LeBlanc (P.J.) v. Oland Breweries Ltd.
142 N.B.R. (2d) 287; 364 A.P.R. 287
New Brunswick Court of Appeal
Hoyt, C.J.N.B., Rice and Ayles, JJ.A.
January 12, 1994.
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary:
The plaintiff brought an action in negligence against a brewer for damages for personal injuries suffered when a bottle of beer exploded. The brewer added the bottle manufacturer as third party. The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 130 N.B.R.(2d) 271; 328 A.P.R. 271, allowed the plaintiff's action, but dismissed the third party claim. The brewer appealed. The plaintiff cross-appealed the amount of damages and the order of costs. The New Brunswick Court of Appeal dismissed the appeal and the cross-appeal.
Damage Awards - Topic 30
Injury and death - Arm and hand injuries - Hand - A 27 year old married man suffered injuries to his hand when a bottle exploded - Severe cuts to palm and a division of multiple tendons and nerves in ring and little fingers - Surgical repair - Good recovery with residual loss of sensation and strength - The trial judge awarded $8,000 nonpecuniary general damages - The New Brunswick Court of Appeal affirmed the award - See paragraphs 21 to 24.
Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - The plaintiff was injured when a bottle of beer exploded as he pushed it upside-down into a container of crushed ice - The trial judge allowed the plaintiff's action in negligence against the brewer - The plaintiff sought increased costs on the ground that a witness for the brewer suppressed the information at discovery that the brewer was involved in a similar lawsuit in Ontario - The trial judge accepted the witness's explanation at trial and declined to award additional costs - The New Brunswick Court of Appeal declined to interfere with the trial judge's award in the absence of exceptional circumstances - See paragraphs 25 to 28.
Practice - Topic 8301
Costs - Appeals - Appeals from order for costs - Variation of order of trial court - [See Practice - Topic 7110.1].
Torts - Topic 4330
Suppliers of goods - Negligence - Manufacturers - Defective containers - The plaintiff was injured when a bottle of beer exploded as he pushed it upside-down into a container of crushed ice at a ball tournament - Evidence established that bottle-explosions occurred despite many quality-control checks by both the brewer and bottle manufacturer - The trial judge allowed the plaintiff's action in negligence against the brewer - The New Brunswick Court of Appeal held that the trial judge correctly inferred that the brewer was negligent - See paragraphs 1 to 14.
Cases Noticed:
Donoghue v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1 (H.L.), appld. [para. 11].
Cohen v. Coca-Cola Ltd. (1967), 62 D.L.R.(2d) 285 (S.C.C.), refd to. [para. 12].
Hart v. Dominion Stores Ltd. et al., [1968] 1 O.R. 775 (H.C.), refd to. [para. 13].
Chapman v. Seven-Up Sussex Ltd. (1970), 2 N.B.R.(2d) 909 (T.D.), refd to. [para. 13].
Smith v. Inglis Ltd. (1978), 25 N.S.R.(2d) 38; 36 A.P.R. 38 (C.A.), refd to. [para. 13].
Plourde v. Côté (1973), 9 N.B.R.(2d) 25; 1 A.P.R. 25 (T.D.), refd to. [para. 13].
Grant v. Australian Knitting Mills Ltd., [1936] A.C. 85 (P.C.), appld. [para. 14].
Counsel:
Henry J. Murphy, for the appellant;
George H. LeBlanc, for the respondent.
This appeal was heard on October 7, 1993, before Hoyt, C.J.N.B., Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal. On January 12, 1994, Rice, J.A., delivered the following judgment for the court.
[1] Rice, J.A.: This is an appeal from a decision of a judge in the Court of Queen's Bench in which the appellant, Oland Breweries Ltd., was a defendant to a claim by the respondent, Paul J. LeBlanc and Consumers Packaging Inc., the manufacturer of the bottle, was a third party to a claim for contribution or indemnity by the appellant. The respondent LeBlanc's claim arose out of injuries to his left hand that he received as a result of the explosion of a beer bottle that was bottled and distributed by the appellant. The trial judge found the appellant liable and dismissed the claim against the third party. This appeal challenges only the finding of liability against the appellant.
