CASE and COMMENT
TRANSPORT URBAIN DE HULL LTAE v. DAME DALY
Responsibility-Carrier-Passenger falling after alighting from bus-
Article 1675 C.C. not applicable.
by Michael Dennis*
In this recent decision’ the Court of Queen’s Bench has held once again that
the provisions of art. 1675 C.C., making carriers liable for goods entrusted to
them, do not apply to the carriage of persons; rather, carriers of persons are
liable under art. 1053 C.C., the delictual regime of civil responsibility. This
comment is not concerned with that part of the judgment, rendered by Mr.
Justice Hyde, which was based on the facts of the case, but rather with the
court’s acceptance of art. 1053 C.C. as the basis of liability of carriers of persons,
an inconsistent attitude of the Court of Appeal in the light of recent decisions
by this same court in the field of medical liability.
From the facts, it appears that plaintiff-respondent slipped and fell after
alighting from one of appelant-defendant’s buses and broke her hip, injured
her back, and suffered some permanent incapacity. In the meantime, .the bus
had gone on its way and plaintiff was unable to identify it or its driver who,
as Hyde J. points out, “presumably would not have been aware of her faIl.” 2
Plaintiff alleged defendant’s responsibility for failure to sand the street or remove
the ice therefrom, pleading in particular the defendant’s obligation to maintain
the street under the terms of its contract with the city. Upon an examination
of this contract, however, Hyde J. found that the obligations of defendant to
facilitate vehicular traffic could in no way be construed as an undertaking of
defendant to maintain the streets for pedestrian traffic.
The trial judge maintained plaintiff’s action not on the foregoing contract
as claimed by plaintiff but on two other grounds: first, that defendant failed in
its contractual obligation as carrier to deliver its passengers to a place which
did not present any danger (A un endroit ne pr~sentant pas de danger) and,
second, that the chauffeur was at fault for failing to stop the bus sufficiently
close to the traffic island to permit plaintiff to disembark thereon without her
being obliged to step out into the street. The Court of Appeal, reversing the
lower court’s decision, disposed of the first ground by citing a line of cases
which has asserted that the liability of a public carrier of persons is delictual
and not contractual; in this case, plaintiff failed to establish fault or negligence
*Of the Senior Board of Editors, McGill Law Journal; third year law student.
1[1959] Q.B. 773, Reversing the decision of the Superior Court (unreported).
21bid. at p. 774.
McGILL LAW JOURNAL
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on the part of defendant or its employees. With regard to the second ground,
plaintiff by her own admission testified that the traffic island was -mounded
with snow”. Hyde J. therefore concluded:
It may be possible to imagine circumstances in which a carrier could be found at fault for
the manner in which it disembarked one of its passengers but this is not one. The fact is thar
plaintiff was not injured getting off the bus, it was in walking away from the place where
she had got off after the bus had left that she slipped and fell and, having no responsibility to
maintain the streets for pedestrian traffic, it is impossible under the circumstances to attach
liability upon defendant.3
Although one may well agree with the decision of this case on the merits,
nevertheless the court’s approach to the relationship of carriers and their
passengers well affords reexamination in the light of recent decisions of the
Court of Queen’s Bench, applying the distinction between obligation of means
(obligation genirale de prudence et diligence) and obligation of result (obligation
ditenrinle). Although this distinction has been applied thus far in cases of
medical liability only4, it is contended that it should equally apply in all fields
of contractual responsibility.
In refuting the responsibility of carriers of persons under the contractual
regime (arts. 1065, 1071 et seq. C.C.) Hyde J. draws support from the Supreme
Court of Canada in Canadian Pacific Railway Company v. Chalifoux5 and from the
Court of Appeal decisions of Daignault v. New York Central Railway Company’
les v. Renaud. This line of cases has established consistent juris-
and Desrm
prudence applying the delictual regime (arts. 1053 et seq. C.C.) of civil respons-
ibility where carriers and passengers are concerned. These cases refute any
extension of art. 1675 C.C. s where passengers are concerned. Gagn6 J. in
the Desmeules case summarizes this view:
I1 y a beaucoup A dire en faveur de la responsabilit6 contractuelle du voiturier A l’endroit
des personnes comme des choses, mais il faut reconnattre que la jurisprudence qui exige la
preuve d’une faute est fermiment ,tablie dans cette province et depuis longtemps, comme Ic
reconnait, d’ailleurs, Ic savant avocat de la demanderesse. La distinction que l’on qualifie de
difficile et pu logique, tous nos tribunaux l’ont trouv6& dans Ic texte dc l’art. 1675 C.C9
The reason why the courts have consistently applied the delictual regime of
civil responsibility to carriage of persons, and thus have required proof of fault
or negligence of the carrier by the victim-passenger, has been the failure of the
courts to accept the distinction between obligations of means and obligations
of result. Chief Justice Utourneau in the Daignault case justifies the standard
reliance on the delictual regime with the misconceived
theory that the
contractual regime imposes a more onerous burden of proof on the carrier:
‘lbid. at p. 776.
