Montreal Tramways Co. v. Léveillé

Montreal Tramways Co. v. Léveillé
Collection
Supreme Court Judgments
Date
1933-05-08
Report
[1933] SCR 456
Judges
Rinfret, Thibaudeau; Lamont, John Henderson; Smith, Robert; Cannon, Lawrence Arthur Dumoulin; Crocket, Oswald Smith
On appeal from
Quebec
Subjects
Torts
Decision Content
Supreme Court of Canada
Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456
Date: 1933-05-08.
Montreal Tramways Company (Defendant) Appellant;
and
Paul Léveillé (Plaintiff) Respondent.
1932: October 24; 1933: May 8.
Present: Rinfret, Lamont, Smith, Cannon and Crocket JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Negligence—Tramway—Pregnant mother—Fall from car—Company’s fault admitted—Infant born with club feet—Right of infant to sue for damages after birth—Jury trial—Evidence—Reasonable inference—Whether deformity of the child’s feet resulted from accident to mother.
The respondent’s wife, being seven months pregnant, was descending from a tram car belonging to the appellant company when, by reason of the negligence of the motorman, she fell, or was thrown, from the car and was injured. Two months later she gave birth to a female child who was born with club feet. The respondent, as tutor to his child, brought an action against the appellant company, claiming that the deformity of the child was the direct consequence of the negligence of the appellant company by which the mother was injured. The action was tried with a jury who found in favour of the respondent and judgment for $5,500 was rendered accordingly, which was affirmed by a majority of the appellate court.
Held, Smith J. dissenting, that the judgment appealed from should be affirmed and the appeal dismissed. Held, also, Smith J. dissenting, that there was sufficient evidence adduced at the trial to produce in the jury’s minds a conviction that it was reasonably probable that the deformity of the child resulted as a consequence of the mother’s injury, and, consequently, their verdict should not be disturbed. The fact that the appellant’s fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence. It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury. These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn. It is not sufficient that the evidence affords material for a conjecture that the child’s deformity may have been due to the consequences of the mother’s accident. It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.
Per Smith J. (dissenting).—The evidence of the medical experts called on behalf of the respondent establishes that medical science has not yet discovered the cause of club feet and such evidence has merely put forward more or less plausible theories on that subject. Therefore, having regard to the scientific problem involved, there was no evidence sufficiently positive and definite upon which the jury could reasonably find as a fact that the child’s club feet resulted from the injury to the mother.
Held, further, Smith J. dissenting, that under the civil law, a child, who suffers injury while in its mother’s womb as the result of a wrongful act or default of another has the right after birth to maintain an action for damages for the injury received by it in its pre-natal state.
Per Rinfret, Lamont and Crocket JJ.—The answer to the appellant’s contention that an unborn child being merely a part of its mother had no separate existence and, therefore, could not maintain an action under article 1063 C.C., is that, although the child was not actually born at the time the appellant by its fault created the conditions which brought about the deformity to its feet, yet, under the civil law, it is deemed to be so if for its advantage. Therefore when it was subsequently born alive and viable it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident. The wrongful act of the appellant produced its damage on the birth of the child and the right of action was then complete.
Per Cannon J.—The action in damages, and consequently the possibility of exercising it, has its existence from the date the injured person has suffered prejudice. In this case, the right of the infant child to claim damages was not entire before its birth. The child, while in its mother’s womb, was not suffering any prejudice nor inconvenience and no complete right of action then existed. Right to damages was born at the same time as the child when the deformity was revealed and therefore the respondent’s action was well founded in law.
Per Rinfret, Lamont, Smith and Crocket JJ.—The great weight of judicial opinion in the common law courts denies the right of a child when born to maintain an action for pre-natal injuries; per Rinfret, Lamont and Crocket JJ., although it has been held that the doctrine, which regards an unborn child as born if for its benefit, had been adopted in England by the Ecclesiastical and Admiralty courts, and to some extent by the Court of Chancery.
APPEAL from the decision of the Court of King’s Bench, appeal side, province of Quebec, affirming the judgment of the Superior Court, Duclos J., sitting with a jury, and maintaining the respondent’s action in damages.
The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.
Arthur Vallée K.C. for the appellant.