[2] The facts can be summarized thus: The incident which resulted in injuries to the respondent occurred at a softball championship game which was being held in Moncton, New Brunswick. The event was being sponsored by the appellant, although nothing turns on that sponsorship as a basis for the trial judge's finding of liability. The respondent, Paul J. LeBlanc, had been assigned the job of filling coolers or tubs with beer bottles on the day of August 25, 1990. This involved pushing bottles into tubs containing crushed ice and water. The tubs were approximately two feet by four feet in size and one foot deep. The trial judge found that the tubs held approximately 48 bottles and that there were about 18 of them in the tub at the time of the mishap. He described the actions of the respondent at the moment of the injury in this way:
"The plaintiff, who is left-handed grabbed two bottles of Labatt Blue beer from a box by the neck with his right hand and then with his left hand, was in the process of pushing one, upside-down, in the ice and water when he heard a 'poof' sound. The bottle shattered and as a result the inside of his left hand was badly cut and bleeding."
[3] Counsel for the appellant pointed out discrepancies and contradictions between the respondent's evidence on discovery and his testimony at trial, with respect to the number of bottles already in the tub at the time of the explosion. He pointed out that there were 42 bottles in the tub and not the amount found by the trial judge. The greater the number of bottles already in the tub at the time the respondent pushed the last bottle into the crate, the greater the likelihood that the explosion occurred as a result of friction with other bottles or the walls of the tub. The appellant argues that the trial judge in his assessment of the facts overlooked or misapprehended this important fact, as well as the fact that the sides of the tub were slanted, bringing the bottles very close together at the time.
[4] However, the evidence as a whole can support the conclusion reached by the trial judge that there was sufficient room between the bottle which exploded and the others, thereby eliminating blows with adjacent bottles or walls of the tub as the source of the explosion. This question is very much one involving the assessment of the evidence and the weight to be attributed to it, as well as the appreciation of the evidence given by witnesses. This court is at a great disadvantage in undertaking a similar exercise. The finding of the trial judge on that question is clear in that he accepted the respondent's version as to the available space in the tub of ice and water at the time he inserted the bottle which exploded. He said:
"The bottle was approximately halfway in the ice when it shattered and not much pressure, only a reasonable amount, was required to push it into the ice. The plaintiff said there was lots of room for the bottle and that there were other bottles near it but not close enough that the bottle being inserted would hit them. He did not see or feel that it struck other bottles.
. . . . .
"On the question of liability there is no evidence of abuse, excessive force or mishandling of the bottle by the plaintiff."
[5] Witnesses testified that explosion of bottles during the appellant's bottling process, although somewhat rare, does occur. The occurrence of such a phenomenon was stated by the brewery manager at the Saint John Brewery to be 100 to 200 bottles in a 25,000 to 30,000 dozen bottle production.
[6] A clerk of the New Brunswick Liquor Control Corp. testified that beer bottles of all brands, although rarely and in very small proportions, sometimes explode without the application of particular pressure.
[7] The appellant pointed out that it had in place a state of the art inspection method for the detection of defective bottles and that the cost of even more thorough inspections would undermine its competitiveness in the marketplace.
[8] As mentioned earlier, the bottles were manufactured by the third party. The appellant states that it inspects all the bottles twice before the bottling process is completed and that some are discarded as a result. It is impossible to detect all defective bottles by the application of the inspection process that is utilized in the industry. Although the number that break is very small compared with the volume of bottles that enter the marketplace, nonetheless some defective bottles will find their way into the hands of a consumer and may explode without abuse or other interference.
[9] The trial judge had this to say about the evidence as a whole:
"I find that the plaintiff was not negligent and, in the circumstances, the only reasonable inference is that the defendant was negligent, and is liable for the plaintiff's injuries."
