Foster and Robillard v. C.A. Johannsen & Sons Ltd., [1963] S.C.R. 637 (1963)

Supreme Court of Canada

Foster and Robillard v. C.A. Johannsen & Sons Ltd., [1963] S.C.R. 637

Date: 1963-12-16

Ralph Foster and Roger Robillard (Plaintiffs) Appellants;

and

C.A. Johannsen & Sons Limited (Defendant) Respondent.

1963: June 17, 18; 1963: December 16.

Present: Cartwright, Fauteux, Abbott, Judson and Hall JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence-Construction contract-Inspection of work clause-Right of owners to access and proper facilities for access and inspection-Owners injured by fall while inspecting unfinished roof-Whether contractor liable.

The defendant construction firm was engaged in erecting a shopping centre for a company of which the plaintiffs were respectively the president and general manager. Article 13 of the construction contract provided that the plaintiffs should have access to the work wherever it was in preparation or progress and obligated the contractor to provide proper facilities for such access and for inspection. The plaintiffs visited the premises on a holiday and as no workmen were present arrangements were made with the superintendent that they would return the following week. When the plaintiffs returned on the next working day the superintendent was not on hand, but with the assistance of some workmen they climbed to the roof. There they walked about taking photographs and eventually came to an area where metal sheets were laid out preparatory to being put in their permanent place to be welded. They stepped on the butt ends of metal sheeting not supported by a girder and fell to the ground, suffering serious injuries. The trial judge held that the defendant was liable in tort for its negligence and in contract for implied breach of its obligation. He also found the plaintiffs negligent and apportioned the fault 75 per cent aga...

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