H. N. Chauvin K.C. and J. Hélai for the respondent.
The judgments of Rinfret, Lamont and Crocket JJ. were delivered by
Lamont J.—On March 25, 1929, the respondent’s wife, then seven months pregnant, was descending from a tram car belonging to the appellant (hereinafter called the Company) when, by reason of the negligence of the Company’s motorman, she fell, or was thrown from the car to the street and was injured. Two months later she gave birth to a female child—now called Jeannine—who was born with club feet. The respondent had himself appointed tutor to the child and brought this action ès-qualité against the Company, claiming that the deformity of the child was the direct consequence of the negligence of the Company by which its mother was injured. The action was tried with a jury who found for the respondent and awarded damages in the sum of $5,500, for which amount judgment was entered. This judgment was affirmed by the Court of King’s Bench (appeal side), Dorion and Hall JJ. dissenting. From the judgment of the Court of King’s Bench the Company appeals to this court.
The appeal presents three questions for determination:
1. Has a child, who suffers injury while in its mother’s womb as the result of a wrongful act or default of another, the right after birth to maintain an action for damages for the injury received by it in its pre-natal state?
2. Was there evidence on which the jury could reasonably find that the deformity of the child’s feet was the result of the accident to its mother? 3. Was the charge of the trial judge to the jury sufficient in law?
These questions fall to be determined by the civil law of the province of Quebec. The action is brought under article 1053 of the civil code, which reads:—
Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
For the Company it was contended that the first question should be answered in the negative, because—
1. A child en ventre sa mère is not an existing person— in rerum naturâ—but only a part of its mother and, therefore, does not come within the meaning of the term “another” in article 1053 C.C., and
2. The Company’s liability was founded in contract, express or implied, and there had been no contract with the child.
In support of its contention the Company cited the case of Walker v. G.T.N. Rly. Co. of Ireland[1]. In that case the plaintiff’s mother, while a passenger on the defendant’s railway, was injured by the defendant’s negligence, and the plaintiff, who was then en ventre, was subsequently born deformed. After the child was born it brought an action for damages for the deformity which it alleged was caused by the company’s negligence. On demurrer, the court, which consisted of four judges, held that the child could not maintain the action. The decision was based largely on the ground that the company had only contracted to carry the mother to whom alone it owed a duty not to be negligent. The broader ground, namely, the legal right of an unborn child to personal security, was discussed at some length, but the views of the judges on that point were against the recognition of the right; the Chief Justice, however, expressly stated that he would leave the question open, and based his judgment on the single ground that there were no facts set out in the statement of claim which fixed the defendants with liability for breach of duty as carriers of passengers.
During the argument in that case it was pointed out that under English law a conceived but unborn child, for the purposes of succession to property on an intestacy and for many purposes in connection with wills and their construction, was deemed to be born at a particular time if it was for the child’s benefit that it be so held, and that in The George and Richard[2], it was held that a child en ventre sa mère at the date of its father’s death was capable, when born, of maintaining an action under Lord Campbell’s Act. Reference was also made to the language of Mr. Justice Buller in Thellusson v. Woodford[3], who, when replying to an allegation that a child en ventre sa mère was a non-entity, at page 322, said:—
Let us see what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction; and he may have a guardian.
The court, however, took the view that the doctrine which regards an unborn child as born, if for its benefit, was a fiction of the civil law which had been adopted in England by the Ecclesiastical and Admiralty courts, and to some extent by the Court of Chancery; but that the common law courts had never recognized the fiction as applying so as to permit a child to obtain damages for pre-natal injuries.
That pre-natal injury affords no foundation for an action for damages on the part of a child was held in the following American cases: Allaire v. St. Luke’s Hospital[4]; Gorman v. Budlong[5]; Nugent v. Brooklyn Heights Rly. Co.[6]; Drobner v. Peters[7]; Stanford v. St. Louis-San Francisco Rly.[8]. The only case to the contrary cited to us was Kine v. Zukerman[9]. These were all cases under the common law and it must be admitted that the great weight of judicial opinion in the common law courts denies the right of a child when born to maintain an action for pre-natal injuries.
The rights of an unborn child under the civil law are based on two passages found in the Digest of Justinian, lib. 1, tit. 5, ss. 7 and 26, as follows:— 7. Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partas quaeritur.
