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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of his tools or machinery, but rather to causes for which
he cannot be held responsible, be it a fault on the employ-
er's part, a fortuitous event, or irresistible force.

In other words, the onus of proof, instead of being upon
the workman, rests upon the employer. It is the inverting
of the proof.

The sjstQra o{ the faute contractuellef or of the renverse*
ment de la preuve^ was endorsed by a large number of
authors The jurisprudence itself, looked upon it with
favour at first, especially in Belgium. But this success
was of short duration, and the courts finally set it aside
to return to the old theory of the faute delictuelle. They
refused to recognize in the contract of hire of services an
implied guarantee of safety, the object of this contract
being to establish the nature of the services and the price
of hire. It cannot be presumed that from the sole fact
that the master has hired a workman's services, he intends
to guarantee him absolute security. If the contracting
parties had intended to provide for such eventualities,
they would have defined their position either by stipul-


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uting such a clause expressly, or by excluding it from the

Nevertheless, the ugh the courts refused to admit the
theory of the /aii/c conlracluelle, they made several wide
breaches in that of thefaute delicluelle, and we may apply
to them the remark of a renowned jurist : •* The homage
** they now rendered to the classicsl theories of the code,
** was merely platonic ".

For instance, in a decision of the Court of Appeals of
Rouen, oa the Srd December 1898 (Sirey 1899, 1, 197) the
case was that of an accident caused by the derailing of a
train. It is true that the court decided that the victim
could not hold the employer liable for the accident without
having proved some fault on the employer's part ; but at
the same time, the court found a presumption of fault
against the company in the mere fact of the derailing of
the train.

We must admit that between this theory, of presumption
of <ault by the mere fact of an abnormal accident happen-
ing, and the theory oiiYudfaute contracluelle, there is not a
vast diflFerence. ISievertheless, the jurisprudence refused
to accept expressly the theory of the Jaute contractuelle.
La Cour de Cassation rejected it positively, in Belgium and
France. (See Carpentier — Repertoire du Droit franfais.
Verbis Responsabilite Civile, No. 1453).

2. Responsabilite Ugale. — The theory of legal responsi-
bility is based upon the principle oi article 1884 of Code
Napoleon, enacting that every person is responsible for
damage caused by things which he has under his care.
This system has been styled that of the responsabilite du
fait des choses inanim4es.

This system has had two champions especially : Mr.
Raymond Saleilles, who published on the subject a work
entitled : ** Les accidents du travail et la responsabilite
civile " ; and Mr. Louis Josserand, who also published a
pamphlet on the same subject intituled : *' De la respon-
sabilite des choses inanimees."


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. Josserand formulates as follows the theory of the legal
responsibility :

" When damage is really caused by something balonging^
** to us, we are always and necessarilly obliged to repair
•* it even though we have been guilty of no offence, nor
. " of any culpable omission ; for our responsibility has its
** so,urce, not in Sifaute delicluelle or contractuelle, but in
** the law.

** The plaintiff, who claims an indemnity, has only to
** adduce proof, generally already made, as to the relation
** of cause and effect between our propertyand the damage
** suffered; it IS the objective theory which is substituted
" to the subjective. ", (Josserand, p. 63).

Here the obligation rests rationnally. upon the notion
of the risk which caused the accident, and the victim
must receive compensation.

On the contrary, in the theory of ih-Q faute delictuelle, as
w^ell as iYi^ioiih^faute contracUielle^ it is always the fttult
which is the basis of liability. The only differeace bet-
ween these two systems in that in the/aw/^ delictueVe, the

. workman is bound to prove the accident and some fault .

.on the master's part, while in the theory of the faute con*
tractuelle the proof of the accident establishes a presump-
tion that the employer is in fault. But in both theories,
the fortuitous event is borne by the victim. On the
contrary, in the theory of legal responsibility, the for-
tuitous event is borne by the master. The accident is
caused by something which the master had under his
care ; that alone is sufficient to render him responsible.

As one can see, of the three theories which have been
discussed, the theory of the responsabllM delictwUe, that
of the responsabilite contractueJle and that of the responsa^
hilite Ugale, it is the last one which the most ressembles
the theory of the ri&que p.ofessionneL

As in the risque professionnely the master is held respon-
sible, under the influence of that idea of equity that he


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should be liable towards the third parties, of any damage
his property may cause, as he profits by the advantages
which the thing may aflford, he should be held, as a
natural charge, to bear the consequences of such risk.

