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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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the House, even at this Session, the Bill which is now
before you.

I do not intend to examine the Bill in detail. As it
has been submitted merely to be thoroughly stutied, in
view of its great importance, I will simply add to what
1 have already said, a few general considerations on the
proposed law.

As we have seen, the principle of this law is that of
the risque prof essioaeL

I will not ask myself if this principle finds its justifi-
cation in the contract of hire of private service, or in the



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— 27 -

provisions of our Code which hold a person responsible
for the things he has under his care. It is enough that
it be equitable, to make me accept it as the basis of the
new law. For, after all, the foundation of all law, is
■equity.

The new principle of liability is sanctioned by article
15 of the Bill.

As it is worded in that article*, it comes to say that,
except in the case where the accident was intentionally
brought about by the victim, the latter may claim a com-
pensation from the employer.

So, if the accident is due to a fortuitous event, or
irresistible force, or to some unknown cause, or even to
some fault on the part of the workman who claims, or
whose family claims^an indemnity, in all these cases the
employer is liable.

To' my previous remarks concerning the injustices
which must necessarily result from the application of the
principle of the faute Ueliciuefle to accidents arising from
work, 1 wish to add extracts from a report by M. Duche,
to the Chambre des D^putis, in France, 28th November,
1887, on this interesting subject :

** Before we begin the study of the various projects of
** reform which have been referrecf to our committee, let
** us see what is the situation which exists and which
** must be remedied.

** The right to compt>nsation or indemnity in case of
** damage by accident is enacted by article 1382 and
** following of the civil code. In its general form, the
** law makes no difference between the employees at work
** for the undertaking where the accident occured and
•* any other person. The law gives recourse to both
** against the employer for damage suffered. It requires
" both the workman as well as the third party to prove
" that the head of the concern, either directly or through
" some person under his control, is in fault and is the



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*' cause of the accident. In the absence of such evidence,"
** the victim of the accident can claim no indemnity, no
** compensation. It is very uncommon thxt outsiders,
" strangers to the work, be struck down by an accident
** resulting from work, and the workmen are about the
" only victims of the casualties which may occur.
** Moreover, it is very frequently quite impossible to
" procure evidence as to who is in fault. The direct
** material cause is very often difficult to establish. The
*' condition ol the surroundings and of the machinery,
** which might be the best evidence to furnish towards
*' that end, in the most serious cases is considerably
•* modified by the accident itself. The witnesses are often -
" times destroyed, or, as a result of the accident, rend«»red
'* powerless to testify, and very often their responsibility
" being en cause, or, being personnally interested in the
" issue of the case, they do not say all they may know
** So there is a certain number of instances where the
** fault of the master, though it exists, cannot bejudici-
** ally brought home to him. These cases must be added
*' to the more frequent ones wherein there is no more
" trace of director personal action on the part of the
** master than there is on the part of the workman,
" and wherein nevertheless, the injury resulting is
** exclusively borne bv the latter They are the cases of
" fortuitous event and irresistible force ; that is, in the
" cases where the cause more or less undertermined, must
** be looked for in the conditions of industry, in the neces-
** sities which arise from the working of machinery or the
'* manipulation of chemicals, etc. Thus, in most instances,
'* when an accident happens, the theoretical recourse,
** given by article 1382 and following of the civil code,
** are without practical result The workman, victim of
** the accident, bears under th»? present law, the whole
** weight of the fortuitous event or irresistible force ; and
" in the same manner, that of the many accidents where
" the fault of the employer, though real, cannot be estab-
" lished There remains really very few cases where the
** workman may hope to obtain compensation.

** Foreign statistics give the following classification of
*• the causes of accidents : 68 per cent , fortuitous event



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** and irresistible force; 12 per cent, due to fault of
** employer ; 20 per cent., due to fault of the workman.
** We know of no such statistics in France ; but there is no
''. doubt that in most instances, the dispositions of articles
*' 1882 and following of the civil code give no recourse to
** the victim of an accident arising from work ".