(An unborn child is taken care of just as much as if it were in existence in any case in which the child’s own advantage comes in question.)
26. Qui in utero sunt in toto paene jure civili intelliguntur in rerum naturâ esse.
(Unborn children are in almost every branch of the civil law regarded as already existing.)
The Civil Code of Quebec makes provision for the appointment of a curator to the person or to the property of children conceived but not yet born. Arts. 337 and 338 C.C.
Art. 345 reads as follows:—
The curator to a child conceived but not yet born, is bound to act for such child whenever its interests require it; he has until its birth the administration of the property which is to belong to it, and afterwards he is bound to render an account of such administration.
This article practically embodies the Roman Law rule first above quoted.
Art. 608 C.C. reads as follows:—
608. In order to inherit it is necessary to be civilly in existence at the moment when the succession devolves; thus, the following are incapable of inheriting:—
1. Persons who are not yet conceived;
2. Infants who are not viable when born;
Under this article the right to inherit is made to depend upon civil existence. A conceived but unborn child, therefore, is deemed to have civil existence if subsequently born viable.
Articles 771 and 838 C.C. deal with gifts inter vivos and by will. The former article reads:—
771. The capacity to give or to receive inter vivos is to be considered relatively to the time of the gift. It must exist at each period, with the donor and with the donee, when the gift and the acceptance are effected by different acts.
It suffices that the donee be conceived at the time of the gift or when it takes effect in his favour, provided he be afterwards born viable.
Article 838 C.C. contains a similar provision in respect of a conceived but unborn child taking a benefit under a will.
It was contended by the Company that as the civil code by express provision had declared that the conceived but unborn child should possess the rights and capacities of a born child in respect of the matters mentioned in articles 608, 771 and 838 C.C., it limited by implication the cases in which a child en ventre would be deemed to be born to those expressly mentioned. On the other hand the respondent contended that the matters referred to in these articles, though specially dealt with in the civil code, are merely illustrative instances of the rule that an unborn child shall be deemed to be born whenever its interests require it, but that they in no way limit the meaning of article 345 C.C., which is general in its terms.
The Code Napoléon of France contains articles similar to articles 608 and 771 of the Quebec civil code. The French authorities may, therefore, be helpful in determining whether or not, under the civil law, the rule is of general application.
In Baudry-Lacantinerie et Houques-Fourcadé’s Droit Civil Français, 3rd ed., tome 1, at page 270, the learned authors say:—
289. L’homme constitue une personne dès le moment même de sa naissance. Jusque-là il n’est pas une personne distincte, il n’est encore que pars viscerum matris. Pourtant, en droit romain, on considérait, par une fiction de droit, l’enfant simplement conçu comme déjà né, lorsque son intérêt l’exigeait. Ce principe, admis aussi dans notre ancien droit, a été en ces termes: infans conceptus pro nato habetur, quoties de commodis ejus agitur. Le code civil en consacre lui-même plusieurs applications, qui prouvent qu’il a été maintenu dans toute sa généralité.
In Aubry et Rau, Droit Civil Français, 4th ed., tome 1, par. 53, page 262, the author says:—
Dans le sein de sa mère, l’enfant n’a point encore d’existence qui lui soit propre, ni par conséquent, à vrai dire, de personnalité. Mais, par une fiction des lois civiles, il est considéré comme étant déjà né, en tant du moins que son intérêt l’exige. En vertu de cette fiction, l’enfant simplement conçu jouit d’une capacité juridique provisoire, subordonnée, quant à ses effets définitifs, à sa naissance en vie et avec viabilité.
And in Mignault’s Droit Civil Canadien, we find the following:—
Une vieille maxime dit que l’enfant conçu est déjà réputé né toutes les fois qu’il s’agit de ses intérêts.
Then, after referring to the nomination of the curator under article 345 C.C., the learned author continues:—
Il n’est pas nécessaire de citer les cas qui nécessitent cette nomination. Elle se fait dans tous les cas où l’intérêt de l’enfant l’exige.
In determining the generality of the application of the fiction reference may also be made to the opinions expressed by certain English judges familiar with that law.
