Parker v. New Brunswick Power Corp.
173 N.B.R. (2d) 230; 441 A.P.R. 230; 173 R.N.-B. (2e) 230
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Moncton
Miller, J.
January 19, 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 New Brunswick Court of Queen's Bench, Trial Division, gave judgment for the plaintiff.
Consumer Law -- Topic 1243
Lease of goods -- Statutory warranties -- Durability -- A homeowner rented an electric water heater from NB Power -- The heater was replaced in 1989 -- The heater was installed by qualified persons -- In August of 1992, the heater ruptured -- The homeowner sued for damages ($16,747.79) under s. 12(1) of the Consumer Product Warranty and Liability Act -- NB Power denied liability on the ground of foreseeability claiming that the loss would have been prevented if the heater had been properly installed (i.e., per a Canadian Standards Association directive dated December 1992) -- NB Power also claimed that the drying process was delayed by the failure of the equipment used by the company engaged to repair the damage -- The homeowner had received $1,700 from the repairer's insurer -- The New Brunswick Court of Queen's Bench, Trial Division, gave the homeowner judgment for $15,047.79.
Cases Noticed
Edmonton Flying Club et al. v. Northward Aviation Ltd. et al. (1979), 17 A.R. 507 (C.A.), consd. [para. 39].
Statutes Noticed
Canadian Plumbing Code (1985), s. 6.1.12(6) [para. 31].
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, ss. 12 [para. 13]; 15 [para. 15].
Counsel
Terrence L.S. Teed, for the plaintiffs;
Marc A. Bossé, Q.C., and Stéphane F. Viola, for the defendant.
This case was heard on January 12 and 15, 1996, at Moncton, New Brunswick, before Miller, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on January 19, 1996.
[1] Miller, J.: The plaintiffs suffered loss when a hot water tank ruptured and the escaping water damaged floor coverings, furniture, walls and personal effects. It has been agreed that the total loss suffered by the plaintiffs is $16,747.79, but the defendant denies its responsibility for the loss.
[2] The plaintiffs built their residence in 1984 and rented a hot water heater from the defendant. In 1989, the tank was replaced by one of larger capacity but on both occasions the tanks were installed by qualified and licensed plumbers.
[3] On August 7, 1992, the plaintiffs returned home from vacation to find the basement area covered by water estimated up to three inches in depth.
[4] There are some complicating factors which have resulted in the defendant denying liability for the damages on the basis of "novus actus interveniens".
[5] On discovering the escaped water, the plaintiffs immediately attempted remedial action. They used a water vacuum and their insurer engaged a company called First General Services Moncton Ltd. to carry out necessary repairs.
[6] Employees of this company removed as much water as possible and then installed dehumidifiers and air movers to remove dampness and humidity. As the plaintiffs were returning to their cottage, it was not possible for First General employees to return to check progress of the "drying out" procedures during the weekend.
[7] On Monday, August 10, 1992, the plaintiffs and the First General employees returned to find no improvement because the dehumidifier pump was disengaged. No explanation for this situation has been forthcoming.
[8] On discovering the situation, the plaintiffs' insurers employed new personnel to remove moisture and effect repairs.
[9] It was necessary to replace carpet, floor covering, wall panels, ceiling tiles, baseboards and cupboard doors. Painting and varnishing was required. All of this work was carried out after a long period of dehumidifying. Personal effects were replaced because of mildew and mould obviously caused by dampness.
[10] For obvious reasons, no claim was made by the plaintiffs pertaining to their own inconvenience caused by the water damage.
[11] There can be no question that the water tank supplied by the defendant failed and that the escaping water caused damage.
[12] I am satisfied that the plaintiffs can rely on the legislative protection of the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1.
[13] Section 12 of this Act provides:
"12(1) In every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer that the product and any components thereof will be durable for a reasonable period of time.
"12(2) In determining a reasonable period of time for the purposes of subsection (1), regard shall be had to all relevant circumstances, including the nature of the product, whether it was new or used, its use as contemplated by the seller and buyer at the time of the contract, its actual use and whether it was properly maintained."
[14] By an amended Statement of Defence, the defendant "admits the breach of the warranty of durability for a reasonable period of time as set out in s. 12(1) of the Act."
[15] As suggested by counsel for the plaintiff at trial, the issue is the interpretation and application of s. 15 of the said Act which reads:
"Where the seller is in breach of a warranty provided by this Act, the buyer may recover damages for any loss that he has suffered because of the breach and that was reasonably foreseeable at the time of the contract as liable to result from the breach."
[16] Having admitted that the seller (the defendant) was in breach of a warranty provided by the Act (s. 12), then it follows that the defendant is liable for any loss suffered by the plaintiffs which was "reasonably foreseeable at the time of the contract as liable to result from the breach."
[17] Defendant's customers are not required to sign a contract on renting a hot water heater. A telephone call will result in the delivery of a tank and monthly (in most cases) charges are added to the customer's power bill. The only instruction given to the customer is that the tank must be installed by qualified persons - meaning a plumber and electrician.
[18] The defendant has a document, a copy of which is in evidence, entitled "Services Available to Customers". This document contains the following two paragraphs:
"Customers are responsible for the initial installation. The installation should be such that the heater and its elements are accessible for repair or removal. Installation must be made by person(s) qualified under the regulations of the Department of Labour of the Province of New Brunswick. Customers are also responsible for subsequent installations resulting from requests for a change in water heater service (such as larger or smaller size, moving the heater, etc.) and removal or termination of the requirement for the water heater.