M. Duche refers to accidents in which the workman
cannot prove negligence on the part of employer These
accidents are commonly called accidents anonymes.

I do not know for which country Mr. Duchess statistics
were made, but similar statistics were compiled in G-er-
many, in 1887, and they show that during the preceding
year, 1886, out of 16,910 serious accidents, involving inca-
pacity for work for at least three months there were :

8166, or 19 per cent, due to fault of employer ;

4,094, or 25 per cent due to fault of victim ;

711, or 4 per cent, due to fault of doth ;

524, or 3 per cent, due to fault of fellow workman on
third party ;

6,931, or 43 per cent, due to fortuitous event or irresis-
tible force, due to risks which were incident to the em-
ployment and in fact unavoidable ;

554, or 8 per cent, due to unknown cause.

Calculations made in Belgium confirm these figures,
compiled in Germany. M. Harze (See Stocquart, ** Contrat
de Travail'* p. 101 estimates that out of a hundred acci-
dents to workmen, seventy five give no claim to legal
reparation, if the theory of ih^faute delictuelle is applied.

In Switzerland it was reckoned that onlyjfrom 12 to 20
per cent, of accidents were due to fault of employer.



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M DuchS goes on :

" If however, an action is taken, the injured workman,
•* or, in case of death, his heirs, his widow and children,
** find thems<»lves fettered by the delays of law proceel-

** ings When judgment is finally reached, he is in

*' most instances the object of criticism more or less
''justified The amount of damages awarded vary infi-
*' nitely in circumstances which appear analogous. The.
** judges, finding no rule in the law, appreciate very
•* differently the damage and loss. At times they take
*' int© consideration, circumstances which are entirely out
" of the question, such as the fortune of the employer, or
" the benefits he is supposed to make in the enterprise.
** Their measure varies with the regions, and the same
" facts give rise to indemnities which run from small
*' amounts to tenfold, according to the tribunal which
** decides the question. In view of the difficulty, and at
•* times, the impossibility to fix legally the liability upon
** one or the other party, in many cases the judge divides
" the loss equally between the two parties. The juris-
" prudence has thus created a mixed liability, half to the
*' workman, and half to the employer, and this has had
" for effect to reduce by half the indemnity to the victim,
** in case of accident Moreover, the expensive procedure,
" the loss of time which cannot be avoided in a lawsuit,
** makes it all the heavier for the employer to settle claims
" for an indemnity whichisitself awarded with difficulty
*' today that a lawsuit seems to be the necessary sequence
" of every serious accident. The relations betweea
** employers and workmen, it will be readily understood,
" have not been made more cordial by this state of
** affairs. And, again, the difficiencies which exists in
** the law under present conditions, as a question of justice
** and of social and economic solidarity, have long since
** been the object of the attention of reformers. "

** On all hands, it is acknowledged that the remedy
" afforded by the civil code in matters of compensation
** for accidents to workmen, is no longer adequate under
•* existing conditions of modern industry. The trans-
'* formation which has been operated in industry since



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" the beginning of the century and which goes on deve-
" loping before our eyes, has created special conditions of
*' mechanical productions, and the dangers which the
** workmen are exposed to, are, as it were, necessitated by
'* the nature of the work. The rules that were sufficient
** when the artisan or workman was master of his tools,
** have become under the regime of large industries, more
** and more inefficacious to forward the ends of justice.
** This has long since been acknowledged by all "

M. Cheysson, engineer, in his turn, wrote as follows in
the ** Journal des liconomistes," 15th March, 1888:

** The risque professionnel is the risk which is inherent
** in any gi\en trade or profession without any question
** of fault oil the part of master or workman. Notwith-
** standing the precautions taken, accidents will happen,
**- and in most cases, they cannot be attributed to a fault.
** It is by means of a charitable fiction that the court con-
** trives to find a fault, and even to create one when there
'^ exists none, in order to indemnify the victims. Since
" the industry necessitates risks which are unavoidable,
'* the workman cannot and must not be made to bear
** them, in view of modern machinery and the force by
** which it is moved.

