CASE AND COMMENT
RAINVILLE AUTOMOBILE LTD. v. DAME PRIMIANO
NEGLIGENCE –
FATAL ACCIDENTS
– WHETHER CONTRIBUTORY NEGLIGENCE
CAN BE INVOKED IN AN ACTION UNDER ARTICLE 1056 C.C.
In the case of Rainville Automobile Ltd. v. Dame Angelantonio Primiano’
the Supreme Court of Canada was called upon for the second time2 to answer
the question whether, in an action under art. 1056 C.C., contributory negligence
on the part of the victim can be set up against the claimants so as to limit the
defendant’s liability. The facts of the case are simple and were not disputed by
the parties. An employee of Rainville Automobile Ltd., while driving a truck
in Montreal, struck and fatally injured the husband of the plaintiff-respondent,
who was walking in the street. Despite the fact that the defendant-appellant did
not succeed in clearing himself of the presumption of s. 53(2) of the Motor
Vehicle Act,3 the victim was also at fault for carelessly walking in the street.
Plaintiff’s action was dismissed in the Superior Court. On appeal, the Court
of Queen’s Bench reversed the trial court’s decision and ordered Rainville
Automobile Ltd. to pay damages to the victim’s wife.4 However, the Court
found contributory negligence on the part of the victim and reduced the amount
of damages accordingly. The plaintiff-respondent, suing under art. 1056 C.C.,
that the right granted under
made the standard plea in actions of this type –
art. 1056 C.C. was:
,personnel, et individuel A. chacune des personnes qui
… un recours indgpendant
y sont mentionnges, qui rgclament non pas comme hritiers lgaux, mais parce
que le droit leur est conf&r6 en vertu de cet article.
The main issue of this case is: What is the nature of the right of action
granted under art. 1056 C.C.? If the right is admitted to be independant and
personal to the persons mentioned in the article, can the contributory negligence
of the victim be invoked to modify the amount of damages claimed? The
Supreme Court answered this question in the affirmative. In its judgment the
Court found it necessary to deal with a second problem, arising from art. 1106
C.C. which states:
The obligation arising from the common offence or quasi-offence of two or more
persons is joint and several.
1[1958] S.C.R. 416.
2Price v. Roy (1899), 29 S.C.R. 494.
3R.S.Q. 1941 ch. 142 s. 53(2): Whenever loss or damages is sustained by any person
by reason of a motor vehicle on a public highway, the burden of proof that such
loss or damage did not arise through the negligence or improper conduct of the owner
or driver of such motor vehicle shall be upon such owner or driver.
4[19571 Q.B. 163.
No. 2]
CASE AND COMMENT
If both the victim and the defendant were parties involved in the quasi-offence,
can the defendant be sued jointly and severally for the entire amount of
damages? The Supreme Court gave a negative answer to this question.
Since Price v. Roy,5 the Superior courts of Quebec applied the doctrine of
contributory negligence, whenever it seemed equitable, in actions under art.
1056 C.C. However, the theory behind the application was never discussed, and
finally in 1939 a mild reaction took place in the Quebec courts. Surveyer J.
summed up the situation in Vineberg v. Larocque,6 when he said:
jusqu’A 1939 l’indemnit6 accordie ;i ceux qui r6clamaicnt en vertue de l’art.
1056 C.C. 6tait r6ductible en raison de la faute commune de la victime. Mais
depuis cette 6poque, deux jugements du regrett6 juge E.M. McDougall, alors
juge A la Cour suprieur: Adams v. Weir, C.S.M. 171726, et Ryan v. Bardonnex;
la Cour d’appel dans le Roi v.
un
Savard; un jugement de M. le juge Loranger, doyen des juges de la Province,
Lair v. Laporte et un article de M. Guy Favreau dans la Canadian Bar Review
nous forcent a remettre la question i l’tude.
‘obiter dictum’ du mEme juge alors juge i
In Lair v. Laporte7 the plaintiff’s wife was struck and killed, as she walked
along the side of the road, -by an automobile driven by the defendant. Loranger
J. said at page 288:
… I’action est intentie en vertu de l’art. 1056 C.C. par le conjoint et les enfants
de ]a victime, pour des dommages resultant de ]a mort de la victime; peu importe
la faute de la victime, les demandeurs ne la repr~sentant pas, ne peuvent 6tre
responsables de la faute qu’elle aurait commettre.