La Cow de Cassa^/on hesitated a good deal before coming
to a definite decision as to the value of this system. A
first decision admitted the principle of legal responsibility.
But two later judgments repulsed it, and the principle
of the fault finally prevailed. The master, to be liable for
damage caused by something under his care must be in
fault in some way or other. (Charpentier, ResponsabiliU
Civile, (No 457).

So, it was the theory of the fiute dilictuelU which finally
prevailed. The French jurisprudence refused to accept
any other theory, and when an accident happened to a
workman, he had no recourse against the master unless
he could prove a fault on the latter's part.

Seeing that the courts would not interpret the code so
as to give the workman a better protection than that
which may derive from the fault, the legislator, in 1898,
decided to inscribe in the code the principle of the risque
professionnel, the same as G-ermany, England and other
countries had already done.

In England, the ideas of equity and justice which in
France were openly undermining the principle of the
faule dHictuelle in cases of accidents to workmen, were
also making considerable progress amongst jurists. In
1877, Chief Justice Cockburn put it thus in a leading
case, (Woodley vs Metrop. District Railway) : ** Morally
" speaking those who employ men on dangerous work
** without doing all in their power to obviate the danger,
** are highly reprehensible, as I certainly think the com-
** pany were in the present instance The workman who
** depends on his employment for the bread of himself
*' and his family is thus tempted to incur risks to which,
** as a matter of humanity, he ought not to be exposed.
*' But, looking at the matter in a legal point of view, if a
** man, for the sake of the employment, takes it or con-


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- IS- ^

" tinties in it with a knowledge of its risks, he must
" trust to himself to keep clear of injury." (Walton, p. 7).

But in 1891, in Smith vs Baker, Lord Herschell said :
" It is quite clear that the contract between employer and
** employee involves on the part of the former the duty of
" taking reasonable care to provide proper appliances
** and to maintain them in a proper condition, and so to
" carry on his operations as not to subject those employed
** by him to unnecessary risk." CWalton, p. 11).

TV hen Great Britain adopted the principle of the rtsque
professionnel in 1897, there existed in England, the same as
in France, a tendency in the doctrine and in the juris-
prudence, to recognize that the relations which exist
between employer and workman are exceptional ones
which must be submitted to special rules.

In our own province, as we have seen, civil liability is
still based upon the faute de/ictue/ie in matters of acci-
dents arising from work, as well as any other cause of
damage. However, here, as everywhere else, the new
conditions of modern industry have created in the minds
of everybody opinions and tendencies which will unfail-
ingly lead us to the transformation which took place in
the old countries of i-urope.

The theories of the faute contracluelle and of the faute
legale had some eflfect in our jurisprudence, and if they
have not been sanctioned by positive decisions, they have,
nevertheless, influenced considerably the application of
our theory oiih^ faute dilictuelle.

We have not as yet accepted the principle of the risque
professionnel, but our courts endeavour even without legis-
lation to attain the same end. Our law does not enact
that the employer is responsible even when he is not in
fault, and by the sole fact that he is the employer ; but
the courts say to the employer, in the judgments which
they render against him, not expressly, but at least impli-
citely : '* You are not liable withoutfault on your part,
but seeing that you are an employer we presttme you are
in fault, or there would have been no accident."


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As Professor Waltou puts it, is this ii>t putting new
wine in old bottles ? We invoke the theory of thefaut'^
dilictuelle but apply the principle of the f ante contractueile
The bottle bears the lable of the old 1 iw ; but contains
the tonic of the new.

Thus, in a case, decided in 1883, (Ross vsLanglois, M.
L, R. 1. Q. B., 280) there had been an accident to a work-
man while unloading a ship Langlois was helping to
unload. An iron hook which was used to support a
slide, suddently broke, and in its fall, struck Langlois, ,
hurting him severely. There was no proof as to the con-
dition of the hook prior to the accident. But from the
fact that the accident was caused by the breaking of the
hook, the Superior Court and the Court of Appeals
drew the conclusion that it must have been defective
and the owner of the ship was condemned to indemnify
the workman.