" When the track-layer handles his pick or spade, the
" woodcutter his axe, the implement in his hands is a
** lengthening of his own limbs, and we admit that he
•* may be responsible for them.

'* But how different it is when he has to deal at close
'' quarters with complicated machines, furnaces, boilers,
** cylinders, when he has to handle molten metal, irresis-
*• tible forces, whose least touch is fatal.

" The workman has no longer the choice of his imple-
'* ments, they are imposed upon him. It is the employer
" who must bear the responsibility for the machia3 that
'' injures and kills ; the machine is his ; should he not be
** held responsible for it, and provide for the risque profes*
" sionnel in the cost of the work ? "



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— 82 —

(The above are extracts from ** Lois Anuotees ", Sirey,
1899, p. 762 and 763.

I thought I should bring up this matter once more, and
cite at length the extracts which I have just read, and
the fine juridical language of which is so attractive,
because I wish to demonstrate that the principle which
is introduced in the proposed legislation, the principle of
the risque prof essionnely imposes itself to our attention, and
we can ignore it no longer.

As to the other provisions of the Bill, they are details
which may be modified and altered as much as we please.
What is essential is that the principle be recognized and
adopted

However, I must say a few words about the details of
the measure, in which is applied the fundamental prin-
ciple of liability, that of the risque professionneL

The employer is responsible for the accidents arising
from work. iJoes this liability exist in every case of
accident ?

We must answer in the affirmative, as a general rule
Thero is but one exception : it is the case where the
accident was caused intentionally by the victim.

The English law holds the employer responsible, except
when the accident is due to *' serious and wilful miscon •
duct " on the part of the workman. The French law
declares him liable except when the victim intentionnally
caused the accident. It is the same rule as that of the
proposed legislation.

If the accident, instead of being caused wilfully by
the victim, was intentionally brought about by the
employer, the latter remains subject to tht3 general rules
of civil responsibility and he cannot claim the benefit of
the provisions of the proposed Act. As we shall see in a
moment, if the new legislation imposes liability upon
the master in case where he would go free under the



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— 33 —

existing law, there are other sections in the same law
which are to his advantage.

Oatside of the case where the victim intentionally
causes the accident, the employer is always held respon-
sible.

Therefore, he will be liable even when the accident,
though not caused intentionnally by the workman, was
nevertheless due to some fauP of his.

This disposition is, of all the innovations to be found in
the new law, the one which has been the most severely
criticized.

It has, nevertheless, been adopted in every legislation
which has sanctioned the principle of the risque profes'
sionneL Otherwise, the protection which the law intends
to afford to the workman, would be incomplete and
illusory.

An imprudence is quite inevitable in modern industry.
The repetition of the same motions, of the sime work,
the looking after the same machinery, causes a remiss-
ness, a familiarity with danger. The slightest careless
move, made without precision, is frequently the cause of
a catastrophy. Is it a fault ? It is. in the strict meanino: ot
the word ; it is not, if we take into account the real
condition of things.

Besides, we must not lose sight of the fact that the
theory of the risque professionnel has nothing whatever to
do with the question of fault. The master is liable out-
side of any question of fault. He is responsible in his
capacity as employer and head of the concern, and as
such he is obliged to assume the risks of the running of
his establishment, the same as he is entitled to the profits
which it may bring him. He must provide in his calcu-
lations for the accidents which may befall his employees,
even through their negligence, even through their fault,
the same as he protects himself against all risk of loss by
fire, and for the wear and tear of his buildings and ma-
terial.



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The risque professionnel once admitted, gives rise to an
abstract personality bet'ween the employer and workman,
the industry itself, and makes this abstract personality
responsible for the consequences of the accident. It is
not really the employer, himself, who bears the loss, it is
the industry itself. I repeat it, the risque professionnel is
a charge upon the undertaking, it is inherent in the
business.

