Horace Archambeault Québec (Province). Dept. of the Attorney General.

An act respecting damages resulting from accidents to workmen: Text of the ... online

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Text of the Imperial Statute and of the
French law upon the matter.

Speech made in the Legislative Council, on June lsCl904,

BY THE Honourable Horace Archambeault,

Attorney General of the

Province of Quebec.


Printed by La Cie de Publication ** Le Soleil."


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^ »»

Speech deuvered by the Hon. Horace Archambeault,
Attorney General of the Province of Quebec, in


on moving the second reading of the

Bill entitled : "An Act respecting

compensation for damages

resulting from ACCIDENTS

■4 • »

Honourable oentlkmkn,

\ The Bill of which I hatre the honour to move the

V' ^ Second Reading, relates to accidents which may arise from
work or in connection with work.

• "We have no special legislation in the matter. We are

governed by the general principles which apply to delicts
and quasi-delicts. These principles are laid down in
articles 1053 and 1054 of the civil code. If they are
applied to accidents arising from work, they mean that
an employer is responsible to his workmen for damages
caused by the former's fault or by the fault of persons
under his control.

This is what is called Faute Deliciuelle.

An accident to a workman may be occasioned by diffe-
rent causes. It may be caused : 1. by the fault of the


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master or employer ; 2. by the fault of the workman or
employee; 3. by the fault of both employer and work-
man ; 4. by the fault of a third party ; 5. by a fortuitous
event or ii resistible force ; 6. by an unknown cause.

Fault of the master or of the workmun. — In the two first
cases, there can be no difficulty theofifically, in deciding
who must be held responsible for any damages which
may be caused by the accident. As the fault is the basis
of all rf^spousibility, in the first case the master is held
responsible, and in the second, the workman

Faute commune. — When there is fault on both sides, the
rule established by our jurisprudence is to apportion the
damages, and the loss is divided between both parties,
employer, and workman in proportion to the extent of
the fault of each. The victim is not entitled to full
damages seeing he was partly to blame. On the other
hand, he has a right to some compensation, seeing the
other party was equally in fault. The extent of each
party's fault is considered and the loss is divided in

This has not always been the rule applied by our courts
of justice, and our jurisprudence fluctuated a long while
before arriving at its present state. The divergency of
opinion was due to the difference which exists between
English common law and French law.

In England, the faute commune is called contributor^/
negligence; and it matters not which is the principal or
greatest fault, whether it is the employer's or the workman's
fault ; the question is merely what has been the proximate,
the immediate cause oi the eLCcident, causa causans. It is
the party in fault who is held responsible for the conse-
quences of the accident. In France, the rule which is
applied when there is faute commune, is the rule previously
mentioned, viz : that the loss must be apportioned to the
extent of the fault of each party.

Until recently, our jurisprudence was altogether
unsettled. In 1887, in Cadieux vs C. P. U. (29 S. C. R. p.


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IW), Chief Justice Dorion spoke with approval of the
French rule, adding, however, that up to that time the
doctrine had not been adopted here. Since 1887, several
contradictory judgments nave been r3ndered. But the
French rule has prevailed, and was finally sanctioned by
the Supreme Court, in 189^, in Price vs Roy (29 Supreme
Courts Reports, p. 494).

Fault of a third part j/. — Thirdly, an accident may be d'le
to the fault of a third party.

In this case, if the party in fault is an outsider, a
person over whom the master has no control, the victim
^as recourse against the third party alone. It is the same
rule which is applied here, namely, that every person
is responsible for the damage caused by his fault, or by the
fault of persons under his control.

But if the party in fault, instead of being a stranger, is.
a fellow-employee, a fellow-workman, the master or em-
ployer under the same rale is held responsible. However,
the master is held responsible only when the fellow-
Workman, whose negligence caused the injury, committed
the offense whilo at work in the execution of a duty
assigned to him by the master. Otherwise the negligent
party would not be under the control of the master, and
the latter could not be held responsible.

Here again, our jurisprudence varied, and was contra-
dictory for the same reason as for the faute commune, viz :
the difference which exists in the matter between English
and French laws.

The French doctrine is the rule I have just mentioned :
the employer is responsible if the negligent party is in
his employ, and if he caused the accident while in the
execution of his duties.