The same doctrine was sanctioned by the Court of
Appeals, in 1886, in Connor and Byrd (M L E, 2 Q. B.,
262). Chief Justice Johnson, whose decision was con-
firmed in appeal, expressed himself as follows :

" Considering ihat the result of the proof in the case,
** is that the defendant met his death in consequence of
•* breaking of a rope fastened to the stem of the said
** vessel, which cotdd not have broken as it did if it had been fit
^' for the purpose it ioas used for ^ and had been properly and
** skilfully used and that there is no proof of any neglect or
** carelessness of the part of the said deceased^ etc^^

I find the same doctrine applied by the Court of Review,
in Quebec, in 1896, in Dupont vs Quebec Steamship Co.,
(R. J. Q. lis. C. 188).

In another case, Durand vs The Asbestos & Asbesting
Co , the Supreme Court, in 1900 (S. C. R. 80, p. 285) decided
that an accident caused by an explosion of dynamite gave
rise to lesponsibility of the employer towards his
employees, even though the cause of the explosion was
not known. (See with reference to this case, the remarks


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af Judges G iron ard and Taschereau in McArthur vs
Dominion Cartridge Co., 31 S. C. 1?. pp. 399 and 406.)

Is it the system of the fauie contractuelt€y or that of the
faute Ugale which was followed by the judges in these
cases ? Their notes do not say which, but it is quite
evident that they served new wine in a bottle bearing
the old lable.

]s this wine the product of the vine called fauie con-
tractuelie, or of that known as the faule legale? Let us
not concern ourselves with this mystery, but let it suffice
to note that the tendency of our jurisprudence is to infuse
the blood of new theories in Ihe veins of the old law.

This proclivity of our courts, if I may so say it, towards
a professional quasi-liability of the employer, has been
established by a large number of judgments. The juris-
prudence on this point may be given in two or three
axioms :

1. The master is obliged to take all the precautions of
a prudent administrator to protect his employees against
accidents. Thus, he is liable for damage caused by a
defective installation of some machinery, by tools which
are out of order, and even by some latent flaw in the
machinery or the tools. (Is not this responsibility for
the latent defects, Mr. Josserand's responsahiliti legale?)

2. The master is obliged to protect his workmen even
against their own errors or imprudence, their inexperience,
their want of .'-kill. "When a certain work is dangerous,
it is not suflBicient for the employer to give orders that
the work be given up ; he is bound to see that his orders
are carried out.

3. The fact that the workman knew there was danger,
would not exonerate the master.

I will not undertake to cite here all the judgments in
which those priiiciples were adopted and sanctioned. It
would be sufficient to mention two recent cases : that of


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Fournier dit Larose ijs Lamoureux, Court of Review,
Quebec, in 1901, and Supreme Court in 1903 ; and that of
McCarthy v$ The Thomas Davidson Manufacturing Co.,
Superior Court, in 1899, Court of Appeals, in 1900. The
first is reported R J. Q. 21 S. C. p 99, and 33 E. S. C p.
675, and the secoud will be found in R. J. Q. 18 S. C. p.

The case of McCarthy vs The Thomas Davidson Manu-
facturing Co., has this remarkable feature that, though
the judgment is not based expressly upon the theory of
ike f ante contractuelle no more than the other decisious of
our courts on the same matters, Mr. Justice Lemieux, in
delivering the judgment in the Superior Court, speaks at
length and in favourable terms, in his notes, of the theory
o{ the f ante contractuelle and of the work published by Mr.
Sainctelette on the question.

So. the jurisprudence of our courts extending over a
certain number of years, shows that tht?re exists in the
province a decided tendency to abandon the principle of
the faute delictuelle, and adopt a principle more appropriate
to the necessities of modern industry, more in harmony
with the receut legislation enacted in the old countries of

It matters little whether the principles which captivates
the attention and the conscience of our jurists and of our
courts, is called faute contractuelle, faute legale, or risque pro'
fessionnel. It is none the less true that our jurisprudence
rather follows modern ideas and necessities, than the
theories of the old law.

