Scotland v. Canadian Cartridge Co.

Scotland v. Canadian Cartridge Co.
Collection
Supreme Court Judgments
Date
1919-12-22
Report
(1919) 59 SCR 471
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe; Mignault, Pierre-Basile
On appeal from
Ontario
Decision Content
Supreme Court of Canada
Scotland v. Canadian Cartridge Co., (1919) 59 S.C.R. 471
Date: 1919-12-22
Lawrence Scotland (Plaintiff) Appellant;
and
The Canadian Cartridge Company (Defendants) Respondents.
1919: November 27; 1919: December 22.
Present: Sir Louis Davies C.J. and Idington, Duff, Anglin’ Brodeur and Mignault JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Workmen’s Compensation Act, 4 Geo. V. c. 25 (Ont.)—Negligence—“Accident”—Injury by poisonous gases.
Injury to the health of a workman in a munition factory through continuously inhaling the fumes of poisonous gases is not injury by “accident” within the meaning of that term in sec. 15 of the Ontario “Workmen’s Compensation Act.”
Judgment of the Appellate Division (45 Ont. L.R. 586; 48 D.L.R. 655), reversed on the merits as there was evidence on which the Jury could reasonably find for the plaintiff and the Appellate Division should not have disturbed their findings.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario[1], reversing the judgment at the trial in favour of the plaintiff.
The plaintiff, working in a munition factory, claimed damages from his employers for injury to his health caused, as he alleged, by inhaling gas fumes in doing his work. He claimed compensation under the “Workmen’s Compensation Act” but the Board held that the injury was not caused by “accident” and that it therefore was without jurisdiction. He then brought an action in which the jurisdiction of the Board was made an issue. On the trial the evidence was conflicting as to whether or not the illness of the plaintiff was caused by poisonous gases, some doctors testifying that it was impossible, others that there could be no other cause. The jury found in favour of the plaintiff and judgment was entered for him for $3,500. The Appellate Division reversed this judgment and dismissed the action.
McBrayne for the appellant. There was ample evidence to justify the findings of the jury and the verdict for plaintiff should not have been set aside. Watt v. Watt[2].
The evidence shews negligence in not providing proper ventilation. See Butler v. Fyfe Coal Co.[3]; Toronto Power Co. v. Paskwan[4].
Strachan Johnston K.C. and H.A. Burbidge for the respondents, referred to Brintons Co. v. Turvey[5]; Glasgow Coal Co. v. Welsh[6].
THE CHIEF JUSTICE.—This action was one brought by plaintiff appellant, a workman at one time employed by defendant company in operating an annealing bath or process in use in defendant’s works in the City of Hamilton for the manufacture of cartridge shells and other war munitions.
It was the duty of the plaintiff who was known as a “dipper” to place the cartridge shells, which were made of brass and were at a high temperature, in what was known as a sulphuric acid bath and after a short time to remove them from this bath and place them in another bath known as the cyanide bath.
On February 12, 1917, plaintiff became ill and unable to continue his work and was removed to the Hamilton general hospital where he remained under treatment until June, 1918. The contentions on which he based his claims were that his illness was caused by strong, irritating and poisonous gases which were emitted from the baths in which his duty required him to place and remove the cartridge shells and which were inhaled by him in the discharge of his work; and that in addition to these alleged poisonous gases, natural gases of a poisonous character were emitted from and by the natural gas furnaces in close proximity to the baths used in heating the shells and became mingled with the other poisonous gases which he was forced to inhale, and that no system of ventilation of any kind was adopted or furnished by the defendant for the purpose of removing the gases plaintiff was compelled to inhale while at his work, the result being his illness and complete collapse.
The defence of the defendant not only put in issue the facts of the defendant’s illness having been caused by irritating and poisonous gases to which his work exposed him and the want of ventilation in the building as charged but also set up as a defence that in any case the plaintiff’s remedy was confined to that given by the “Workmen’s Compensation Act” and that his remedy had, on plaintiff’s application for compensation under the Act, been refused, which refusal was final as to his claim and without appeal.
