1975)
FAULT OR RISK AS BASIS OF EMPLOYER LIABILITY?
Trottier v. J.L. Lefebvre Ltde:
Fault or Risk as Basis of Employer Liability?
The onerous obligation of an employer to protect his employees
from any foreseeable accidents in the course of their duties was
emphasized in the recent majority judgment of the Supreme Court
of Canada in Trottier v. J.L. Lefebvre Ltde.1
In that case Trottier, who was 17 years old at the time of the
accident, had been employed by the respondent butcher for seven-
teen months. His duties included mincing meat, which involved
placing meat on a table and pushing it into a hole in the center of
the table with an instrument known as a “rammer”. The mincing
apparatus into which the meat was pushed was composed of grinders
and knives.
The table in question measured five feet in height, only slightly
lower than Trottier himself, who stood five feet, six inches. As a
result, Trottier could not see into the hole which contained the
mincing apparatus. The lighting in the room where he worked was
inadequate.
Trottier had been instructed bow to operate the machine. He
had been told that he was only to use the rammer to push the meat
into the hole, and that it would be dangerous to do otherwise since
sharp instruments were positioned at the bottom of the hole.
On the day of the accident, Trottier was alone in the room
mincing meat. When he had completed mincing one supply, he left
the machine to obtain more meat from the storage cupboard.
Although it was his normal practice to turn the machine off when it
was not in use, on this occasion he did not. When he returned
from the storage room, he could not locate the rammer. Thinking
it might be in the hole, he put his iight hand in to see if it was there.
His hand came into contact with the grinders, and it was only by
reaching across the table to disengage the machine that he was able
to remove it. As a result of the accident, three fingers were ampu-
tated, and seven subsequent surgical operations were required.
In the Superior Court,2 Puddicombe J. maintained the action in
damages for personal injuries and awarded a sum of $24,812.50. He
found the respondent liable under both articles 1053 and 1054(1)
1[1973] S.C.R. 609, 31 D.L.R. (3d) 707.
2 C.S.M. 663, 114 (unreported).
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C.C. (damage caused by a thing). The negligence under article 1053
C.C. was based upon a number of findings of fault: poor lighting; the
height of the table in relation to Trottier; the distance of the operat-
ing switch from the front of the table and the resulting difficulty in
reaching it; inadequate instructions given ‘to Trottier; and the
absence of a protective device around the table containing the
mincing apparatus. Article 1054(1) C.C. was said to apply because
the machine was a thing under the care and control of the defendant.
The Quebec Court of Appeal unanimously reversed the judgment
of Puddicombe J. and completely exonerated the defendant.3 The
claim based on article 1054(1) C.C. was disposed of as the damage
was not caused by le fait autonome de la chose, but rather by some
act of human intervention 4 In addition, the court found that no
liability could attach under article 1053 C.C. and instead attributed
the accident entirely to the fault of the victim in inserting his hand
into the hole containing the grinder.
The appeal taken against the judgment of the Court of Appeal
was maintained by the majority in the Supreme Court of Canada.,
The Court was unanimous in the view that article 1054(1) C.C. did
not apply, 6 but differed as to the actual cause of the accident.
Pigeon J., speaking for the majority, found that both the victim
and his employer had been negligent: Trottier in putting his hand
in the hole when the machine was operating “when he could not
have been unaware of the risk he was running in doing so”; and
the respondent company by reason of the unusual height of the
mincer and the small size of the rammer, which could easily fit into
the opening leading to the mincing apparatus.7 Applying the test
stated by Galipeault J.A. in Trust Gdngral du Canada v. St. Jacques8
that ,,C’est le devoir des patrons de protdger les ouvriers contre leur
imprudence, leur ndgligence, leur jaiblesse et leur inhabilitg&,, Pi-
geon J. added that
It is not enough to say that the employee could have avoided an accident by
being vigilant and attentive, regardless of the danger which the installation
3 [1970] C.A. 711; only a summary of the judgment is reported. The Court
consisted of Rinfret, Owen, and Turgeon JJ.A.
4See on this point Cr6peau, Liability for Damages Caused by Things
(1962) 40 Can. Bar Rev. 222.
5 Supra, f.n.1. The majority was comprised of Judson, Pigeon, and Laskin JJ.
(as the latter then was), while Fauteux CJ. and Abbott J. dissented.
6 Ibid., per Fauteux C.J. at 612 and 709, and per Pigeon J. at 616 and 712.
7Ibid., 619 and 713-14.
