Dallaire v. Paul-Émile Martel Inc., [1989] 2 S.C.R. 419

Herman Côté Appellant

v.

The Marmon Group of Canada Inc. Respondent

indexed as: dallaire v. paul-émile martel inc.

File No.: 20223.

1989: June 21; 1989: September 14.

Present: Lamer, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for quebec

Prescription -- Interruption -- Joint and several debtors -- Child injured by farm equipment -- Action for damages brought against owner of equipment within prescription period -- Manufacturer of equipment joined to action as defendant after prescription period expired -- Out-of-court settlement between plaintiff and owner -- Whether out‑of‑court settlement eliminated interruption of prescription caused by filing of action against other joint and several codebtors -- Civil Code of Lower Canada, arts. 2224, 2231, 2262(2).

Torts -- Causation -- Child injured by farm equipment -- Action for damages against manufacturer -- Causal link broken between acts allegedly committed by manufacturer and accident involving child -- Action dismissed -- Civil Code of Lower Canada, art. 1053.

In February 1974 an agricultural undertaking bought the poultry house of the appellant's father, retaining his services to continue operating and administering it. The poultry house was equipped with a conveyer manufactured by the respondent. This conveyer was used to remove the manure from the poultry house by means of a worm screw which turned inside a metal trough. The portion of the conveyer located outside the poultry house was covered by removable metal covers which were not equipped with any device to fix them to the trough. These covers had to be removable because the worm screw had a tendency to get blocked from time to time by an accumulation of manure in the trough. However, the covers were sometimes dislodged by a strong wind. On August 27, 1974, the appellant, then eleven years old, was working outside the poultry house and had no work to do on the conveyer. Despite this, the appellant straddled the conveyer trough. His right foot slipped and was caught by the worm screw. At the time of the accident the covers were lying on the ground beside the conveyer. Since April the appellant's father had failed to replace the metal covers on the outer trough. Eleven months later, an action for damages was brought against the agricultural undertaking and the respondent was joined to the action as a defendant by an amendment in November 1980, after the prescription period specified in art. 2262(2) C.C.L.C. had expired. A settlement was reached between the appellant and the agricultural undertaking shortly before the appeal in this Court was heard and only the appellant's action against the respondent was at issue in this appeal. This action was dismissed by the trial judge and his decision was affirmed by the Court of Appeal.

Held: The appeal should be dismissed.

Under arts. 1110 and 2231 C.C.L.C., the interruption of prescription with respect to one joint and several debtor applies to all joint and several codebtors. The fact that an order can no longer be made on a joint and several basis because of the discontinuance resulting from the out-of-court settlement between the appellant and the agricultural undertaking does not alter the fact that the prescription was interrupted against the respondent by the filing of the action (art. 2224 C.C.L.C.), since at that time it was potentially a joint and several codebtor for the damage suffered by the appellant. Following the settlement, the action against the respondent therefore continued the interruption despite the absence of the other codebtors.

The accident suffered by the appellant was entirely caused by his own fault and that of his father, who neglected to ensure that the covers were in place. The users of equipment entailing dangers of which they are or should be aware have an obligation to use it carefully, in particular by using safety devices provided by the manufacturer. In the case at bar, the conveyer was not dangerous when the metal covers supplied by the respondent were in place. The appellant by his reckless act and his father by his negligence failed in their duty of care and thereby caused the accident. The failure to use the covers is a serious fault for which the respondent cannot be held responsible. The fact that the worm screw may have been dangerous was therefore not the cause of the accident, but merely occasioned it: the accident was rather due to the way in which the appellant and his father used the conveyer. A written warning by the manufacturer of the dangers in the equipment would not have helped to avoid the accident. Further, even if a danger might result from the covers being lifted or falling off during operation of the conveyer, indicating a defect in design, that is not what occurred here. The faults committed by the appellant and his father are a "new event", a novus actus interveniens, and were the cause of the damage as a whole suffered by the appellant.

Cases Cited

Referred to: Parrot v. Thompson, 1984 CanLII 118 (SCC), [1984] 1 S.C.R. 57.

Statutes and Regulations Cited

Civil Code of Lower Canada, arts. 1110, 1053, 2224, 2231, 2262(2).

Authors Cited

Baudouin, Jean‑Louis. La responsabilité civile délictuelle. Cowansville: Éditions Yvon Blais Inc., 1985.

Tancelin, Maurice. Des obligations: contrat et responsabilité. Montréal: Wilson & Lafleur, 1986.

APPEAL from a judgment of the Quebec Court of Appeal, J.E. 86‑1078 (sub nom. Ferme avicole Ste‑Croix Ltée c. Côté), affirming on the question of the respondent's liability a judgment of the Superior Court[1], which dismissed the action for damages brought by the appellant against the respondent. Appeal dismissed.

François Lamarre and Rita Vaillancourt, for the appellant.

Jacques Le May and Jean‑François Gagnon, for the respondent.