As to this latter defence, I do not think the plaintiff’s common law right of action was taken away by the statute under the circumstances of this case. The Board declined to entertain the claim on the ground that plaintiff’s claim was not one which occurred “for or by reason of any accident which happened to him in the course of his employment” and I cannot but think in so deciding they were right. The Board therefore had no jurisdiction to award compensation in a case of this kind and the plaintiff was properly left to his common law right of action.
The latest case which I have been able to find on the much debated question of what is an “accident” within the meaning of the term accident in the “English Workmen’s Compensation Act,” 1906, 6 Edw. VII., ch. 58, sec. 1, sub-sec. 1, is that of Innes or Grant v. Kynoch[7], decided by the House of Lords. Their Lordships, in very lengthy reasoned judgments in which all the previous cases were referred to and analyzed, decided, Lord Atkinson dissenting, that the fortuitous alighting of the noxious bacilli upon an abraded spot of the plaintiff’s leg, though it did not appear when or how he received the abrasion and it was impossible to say with certainity when the infection occurred, nevertheless constituted an accident within the Act.
In the case before us, of course, no such point or controlling fact arose and I take it from reading the judgments delivered that in the absence of proof of the abrasion on the plaintiff’s leg which became infected by certain noxious bacilli, there would not have been any ground for the holding their Lordships reached.
Leaving that defence and turning to the substantial defences set up by the defendant company to the claim of the plaintiff arising out of the alleged emanation of noxious and poisonous vapours from the baths at which he was working and the absence of proper and efficient ventilation in the factory which would have rendered these gases innocuous, it appears that after a lengthy trial during which a great many witnesses, scientific and otherwise, were examined, the learned trial judge charged the jury on all the disputed ques- tions with a fullness and clearness which does not seem to have left room for any complaint on either side and submitted to the jury for answers a series of questions covering all the debatable issues or contentions. I venture, even at the risk of unduly prolonging my reasons, to transcribe these questions and answers in full rather than give a simple epitome of them because, if there was evidence to justify the findings on the two main points of the emanation and inhaling of noxious and harmful gases and the absence of proper ventilation, these are sufficiently clear and definite as to justify the judgment entered by the trial judge but set aside by the Court of Appeal.
QUESTIONS FOR THE JURY.
1.—Were harmful gases generated in the defendants’ factory while plaintiff worked there? If so, what gases? A.—Yes. The three fumes of gases combined: sulphuric acid, cyanide of potassium and natural gas.
2.—Was defendants’ factory in which plaintiff worked ventilated in such a manner as to keep the air reasonably pure and so as to render harmless as far as reasonably practicable all gases, vapours or other impurities, generated in the course of the manufacturing process carried on by the defendant while the plaintiff was in defendants’ employment? A.—No.
3.—If you answer no, then what effect did such lack of ventilation have upon the plaintiff; answer fully? A.—The conditions in the factory where the plaintiff worked caused his present and possible future disability.
4.—Was the defendant guilty of negligence that caused the injury to the plaintiff complained of? A.—Yes.
5.—If so, what was the negligence? A.—Sufficient ventilation was not provided while plaintiff worked there.
6.—Might the plaintiff by reasonable care have avoided the injuries complained of?A.—No.
7.—At what sum do you assess the damages? At common law? A.—We assess the damages at $3,500.00 under the common law.
Under the “Factory Act?” A.—$3,664.44.
QUESTIONS SUBMITTED BY MR. JOHNSTON.
1.—Was the risk of inhaling dangerous gases a necessary incident to the employment of the plaintiff? A.—Yes. It was necessary for the plaintiff to breathe, and in so doing he inhaled the fumes of the gases. 2.—Was the imperfect ventilation, if any, caused by any of the fellow workmen of the plaintiff in keeping the windows and doors closed? A.—No. That the fumes were too heavy to be carried off by natural ventilation in the winter months.