IX. v. Milkn [1957] Q.B. 389; G. v. C. and DeCoster [1960] Q.B. 161.
5(1894) 22 S.C.R. 721.
6[1945] K.B. 457.
7[1950] K.B. 659.
Arr. 1675 C.C.: “Carriers arc liable for the loss or damage of things entrusted to them, unles’
they can prove that such loss or damage was caused by a fortuitous event or irresistible force, or ha’
arisen from a defect in the thing itself.”
‘119501 K.B. 659 at p. 663.
.No. lj
CASE AND COMMENT
Ceci, i1 va sans dire, devait amliorer la situation de la demandcresse quant au fardcau de
Ua preuve. Car alors que pour une responsabilitE dilictuelle (1053 C.C.) tout cc fardeau incombe
.] Ia victime, ]a loi veut (1070 ct s. C.C.) qu’au cas d’une obligation contractule, cc sit
.3 priori au dbiteur de cette obligation a rcpondre des dommages, sauf A s’en exonre toutefois
.1 raison d’une cause
rang~e: force majeure, cas forruit, ou faute de la victime.10
–
But if the distinction between obligations of means and of result is applied, the
burden of proof will not depend upon whether the action is taken under
contract or delict, but rather upon the nature of the obligation in issue (i.e.
whether it is one of means or of result).
An obligation of means is one whereby the debtor undertakes to use all
reasonable care and diligence to effect a result desired by the parties; to establish
a breach of such obligation, the creditor must prove the existence of that
obligation (art. 1203 C.C.), that damage has been sustained by him, and that
such damage was caused by the fault or negligence of the debtor. The debtor,
by mere proof of absence of fault, i.e., that reasonable care was taken, will
exonerate himself of liability. In cases where the cause of the damage is
unknown, the creditor sustains the loss without indemnification.
An obligation of result, on the other hand, is one whereby the debtor under-
takes to effect, in essence guarantees, a specific result so that any breach of it,
irrespective of fault, will render the debtor liable in damages. Mere proof of
the existence of the obligation and damages sustained by the creditor due to
its inexecution renders the debtor liable unless he can prove chose itrangAre,
force majeure, cas fortuit, or fault of the creditor. Proof of absence of fault will
not suffice; in cases where the cause of damage is unknown, the debtor is bound
to indemnify the creditor.
From this distinction it is clear that the burden of proof varies with the
nature of the obligation, independent of contractual or delictual regimes.
Nevertheless, in the Daignault case, Ltourneau C.J. had concluded that, in
effect, all obligations under the delictual regime are obligations of means and
all obligations under the contractual regime are obligations of result. Perhaps
this conclusion is derived from the fact that art. 1053 C.C. is a classic example
of an obligation of means and contractual obligations of delivery or payment
or indemnification are obligations of result, so that Ltourneau C.J. sees arts.
1065, 1070, et seq. C.C. as necessarily governing obligations of result. Yet an
examination of these articles shows that no such conclusion is valid.
Art. 1065 C.C. provides, in part, that, “‘every obligation renders the debtor
liable in damages in case of a breach of it on his part.” Art. 1203 C.C.,
paragraph one, provides that, “the party who claims the performance of an
obligation must prove it.” Therefore the creditor must in all cases establish
the exstence of the obligation and the breach of it. In the case of an obligation
of means, proof of damages alone will not establish a breach of the obligation,
but further proof of the debtor’s fault and a causal connection to the damages
suffered must be established. In the case of an obligation of result, proof of
“1, “1 K B. 457 at p. 464.
McGILL LAW JOURNAL
[VOL. 7
damages suffered establishes the breach of the obligation. Then, in both cases,
the burden shifts and the provisions of arts. 1071 and 1072 C.C. apply, and
accordingly, “the debtor is liable to pay damages in all cases in which he fails
to establish that the inexecution of the obligation proceeds from a cause which
cannot be imputed to him, although there be no bad faith on his part.'” In
the case of an obligation of means, if the debtor establishes that he is free from
fault, then the inexecution cannot have been due to a cause which can be
imputed to him as there is no breach of an obligation of means without fault
or negligence on the part of the debtor. But in the case of an obligation of
result, the fault of the debtor is irrelevant and the debtor must establish core
itrang~re. Thus “the debtor is not liable to pay damages when the inexecution
of the obligation is caused by a fortuitous event or by irresistible force, without
any fault on his part, unless he has obliged himself thereunto by the special
terms of the contract.” 12
From an examination of the relevant articles of the code governing the
contractual regime of civil responsibility, it appears that both obligations of
means and of result conform to the specific provisions of law. The burden of
proof varies according to the nature of the obligation within the structure of
arts. 1065, 1071 et seq. C.C.