In Ryan v. Bardonnex8 plaintiff sued the defendant driver for striking and
killing her husband as he crossed the street. McDougall J. said at page 267:
The plaintiff’s action rests upon the provisions of art. 1056 C.C. and is entirely
personal to her. It is thus inappropriate for the defendant to urge through counsel
that, if the defendant is to be held liable, the claim must be reduced because of the
alleged contributory fault of the deceased…
In both these cases there was no proof of the contributory negligence of the
victim; so that the interpretations placed by these decisions on art. 1056 C.C.
where is contributory negligence of the victim are “obiter dicta”. Nevertheless,
they represent a reasoned statement of the doctrine. In le Roi v. Savard,9
McDougall J. in another “obiter”, repeated his views expressed in Ryan v.
Bardonnex, but at the same time mentioned that this problem could only be
settled by a higher tribunal.
The Judicial Committee of the Privy Council, in three decisions, pronounced
itself upon the personal and independant nature of the right granted under
art. 1056 C.C.10 Despite the fact that contributory negligence was never an
5Supra.
6[1950] Q.B. 1.
7[1944] R.L. 286.
8[1941], 79 S.C. 266.
9[1944] K.B. 328.
10 Robinson v. C.P.R. [1892] A.C. 481 at p. 487, Miller v. G.T.R. [1906] A.C. 187
at p. 191, C.P.R. v. Parent [1917] A.C. 195 at p. 200.
McGILL LAW JOURNAL
[Vol. 5
issue in any of these cases the words of Lord Watson in Robinson v. Canadian
Pacific Railway Co.” show that the approach taken in Lair v. Laporte and
Ryan v. Bardonnex was not entirely an innovation.:
… the Code distinctly specifies certain conditions affecting
the right of action
competent to the deceased, which are also to operate as a bar against any suit at
the instance of his widow and his descendant or ascendant relations after his
death … and, according to a well-known canon of construction, it must be taken
that they were inserted in the Code for the purpose of making it clear that no
conditions affecting the personal claim of the deceased, other than those specified,
are to stand in the way of the statutory right conferred upon his widow and
relations
In delivering the judgment of the Supreme Court in the Rainville Automobile
case, Taschereau J. has given the first reasoned application of the doctrine
of contributory negligence to art. 1056 C.C. Since this doctrine does not flow
directly from the Code article itself it has been necessary for the learned judge
to argue negatively. The basic premise of his argument seems to be that the
doctrine of contributory negligence has been positively incorporated into the
law of civil responsibility in Quebec, via the medium of jurisprudence, and
hence, it is only necessary to refute any arguments against its application.
He does not attempt to justify its existence per se, but merely says at page 422:
Cette solution me parait juste, et dicoule bien, me semble-t-il, des principes
fondamentaux du droit qui nous rigit.
Taschereau J., dealing with the problem of the nature of the right in art.
1056 C:C., draws his conclusions by examining the Civil Code itself. It is arts.
1053 to 1055 inclusive that lay down the general theory of obligation flowing
from delicts or quasi-delicts. Art. 1056 C.C. is subordinate to these general
articles because it presupposes the existence of a delict or quasi-delict by a
person held legally responsible. The main purpose of this article is to give
the widow, ascendants or descendants, who are not the legal heirs of the victim,
an independant right to recover damages if the victim himself is unable to do
so before he dies. Art. 1056 C.C. was never meant to change or modify the
general theory of delictual responsibility found in art. 1053 C.C. If an insane
person commits a delict he is not responsible under art. 1053 C.C., and it
seems both obvious and logical that he cannot be held responsible under art.
1056 C.C. despite the independant and personal nature of the right granted
in that article.
It has been suggested that there is a relationship between art. 1056 C.C.
and the articles of the Code dealing with alimentary support. 12 Undoubtedly
these articles influence the courts in their appreciation of the amount of damages
to be awarded, but it would be straining the point to say that art. 1056 C.C.
is a corollory of the articles on alimentary support.
The Supreme Court tacitly admits that the doctrine of contributory negligence,
although not expressly indicated anywhere in the Civil Code, is still a part
1Supra, at p. 488.
:12Arts. 166, 168, 169 C.C.
No. 2]
CASE AND COMMENT
of the law of Quebec and is applied through the medium of art. 1053 and
1054 C.C., when it says:
L’art. 1056 ne mentionne pas, il est vrai, la faute contributive, mais cette absence
se retrouve igalement aux arts. 1053 et 1054 et on ne saurait donc en tirer un
argument.