3.—Did the plaintiff, knowing the conditions, assume the risk connected with the employment? A.—Not knowing that it was a dangerous position he did not assume the risk.
4.—If the plaintiff was injured in the course of his employment was the plaintiff injured by accident? (No answer).
I frankly confess that after reading the reasons for judgment of the Divisional Appeal Court delivered by the learned Chief Justice of the Common Pleas, I felt in great doubt whether the judgment entered upon the jury’s findings could be sustained.
The question, of course, for our determination is not what we would find as jurymen having heard the evidence and inspected the factory and its means of ventilation in the winter months, but simply and only whether the findings of the jury were such as reasonable men might fairly make on the evidence submitted to them.
Since the argument at bar at the conclusion of which I still retained my previous doubts, I have read over most carefully the evidence given on both sides and parts of it more than once, and I confess that if I had to give the verdict I would most likely hold that the evidence taken as a whole did not justify the finding of the emanation of noxious and harmful gases from the baths at which the defendant worked, especially having regard to the weak solution of sulphuric acid proved to have been in one vat or tank 5 gallons to an 80 gallon tank, and another solution of cyanide of potassium approximately 25 lbs. to a 75 gallon tank, and to the scientific evidence, not contradicted by any other such evidence, respecting the possibility of these solutions throwing off these alleged noxious gases. I say on this main and controlling issue I would as a juryman probably have found against the plaintiff. But that is not my province. I have only to determine whether in the conflict of evidence we have before us in this case, scientific and practical, we find enough to justify reasonable men in reaching the conclusion these jurymen did. After much consideration and thought I have reached the conclusion, though not without much doubt, that there is such evidence in the record and that I ought not, in view of the extreme jurisdiction which juries are permitted to have over questions of fact, to set aside their findings on mere doubts I may entertain or on my reaching on the reading of the evidence a conclusion different from that the jury reached. Now in this case the jury had the great advantage of seeing and hearing the witnesses and of judging how far and to what extent credit should be given to their statements. They had the whole history of the plaintiff’s illness and the facts which preceded and were claimed to have led up to it, given by the plaintiff. They had the evidence very strong and positive of the three medical men who had examined the plaintiff most thoroughly. Dr. Martin was the physician who was consulted by the plaintiff when he first took ill and saw him many times, making, as he stated, a most special examination to determine whether he could exclude from consideration all possible causes, other than poisoning, of the symptoms of illness which plaintiff had and suffered from. In the result he reached the conclusion that poisoning by the inhalation of poisonous gases was the cause of the man’s illness. This conclusion was, of course, founded partly on the plaintiff’s history of his case, partly on the man’s symptoms and partly upon the test of the patient’s urine and blood made by him, excluding or “ruling out all other possible conditions.” He called Dr. Nancekivell in consultation who also seems to have made a very thorough examination of the patient and reached the conclusion that the symptoms which the patient had were those of a man suffering from inhalation of poisonous gases and that those symptoms altogether pointed to nothing else. In cross-examination he expressed himself as willing to pledge his oath that the patient was suffering from gas poisoning and that his opinion was not a matter of conjecture but
the result of logical analysis, history, and his condition. There is no one disease you will get the inflammation of all the mucous membranes and the symptoms that he produced. No one disease will give you all those symptoms, outside of gas poisoning.
Lastly we have Dr. Holbrook, a medical gentleman in charge of the Hamilton Sanitarium and who was called and examined pursuant to an order made by the court to have an examination of the plaintiff with a view of giving testimony at the trial. The written report of Dr. Holbrook is very full and complete evidencing not a mere casual examination of his patient but a thorough and complete one. The report after describing in detail the history of the man given by himself and the physical examination made by the doctor, of the plaintiff and the conditions in which he found the different parts and functions of the man, winds up by saying:
In addition to these conditions a serious condition has been set up probably due to the fumes from the cyanide tank and which might be described as the chronic effects from cyanide poisoning. It seems to have set up a debility which has affected the nerves and muscles by causing a peculiar change which might be described as a loss of tone. This is probably the chief factor in the heart lesion, but while the other tissues would probably in time regain their tone, yet I would consider that this condition in the heart had led to physical changes which will remain permanent. Thus, while I consider it absolutely impossible to make definite statements at this stage, I would consider that his occupation in the munition plant had led to a general debility probably the result of chronic cyanide poisoning; also to an increase of fibrous or scar tissue in the lungs and to some enlargement in the bronchial gland and to a decrease of tone of the heart muscle fibre with dilation of the heart. I would consider that the man is now unfit for any work and that in all probability he will never be able to return to any but very light work for which the remuneration in his case would be small.
