Gionet v NB Power
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Bathurst
(B/SC/443/95)
Temp. Cite: [1997] N.B.R.(2d) TBEd. NO.015
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary:
Gionet sued the New Brunswick Power Corporation for damages caused to his residence when a water heater leased from the defendant and installed in his home leaked. The New Brunswick Court of Queen's Bench, Trial Division, allowed the action.
Crown - Topic 5669
Agents of Crown - Liability in tort - Crown corporations - General - [See Torts - Topic 4375].
Suppliers of goods - Negligence - Lessors - Inspection of equipment - In 1977, Gionet leased a water heater from NB Power and had it installed in his residence - The water heater was supposed to last for about 15 years - It was not installed to standard as there was no provision for draining water escaping from the heater - In 1994, the water heater leaked - Gionet's residence was damaged - Gionet sued NB Power - The New Brunswick Court of Queen's Bench, Trial Division, allowed the action because the defendant had failed "to have an inspection system in place which would have discovered a water heater that might cause damage to the plaintiff, given the manner in which it had been installed and the age of the heater".
Counsel
Emile O. Gionet, on his own behalf;
Gordon Murphy, for the defendant.
This case was heard on October 15, 1997 by Deschênes, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst.
Deschênes, J., delivered the following decision on November 3, 1997.
[1] Deschênes, J. [Translation]: The plaintiff Emile Gionet (Mr. Gionet) sustained damages to his residence as a result of water escaping from an electric water heater leased from the New Brunswick Power Corporation (NB Power). He claims compensation from NB Power.
[2] The amount of damages is estimated at over $3,000; the defendant does not dispute this point.
[3] The water heater in question was leased from NB Power in 1977, i.e., more than 17 years before the occurrence of the damages in May 1994.
[4] It had been installed by a contractor hired by the plaintiff. The installation was obviously not performed according to standards required by law as there was no provision for draining water escaping from the heater. It is obvious that had the heater been installed near a drain as is required by plumbing standards, the damage the plaintiff claims would not have occurred.
[5] There is no evidence of negligence in having provided a defective water heater or an appliance which does not meet established standards. NB Power's liability might possibly be based on ss. 10 and 12 of the Consumer Product Warranty and Liability Act , S.N.B. 1978, c. C-18.1. Section 12 of the Act contains an implied warranty that the product will be durable for a reasonable period of time. In this regard, I don't think we can say that a water heater that lasted for over 17 years was not fit for the purpose for which it is normally used.
[6] Furthermore, the defendant itself established that on average, water heaters last for approximately 15 years.
[7] The evidence has also shown that the defendant has no inspection system to ensure that when water heaters are first installed by clients, they are installed to the standards of the Act which require that drains be provided such that water escaping from the heater will not cause damage.
[8] In addition, the evidence established that NB Power has no inspection system to determine the condition of water heaters that have been used for over 15 years.
[9] In my view, it is obvious that the damage caused by water escaping from a water heater is foreseeable if the heater is not installed to standard and has been used for over 15 years.
[10] The plaintiff had hired a reputable contractor to install the water heater and was entitled to rely on him.
[11] The damages sustained by the plaintiff were probably caused in part by the contractor who did not install the water heater according to standards required by law and in part by NB Power in allowing a water heater to be used for more than 17 years when it had not been installed to standard.
[12] In my view, NB Power should implement a program whereby the water heaters it leases are inspected before the expiration of their normal life expectancy in order to ensure that they are installed to standard and replaced if the installation is such as damage might ensue if water escapes.
[13] In a case such as this, it is in my view unreasonable to require the plaintiff to sue the contractor who installed the heater in 1977. Rather, it is for NB Power to sue the contractor as a third party if it so wishes.
[14] In my opinion, NB Power must compensate the plaintiff for $3,000 for failing to have an inspection system in place which would have discovered a water heater that might cause damage to the plaintiff, given the manner in which it had been installed and the age of the heater.
[15] The plaintiff is entitled to judgment against the New Brunswick Power Corporation in the amount of $3,000 plus $35 in costs.
Action allowed.
Editor: Giovanni A. Merlini/pdk
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