In Burnet v. Mann[10], Lord Chancellor Hardwicke said:—
The general rule is that they (unborn children) are considered in esse for their benefit not for their prejudice. and in Wallis v. Hudson[11], the same judge, at page 116, stated that a child en ventre sa mère “was a person in rerum naturâ.” Then, after referring to the Statute of Distributions which he said was to be construed by the civil law, he proceeded as follows:—
As to the civil law, nothing is more clear, than that this law considered a child in the mother’s womb absolutely born, to all intents and purposes, for the child’s benefit.
This statement as to the civil law was referred to with approval by Lord Atkinson in Villar v. Gilby[12]. See also Schofield v. Orrel Colber[13].
In Doe v. Clark[14], Butler J. used this language:—
It seems indeed now settled that an infant en ventre sa mère shall be considered, generally speaking, as born for all purposes for its own benefit.
In many of the English cases in which effect was given to the rule of the civil law it was applied simply as a rule of construction by which the term “child” or “children” was held to include a child en ventre sa mère. But in Doe v. Lancashire[15], the question was not one of construction but of the revocation of a will by the birth of a child, and Gross J., at page 63, said:—
I know of no argument, founded on law and natural justice, in favour of the child who is born during his father’s life, that does not equally extend to a posthumous child.
These learned judges undoubtedly considered the fiction to be of general application.
To the Company’s contention that an unborn child being merely a part of its mother had no separate existence and, therefore, could not maintain an action under article 1053 C.C., the answer, in my opinion, is that, although the child was not actually born at the time the Company by its fault created the conditions which brought about the deformity of its feet, yet, under the civil law, it is deemed to be so if for its advantage. Therefore when it was subsequently born alive and viable it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident. The wrongful act of the Company produced its damage on the birth of the child and the right of action was then complete. The separate existence of an unborn child is recognized even at common law, for it is well established that if a person wrongfully causes injury to a child before its birth which results in death after it has been born alive, such person will be guilty of a criminal offence although the wrongful act was directed solely against the mother. Rex v. Senior[16]; Russell on Crimes, 8th ed., vol. 1, page 622. It was, however, urged that there is no true analogy between crime and tort, as the punishment of crime is for the public benefit, while the remedy in tort is for private redress. While in some cases there may be no analigy yet there are, in my opinion, many cases in which crime and tort are merely different aspects of the same set of facts and in which there is so close an analogy that something more than the bare denial of it is necessary to carry conviction. The wrongful act which constitutes the crime may constitute also a tort, and, if the law recognizes the separate existence of the unborn child sufficiently to punish the crime, it is difficult to see why it should not also recognize its separate existence for the purpose of redressing the tort.
If a child after birth has no right of action for pre-natal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which compensation cannot be had save at the suit of the child. If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another’s fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.
The argument that the Company’s liability is founded in contract cannot, in my opinion, be maintained. This is not the case of a person not a party to the contract suing for a breach of it. The respondent does not seek to recover from the Company on the ground that it failed to perform its contract with the mother, but on the ground that it committed an independent tort against the child. The fault which constitutes a wrong to the child may also constitute a breach by the Company of its contract with the mother, but, under article 1053 C.C. the existence or nonexistence of the mother’s contract is entirely irrelevant in tort.
There were two other matters to which our attention was called; the first was that cases similar to the present one must have arisen many times in the past, but that no decided case (or at most only one) has been found in which the child’s right of action for pre-natal injuries has been maintained. The paucity of decided cases is far from conclusive, and may be largely accounted for by the inevitable difficulty or impossibility of establishing the existence of a causal relation between the fault complained of and the injury to the child. With the advance in medical science, however, that which may have been an insuperable difficulty in the past may now be found susceptible of legal proof.
The other matter to which we were asked to give serious consideration was the practical inconvenience and possible injustice to which the Company might be exposed if it were held that this right of action could be maintained. It was urged that to so hold would open wide the door to extravagance of testimony and lead, in all probability, to perjury and fraud. I am not apprehensive on this point for, although in certain cases special care will be required on the part of the judge in instructing the jury, I feel quite confident that the rules of evidence are adequate to require satisfactory proof of responsibility and that the determination of the relation of cause and effect will not involve the court in any greater difficulty than now exists in many of our cases.