The doctor’s examination and cross-examination at the trial did not in any way alter or modify the report he had made, indeed it rather accentuated the opinion he had there expressed.
He said:
Now I think that the bronchitis and irritation of bronchial glands was set up by inhalation of the sulphuric acid, and to some extent, cyanide fumes.
Again:
I think the chronic cyanide poisoning is the chief factor. He may have been over working, too long hours and too hard, that may have had something to do with the breakdown, but the symptoms came on and suggested cyanide poisoning more definitely than any other thing. Of course it was a chronic poisoning, more from the inhalation of vapour.
In cross-examination he admitted not being an expert on toxicology or the science of the effect of poisons on the human body but gave with great lucidity the symtoms of cyanide poisoning and left the impression on my mind that, while not professing to be an expert in toxicology, he was well grounded on the subject generally and knew well what he was talking about.
The other two medical men I have spoken of, Drs. Martin and Nancekivell, were even more emphatic than was Dr. Holbrook in ascribing the plaintiff’s symptoms to noxious and poisonous vapours. It is true the evidence of these medical men was founded to some extent, possibly to a very large extent, upon the history of his case given to them by the plaintiff and that their conclusions as to these symptoms having been caused by noxious and poisonous vapours were most emphatically contradicted by Dr. John A. Oille, a medical gentleman practising for many years past in Toronto and who, at the request of the Workmen’s Compensation Board, had made a very full examination of the plaintiff’s physical condition. In fact, to my mind it is quite impossible to reconcile Dr. Oille’s evidence with that of Drs. Martin, Nancekivell and Holbrook. In substance, Dr. Oille’s evidence was that his diagnosis disclosed pleurisy and osteo-arthritis as the diseases from which the plaintiff was suffering when he examined him and he is emphatic in his statement that
neither of these diseases could have been caused by sulphuric acid or cyanide, as both of these diseases are infective in origin.
By “infection.” he explained that it “meant that bacteria get into the body tissues or blood and cause disease.”
When to this positive and clear evidence of Dr. Oille is added that of Mr. Fertig, a chemist and chemical engineer, who came to Canada from the United States on Government work and whose duties as inspector for the American Government took him to the factory here in question very often, it will be understood why I entertained doubts as to defendant’s liability as to there being evidence to sustain the jury’s findings. Mr. Fertig said that a solution of sulphuric acid mixed with water in the proportion of five gallons to an 80 gallon tank, and the water heated to 200 degrees, would not give off any harmful fumes or gases, and that there was no doubt about it; and further that putting 20 pounds of cyanide in the cyanide tank, 20 to 22, containing about 75 gallons, and the water heated to 100 or 110 degrees Fahrenheit, no harmful gas or fumes would be produced. As he put it:
No poisonous gases would come off. That bath in itself would be a very dilute bath, 22 pounds to 75 gallons would be a three per cent. solution.
In fact, in cross-examination Mr. Fertig went so far as to say that 24 parts of water standing there in place of these tanks containing sulphuric acid and cyanide, would be just as harmful and as harmless and that the combination of sulphuric acid and cyanide as proved was absolutely harmless and that made it unnecessary to make provision to carry off the fumes.
In addition to these conflicting statements of the medical men and the experts, there was, of course, the positive statements of the plaintiff himself as to the effect upon him at the time he breathed in the exhalations from the vats or tanks, and of such men as House as to their having had similar experiences when so employed, and evidence to the contrary by others equally qualified to speak from personal experience.