[10] I am of the view that the trial judge made no error in principle when he inferred that the appellant had been negligent in allowing such a product to reach the hands of a consumer in the circumstances. The proportion between the safe and unsafe bottles is not relevant, in my view, nor is the established inspection practice in the industry, even if based on economic feasibility.
[11] The responsibility of the appellant in selling a product to reach an unknown ultimate customer is that expressed in Donoghue v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1 (H.L.), at 599:
"... a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."
[12] In Cohen v. Coca-Cola Ltd. (1967), 62 D.L.R.(2d) 285, the Supreme Court of Canada interpreted a presumption created by the Quebec Civil Code. Abbot, J., stated at page 288:
"The bottler of carbonated beverages owes a duty to furnish containers of sufficient strength to withstand normal distribution and consumer handling. Little is to be gained by discussing the numerous decided cases involving the explosion of bottles containing such beverages. Each case turns upon whether the evidence in that particular case excludes any probable cause of injury except the permissible inference of the defendant's negligence."
[13] Although the common law provinces apply different principles in determining liability in such cases, the Cohen v. Coca-Cola principle has found approval in decisions of the common law provinces (see Hart v. Dominion Stores Ltd. et al., [1968] 1 O.R. 775 (H.C.); Chapman v. Seven-Up Sussex Ltd. (1970), 2 N.B.R.(2d) 909 (T.D.); Smith v. Inglis Ltd. (1978), 25 N.S.R.(2d) 38; 36 A.P.R. 38 (C.A.); Plourde v. Côté (1973), 9 N.B.R.(2d) 25; 1 A.P.R. 25 (T.D.)).
[14] Drawing an inference on the evidence, as did the trial judge, has been held to be proper in certain circumstances. Lord Wright said in Grant v. Australian Knitting Mills Ltd., [1936] A.C. 85 (P.C.), at p. 101:
"... The appellant is not required to lay his finger on the exact person in all the chain who was responsible, or to specify what he did wrong. Negligence is found as a matter of inference from the existence of the defects taken in connection with all the known circumstances ..."
For the above reasons I would dismiss the appeal.
[15] The respondent cross-appeals the amount of damages and the award of costs. The cross-appeal is worded in this way:
"(a) That the award for loss of past earnings be increased to allow for a period of loss of full-time earnings of 18 weeks and an additional two weeks loss of part-time earnings;
"(b) That the award of general damages be increased;
"(c) That trial costs be assessed on a solicitor/client basis, or alternatively on an increased scale of the tariff, in favour of the plaintiff."
[16] The respondent who was 29 years old at the time of the trial suffered severe cuts in the palm of his left-hand and a division of multiple tendons and nerves in the ring and little finger.
[17] In assessing the loss of earnings, the trial judge's task was compounded by the inception during the period of another disabling medical problem of the respondent which was unrelated to the accident.
[18] He expressed himself in this way:
"The plaintiff was absent from work from the date of the accident being August 25th, 1990. According to Dr. Curry, the condition of his hand was such that he could only have resumed part-time work on January 1st, 1991, and full-time employment on January 15th, 1991. As it turned out, the plaintiff, because of another medical problem was only able to return to work on February 25, 1991. In November 1990, the plaintiff saw his family physician concerning an anal fissure which was thought to be caused by constipation. On December 18th, 1990, he was seen by a surgeon, Dr. Murphy, who booked him for day surgery, which was done on January 17, 1991. In his report, Dr. Murphy states that he told the plaintiff that as of January 17th he should be off work and he wrote in his chart that he should return to work on February 18th."
[19] The trial judge concluded that the respondent would not have been able to return to work for part of the period of disability caused by the hand injury owing to another medical problem. In other words, the respondent would not have been able to work because of other medical reasons for part of the period claimed as loss of earnings.
[20] I cannot say that the trial judge made such an overriding or palpable error in his assessment of the facts surrounding this question of loss of earnings, as to justify the intervention of this court.