However, it remains for me to mention on this point, a
decision of the Sup:-eme Court, dated October, 1931, in
which the tribunal seemed to upset all the judgments of
our courts, and sanction, in all its rigour, the theory of the
faute delictuelle This judgment was rendered in Mc Arthur
V!i the Dominion Cartridge Co, (31 SCR. p. 892),
Judge Taschereau dissenting.


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There is in this case only a question of proof. But, as
we have seen, our courts have never expressly sanctioned
any other theory than that of the faute delictuelle. Only
they took good care to find in the mere fact that an
accident had happened, without proof of fault or negli-
gence on the part of f he victim, a presumption that
there must have* been some fault or negligence on the
master's part, or some defect in the machinery or in the
implement which was the cause of the accident ; and
thus, indirectly, they arrived at the same practical
conclusion as with the theory of the/aw/e contra ctuelle, of
the faule legale or that of the risque prof essionnel, that is to
say : liability of the master even in the absence of any
positive proof of fault on his part. In the above men-
tioned case of McArthur vs The Dominion Cartridge Co.,
the Supreme Court did away with that presumption of
fault on the master's part, and decided that a workman
can claim no indemnity from his employer without
positive evidence, or without establishing by means of
presumption serious, precise and substantial, that his
employer was guilty of negligence, and that this negli-
gence was the immediate, necessary and direct cause of
the accident. Without the pi oof of direct fault for the
accident, the employer is not liable.

The consequence of this judgment of the Supreme
Court has been that actions for damages, in cases of
accidents arising from work, are now tak(?n for less than
$2,000.00, to avoid the jurisdiction of the Supreme Court,
and to submit the case entirely to th^ tribunals of our
province, which refuse to accept and to follow the opinion
of the Supreme Court in the matter.

Besides, that is not the only point upon which the
courts of our province and the Supreme Court fail to
agree, in matters of damages resulting from delicts or
quasi-delicts There exists another considerable diver-
gency between them with reference to the Solatium dolo-
ris. What is meant by solatium doloris is the moral preju-
dice, or the cempensation due to the near relatives of the
victim, as a consolation or solace in their grief caused by
the workman's sad and untimely death.


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The question which came up, aud which was resolved
differently by the tribunals of this province, and the
Sapreme Court, was whether the solatium dolor is was due
to the plaintiff in our Civil law.

In France, most of the authors as well as the jurispru-
dence decided in favour of this doctrine.

In the Province of Quebec, the courts took the same
stand, though the judges were not uuanimously of that
opinion. The case which has settled the ]urisprude,nce
in that sense is Ravary vs The G-rand Trunk Railway,
Court of Appeals, in 1860 (6 L. C. J. p. 42.)

In this cause, the Court of Appeals was divided, three
judges deciding in favour of (^solatium doloris, and two
refusing to sanction such a doctrine The majority was
composed of Judges Lafontaine and Aylwin, and Judge
Bruneau, acting ad hoc, and the dissenting judges were
Judges Duval and Badgley.

From 1860, until 1887, the jurisprudence continued on
the same lines with the decision of the majority in Appoal
in Ravary vs G-rand Trunk Railway.

But in 1887, the Supreme Court unanimously reversed
that jurisprudence in two separate cases, that of Robinson
vs C. P. R. and that of Labelle vs City of Montreal (14 S.
C. R. pp. 105 and 741).

Since that date, the family of the victim of an accident
is not entitled to claim compensation for moral damage
from the party who is liable for the accident, but only
real loss and damage.

The Supreme Court in support of its decision falls back
upon the fact that the rule enacted by article 1056 of our
civil code, which goveras in the^e matters, is derived
from English law, and that in England they never grant
any compensation as solatium doloris.


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T must add thai in ihis matter, as well as in that which
T haye just examined, a large number of our judges refuse
to accept the doctrine of the Supreme Court, and continue
to express the opinion that the solatium dolo^is is exisrible
under our law (See ]\lr Justice .letre's opinion in Joan-
nette & Couillard R J. Q. 3, Q. B. p. 461).

Another embarrassing difficulty which exists in our
law as it now stands, is with reference to the amount of
damage to which the victim is entittled.