The discharge by the jury of their duties was not a light or easy one. I am not able to say that the evidence justifies me or justified the Appellate Division in setting aside their findings. I have discussed the branch of the case made on the noxious exhalations or fumes arising from the tanks, at some length, because probably it is the strongest for the defendant. I think there was sufficient evidence to justify the finding of the absence, under the circumstances as found by them, of efficient ventilation in the winter season.
For these reasons I would allow the appeal with costs and restore the judgment of the trial judge upon the jury’s findings.
IDINGTON J—The appellant claims from the respondent damages for injuries received, whilst serving as a workman in its factory, at part of the process of making shells for use as war munitions.
He alleges that, instead of making the place in which he was set to work reasonably safe for those performing the part of the service he was engaged in, it allowed the air, especially in that part of the room where he worked, to be contaminated with poisonous gases, resulting from the operations in which he and others were engaged; and that for want of proper ventilation he was compelled to inhale such poisonous gases and thereby suffered in his health.
It is reasonably clear that the building was so constructed that generally speaking in the warmer seasons ample means of ventilation were supplied by means of open windows or doors for all those engaged in the room in question, unless possibly for those few engaged at serving in immediate contact with the source and cause of the noxious gases in question.
But in the cooler and winter months the windows and doors were kept closed.
Obviously if, as now pretended, there were no noxious gases of any kind generated, there might be enough fresh air enter the room through the seams of the metal structure, or round the window frames and doors, to keep the room in a reasonable condition to work in.
In resolving the legal problem now submitted to us it does not seem necessary to follow that branch of the inquiry at greater length.
The appellant was taken ill and submitted the case, which his condition presented, to a physician in Hamilton who seems to give his evidence in a fair and intelligent manner and he attributes the condition of the appellant to the inhalation of just such noxious gases as might arise from the process in which the appellant was engaged. Indeed he gives a very positive opinion, which, if correct, entitled the appellant to succeed, as he did, with the jury who found, in answer to the appropriate questions submitted, including a number proposed by respondent’s counsel, sufficient facts to maintain the action and assessed the damages at $3,500 if based upon the common law or, alternatively, at $3,664.44 if based on the “Factories Act.”
The learned trial judge entered judgment for the former sum.
Assuming the appellant told the truth and the whole truth as to his work and condition of his health, and his physical condition, the case is of a very simple and ordinary character so far as the relevant law is concerned, and in the result was necessarily committed to the determination of fact by a jury.
The physician is corroborated in all essentials by a brother practitioner knowing of and being consulted in the case at the time.
At a later time in the course of the proceedings in this suit an order was procured by respondent for the examination of the appellant by an independent physician selected by the judge applied to therefor.
His report is in the case and he was called also by appellant on the trial.
His report and evidence go also a long way to corroborate the view taken by the other physicians called by appellant. He, in view of the examination which he made of appellant having taken place sixteen months or more after his falling ill, properly speaks with caution as to the possibility of something else than the alleged gases producing the results he found. But so far as a skilled physician, not professing to be a profound toxicologist, could properly do so he leaves no doubt on the vital point of, in his opinion, sulphuric acid and cyanide having been a possible and probable cause of appellant’s condition, and of the gases therefrom having possibly been and indeed probably inhaled in the way testified to by the appellant.
The basis for all that testimony of experts is, of course, what the appellant and his witnesses swore to.
The evidence of Husband, who was foreman in the room and had been discharged evidently for no other reason than that he did not get along with the men under him in a satisfactory way, seems, notwithstanding that incident, to have been given fairly and intelligently. If he and others are to be believed there is abundant evidence corroborative of appellant’s story, and especially of the inhalation of noxious gases during the operations of appellant, and attributable thereto.
It would have been, in my opinion, unjustifiable to have granted a non-suit in face of such a case as thus presented, even if it had been moved for.