In England, the rule is different. There, the master is
Hot liable if he had selected proper and competent work-
men. It is the doctrine called of Common Employment.
The workman is assimilated to a tool. When th ? master


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has furnished his workman with adequate materials an4
propjr tools, he is not liable for any accidents which may
be caused by these same tools. Competent workmen may
be negligent, and may be the cause of some accident. In
both these cases, the master has taken every possible
precaution ; he is not in fault, and can not be held respon-
sible towards the victim for the accident.

Such was the rule of English law previous to 1880,
Since that date, two statutes have altered the principle
heretofore in force, and, on that point, English law is to-
day exactly the same as the French law and our own.
The first statute, pass*^d in 18S0 (The Employers Liability
Act of J 880), enacted that the employer would be held
responsible if the fellow-workman, whose negligence
caused the accident, held in the establishment a position
of authority over the injured man, and ordered him to do
the act which led to the accident. A second statute,
passed in 1897, (The Workman's Compensation Act, 1897)
sweeps away that distinction, and lays down the rule
that the employer is responsible for damages caused by
one of his employees to a fellow-employee, in every case,
even if the negligent workman was not in a position of
authority over the injured man, and did not order him to
do the act which led to the accident.

In this province, certain judges began by applying the
doctrine of English law as it existed previous to 1880.
But our jurisprudence seems to be settled to day ; the
master is always liable for damages caused by his
workmen in the t'xecution of their duties. The Supreme
Court itself g auctioned this rule, in 1887, in Robinson vs
C. P. R. (14 Supreme Court, pp. 105 & seq. Vide page
114 with reference to the question of responsability for
negligence of fellow-workuiau).

Fortuitous Event — Irresistahle force, — An accident may
also be caused by a fortuitous event or by irresistablo

In such a case, there is no fault, either on the emplo-
yer's part, or on the workman's.


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Therefore, as the basis of liability is fault, each party-
bears the damage caused by au unavoidable acjident, due
to a fortuitous event or irresistable force.

Unknown Cause, — Here, again, nobody is in fault, since
the cause of the accident is not known. No liability is
incurred either by the master or by the workman. They
both bear the damage caused by the accident, without
recourse, the same as in the case of fortuitous event or
irresistable force.

We also may assimilate to an unknown cause, the case
where it is certain there is fault somewhere, but where
there is no evidence as to at whose door it might be laid ;
who is in fault ? Is it the master ; is it the workman ; is
it a third party ? The victim of such an accident has no

To summarize the rules which we have just laid down,
it is the fault which is the basis and foundation of
liability in our law. Every person who is in fault,
personnally, or through some person under his control, is
liable for any accident which may result from that

If there is no fault, as in the oase of fortuitous event
or irresistable force, or of unknown cause, or again of
some fault which can not be fixed upon any one in
particular, each party bears the damage incurrea through
the accident.

The object of the Bill which I have the honour to
present is to replace, in case of accidents arising from
work, the principles which we have briefly examined,
namely : the theory of liability founded upon fault, by a
new principle of responsibility. It consists in the
employers being held responsible for all the consequences
of any accident, though they be not in fault, to the same


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extent as they are liable when the accident is caused by
their own fault

The principle of regipousibility in our law to-diy is
negligence- fautedelictuelle. The principle of the proposed
legislation will be the risque professionnel.

Risque professiimnel is the risk which is inherent in a
profession or in a trade, apart from all considerations of

Theoretically, the principle of the risque prof essionne/ lies
in the doctrine that every accident, by the simple fact
that it may arise from work, assures to the victim the
right to obtain a compensation.

This new theory arises from considerations of equity
and ju^stice. Half of the accidents from work are caused
by a fortuitous event, or are due to some undertermin«d
cause They are the result of the nature of the work, and,
as the danger of the work increases, accidents become
more frequent. The toiler, victim of circumstances, is not
to be condemned to the poor-house. He is entitled to
indemnification. This right to reparation results from
the industry, the trade itself which creates the danger
inherent in the nature of the occupation.

If danger is inherent in the nature of the work, the
accidents are a charge against the concern, to be deduct-
ed from the profits. The master takes into account in his
profit and loss sheet, the wear and tear of his buildings,
of his appliances and tools ; he provides for the dead stock,
and sets aside a reserve fund. Why could he not do the
same as regards his human tools V Why could he not
make the same provision for the wearing out of his work-
man's strength, and provide for the accidents which may

We must not overlook the fact that it is the employer
who directs the installation, the furnishing and the
running of the shop ; it is he who introduces the motors
and the machinery. It is he who gives the ordors. It is


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he who pockets the profits of the entreprise. It is only
Justice that he be made to bear the liability and the risk.
He has all the favourable chances ; he should be called
upon to bear the unfarourable. Compensation to the
victim of any accident which may hfiippen, should be
classed amongst the unfavourable risk-i of the enterprise,
which the employer must provide for in the ereneral lay
out of the concern.