For these reasons I am of opinion that the fiction of the civil law must be held to be of general application. The child will, therefore, be deemed to have been born at the time of the accident to the mother. Being an existing person in the eyes of the law it comes within the meaning of “another” in article 1053 C.C. and is, therefore, entitled through its tutor to maintain the action.
Support for this view is, I think, furnished by the fact that none of the judges below cast any doubt upon the right of the respondent to sue. The point, it is true, does not appear to have been raised in either court but I cannot think a point so important and outstanding would have been passed without comment had not the judges below been satisfied as to the existence of the right.
The next question is, whether there was evidence on which the jury could reasonably find the existence of a causal relation between the accident to the mother and the deformity of the child’s feet.
The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v. Astley[17], as follows:—
It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The applicant must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon. Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.
There was undoubtedly evidence to go to the jury that the mother’s accident was caused by the fault of the Company, and the jury’s finding on that point cannot be disturbed. That such fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence. It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury. These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn. It is not sufficient that the evidence affords material for a conjecture that the child’s deformity may have been due to the consequences of the mother’s accident. It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.
The distinction, I think, is well brought out by a comparison between two cases of the province of Quebec: Boilard v. Cité de Montréal[18], and Montreal Tramways Company v. Mulhern[19]. In the Bollard case[20], the young child of the plaintiff had been compulsorily vaccinated in compliance with a city by-law. Shortly after the vaccination, the child’s arm became paralysed and permanently useless. Contending that the condition of the arm had been brought about as a result of the vaccination, the plaintiff, as tutrix, sued the city in damages on behalf of the child. At the trial, three different theories were advanced by the medical experts. One was that it was a clear case of infantile paralysis in no possible way to be attributed to the vaccination. Another theory ascribed the cause either to infected vaccine or to infantile paralysis. The third theory was that the use of infected vaccine was the sole possible explanation of the condition of the arm. There was, however, no positive evidence of the fact that the vaccine was actually infected. The jury held the city responsible on the ground that the vaccine used was infected. The Court of King’s Bench set aside the verdict. Sir Horace Archambault, then Chief Justice of the province of Quebec, delivering the judgment of the court, said:—
Une chose est claire, au milieu de cette obscurité, c’est qu’il s’agit ici d’une question d’opinion, et non d’une question de fait constant, positif. Aucun témoin n’est venu jurer positivement que le vaccin était infecté. Tout ce que certains d’entre eux ont pu dire, c’est que le résultat produit tendrait à établir, ou ferait présumer, que le vaccin était infecté. Les jurés n’ont donc pu que décider entre les diverses opinions émises, et émettre eux-mêmes une opinion. Ce n’est pas là la décision d’un fait; et les jurés n’ont pas d’autre juridiction que de décider les questions de fait.
* * *
Sans doute, il faut s’en rapporter à l’opinion de médecins, d’experts, pour connaître les effets, les conséquences d’un accident. Ainsi, une maladie nerveuse se déclare à la suite d’un accident; les médecins seront admis à prouver que cette maladie a été produite par l’accident. De même, on entendra des médecins pour savoir si la maladie est permanante ou temporaire. Mais, dans ces cas, l’accident lui-même doit d’abord être prouvé, ainsi que la faute de la partie que l’on veut tenir responsable des dommages qui ont résulté de l’accident. En d’autre termes, le fait générateur de la responsabilité doit être établi par témoins, qui en attestent l’existence. Les conséquences de ce fait peuvent ensuite être établies par des experts.
In the Mulhern case[21], the question was whether the respondent had established that the death of her husband was due to the bodily injuries sustained by him in a collision several months previous to his death and which, at first, did not appear to be serious. The autopsy had shewn that the death was due to “thrombosis of the coronary artery.” The question was whether the thrombosis had been caused by the accident. Three doctors testified that, in their opinion, the accident had either caused or aggravated the condition of the deceased. Other doctors, while admitting that possibility, said that it was not the cause in the particular circumstances. Yet another one declared that it was a scientific impossibility for the thrombosis to have been the result of the accident. The jury found in favour of the plaintiff. The case came before the Court of King’s Bench, in Quebec, which included four of the five judges who had sat in the Bollard case (1). The court held that the finding of the jury should not be interfered with. It distinguished Boilard v. City of Montreal[22], as appears by the head-note:—
In a jury trial where damages are claimed for (an accident), a verdict cannot be founded only on medical controverted opinions, but the case is different where the medical evidence is supported by a proof of non contested facts. The jurors may then render their verdict by appreciating the facts and opinion of medical men, which they have before them.