It is remarkable and indeed, in light of the subsequent development in the Second Appellate Division, amusing to find that able counsel, alert to take properly every possible arguable objection during the course of the trial, never thought of either moving for a non-suit at the close of plaintiff’s case, nor at the close of the evidence for defence for a dismissal of the action.
The evidence for the defence apart from that of the expert evidence to which I am about to refer later, does not, to my mind, meet that of the appellant and his witnesses in any satisfactory way, much less overbear it in weight. Indeed much of it impresses me, after a perusal of the whole, given for the defence, with the view that it had better have been left aside and the defence rested upon the expert evidence alone, coupled perhaps with some few facts testified to by some of the other witnesses for the defence.
Turning to the expert evidence, it consists of the evidence of a physician of sixteen years’ standing who laboured under the disadvantage of not having seen the appellant until about two years after he had fallen ill, and of a chemist.
This physician had, I infer, seen but one case of acute cyanide poisoning, and none of the chronic cyanide poisoning from inhalation.
I submit that these facts coupled with the testimony he gives, evidently from reading, in regard to this lastly mentioned possibility, a text book, is not very convincing.
Another physician called gives unimportant evidence and admits that probably he knows little of the subject matter involved herein.
Then we have the evidence of a chemist who in a sentence or two denies that when cyanide is in specific proportions put into water of a certain temperature named, no harmful poison or poisonous gases could arise.
No accurate examination of the conditions of the water actually used was ever pretended to have been made by him or any one else, or of the actual condition of the cyanide used. The water was supposed to be of the limited temperature named.
The evidence discloses a possible cause of the water becoming overheated by reason of the haste of workmen, ignorant of the consequences, plunging into same many of the pieces to be dipped therein before being properly cooled off.
As a basis of scientific investigation, which the Appellate Division lays so much stress upon, I submit it would be difficult to found anything in support of the defence so far as rested thereon. To my mind, especially in view of the fact that cyanide was not used by any others engaged in the same process, except one, and that not named, this sort of testimony is next to if not entirely worthless.
I agree in the desirability of the truth revealed by science, being, when possible, duly observed, but the process of scientific investigation requires a thorough investigation of all the facts, conditions and circumstances so far as possible, before proceeding to determine and formulate any definite assertion of any supposed rule of action or scientific fact founded thereon.
It never seems to have occurred to any one concerned to have examined a single specimen of this so-called cyanide and ascertain thereby the quality of that used and then see what results would flow therefrom under such conditions as it was used herein or even approximately so.
Unless we are to overturn our system of jurisprudence and the one rule of reason governing in law the results of a jury’s verdict I submit the judgment appealed from cannot be permitted to stand.
There was ample ground upon which the jury’s verdict might well have been reached within that rule acting upon the evidence placed before them.
The judge’s charge was full, fair and unobjected to, save by suggesting what I am about to refer to, and respondent having let it go at that, ought not to have been heard to complain, unless upon the one question of whether or not the evidence did not disclose a mere case of accident.
I am of the opinion that the ruling of the Workmen’s Compensation Board was right in holding that it was not a case of accident, in the sense in which that word is used in the Act in question, but, if any- thing, the result of a continuous and systematic method of carrying on the works in question, in violation of either common law or statutory law, or of both.
Had, for example, an explosion taken place by reason of the same method, if such a result possibly conceivable, then I can conceive of a case so founded being within the term “accident” in the “Workmen’s Compensation Act.” Not being so or akin thereto if as I suspect the injuries were the result of months of continuous defiance of nature’s laws by respondent, the appellant’s right of action is not barred by said Act.
I think the appeal should be allowed with costs here and in the court of appeal, and the judgment of the learned trial judge be restored.
DUFF J.—I have little to add to the reasons given by the Chief Justice with which I concur on the point whether the injuries from which the appellant suffered were due to the inhalation of noxious gases while engaged in the performance of his duties under his employment with the respondents. I find it impossible to concur in the decision of the Appellate Division that the findings of the jury on this point can be set aside or disregarded as without reasonable foundation in the evidence.