Since contributory negligence is applied under art. 1053 C.C., and since art.
1056 C.C. is not meant to modify the general principle of art. 1053 C.C. but
is modified by that very article itself, therefore, in an action under art. 1056
C.C. contributory negligence on the part of the victim can be set up against
the claimants.
Taschereau J. approaches the second problem, that created by the wording
of art. 1106 C.C., in a very fundamental manner when he says at page 423:
La solidarit6 ne peut exister en vertu de 1’art. 1106 que s’il y a concours de faute.
In otfier words, joint and several liability in a damage action can only exist
where there is cooperation of legal fault. And it follows logically that in an
accident case there is no cooperation between victim and defendant, otherwise
it would not be an accident. To have the required cooperation it is obvious
that two or more persons committing an offence towards the same third party
would be necessary. In the present case, the victim committed no legal wrong
by being in the middle of the street at the time the driver hit him, and hence
was not a party to the “common offence or quasi-offence” of art. 1106 C.C.
Therefore, the defendant, being responsible for the acts of his employee who
committed the “legal fault” by striking the victim, remains the sole debtor of
the obligation arising from the quasi-delict. It seems logical to conclude that
since the notion of joint and several liability presupposes the existence of two
or more debtors, this theory cannot be invoked in the present case where there
is ‘de facto’ only one debtor extant. It is interesting to note that Surveyer J.
in Vineberg v. Larocque agrees with Taschereau J. as to the impossibility of
applying art. 1106 C.C. to an action under art. 1056 C.C., however, he gives no
reasons for this impossibility.
The Supreme Court, after showing that the defendant cannot be sued jointly
and severally, goes one step further. Even if the defendant were forced to pay
the entire amount of damages, he could not bring-an “action r&ursoire” against
the estate of the victim since the victim has caused no damage to the defendant
in the sense of art. 1053 C.C. Thus it would appear that Mr. Guy Favreau’s
comment on the case of Lair v. Laporte’3 is incorrect.
The decision rendered by the Supreme Court, in the present case, seems
to be based upon the doctrine of equity rather than upon any principle of law
found in the Civil Code. Any other solution of the two issues raised in this
case, would have led to results incompatible with other articles of the Civil Code.
13(1946), 23 Can. Bar Rev. 156: The defendant can then turn to the heirs of the
deceased and claim from them an. amount corresponding to the victim’s portion of
the fault.
McGILL LAW JOURNAL
[Voi. 5
To admit the joint and several liability of the defendant and the victim under
art. 1106 C.C. would mean that the persons qualified by art. 1056 C.C. could
sue the heirs of the victim for the entire amount of damages. This would imply
that the deceased had a legal duty to keep himself alive, and not to be negligent.
The fallibility of applying art. 1106 C.C. to accident cases of such type is quite
apparent.
To look at the literal meaning of art. 1056 C.C., by separating it from its
context of responsibility and to give an absolute interpretation of the independ-
ant and personal nature of the right, would lead to illogical and unjust results.
Firstly, it would be illogical to allow those people qualified under art. 1056 C.C.
to recover damages if the victim were totally responsible for the accident.
Secondly, of the heirs of the victim, suing under art. 1053 C.C., are to have
the amount of damages reduced because of the contributory negligence of the
victim, is it logical that a .relation, not an heir, suing under art. 1056 C.C.,
should be able to recover all damages? To say that the right of art. 1056 C.C.
is absolute, would be unjust according to the rest of the Civil Code. A person
is only responsible for damage caused by his own fault, and to force him to pay
all damages, in a case such as this, would mean that he was paying for another
person’s fault.
It is interesting to note that Taschereau J. has found the solution to these
problems by examining the Civil C ode itself. He did not rely on any of the
authors, or upon any outside source other than previous court decisions.
Whether the learned judge did this by choice, or by necessity because of lack
of sources, is not difficult to say. The only jurisprudence in Quebec dealing
with the doctrine of contributory negligence is judge-made law. The determina-
tion of the issues, in this case, is once again an example of the creative role
of the judiciary. The solution arrived at, although’not derived directly from the
Code, coincides logically and equitably with arts. 1053 to 1055 C.C., and has
finally put art. 1056 C.C. in its true perspective.
A. DEREK GUTHRIE*
*Of the Board of Editors, McGill Law Journal; second year law student.