However, when the accident was caused by an inex-
cusable fault on the part of the workman, the court may
decrease the compensation, instead of awarding the
amount fixed by the law. (s. 16).

It is the same. should the accident be due to an inexcu-
sable fault on the part of the employer, the amount
allotted by the law, may be increased by the tribunal, (s.
15).

In any case, should that dispostion of the Bill, holding
the employer responsible even when the workman is in
fault, be considered too onerous and too severe for the
master, it might easily be struck out. Even if the law
is applied only in cases of accidents anonpmes, that is to
say, in a majority of the accidents arising Irom work, it
would still prove to be a boon to the workingman, and a
great relief to the conscience ol the legislator.

Let us now consider briefly, in what manner the pro-
posed law regulates regarding the compensation for dam-
ages from accidents arising from work or in connection
with work.

The indemnity varies according to whether the casualty
is fatal or not.

If the victim dies, an annuity is allowed to his widow,
to his children under sixteen years of age, and to his
ascendents whose sole support he was at the time of the
accident.



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-^ 35 ~

Should the victim leave no widow nor children, nor
ascendents, no compensation is due.

When, on the other hand, the accident has not caused
the death of the workingman, it must be ascertained
whether the accident has occasioned temporary or perma-
nent incapacity.

If the incapacity is permanent, the victim is entitled to
an amount representing the value of an annuity at the
age attained by the victim at the time of the accident.

If, on the contrary, the incapacity is temporary, total or
partial, the victim is entitled only to a daily compensa-
tion.

The amount of the indemnity in case of permanent and
total incapacity, or in case of death, is fixed at sixty per
cent, of the victim's average wages during the year pre-
ceding the accident, providing the same wages do not
exceed $500.00. If the yearlv earnings exceed that amount,
he shall be entitled to one fourth only of the excess. Thus,
if the wages are $900.00 they will be taken as being
$600 00, and the victim will be entitled to an annuity of
sixty per cent of that amount, or $360.00 per annum.

This amount of compensation is about the same as that
allowed in the countries where the principle of the risque
professionnellis admitted. In Germany, they allow 66f
per cent. ; in Austria, 60 per cent. ; in Norway, 60 per
cent. ; in Finland, 60 per cent. ; in England 60 per cent. ;
in France, 66f per cent. : in Holland, 70 per cent. ; (See
Bulletin of Labor of Washington).

Here again, other figures may be fixed, if the one which
is provided for in the Bill is not considered just and fair.

The law contains certain provisions to secure the pay-
ment of the compensation which is allowed. It is
unnecessary for me to make a study of these provisions.



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— se-

There remains out one last remark to make concerning
this Bill, and that is to say that it applies only to those
who are at the head of industrial undertakings, and to
accidents arising from work or in connection with work.
It must concern a dangerous industrial undertaking,
workmen employed at the undertaking and an accident
which has happened during the work in the execution
of ihe enterprise.

All these questions would call for a lengthy explanation.
But my intention is simply to confine myself to the
principle of the legislation which is proposed ; so I shall
dispense with any other comments upon the different
clauses of the Bill.

As you may have noticed by my rapid analasis of the
clauses of the Bill relative to the indemnities which the
employer may be liable to pay, they have a double charac-
ter which gives them a superiority over the existing law :
they are absolutely fixed by the law, in the nature of a
compromise. They are fixed by law at a rate that is
certain. The amount to be allotted may be ascertained
very simply and at very small expense. The employer
will be much relieved by that disposition of the law.
The present law is very uncertain, as we have seen.
Every judge has his own opinion as to the evidence
necessary to establish fault. And both judges and juries
give damages which vary so much that an employer
who is threatened with an action can hardly calcu-
late how much he ought to offer, if he is willing to
compromise.

Moreover, in fixing the amount of the compensation
due, the law allows the employer to protect his interests
by means of insurance, and the premiums will thus be
very easily calculated.