A more serious question is raised by Mr. Johnson’s contention that there is no evidence justifying the finding that by the negligence of the respondents the appellant was deprived of some protection to which he was entitled and through which he would probably have escaped the harmful action of the gases to which he was exposed.
The evidence on this point is very meagre. After carefully considering the testimony of Mr. Darling, who was called on behalf of the respondents, together with the evidence as to the state of the atmosphere in which the appellant was working, I cannot concur in the view that there is not some support for the jury’s finding on this point.
I should add a single word upon the effect of sec. 15 and sub-sec. 1 of the “Workmen’s Compensation Act.” I refrain from expressing any opinion on the question whether a claim for compensation having been rejected by the Board on the ground that the facts out of which the injury arose did not bring the case within the category of accident, it is open to the employer to allege in an action by the employee based upon the charge of negligence that the same facts did constitute an accident bringing the case within the operation of the provisions of the Act, including sub-sec. 1 of sec. 15 which on that hypothesis would afford an answer to the employee’s action, if such a contention were open to the employer.
It is unnecessary to pass upon this because, for the reasons given by the Chief Justice, I think the respondents’ contention independently of the Board’s decision must fail.
ANGLIN J.—Sec. 43 (1) of the “Factory Act” (R.S.O. ch. 229), as amended by 8 Geo. V., ch. 44, sec. 4, requires that
the employer of every factory or shop shall ventilate the factory or shop in such a manner as to keep the air reasonably pure and so as to render harmless as far as reasonably practicable all gases, vapours, dust or other impurities generated in the course of any manufacturing process or handicraft carried on therein that may be injurious to good health.
At common law an employer is bound to provide so far as practicable a reasonably safe place for his work- men to work in. Ainslie Mining and Railway Co. v. McDougall[8].
The plaintiff complains that while engaged in the defendant’s munition factory he was unnecessarily exposed to the inhalation of poisonous gases generated in the course of its manufacturing process; that such exposure was due to inadequate ventilation of the annealing room where he worked; and that it resulted in serious and permanent injury to his health. On the trial, before Mr. Justice Clute, a jury found these several allegations to be established. On appeal the judgment based on this verdict was unanimously set aside, the Chief Justice of the Common Pleas delivering the judgment of the Divisional Court and holding that on each of the three issues
there was no evidence upon which reasonable men could find in the plaintiff’s favour[9].
On the plaintiff’s appeal to this court the defendant supports this judgment and also contends that if injury to the plaintiff’s health was caused as he alleges, the case was one of “accident” within the provisions of the “Workmen’s Compensation Act” (4 Geo. V., ch. 25, Ont.) and this action therefore cannot be maintained. It will be convenient to deal first with the latter defence.
The plaintiff duly presented a claim for compensation to the Workmen’s Compensation Board and it was twice considered by that body. On the first occasion it was rejected, as the formal certificate says, on the ground that it did not appear that
the claimant sustained a personal injury by accident arising out of and in the course of his employment;
and on the second, because the Board is unable to find that the claimant sustained personal injury by accident within the meaning of the Act.
The respondent contends that it is consistent with these certificates that the Board based its rejection of the claim on the view that the plaintiff had not in fact been injured as he avers, and did not determine that if so injured the case would not be one of accident within the meaning of the statute. The second certificate seems to me rather to indicate that the Board meant to hold that any injury the plaintiff sustained was not due to an accident and that it was therefore without jurisdiction. Any possible doubt on this point however is removed by these passages in the evidence given by Mr. Kingstone, one of the Commissioners, who made an investigation on behalf of the Board.
Q. Did you find when you were inspecting that factory that there were sufficient methods provided by that company to remove sulphuric acid fumes from that room? A. Well, let me answer that by making this mention; I had this in my mind, I was naturally looking under the terms of the Act to see whether or not anything had happened which could be considered an accident, because under the terms of sec. 3 of the Act the claim could only be allowed if it could be found that there had been injury to this man by accident.