[21] The second ground of cross-appeal deals with the assessment of general damages.
[22] The medical evidence upon which the trial judge made his assessment reads in part as follows:
"It is now five months since the injury, and he has done very well, having almost full range of motion of the ring finger, lacking only about 5° of full extension of the proximal interphalangeal joint. On the little finger, the proximal interphalangeal joint flexes from 0° to 65°, which is somewhat reduced, and at the distal interphalangeal joint from 15° to 75°, which is again reduced in extension and full flexion. However, this is an excellent result in terms of overall range of motion, and it is expected that over the next few months there will be further gain. However, he will, most likely, always have some slight reduction in full range of motion.
. . . . .
"As I understand it, he has been working recently at his old job reasonably successfully, although obviously, with reduced endurance and capability, but this should gradually improve to the point that he should not have too much trouble in the future other than with sensation. I'm not sure exactly when he returned to work, and you will have to get that information from him.
"Therefore, in summary, he has done very well in terms of range of motion and will continue to regain in this aspect for some time to come; however, he will almost certainly be left with a slight overall reduction in mobility. The greater unknown quality is one of sensation, and, again, it is highly likely he will have permanent reduced sensation, although probably not as profound as at the present time."
A month later, the same medical doctor wrote:
"Regarding sensation, it will be recalled that the nerves to the third and fourth webs were divided, creating aesthesia inside of the little finger, both sides of the ring and the ring fingers side of the middle finger. In all of these areas, he has regained sufficient sensation to be protective, that is to say he can discern sharp trauma or heat, however it is by no means a normal sensation and as it is now two years since the injury, it is highly likely that there will be little more regain in quality of sensation.
"As I mentioned, he does have excellent return of range of motion, however there is, nonetheless, altered capacity for various activities in his hand as regards mobility, strength and sensation, and these alterations are evidenced in such matters as his hand feeling a stinging sensation during the cold months. He does not wear his wedding band on the left ring finger because it has a tendency to slip off in, for example, a shower because he is not able to feel it as well as normal."
[23] After having noted the pain which plagued the respondent in the weeks after the incident and the 25 to 30 physiotherapy treatments he underwent, the trial judge made the following finding as to the respondent's condition as it related to the assessment of general damages:
"The plaintiff presently is less able to hold a golf club for as long as he could before and has reduced capability in bowling skills. Being left-handed, he uses his injured hand to deliver the ball.
"The winter after the accident, the plaintiff could not play hockey or bowl.
"In cold weather his hand stings badly and feels colder. It affects his shovelling.
"Last January, as corroborated by his wife who also testified, he dropped a coffee cup. He feels the injury might have caused him to do that because he could not feel the texture of the cup.
"He says his grip is weaker than before.
. . . . .
"On the question of general damages, the plaintiff has made good recovery. He is left with a very minimal reduction in the full range of motion and loss of sensation.
"Taking everything into account, I assess the general damages for pain and suffering and loss of amenities and the probable but very slight permanent partial disability at $8,000."
[24] In my view, there being no prospective loss of earning this assessment of general damages is not inordinately low.
Costs
[25] The underlying basis of this ground of appeal lies in the conduct of witnesses of the appellant or the appellant itself in the presentation of the evidence.
[26] It appeared that the appellant was involved in a similar lawsuit in the Province of Ontario and that the appellant or a witness for the appellant suppressed that information at the time of discovery.
[27] The trial judge accepted the explanations given by the witness at trial and declined to award costs for that reason. He said:
"I do not accept the plaintiff's argument that additional costs should be awarded because of Mr. Hamlyn's testimony at discovery. He explained why he testified that way at trial."
[28] This court has ruled in several of its decisions that it will not interfere with the exercise of discretion of a trial judge in awarding costs unless exceptional circumstances exist.
[29] I would dismiss the appeal and the cross-appeal. As both parties were unsuccessful in their appeals, I would not award costs.
Appeal and cross-appeal dismissed.
Editor: Janette Blue
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