The conditions which gave birth to Hhe old theories
and laws, were very different from those which modern
industry has necessitated.

In olden days, the law knew nothing of steam and
locomotives, of dynamoes, of the vast noisy workshops,
full of smoke, of whizzing wheels, of strange chemical
smells and glaring electric lights.

The workman, in those days, was master of his tools.
He could, as a generate rule, protect himself by the exer-
cise of ordinary precaution His implements were few'
and simple, and none of them moved unless he handled

Eut under modern conditions, everything is changed.
The modern toiler is in daily contact with complicated
■machines, dangerous,irrosistible He must put in motion,
handle and control terrible explosives. The Workshop
has become for the toiler a perpetual menace to life and
limb ; the least oversight, the slightest carelessness oh
his part may be fatal and the cause of a disaster. The
workman counts for naught in the midst of the dangt»rs
which surround him ; his personality and initiative disap-
pear ; he becomes an animated machine, a living part of
the machinery which masters him, which dominates
him ; he is swept on by a force superior to his own.

The rush of work must also be kept sight of, as well
as the fact that lorce of habit very often renders the
workman careless, thereby causing accidents which might
have been very easily avoided. The toilers vigilence is


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asleep ; the enemy lurks for him and lies concealed under
the most harmless appearances.

1 he master may have the best and newest plant. He
may spare no expense and no vigilance in adopting every
means for protecting his men. The workman may be
himself always on the watch But all this cannot prevent
an accident. There will be a terrific cxplos'on ; a boiler
will burst ; the shop will be shattered into splinters ;
hundreds of lives will be lost ; thousands of youngs
children, of widows, of old parents will have been
deprived of their bread winner and protector. And yet^
neither the employer not the workman is in fault The
accident was caused by some mysterious flaw in the
machine, or was due to some cause which human prudence
could not possibly foresee nor prevent. Industry itself ia^
alone responsible.

Modern industry has thus brought about a certain
amount of unfortunate risks and a whole chapter of
unforeseen and consequential accidents which it is often
impossible to avert. Th^ contemporary accidents diflfer
entirely from those of former times. The latter were
simple, plain, manifest, isolated ; to day, they are myste-
rious, obscure, collective.

In presence of the transformation in the nature of the
casualties, must we still apply tho same old theories of
law to redress grievances and to compensate for misfor-
tunes which modern industry sows with the same hand
as it erects palaces and monuments ?

Could the most vivid imagination foresee such an
extraordinary development of industry, when the princi-^
pies which have until now governed in matters of delict
and quasi delict, were inscribed in our statutes ?

Though these principles might have been founded on
equity and justice when the accident, in most instances,
was caused by some fault, could they remain part and
parcel of the laws of this provinc?, now that one half of^

— li-
the accidents arising from work are due to causes where
no fault is attributable to any one in particular ?

1 he conscience of the modern legislator is shocked at
such a notion of justice and injustice. Law is founded
upon equity. And equity wills it that the law should
not remain inefficacious to uplift a poor toiler, victim of
the execution of his duty The legislator must not fore-
sake the wounded soldier of industry, because, in his
attention to his master's interests, he forgot for a moment
to think of his own safety, and was struck down by the
roadside, in the terrific struggle of the courageous, con-
quering and almighty power of human genius against
the mysterious and unruly forces of modern industry.

These sentiments which I have just; freely ex^-ressed, no
doubt inspired the law-makers of the old countiies of
Europe, when they struck out of their statutes the theory
otihefaute dUHctuelle to replace it by that of the risque pro-
fessionel, and adopted the latter as the basis of liability in
matters of accidents arising from work.

Switzerland was the pioneer in this movement. In
1881 (25th June) that country passed a federal law enact-
ing that the employer was to be liable for accidents, in
certain employments, without being in fault.

In 1884, Grermany followed the example of Switzer-
land and adopted legislation which has been the model
upon which other countries have based theirs, and which
affords more ample protection to the workman than the
legislation of any other country.

