Parker v. New Brunswick Power Corp.
183 N.B.R. (2d) 316; 465 A.P.R. 316; 183 R.N.-B. (2e) 316
New Brunswick Court of Appeal
Rice, Ryan and Bastarache, JJ.A.
November 20, 1996
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
The plaintiff rented a hot water heater from the defendant. The heater ruptured and the water escaped. The plaintiff sued the defendant for damage caused by the escaping water. The defendant admitted the water heater was defective, but submitted that it was not responsible for the damages caused where the heater was not installed according to the manufacturer's instructions. The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported 173 N.B.R.(2d) 230; 441 A.P.R. 230, allowed the action. The defendant appealed. The New Brunswick Court of Appeal dismissed the appeal. The court stated that the installation instructions should have been considered in determining the foreseeability of damages. However, the defendant knew that 90% of the heaters in the area were being installed according to the requirements of the Canada Plumbing Code and acquiesced in that practice. Accordingly, the full amount of damages was foreseeable.
Lease of goods -- Statutory warranties -- Durability -- A homeowner rented an admittedly defective electric water heater from N.B. Power -- The heater was installed by qualified persons according to the requirements of the Canada Plumbing Code -- The heater ruptured -- The homeowner sued for damages ($16,747.79) under s. 12(1) of the Consumer Product Warranty and Liability Act -- N.B. Power denied liability on the ground of foreseeability, claiming that the loss would have been prevented if the heater had been properly installed according to the manufacturer's instructions -- The New Brunswick Court of Appeal held that the installation instructions should have been considered in determining the foreseeability of damages -- However, N.B. Power knew that 90% of the heaters in the area were being installed according to the requirements of the Canada Plumbing Code and acquiesced in that practice -- Accordingly, all of the damages were foreseeable.
Consumer Law -- Topic 1315
Lease of goods -- Breach -- Remedies -- Damages - [See Consumer Law -- Topic 1243].
Statutes Noticed
Canada Plumbing Code (1985), s. 6.1.12(6) [para. 3].
Consumer Product Warranty and Liability Act, R.S.N.B. 1978, c. C-18.1, s. 15 [para. 1].
Counsel
Marc A. Bossé, Q.C., and Stéphane Viola, for the appellant;
Terrence L.S. Teed, for the respondents.
This appeal was heard on November 20, 1996, before Rice, Ryan and Bastarache, JJ.A., of the New Brunswick Court of Appeal. On November 20, 1996, the following judgment was delivered orally by the Court.
[1] By the Court [orally]: The main issue in this appeal is the determination of the foreseeability of damages resulting from the installation of a faulty hot water tank leased by N.B. Power Corporation to Brian and Joni Parker. N.B. Power admitted that the tank was defective and that s. 15 of the Consumer Product Warranty and Liability Act, R.S.N.B. 1978, c. C-18.1 applies. It nevertheless argued that it was not responsible for the damages incurred by the Parkers because the tank was not installed according to the instructions of the manufacturer, which are usually delivered with the tank. The trial judge found that instructions and warranties of the manufacturer had no application to the claim, and that the installation of the tank was adequate because it met the requirements of the Canada Plumbing Code of 1985.
[2] We have examined the cases referred to by the appellant. They are not applicable in the present case because they deal essentially with situations where the faulty installation was the cause of the damage. In the present instance, the installation was relevant only to the extent of damages resulting from a defect in the product itself.
[3] We agree with counsel for N.B. Power that the installation instructions should have been considered in determining the foreseeability of damages. In the instant case however, we are of the opinion that N.B. Power knew, or ought to have known, that the instructions were not being followed in over 90% of cases in the Moncton area, and that installations were were made according to the requirements of the Canada Plumbing Code, s. 6.1.12(6), as interpreted by the Plumbing Inspector for the City of Moncton. In fact, N.B. Power delivered a new tank to the Parkers, and located it in the same spot as the defective unit it argues was not properly located. N.B. Power has acquiesced in the installation practice prevalent in Moncton. Therefore, the damages resulting from an installation contrary to the instructions of the manufacturer were foreseeable.
[4] With respect to the second ground of appeal, that intervening factors were responsible for the damages incurred, we agree with the trial judge that there was no intervening and unforeseeable factor which affected the chain of causation, the only cause being the defective hot water tank.
[5] For these reasons, the appeal is dismissed. Costs shall be paid by the appellant, according to the tariff on appeal.
Appeal dismissed.
Editor: Steven C. McMinniman
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