Our law contains no rule to guide -the court when it
comes to consider the damage done. It is left entirely to
the discretion and to the will of judge and jury. There-
fore it is very difficult for a lawyer to advise his client
with confidence. Certain judges will very readily grant
heavy damages, while others will be excessively severe.
One must also take into consideration the circumstances,
the surroundings, the sympathy, and a thousand and one
matters which may influence to a certain extent the mind
of judge and jury. It may be that the judges, as a general
rule, show themselves more humane than the law in this
respect They very often are inspired with considerations
quite outside of the question itself, as, for instance, the
fortune of the employer, the miserable and lamentable
situation of a hard working man, respectable in his rank,
and perhaps tb^-^temer of a large family The decisions
vary according m the districts and to the persons, and
similar facts give rise to indemnities so widely diflferent
as to be quite incomprehensible.

lu Conner vs. Byrd, above mentioned. Judge Ramsay
alludes to the steady increase in the damages awarded by
the courts in cases of accidents, and he notes that even
at that time, (it was in 18^6), there existed a tendency
amongst the judges to increase damages. He says : " I
*' concur entirely with the learned Chief .Justice in his
" criticism as to the tendency of our days to aggravate
** damages. Philantropists are never so charitable as when
^* spending other people's money." (M. L. E. 2, Q. B. p.


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In thai ease, Mr Justice Johnson had awarded $6,000.00
damageF. In appeal, the amount was reduced to $2,500.

Another source of controversy in our province proceeds
from the law concerning industrial establishments. This
law is to be found in the Statutes of Quebec of 1894 ; it
is the Act 5*7 Victoria, chapter 30. Its object is to lay
down ceitain rules and regulations for the workshop and
factory. It provides amongst other things, for the inspec-
tion of factories and boilers, and for certain measures of
precaution to avoid accidents.

If the employer violates this law, would he be in fault
and liable for all damages which may be caused by his
violating the prescriptions of the statute? That is the
question which presents itself.

It was brought up and decided in Corcoran vs. The
Montreal Rolling Mills The Superior Court (Mr. JUJ^tice
Caron) and a majority of the Court of Appeals (Lacoste
and Hall dissenting) held that the employer was liable
in that case. It was established that a fly-wheel in the
workshop was not protected by safety apparatus as it is
enacted by the Quebec Industrial Establishments Act,
article 8021 ; it was held that the accident would not
have happened had the law been followed and that, con-
sequently, the employer was rejpousible. (R. J. Q. 8,
Q. B. p. 488).

But the Supreme Court unanimously reversed the judg-
ment of the Court of Appeals, and decided that the Quebec
Industrial Establishments Act was simply a police regula-
tion, and could in no manner modify or change the respon-
sibility of the employer towards his employees. (26 S C.
R p. 595, 1896 )

The Privy Council, in its turn, has contributed to mix
up matters in our jurisprudence concerning the question
which we are now looking into. In Roy vs C. P. R., the
Judicial Committee of the Privy Council held that a com-
pany in the exercice of rights conferred by its charter, is
not liable for damages to a third party, unless the com-


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pany be in fault. This judgment is contrary to the juris-
prudence of our courts, which always held that a com-
pany, as well as a private individual was always held
responsible for damages caused by it in carrying out its
enterprise, if such enterprise was dangerous for third
parties. (Law Reports — Appeal cases 1902, p. 220)

The conclusion which naturally follows from what we
have seen so far, is that the present state of our law and
jurisprudence in matters of accidents to workmen, is lar
from being satisfactory. Has not the moment arrived lor
our legislators to follow the example of European coun-
Iries, and enter into our statutes legislation more in con-
formity with the conditions of modem industry, and
determining precisely the relative responsabilities and
rights of masters and workmen ? Such legislation is called
for on all sides Mr. Mignault, in his work on Canadian
Civil Law, expresses the wish to see the legislator take the
matternp. (Vol 6, p. 685). Mr. Walton, the dean of the
Law Faculty of Mc&ill University, in a remarkable article
published in La Revue Legale, new series. Vol. o, p. 425,
discusses the opportuneness of passing a law to do away
with the uncertainty which exists in our jurisprudence.
The judges freely express from the bench the hope that
some legislation will be enacted in this very important

These are the reasons which prompted me to submit to

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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 2 of 6)