The theory of the risque professtonel, as regards accidents
to workmen, has since been adopted, by Austria in 188Y,
Norway in 1894; Finland in 1895; England, 1897 ; Den-
mark. Italy and France in 1898 ; Spain, New Zealand and
Australia in 1900 ; Holland and Sweden in 1901. (See
Bulletin of Labor, May, 1902, published at Washington,
Summary, page 650).


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We must confess that if the different countries of Eu-
rope, divided as they are from each other by immemorial
prejudice, came so easily to an understanding to accept
the new theory of liability, it is surely the best evidence
that the old theory is no longer in harmony with the
present conditions of social economy, and that they felt
it had become necessary to replace the old principles by
legislation more in conformity with modern conditions,
more satisfactory to our modern conscience, and more
christian like in our enlightened and civilized century.

We have just seen that the theory of the risque prof es-
sionnel was sanctioned for the first time by statutory law
in 1881. Nevertheless, that same principle existed in the
minds of the legislators years before it became law.

As early as 1848, M. Vivien, Minister of Public Works,
in France, sanctioned this principle by certain adiuinistra-
tivo measures. He declared that the care and relief which
should be afforded to workmen employed in public
works, in case of illness or accident incurred while at
their task "constitute a charge upon the entreprise, a debt
imposed by the rules of law, as well as by those of huma-
nity ".

In 1882; a future President of the French Republic,
Falix Faure, proclaimed the same theory as follows :

'* We are of opinion that it is a mistake, in matters of
*' toil and toilers, to subordinate to the proof of the fault,
** the compensation of loss or damage caused by an acci-
"** dent; in most cases neither the employer nor the
•* employee is in fault AW work has its risks. Accidents
^* are the sad, but unavoidable consequence of toil
** itself".

In their turn, the jurists, always anxious to establish
the exact rule of justice and equity by which maybe
determined rights and obligations arising from all human
events, scruted the legal texts for principles that might
relieve the poor victims of the new conditions brought
about by modern industry. Theories more or less ventu-


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resome, more or less ingenious or audaciou'fe, were

The iurisprudence, dominated by an antiquated con-
ception of fault, could not bring itself to accept as sound
doctrine the new theories that assailed it from all sides.
However it could not but inhale the new spirit which
had modified the views of the jurists; and from time to
time, in applying the law to the facts, the courts came to
make, perhaps unwittingly, obvious concessions to the
new ideas.

A time soon came when the legislator had to inter-
vene. He had to submit to the pressure of public opinion,
which in the end always forces the resistence of interests,
even legitimate, to give way before thejustice of righteous

The theories which guided the legislator towards the
principle which was to prevail in most of the countries
of old Europe, the principle, oitlm risque profemonnel, were
called the theory of responsabi/Ue contracluelle, and that of
respansabiliU legale.

1 ResponsabilUe eoniractuelle This theory is also known
as the renversement de la preuve. It was expounded by two
renowned jurists : Mr. Sainctelette, a former Belgian
minister, and Mr. Marc Sauzet, a member of the law
faculty of Lyons.

The theory is founded on the principles of the contract
of hire of personal services.

The hite of services of workmen, claim the exponents
of the responsabilite eoniractuelle^ obliges the master to
supply to his employees tools and machinery adequate to
ensure their security. In other words, every contract of
workmen's services implies a tacit guarantee of safety on
the master's part towards the workmen. If an accident
occurs, the employer violates this implied guarantee
against casualties. It is thus sufficient for the victim to
prove the accident, to be entitled to a compensation ; for


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he has then establi&hed the ememce of his right, ^e

failure on the master^s part to foliil the obligation he
had contracted.

This system wa» called that of the faute corUractuelle be
canBe the employer's responsibility rests no longer upon
a fault arising from a delict or quasi delict as in the
system oi the faute delictuelle^ but rather upon a fault pro-
ceeding from the inexecution, by the employer, of an
obligation or promise implied in the contract.

The system of thefatUe contracluelle has also been called
renversement de la preuve as in opposition to the theory of
the faute delictuelle according to which the workman has
to prove the employer's fault, to be entitled to an indem-

Here, there arises from the accident itself a presumption
of fault, and the employer is bound to prove that the
accideut was not attributable to defects or wear and tear

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Online LibraryHorace Archambeault Québec (Province). Dept. of the Attorney GeneralAn act respecting damages resulting from accidents to workmen: Text of the ... → online text (page 1 of 6)