The indemnities which are allowed by the proposed
Bill are also by way of a compromise, that is to say that
if they are borne by the employer in almost every case,
they never attain the full amount of the loss incurred,
and the employer is liable for no other damage than that



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— 37 —

which is fixed by law. And even in the case where the
master is liable, while he would not have been upon the
old iheoTj oi the faute d^lictuelle, is his position so very-
much aggravated ? At present, as we have seen, the law
holds the master responsible only when he is in fault.
But the courts do so much violence to the theory of the
code, that the employer is always presumed to be in
fault unless he can prove that there has been some fault
on the part of the victim. And even when he succeeds in
making such proof, and in getting the action brought
against him dismissed, is it not by ample compensation
to his lawyer that he obtains a judgment establishing
his non-liability for a compensation to the victim ?

I conclude by saying that the proposed legislation is,
not only a fair and just acknowledgement of the situa-
tion which the workman is placed in by the dangers of
modern industry, but it is also an immense improvement
for the employer himself. 1 know that this Bill is viewed
with suspicion by the manufacturers and by those who
are at the head of our industrial establishments ; but f
feel sure that when it will have been thoroughly studied
and well understood, it will be supported and asked for
by all classes of society. In lingland, it was Mr. Cham-
berland, one of the largest manufacturers in the United
Kingdom, who succeeded, through his influence and pro-
tection, in carrying the Bill through the House of Com -
mons^ It wasalsoadoptedby the House of Lords, which is
considered, and justly, as being the body the most jealous
of the conservation of English traditions, of the protection
which is due to the large industrial interests of the Bri-
tish nation, and which is the most reluctant to accept
innovations. Nearly all the countries of Europe have
sanctioned the piinciple of the risque prof essionel in acci-
dents arising from work. This is sufficient for me not to
fear that any one will accuse me of attempting to intro-
duce revolutionary and socialistic legislation, and I leave
my case with confidence in the hands of this House, and
to my fellow-citizens, exclaming with Dr. Walton: '* No
** legislation of greater importance has been passed during
" this generation. It affects the security and happiness of
** millions of working-men and working women, and



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^ 38 -^

•* other millions of old parents, of widows and of young
** children whose bread-winner has been removed from
" them by a fatal accident ".

Let us remain no longer the defenders of a law which
may have met the wants and requirements of the social
status for which it was enacted, but which is no longer
in touch with the responsability borne by the conscience
of modern civilisation. Let us hasten to insert in our
legislation the unchangeable rules of christian charity,
and whilst having due regard for the glories of the past,
let us inhale the self denying atmosphere of the generous
age in which we are living, and bend our souls towards
the inspiriting fount of justice and equity.



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— 39 —



BILL

An Act respecting compensation for damages result
accidents to workmen

HIS MAJESTY, with the advice and consen
Legislative Council and of the Legislative A
of Quebec, enacts as follows :

SECTION I

COMPENSATION

!• Accidents arising from work or in connects
work to workmen, apprentices, foremen, engineei
agers and any employees whomsoever engaged in h
operations; in workshops.factories, works.ship-yarc
lumber or coal-yards ; in transportation by land oi
in loading or unloading ; in gas or electric- works
construction, repair or maintenance of railways o
ways, water- works, sewers, canals, dykes, wharves
elevators, bridges, by-roads and roads; in ware
mines, diggings, quarries, and also in all undertal^
parts of undertakings in which explosive substat
made or used or in which machinery is used that h
by any power other than by man or by animals, ent
victim or his representatives to compensation dete
in accordance with the following provisions.

2. In the cases provided by articles I of this i
victim is entitled :

(a) If the accident has occasioned temporary ar
incapacity for work for more than foui days, to
compensation, counting from the fifth day equal 1
per cent, of the daily wages received by the vi
the time of the accident ;

(ft) If the temporary incapacity be or become
only, to a daily compensation equal to sixty per
the difference between the daily wages received



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— 40 —

victim at the time of the accident and those he is able ta
earn before being completely cured ;

l() If the incapacity be or become permanent, to an.
amount representing the value of an annuity of the age


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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 3 of 6)