8 (1931) 50 B.R. 18, 22; aff’d. [1931] S.C.R. 711.
1975]
FAULT OR RISK AS BASIS OF EMPLOYER LIABILITY?
309
he was required to work otherwise represented. An employer must avoid
anything which tends to increase the risk of accident.Sa
He concluded that the respondent company was two-thirds at fault
and awarded damages in the amount of $16,514.67.
In his dissenting judgment, Fauteux C.J. invoked two grounds for
maintaining the judgment of the Court of Appeal. First, he could
not justify intervention by the Supreme Court on an interpretation
of the facts that the Court of Appeal had seen fit to reverse. Second,
while not disputing that an employer is obliged to avoid exposing his
employees to dangerous situations, Fauteux C.J. adopted the view
of Pratte J.A. in Procureur Gdngral de la Province de Quebec v. Mo-
nette9 in which he stated that the employer’s duty did not extend
to protecting an employee from his own carelessness, or foreseeing
that an employee would ignore recommendations of caution where
means of protection from danger had been supplied. This analysis
is best summarized by the remark of Pratte J.A. that,
Le maitre est tenu de pr6voir, comme un bon p~re de famille, mais on ne
peut exiger de lui qu’il ait le don de divination.10
On this basis Fauteux C.J. found that the employer had fulfilled his
obligation to the appellant, and that the cause of the accident rested
with Trottier.11
There is no doubt that the Court of Appeal and all the judges of
the Supreme Court were correct in rejecting any finding of liability
based on damage caused by a thing. 2 The machine in question was
operated by the victim and in fact was functioning normally at the
time of the accident. Clearly, no autonomous act of the machine
was involved.
The dispute in the Supreme Court was centered not on the
question of whether or not a duty existed, but rather on the limita-
tions of the duty. In the particular circumstances of employer-
employee liability the question is really one of foreseeability; that
is, what measures should an employer take to protect his employees
from foreseeable dangers?’13 Considering the problem in this light,
Sa Supra, f.n.1, 618 and 713.
9 [1955] B.R. 66, 71-2.
10 Ibid., 72.
11 Supra, fan.1 at 613-14 and 709-10.
12 Supra, f.n.4. See also Baudoin, La Responsabiliti Civile Dglictuelle (1973),
265-76; and Nadeau, Traitd Pratique de la Responsabilitg Civile Dglictuelle
(1971), 416-19.
13 See for example Procureur Ggngral de la Province de Qudbec v. Monette,
supra, fn.9; Canadian Shade Tree Service v. Diabo et Uxor [1961] B.R. 501, 502;
and Duquette v. Boucher [1958] R.L. 367, where BrossardJ., then of the
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it is submitted that the preferable position is that adopted by
Fauteux C.J., who took the view that to hold the respondent company
liable would be tantamount to requiring it to protect its employees
against every conceivable damage, no matter how remote.
The Supreme Court has previously considered the issue of fore-
seeability of damages, and it is surprising that reference was not
made to these decisions. In Ouellez v. Cloutier,14 the Court considered
whether a farmer should have been held responsible for injuries
sustained by a 10 year old boy who had come onto the premises to
assist in the farmer’s thrashing operations. The boy was injured
when he tried to stop a thrashing machine that had already been
disengaged. In exonerating the farmer from liability, Taschereau J.
(as he then was) said:
La loi n’exige pas qu’un homme prdvoie tout ce qui est possible. On doit
se prdmunir contre un danger h condition que celui-ci soit assez probable,
qu’il entre ainsi dans la catdgorie des dventualitds normalement pr6visibles.
Exiger davantage et prdtendre que l’homme prudent doive pr6voir toute
possibilitd quelque vague qu’elle puisse Ptre, rendrait impossible toute
activit6 pratique.15
Similar reasoning is to be found in the notes of Rinfret C.J. and
Taschereau J. in T. Eaton Company Ltd. v. Moore.”, A woman cus-
tomer in Eaton’s department store had slipped on a liquid substance
which had been in a bottle accidently dropped by another customer.
A clerk who had witnessed the bottle breaking immediately called
the maintenance staff, who arrived on the scene within three minutes.
The accident had occurred in the interim. The majority of the
Court absolved the company of responsibility, and Rinfret C.J. said:
The crux of the matter is that in a given case, nobody can be found
negligent for having failed to foresee absolutely every possible kind of
happening. The law does not require more of any man than that he should
have acted in a reasonable way.17
Even though these principles of civil responsibility under article
1053 C.C. are of general application, it appears that in this case, the
Court was inclined to require a more rigid degree of foreseeability.