There is unanimity of opinion among theorists that the basis for liability
in contract and in delict is uniform. However, the legislators have provided
a practical division by enacting separate rules for the contractual and delictual
regimes. Differences such as in matters of prescription’ 1 , jurisdiction of the
court14 , conflict of laws’5 , quantum of damages awarded’, joint and several
liability17, liability for damages caused by others’ s, to name a few, create an
important practical division between actions in contract and actions in delict.
So when the courts allow an action to be brought in delict for the breach of a
contractual obligation the purpose of the legislators in providing separate rules
is defeated. Furthermore, it cannot be the intention of the legislators that the
creditor should be free to choose the set of rules which best suits his action.
Thus, if the courts continue to hold that the liability of carriers of persons is
delicrual, and a contract of carriage exists between the parties, and the action
concerns the breach of an obligation assumed under that contract, then there
is a paradox and inconsistency in our law as interpreted by the courts. The
courts have recently considered the liability of doctors within the proper
“Art. 1071 C.C.
“Art. 1072 C.C.
“3Arts. 2242, 2258, 2260, 2261, 2262 C.C.
“Arts. 94 et seq. C.P.
25Arts. 6, 7, 8 C.C.
“6Art. 1074 C.C.; Regent Taxi i7 Transport Company v. La Congregation dts Petits Freres de Marie (1929]
S.C.R. 650 at p. 682.
17Arts. 1105, 1106 C.C.
sArts. 1028, 1054 para. 7 C.C.
No. 1]
CASE AND COMMENT
framework of the contractual relationship between doctor and patient; similar
appraisal must be accorded to other contractual relationships, including the
carriage of persons.
In considering the relationship between the carrier and its passengers one
must ascertain the nature of the contractual bond and identify the obligations
which may be considered a part of that contract. First of all, in order that there
be a contract, the four requisites of art. 984 C.C. must be present. The Civil
Code provides specific provisions for certain contracts to which recourse must
be had. In the case of the contract of carriage the Code provides an obligation
of result respecting the liability of carriers for loss or damage of things entrusted
to them.19 No similar provision exists regarding the carrier’s liability in respect
of passengers. But there is undoubtedly a contract, express or implied, whereby
the carrier undertakes to convey the passenger from one place to another and
the passenger undertakes to pay the fare. In France, the Cour de Cassation has
recognized the contractual liability of carriers of persons since 1911.20 But there
still remains the problem of determining the content of such contract. M. Henri
Mazeaud provides a valid solution:
11 est incontestable que le transporteur s’engage, dans le contrat, i conduire le voyageur
d’un point A un autre. Mais s’engagc-t-il i lui assurer la s-curit6 an cours de cc transport?
Toute la question est 11. Le gros argument des partisans de la nhgative consiste I opposer Ic
voyageur aux narchandises. Ces derniares sont remiscs an transporteur, qui pent cn faire cc
qu’il veut: I od il les mettra, cies resteront et, s’il s’agit d’animaux, il pourra les assujcrtir
pour cmp&cher leurs mouvements. Au contraire, le voyageur conserve sa libcrt6 d’action; il
va et vient librcment dans les gares, les wagons, les automobiles, etc. Sans doute une diff&ence
sensible existe entre le transport de choses ec Ie transport de personnes; mais cette diffienc, qui
ne va pas d’ailleurs jusqu’l laisser toute libert6 an voyageur (obligation de traverser par Is
passages souterrains, de ne pas descendre en narche, etc.) n’a point d’incidence sur la nature
e la rsponsabilit6; que le transporteur ne puisse pas s’y prendre de la mee manire pour
assurer la scurit6 des personnes et celles des marchandises, certes; mais qu’il s’engage A doaner
la shcurith aux anes et aux autres, voill qui est non moins &vident. Sans doute, an moment or
le contrat a ct6 pass6, le transporteur savait, comme le savait aussi le transport6, qu’un accident
pouirrat se produire; mais nul n’ignore quand il contracte que l’autre partie peiat ne pas ex6cuter
son obligauon.t
In France the courts have held that the carrier has a contractual obligation
to deliver its passengers “sain ct sauf A destination”. The Cour de Cassation
in so deciding changed the obligation of the carrier from one of means (under
the delictual regime) to a contractual obligation of result.22 Thus the liability
of the carrier of persons in France is analogous to art. 1675 C.C. relating to goods
in Quebec. But our courts have continually shown their reluctance to accept
such an approach. It does not follow, however, that the courts of Quebec
“Art. 1675 C.C.