//Gonthier J.//

English version of the judgment of the Court delivered by

GONTHIER J. --The present appeal arises from an action in civil liability brought by the appellant against the Ferme avicole de Ste-Croix Ltée and Mr. Francis Côté, defendant in warranty, to obtain compensation for injuries suffered by the appellant when his foot was caught in an worm screw located in a conveyer used to remove the manure from a poultry house. By amendment, the appellant also sued the respondent as manufacturer of this equipment. The appellant had to undergo, inter alia, the amputation of his right leg about seven inches from his hip and the trial judge held that his permanent partial disability should be set at about 65 per cent.

A settlement was reached between the appellant and the Ferme avicole de Ste-Croix Ltée, owner of the poultry house, shortly before the hearing of the appeal, in which the latter admitted to partial liability, and the appellant therefore discontinued his claim against this party. As agreed in the out-of-court settlement, the Ferme avicole de Ste-Croix Ltée also discontinued its action in warranty against Mr. Francis Côté, the appellant's father and an employee of the Ferme avicole de Ste-Croix Ltée. Only the appellant's action against the respondent, the manufacturer of the conveyer, is at issue in this Court. This action was dismissed by the trial judge and his decision was affirmed by the Court of Appeal on this point.

At the hearing the respondent raised a new argument based on prescription. The appellant's action was instituted on July 8, 1975 within the one‑year prescription period prescribed by art. 2262(2) C.C.L.C. However, the respondent was joined as a defendant by an amendment on November 28, 1980, after the prescription period had expired. The respondent claimed that the out‑of‑court settlement between the appellant and the Ferme avicole de Ste-Croix Ltée eliminated the interruption of prescription caused by the filing of the action against the other joint and several codebtors. This argument is without foundation. The interruption or suspension of prescription with respect to one joint and several debtor applies to all joint and several codebtors: arts. 1110 and 2231, para. 1, C.C.L.C.; see also M. A. Tancelin, Des obligations: contrat et responsabilité (1986), p. 516, No. 1016. The fact that an order can no longer be made on a joint and several basis because of the discontinuance resulting from the out-of-court settlement does not alter the fact that the prescription was interrupted against the respondent by the filing of the action (art. 2224, para. 1, C.C.L.C.), since at that time it was potentially a joint and several codebtor for the damage suffered by the appellant. Following the settlement, the action against the respondent therefore continued the interruption despite the absence of the other codebtors. As we shall see, this is not a case where there is no joint and several liability because there is no civil liability on the part of the co-defendants. In my view this argument must be rejected. The only question still at issue in this Court is whether the Superior Court or the Court of Appeal made an error of law or a manifest error of fact in dismissing the appellant's action against the respondent.

A brief review of the facts is necessary. In February 1974 the Ferme avicole de Ste-Croix Ltée bought Mr. Francis Côté's poultry house, retaining his services to continue operating and administering the poultry house. The appellant, who was then eleven years old, had helped his father with the farm work since age eight or nine. The poultry house sold to the Ferme avicole de Ste-Croix Ltée was equipped with a conveyer, which was used to remove the manure from the poultry house by means of a worm screw which turned inside a metal trough. The conveyer went under the poultry house and came out at the end of the building at an angle of about 30 degrees; its end, raised about 12 feet, was held up by metal pillars set in a concrete foundation. The manure was carried up the trough by the worm screw and fell from its end into a spreader. The horizontal and sloping sections of the screw were connected by a universal joint which permitted regular and continuous movement.

The upper side of the conveyer trough was installed in the floor and was open to receive the manure. However, the sloping portion of the conveyer located outside the poultry house was covered by removable metal covers which were not equipped with any device to fix them to the trough. These covers had to be removable, because the worm screw had a tendency to get blocked from time to time by an accumulation of manure in the trough. However, the covers were sometimes dislodged by a strong wind.

From April to August 1974, Mr. Francis Côté failed to replace the metal covers on the outer trough, so that at the time of the accident these covers were lying on the ground beside the conveyer. The trial judge properly noted that Mr. Francis Côté could easily have corrected the situation, at minimal expense:

[TRANSLATION] The covers were supplied with the conveyer and were installed with it, and if they were blown off by the wind because they were not securely fixed this was not due to a latent defect, and the owner was responsible for providing ordinary maintenance of the conveyer and for doing whatever was necessary to secure the covers in place, which was in fact done after Herman's accident. Martel [the owner of the Ferme avicole de Ste-Croix Ltée] noted that this cost him less than $50, using plywood sheets, hinges and hooks. What was done some time after the accident could easily have been done before it happened, since the covers had been left on the ground for at least three months, from April to August 1974. [Emphasis added.]

On August 27, 1974, the appellant was working outside the poultry house and had no work to do on the conveyer. His duties were to take the manure and spread it on the fields. Despite this, the appellant straddled the conveyer trough. His right foot slipped and was caught by the worm screw.