Was it foreseeable as probable or possible that this employee would:
Superior Court, said at 372-73:
Ainsi donc, m6me si
’employeur n’est pas l’assureur de son employd
contre les imprudences imprdvisibles dont ce dernier peut se rendre cou-
pable, il n’en retient pas moins robligation suivante: fournir les moyens
de protection r~quis pour protdger son employ6 m~me contre les impru-
dences prdvisibles dont ce dernier peut se rendre coupable.
14 [1947] S.C.R. 521.
15 Ibid., 526.
16 [1951] S.C.R. 470.
17 1bid., 475.
19753
FAULT OR RISK AS BASIS OF EMPLOYER LIABILITY?
311
a) not switch off the mincing apparatus, as was his custom, before
leaving to get more meat to mince; b) place his hand in the opening
of the operating machine which he knew contained sharp knives that
could seriously injure him; and c) ignore the instructions and warn-
ings of his employer about the dangers of the machine? The answer,
it is submitted, is that such events when considered cumulatively can
only be classified as possibly foreseeable rather than probably
foreseeable. Quite apart from considerations such as the height of
the table and the dim lighting, which admittedly were omissions
on the part of the employer (but surely not the decisive cause of
the accident), what could the employer have done that would have
prevented this employee from doing what he did? The answer is not
a simple one and, it is submitted, will not be found in the notes of
Pigeon J.18
When one considers that the intensity of the obligation of a bon
pare de famille”9 is that of diligence or means, it is difficult to
reconcile the majority view in the instant case with this standard.
Even though the unhappy accident suffered by Trottier is one that
would evoke the sympathy of any court, the stark fact remains that
there is little in the way of fault that could have been attributed to
the employer, especially when the very criteria established by the
Supreme Court itself is -applied.20 Yet a conclusion inconsistent with
these principles was reached.
On what basis can this conclusion be explained? Perhaps the
majority took the view that judicial expression ought to be given to
the no-fault principle embodied in the Workmen’s Compensation
Act,2 1 even though it is apparent this employer was not subject to the
Act. Or perhaps the majority decided to apply the risk theory of civil
responsibility, which has not however been expressly accepted as
part of the Civil Law of Quebec 22
The risk theory eliminates the need for fault; that is, a breach
of duty on the part of the defendant is not necessary. The French
author Boris Starck explains the notion in the following way:
[Selon cette thdorie] le fondement de la responsabilitd civile se trouverait
dans l’idde de risque: il est normal, et m~me conforme h la r~gle morale,
18 For instances where liability between the employer and the employee has
been apportioned on an equal basis, see, for example, Boutin v. Bernard [1958]
C.S. 555; Duquette v. Boucher, supra, f.n.13; Gemme v. Gemme [1959] C.S. 419.
19 The employer in these situations is most frequently said to be obliged to
act as a bon pare de famille.
2
0 Supra, f.ns. 16 and 18.
21 R.S.Q. 1964, c.159.
22 Nadeau, supra, f.n.12, 44.
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que celui qui a le profit d’une activit6 supporte en contrepartie la charge
des dommages qui en ddcoulent: Ubi emolumentum ibi onus (lh oi il
y a le gain, il y a aussi la charge).
I1 n’est donc pas ndcessaire de prouver, ni mme de pr6sumer, la faute
du responsable. Celui-ci doit r6parer parce qu’il a le profit de son activitd.
La victime n’a qu’une seule preuve h faire: que le dommage subi r6sulte
de
‘activit6 du ddfendeur2 3
It would certainly seem that the facts in Trottier v. J.L. Lefebvre
Ltde and the outcome of the case are more consistent with the
risk theory than with fault. Here was an employer, whose goal was
profit, whose employee suffered damages in the performance of his
duties. No proof beyond the foregoing would have been required.
Instead, using the accepted fault principle, the majority of the
Supreme Court appeared to be groping to find some “fault” for
which it could hold the defendani largely responsible. In so doing,
it was prepared to impose an onerous liability on rather shaky
grounds. Until the Court decides to forthrightly consider and justify
the application of the theory of risk in cases of civil responsibility,
it is to be hoped it will pay closer attention to whether the “faults”
it finds are real or imagined.
Allan Hilton *
supra, f.n.12, 44; and Nadeau, supra, f.n.12, 434.
2 3 Starck, Droit Civil: Obligations (1972), 28, para.44; see also Baudouin,
24 Supra, ‘f.n.1.
* B.C.L., LL.B. (McGill).