21S. 1912,
.73 and note Lyon Caen, D. 1913; I. 249 and note Sarrot. The Cour de Cassation held
that, “L’excution du contrat de transport comporte, ca effet, pour le transporteur, l’obligation de
conduire le voyageur sain et saul A destination.” (S. 1912, 1. 73).
2tPremier Congrms International de l’Association Henri Capitant pour la culture juridique frangaise,
Quebec et Montrial, 1939, pp. 336, 337.
2″Lc contrat de transport impliquc nicessair ment pour le voiturier r’obligation de livrer A desti-
nation le voyageur dans &at dans lequel i! l’a reu, c’est–dire sain ct saul. Par cela seul que cette
obligation n’est pas cxieut&, le voiturier cst responsable.” (Note, Sarrot, D. 1913, I. 249 at p. 254).
McGILL LAW JOURNAL
I’Vol. 7
must adopt the samc conclusion. The creation of the obligation -de livrer
sain ec sauf a destination” is a discretionary policy decision of the Cour de
Cassation acting as quasi-legislator. The courts of Quebec have decided that a
carrier will not be held liable without proof of fault. But such an obligation
of means can equally be implied in the contract of carriage. Art. 1024 C.C.
provides that “the obligation of a contract extends not only to what is expressed
in it, but also to all the consequences which, by equity, usage or law, arc
incident to the contract, according to its nature.”- 2″ The courts may, without
altering the nature of the obligation, bring the obligation of carriers of persons
properly within the contractual relationship. One may imply that the carrier
undertakes to exercise all reasonable care and diligence in the conveyance of
its passengers, which is nothing more than stating affirmatively what is implied
in art. 1053 C.C., the sanction which the courts now invoke. The difference is
that the courts will be considering what is the breach of a contractual obligation
within the contractual regime of civil responsibility and the particular set of
rules which apply thereto.
The notion that the relationship between carrier and passenger be considered
within the framework of the contract has been considered by M. Andr6 Nadeau,
who advocates adopting the solution arrived at by the courts of France:
Un revirement de jurisprudence serait i souhairer A propos de ]a faute du transportur de
trsonnes; les tribunaux ne devraient pas h6siter 1 reconnaltre ]a nature contractuelle de cecte
aute. 11ne serair meme pas n~cessaire, A notre avis, de recourir A I’art. 1675 C. civ. Une simpic
analyse du contrat forme, dans lequel on ne peut manquer de voir I ‘obligation de transporter
la personne saine cc sauve A destination, permcttrait de conclure I ]a faute contractielle, A
laquelle pourrait se soustraire le dibireur a I’aide des art. 1071 et s. C. civ.2’
But the courts of Quebec have long considered the nature of the liability of
the carrier in delict, i.e., an obligation of means. GagnJ. answers M. Nadeau:
Ii me parair bien difficile de demander aux tribunaux dc mettre de c6r6 une jurisprudence
que lon peur dire avoir 6t6 unanimement suivie depuis un si grand nombre d’ann~es. Le r-vir.-
ment que suggre Me Andr6 Nadeau devrait au moins tre l’uvre du plus haut tribunal du
pays. Je me emandc m~me s’il ne faudrait pas l’intervention du 16gislateur.25
Again the failure of the courts to apply the distinction between obligations
of means and result is shown. Gagn6 J. feels, as does the court in the present
case, that placing the liability of the carrier within the contractual regime will
alter the nature of that liability. What this comment has attempted to point
out is that, having regard to the nature of the obligation itself, and applying
the distinction between means and result, the liability of the public carrier
can and should fall within the bounds of that contract of carriage, and without
changing the nature of liability.
2Mhe French wording of art. 1024 C.C. clearly provides that contractual obligations may be
implied in a contract according to its nature: “Les obligations d’un contrat s’&endent non seulement
Ice qui y est exprim6, mais encore a routes les consequences qui dccoulent, d’apris sa nature e suivant
l’6quir,
l’usage on ]a loi.-‘
2-I’rairE de Droit Civil du Quebec, vol. 8, p. 145.
25[]950] K.B. 659 at p. 663.