An affirmative verdict can be rendered upon facts and probabilities only if they establish presumptions; and if these presumptions are strong enough to bring about a reasonable conviction in the mind of a jury, the Court should not interfere.
Mr. Justice Carroll delivered the judgment of the court, and, referring to the Boilard case[23] (page 459)[24], he said:
Dans cette dernière cause, il s’agissait d’un enfant qui avait été vacciné et qui, à la suite de l’opération, avait perdu l’usage du bras vacciné. Le jury avait déclaré que le vaccin était infecté, mais cette réponse ne résultait pas des faits prouvés, elle résultait seulement d’opinions théoriques controversées entre les médecins entendus comme témoins.
Ici (meaning in the Mulhern case), nous avons bien des théories contradictoires, mais nous avons aussi des faits non contestés. Le défunt, avant cet accident, jouissait d’une bonne santé et n’avait manifesté aucun symptôme de la maladie dont il est mort. Il s’est plaint immédiatement après l’accident de douleurs dans la région du coeur. Les témoins que l’ont connu nous disent qu’il n’était plus le même homme d’affaires averti, consciencieux et travailleur, l’accident en a fait une ruine physique.
Les jurés pouvaient-ils, eu égard à ces faits prouvés devant eux, conclure que l’accident avait ou déterminé ou accéléré la mort? Sans doute que l’autopsie a révélé des lésions au coeur, plus anciennes que celles qu’auraient causées l’accident, mais si l’accident a fait évoluer plus rapidement la maladie et abrégé la vie de Holman, la compagnie est responsable.
Les faits qui ont été établis devant les jurés produisent des probabilités, et cette, cause ne peut être décidé que sur des présomptions basées sur ces probabilités. Si les présomptions ainsi créées sont assez fortes pour produire une conviction raisonnable chez douze jurés, est-ce qu’une cour doit intervenir? Je ne le crois pas. The judgment was affirmed by this court[25].
In Jones v. G.W. Rly. Co.[26], the House of Lords had to consider whether there was evidence on which a jury could properly find negligence on the part of the defendant’s servants which caused or contributed to the death of the husband of the first plaintiff. In stating the principles which should govern in such a case, Lord MacMillan, at page 45, said:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogeny of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.
An instance of a case where this court “bridged the hiatus” is that of Shawinigan Engineering Co. v. Naud[27]. It is sufficient to refer to the judgment of the court (Duff, Mignault, Newcombe, Rinfret and Smith JJ.), more particularly to the passage from the foot of page 344 to the end of page 345, to realize how strikingly similar the problem of the relation of cause and effect happened to be both in that case and in the present case.
By article 1242 C.C. presumptions not established by law are left to the discretion and judgment of the court. The corresponding article in the Code Napoléon (art. 1353) is to the same effect but with the limitation that the court will admit only such presumptions as are “graves, précises et concordantes,” by which is meant presumptions in which the connection between the facts established in evidence and the fact to be proved is such that the existence of the known facts establishes by inference or deduction the fact in dispute.
Article 1242 of the Quebec Civil Code does not contain the limitation of the Code Napoléon but as a presumption to be admitted as legal proof is necessarily a deduction from proven facts, there is, perhaps, but little if any difference between the meaning to be ascribed to the two articles. See the Montreal Rolling Mills v. Corcoran[28].
In the present case there was evidence from which the jury could find that the mother fell on her stomach and that the fall produced ecchymosis on the right side thereof; that, after the accident, she suffered abnormal pains in her abdomen which continued until after her confinement, and for the first time she had a leakage of fluid from the uterus which, though slight and intermittent, continued until the birth of the child. These leakages Dr. Benoit, the family physician, explained as coming from the amniotic fluid. The doctor’s view was that the three membranes of the sac had been slightly fissured, sufficiently to permit the fluid to slowly filter through, but not sufficiently to bring about a premature confinement.