Q. And you decided ultimately it was not an accident? A. I concluded there had been no injury by accident.
Q. How did you conclude that the injury had been sustained? A. Having excluded the question of accident—
His Lordship: The report is very explicit. (Reading report.) Then they found this case was outside the jurisdiction of the Board?
Witness: Yes, when I found that I did not go so far into the investigation of what was the trouble with the man as I otherwise would have, had I been charged with the responsibility of getting at the whole trouble.
* * *
Mr. MacBrayne: Q. Speaking as a witness on behalf of the defendants, can you say whether there was sufficient ventilation in this room or not? A. I would not want to express an opinion. Because from that point of view I do not know; all I do know it satisfied me there was no accident.
His Lordship: You were not there after September? A. I was just there in connection with another accident on another occasion. Q. You have no knowledge of the conditions in winter? A. No.
Mr. MacBrayne: Did you inquire whether the conditions you saw in September were the same as in January and February of that year? A. Well now, I don’t know that I can say that I did. I inquired sufficient to satisfy me that no accident had happened to this man, within the meaning of our Act.
By sec. 6 (1) of the “Workmen’s Compensation Act” the Board is given exclusive jurisdiction to determine all matters and questions arising under Part I. of the Act. That part deals with workmen’s rights to compensation. By sec. 64 the Board is empowered to determine, if an action is brought by a workman against the employer in respect of an injury, whether the workman is entitled to maintain the action or only to compensation under the statute.
By an amendment (5 Geo. V., ch. 24, sec. 8 (2)) any party to an action is enabled to apply to the Board for adjudication and determination of the question of the plaintiff’s right to compensation or as to whether the action is one the right to bring which is taken away by Part I.; and such adjudication and determination is declared to be final and conclusive. The re‑consideration by the Board of the plaintiff’s application for compensation was at the instance of the present defendant, and I agree with the learned Chief Justice of the Common Pleas that the Board’s conclusion that the plaintiff’s claim was not founded on a personal injury by accident within the meaning of the Act is binding on the defendant and not open to review in this action.
If the question were open I should incline to apply and follow the decisions in Steel v. Cammell, Laird & Co.[10]; Martin v. Manchester Corporation[11]; Broderick v. London County Council[12]; and Eke v. Hart-Dyke[13], the authority of which, so far as they require proof of a particular occurrence causing the injury complained of, which happened within some narrow limitation of time has not been materially affected, as I understand it, by the recent judgment of the House of Lords in the readily distinguishable case of Innes or Grant v. G. & G. Kynock[14]. I agree with the learned Chief Justice that the “Workmen’s Compensation Act”
does not stand in the way of this action.
But, I am, with great respect, at a loss to understand how it can be said that there was not any evidence on which the jury could reasonably find as they did in favour of the plaintiff on each of the three issues involved in the question of the defendant’s liability. There was, in my opinion, quite sufficient evidence, if the jury saw fit to credit it, to support their verdict on all three issues. This expression of opinion would perhaps suffice to dispose of this appeal, but, in deference to the learned judges of the Divisional Court, I think I should indicate what the evidence is upon which the jury’s verdict in my view should have been sustained.
Were there noxious fumes or gases given off from the sulphuric acid and cyanide vats in the defendants’ annealing room?
The plaintiff gives this evidence:
Q. What would be the effect on the sulphuric acid and the cyanide as you put these shells in there? A. Gas fumes, the hot shells going into the hot acid.
Q. There were fumes? A. As soon as you put them in the acid there was fumes you could see.
Q. That is steam? A. Yes.
* * *
Q. Your work took you practically over those vats? A. Yes.
William Husband, formerly a foreman with the defendant, says: His Lordship: What was the effect of this closing of the windows?
A. Why, it would cause a kind of heavy cloud of steam; pretty hard to see through it.
Q. From where? A. From the steam arising from the vats. The cold air would meet with the steam.
Q. Was there an odour to this steam that came from the vats? A. Yes.
Q. Having regard to the plaintiff’s work, and his position during the work, what would you say as to whether or not he might or might not inhale any