Court held that there was fault on the part of Christian Jacques. This judgment was reversed by the Court of Appeal. Hence the appeal to this Court.
Held (Pigeon J. dissenting): The appeal should be dismissed.
Per Abbott, Ritchie, Spence and Dickson JJ.: The boy Christian Jacques took part in a game in a normal and proper manner, and there is no evidence that he behaved any differently from his companions.
Per Pigeon J. dissenting: The boy Christian had sufficient judgment to appreciate the imprudence of his using for this particular game a toy with a pointed broken barrel end. The Court of Appeal gave no valid ground for setting aside the trial judge’s finding made on that basis.
APPEAL from a judgment of the Court of Queen’s Bench, Province of Quebec, reversing a judgment of the Superior Court. Appeal dismissed, Pigeon J. dissenting.
Dewey Zaor, Q.C., for the plaintiff, appellant.
Jacques Pagé, for the defendant, respondent.
[Page 725]
The judgment of Abbott, Ritchie, Spence and Dickson JJ. was delivered by
ABBOTT J.—In this action appellant claimed damages, both personally and as tutor to his minor son, Mario Vaillancourt, for injuries sustained by the latter who lost an eye when playing with his brother and another boy, Christian Jacques, son of the respondent Armand Jacques. The three boys were between twelve and fourteen years of age at the time.
The circumstances under which this unfortunate accident occurred are summarized by the learned trial judge as follows:
[TRANSLATION] THE EVIDENCE shows that at the time mentioned in the action the boy Christian Jacques went to the residence of the plaintiff ès-qua-lité when the latter and his wife were absent, the two sons of the plaintiff ès-qualité, including the boy Mario, being present.
While the three youths were together in plaintiff’s house, they started playing cowboys, a game they undoubtedly derived from television, with one hiding, in the role of the “outlaw”, and the other, acting as the “sheriff’s deputy”, looking for him, and the game consisted in the “sheriff’s deputy” finding the “outlaw” and making a report to the “sheriff”. They used toys in their game, and the “sheriff” had a toy pistol, the end of which had been broken off and had a sharp point.
When the deputy found the “outlaw”, he turned back quickly to report to the “sheriff”, and it is when he was doing so that his eye came in contact with the sharp point of the pistol held by the “sheriff” apparently on a level with the boy Mario’s face. Mario’s eye thus collided with the pistol, and the result was that he lost the eye.
The learned trial judge found that respondent was not personally responsible under Art. 1054 C.C., but held that the accident was due to the fault and negligence of young Christian Jacques. He condemned respondent, as tutor to his minor son Christian, to pay to appellant personally the sum of $1,180.75 and to him, as tutor to his minor son Mario, the sum of $15,500 with interest and costs.
[Page 726]
That judgment was unanimously reversed by the Court of Appeal. In his reasons for judgment, Rivard J.A., after reviewing the facts and the relevant legal principles, held:
[TRANSLATION] The boy Christian Jacques took part in a game in a normal and proper manner, and there is no evidence that he behaved any differently from his companions. It is obvious that there are risks in any game, that there are accidents which occur without fault, or without it being possible to attribute fault to anyone. The evidence before the Court establishes that this was just such an unfortunate accident.
I am in respectful agreement with that finding and there is nothing that I wish to add.
I would dismiss the appeal with costs.
PIGEON J. (dissenting)—The Superior Court judge who heard the witnesses in this case briefly described in his judgment the game Christian Jacques and Mario Vaillancourt had engaged in with the latter’s older brother, Serge Vaillancourt. At the time of the trial, a year and a half after the accident, Christian was 15 years old, Mario 13 and his brother Serge 16. From the description of the game it needs only be noted that Mario was acting as the deputy of the “sheriff”, Christian. The latter was holding a plastic toy in the shape of a pistol; this toy, which had been broken during the game, then had a sharp point at the end: “a sharp, sharp point”, Serge Vaillancourt said.
The trial judge’s conclusion that Christian was responsible was based on the following finding:
[TRANSLATION] When the deputy found the “outlaw”, he turned back quickly to report to the “sheriff”, and it is when he was doing so that his eye came in contact with the sharp point of the pistol held by the “sheriff”, apparently on a level with the boy Mario’s face. Mario’s eye thus collided with the pistol, and the result was that he lost the eye.
The boy Christian Jacques, who was 14 or 15 years old, was old enough to commit an act of imprudence, and to hold this pistol up to Mario’s face was certainly imprudence on his part. He must therefore be held responsible for the damages suffered by the latter.
[Page 727]
In setting aside this decision Rivard J.A. said on appeal:
[TRANSLATION] The boy Christian Jacques took part in a game in a normal and proper manner, and there is no evidence that he behaved any differently from his companions.
With respect, this reasoning appears erroneous. How can it be said that Christian Jacques took part in the game in a normal and proper manner, when he was imprudent enough to use a toy that had become manifestly dangerous since it was broken in such a way that it had a sharp point at the end? This was the imprudence attributed to him by the trial judge, it was a well-established and undeniable fact and the latter’s judgment was based on this fact. In my view the trial judge was entirely justified in considering the use of the broken toy as culpable imprudence. With its pointed broken barrel end, the pistol, which was exhibited in Court, ceased to be a harmless weapon, it became dangerous, and the risk of injuring a play companion by holding it at a certain height was quite obvious. This risk was not one normally encountered in a game. In my opinion, therefore, Rivard J.A. erred in saying:
[TRANSLATION] It is obvious that there are risks in any game, that there are accidents which occur without fault, or without it being possible to attribute fault to anyone. The evidence before the Court establishes that this was just such an unfortunate accident.
If Christian’s father had given him the broken pistol to use in the game in question, would he not have clearly committed a culpable imprudence, of which the injury was a foreseeable result? The trial judge who had the advantage of hearing the youth found that he had sufficient judgment to appreciate the imprudence of his using this toy, in this condition, for this particular game. In my view, this finding was fully justified by the evidence, and the Court of Appeal gave no valid ground for setting it aside. It did not dispute the truth of the facts, nor find any error in the appreciation of these facts. On the contrary, in the end it ignored in its judgment the essential point on which the condem-
[Page 728]
nation was based, and gave no valid reason for setting aside the judgment at trial.
I would allow the appeal, set aside the decision of the Court of Appeal and restore the Superior Court judgment with costs against respondent in all courts.
Appeal dismissed with costs, PIGEON J. dissenting.
Solicitors for the plaintiff, appellant: Zaor & Boutin, Sherbrooke.
Solicitor for the defendant, respondent: Jacques Pagé, Sherbrooke.
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