The jury had also before them the further testimony of Dr. Benoit, who was present at the confinement, and who stated that in delivering the mother he had to break the sac—that the water therein had partly escaped and “l’accouchement a été presque à sec.” He examined the child immediately after its birth and found that each foot was bent inwards. Witnesses also testified that the child was born with a black mark on its heel. There was also evidence that no members on either side of the family had ever had club feet; that Madame Léveillé’s first child had been perfect in health and form; that her carriage of Jeanine had been normal and that up to the 25th of March, 1929, she had not suffered any accident or fright. This evidence was uncontradicted. It was, therefore, for the jury to determine, in the light of that evidence and the medical testimony, whether a causal relation existed between Madame Léveillé’s fall and the child’s club feet.
Nine medical witnesses were examined at the trial, three testifying for the respondent and six for the appellant.
For the respondent Dr. Langevin, a gynaecologist and obstetrician professor at the University of Montreal, testified that in its mother’s womb the child’s members were in a flexed position and their malformation would be promoted by the absence of liquid in the uterine cavity which would cause the walls thereof to contract and the flexing to increase. He further said that in the last months of pregnancy, particularly from the seventh to the ninth month, the calcification of a child’s bones greatly increases; that during this period it requires twenty-two times more lime than during the first months, and that with the extra pressure caused by the contraction of the uterine cavity the chances of the bones calcifying in their flexed position become greater. He also said that when the pressure is found in the uterine cavity the probability is that a deformity will result. Dr. Langevin’s conclusion was that while club feet may result from various causes, the only satisfactory explanation, in the circumstances of this case, was that the deformity resulted as a consequence of the mother’s fall. In fact he said that scientifically there was no other explanation.
Dr. Letondal, professor of children’s clinic of the faculty of medicine, and specialist in children’s diseases, testified to the same effect as Dr. Langevin. He admitted that his conclusion was simply a theory incapable of scientific demonstration but he expressed the opinion that it was the most probable theory and there was no other that he could suggest.
Dr. Benoit also testified as follows:—
Q. Docteur, à quoi attribuez-vous cette condition de pieds bots dont l’enfant souffre aujourd-hui?—R. Enfin, d’après les auteurs,......
Q. Docteur, dans le cas présent, qui nous occupe?—R. Dans le cas présent ici, je l’attribue par la pression utérine sur la position des membres, pression qui a duré deux mois, au cours desquels il y a calcification des membres et cette malformation a été causée par la position des membres qui a été exagérée et je crois que le pied bot qui est ni plus, ni moins qu’une exagération d’une position normale au moment où il y avait calcification. Et je pourrais dire que le pied a été calcifié dans cet état-là.
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Q. Maintenant, voulez-vous me dire s’il y a relation entre l’état que vous avez constaté et l’infirmité que vous avez vu chez cet enfant?—R. Pour moi, c’est l’état de contractibilité des membranes de l’utérus, et c’est dû au traumatisme qu’elle a eu lors de sa chute.
On the other hand the medical witnesses called on behalf of the appellant stated that the cause of club feet in children is not known to the medical profession. They did not agree with the conclusion reached by the respondent’s witnesses, some because they thought that if there had been a rupture of the uterine cavity sufficient to permit leakage from the amiotic sac it would have produced a premature confinement. Others thought the fall of the mother would not cause club feet in the child she was carrying at the time, and one added: that at seven months the feet of a child have become so ossified that a fall which would injure them would be likely to break the bones. The testimony given by these witnesses was largely of a negative character and they could not suggest any reasonable hypothesis to account for the deformity.
Does the evidence in this case take us beyond the region of pure conjecture and into the domain of reasonable inference? It was contended on behalf of the Company that, even if the accident to the mother was the result of the Company’s fault, there was no evidence whatever to connect the deformity of the child’s feet with the mother’s accident; that it was just as reasonable to attribute the club feet to an unknown cause as to attribute it to the consequences of the mother’s fall. I do not think this is so. Ascribing the club feet to an unknown cause does not eliminate uterine contraction as a probable cause. The Company’s medical witnesses by saying that they do not know the cause of club feet do not negative the testimony of those who find uterine contraction a very probable cause. In this case the cause which produced club feet cannot be demonstrated to a certainty and the law does not require that it should be. It is simply a question of drawing an infer