The appellant argued that the respondent was responsible for the damage suffered by him because it had placed no warning in the vicinity of the conveyer indicating the dangers involved in its use. The appellant further argued that the design of the conveyer was defective because it should have been designed so that no blockage could occur in the trough, thereby eliminating the need to have removable covers. In the appellant's submission, the covers should at least have had some anchoring so they could be attached to the trough. The appellant accordingly alleged that there were two separate faults: failure to inform the public that the conveyer was dangerous and placing a dangerous product on the market.

In my view, it is not necessary to decide whether the facts alleged by the appellant are faults within the meaning of art. 1053 C.C.L.C. In my opinion any causal link between the acts the respondent is alleged to have committed and the accident suffered by the appellant was broken and the appellant has thus not established all the elements required to entail the respondent's civil liability for the damage suffered.

It is well known that under art. 1053 C.C.L.C. a person can only be held liable in delict if the damage suffered by the victim is the "direct consequence" of one or more faults: Parrot v. Thompson, 1984 CanLII 118 (SCC), [1984] 1 S.C.R. 57, at p. 71; see also J.-L. Baudouin, La responsabilité civile délictuelle (1985), at p. 189. It is clear that any injury suffered by a victim may have been caused by a number of events. However, no one can be held liable for a fault which had no consequence and the court must at all times determine whether the occurrences alleged against a defendant were causal in nature. Professor Baudouin, now a judge of the Quebec Court of Appeal, properly states in his text referred to above that certain events, designated by the expression novus actus interveniens, can break any direct connection between the fault and the damage suffered by the victim, even though according to the so-called theory of adequate causation the damage might have been caused by the fault, at p. 187:

[TRANSLATION] In seeking a causal link that is logical, direct and immediate, the courts have placed particular emphasis on the effect of a novus actus interveniens, that is a new event, independent of the will of the perpetrator of the fault, which breaks the direct connection between the fault and the injury, although according to the system of adequate causation the wrongful act could by itself objectively have caused the damage and the perpetrator could have foreseen its consequences.

According to Professor Baudouin, the theory of adequate causation holds that an event which makes the causing of injury objectively possible or appreciably increases the likelihood that damage will be caused is an adequate cause giving rise to civil liability under art. 1053 C.C.L.C. (op. cit., at p. 179). This theory must be rejected to the extent that it is taken to make the perpetrator of a wrongful act liable without any evidence that the act did actually cause the damage in whole or in part. In this connection one must ask inter alia whether the fault of the victim or a third party, or an event not involving fault, were the cause of the damage as a whole. This requires an assessment of the events leading to the damage, their sequence and their causal connection with the damage suffered.

In my view, the accident suffered by the appellant was entirely caused by his own fault and that of his father, who neglected to ensure that the covers were in place and who had even stopped using them more than three months before the accident. It is clear that the use of the conveyer involved some danger. In the circumstances, however, it would not appear that a written warning by the manufacturer might have helped to avoid the accident. The appellant was not unaware that the worm screw was dangerous when he straddled the trough. The trial judge noted in his reasons that the appellant is an intelligent person, that he could perceive the danger and had been warned of it by his father. I see no reason to disagree with the trial judge's opinion on this point: the appellant committed this rash act despite his father's warning. Failure to warn the appellant of the dangers involved in using the conveyer was therefore not the cause of the accident.

The appellant further argued that the design of the conveyer was inadequate because the equipment should have been so designed that it would be unnecessary for the covers to be removable and because the covers should at least have been equipped with hooks. It is perhaps true that the conveyer could have been designed to be safer, and it is true that without protection the worm screw did represent a danger. However, the respondent had provided adequate covers capable of ensuring safety and which could be used without great difficulty. To my mind the fact that they were removable and had no fasteners did not make them inadequate, although it had an effect on the operation of the conveyer, making it necessary to put them back from time to time. However, the appellant had stopped using the covers for three months. The accident was caused by the failure to use them. It was a serious fault for which the respondent cannot be held responsible.

The appellant's accident did not occur because the conveyer was dangerous but rather because it was carelessly used. The users of equipment entailing dangers of which they are or should be aware have an obligation to use it carefully, in particular by using safety devices provided by the manufacturer. The conveyer was not dangerous when the metal covers were in place. The appellant and his father Mr. Francis Côté failed in their duty of care and thereby caused the appellant's accident. The fact that the worm screw may have been dangerous was therefore not the cause of the appellant's accident, but merely occasioned it: the accident was rather due to the way in which the appellant and his father used the conveyer.

Even if a danger might result from the covers being lifted or falling off during operation of the conveyer, indicating a defect in design, that is not what occurred here. The faults committed by the appellant and his father are a "new event", a novus actus interveniens, and were the cause of the damage as a whole suffered by the appellant.

In my view the appeal should therefore be dismissed, with costs throughout.

Appeal dismissed with costs.

Solicitors for the appellant: Cain, Lamarre, Larouche, Wells, Chicoutimi.

Solicitors for the respondent: Flynn, Rivard, Québec.

[1]Dallaire c. Paul-Émile Martel Inc., Sup.Ct. (district of Alma), No. 160‑05‑000168-75, January 23, 1984.