"NB Power is responsible for replacement of elements, thermostats, pressure-relief valves, anodes, and the adjustment of thermostat settings. NB Power replaces heaters that cannot be effectively repaired."
[19] Eugene Leger, rentals coordinator for the defendant, testified that the document is available to customers upon request. He could not explain how a customer would know of its existence so that such a request could be made.
[20] There can be no doubt that the tank in question was installed by qualified persons in 1989.
[21] Counsel for the defendant argues that the key issue is one of foreseeability and the thrust of the argument is that if the tank had been properly installed the damage or loss would have been prevented or greatly diminished.
[22] Hot water tanks such as the one in question are purchased in large quantities by the defendant and delivered to customers as requested. Enclosed within or attached to the packing case is a manufacturer's warranty and instructions for installation. These documents do not necessarily come to the attention of the customer.
[23] The plaintiffs' action is not taken against the manufacturer on the warranty but against the defendant - seller relying on the provisions of the said Consumer Product Warranty and Liability Act.
[24] Of course, regulations under statutory building and plumbing codes do apply to the installation of the tank.
[25] The said warranty excludes "responsibility for damages by a leaking tank within the guaranty period."
[26] The action does not concern the warranty and the plaintiffs do not rely on it. Any instructions or requirements contained therein, therefore, have no application to this claim.
[27] The defendant offered in evidence a document produced by the Canadian Standards Association relating to the installation of Electric Storage Tank Water Heaters which was published in December 1992.
[28] In particular, this standard states that "the tank shall be installed close to a fully functional floor drain that is located such that the floor slope will carry water from the tank to that drain..."
[29] The installation in the home of the plaintiffs did not meet that standard. But there is no evidence that the standard is binding on anyone or that it was even in effect or had been published at the time of the installation or the loss.
[30] Boyd Dunnett and Emery Dunnett are both licensed plumbers and they installed the tanks in 1984 and 1989 respectively. Neither of them has ever installed a hot water tank close to a floor drain and neither has experienced any difficulty with malfunction of a relief valve which as a matter of practice is piped to the floor.
[31] The Canadian Plumbing Code of 1985 requires in s. 6.1.12(6) that:
"(6) Every pipe that conveys water from a temperature relief, pressure relief or a combined temperature and pressure relief valve which is installed on a hot water tank shall
(a) have a size at least equal to the size of the outlet of the valve, and
(b) terminate above a floor drain, sump, fixture or other safe location."
[32] There is no requirement in that Code as to the placement of the tank. The two plumbers and Lloyd Beers, Plumbing Inspector for the City of Moncton, all testified that the installation of the tank in the home of the plaintiffs met the requirements of the Code.
[33] The only dissenter was Reginald LeBlanc, a licensed plumber and Community College instructor in plumbing, who in his report stated, "Service water heaters are to be installed next to a floor drain. Where a service water heater cannot be installed next to a floor drain or other safe location, a drain pan is to be installed to prevent damages."
[34] On cross-examination he said that it would be rare to find a heater installed by or near a sump or drain and also admitted that there are no requirements in the Plumbing Code that the tank must be placed close to a floor drain.
[35] It must not be forgotten that there was no malfunction of any relief or temperature valve. The damage occurred because the tank failed and the water in the tank escaped.
[36] If the tank had not failed, or if it had been durable for a reasonable period of time, it would not matter where the tank was located or who installed it.
[37] The defendant argues that the damages suffered by the plaintiffs were not reasonably foreseeable - the test as set forth in s. 15 of the Act, because if the tank had been installed near a functional floor drain the water damage would not have occurred.
[38] I am not convinced that there is any existing regulation which requires such a placement of a heating tank. There being no such regulation and restriction, it must follow that the damage which occurs when water escapes from a tank which is not durable must be reasonably foreseeable.
[39] In Edmonton Flying Club et al. v. Northward Aviation Ltd. (1979), 17 A.R. 507, the Court of Appeal of Alberta considered the issue of foreseeability where an aircraft hangar was destroyed by fire when employees of the tenant meddled with the heating system controls. It was held that a reasonable man would have foreseen intermeddling with the controls by untrained personnel.
[40] The defendant goes no further in supplying a tank than to inform buyers such as the plaintiffs that it must be installed by qualified persons. This instruction was followed. Nothing was said or intimated about the consequences of a tank which was not durable. Any damages resulting must have been foreseen.
[41] It may be that if the plaintiffs' home had been serviced by unobstructed floor drains the damage might not have been as serious as it was and there might not have been damage at all.
[42] But again, no damage would have occurred if the tank had been durable. In supplying a tank which admittedly was not durable, the resulting damage was foreseeable.
[43] There is no evidence by which the damage could be measured in relation to the location and capacity of floor drains. A little escaping water can and does cause damage -I have no way of knowing, in the absence of evidence, whether more water caused more damage.
[44] It may also be true that personal property was damaged by dampness in the air rather than by exposure to water. Again, there is no evidence to prove whether the dampness and the ensuing damage was caused by a little or a lot of escaping and remaining water.
[45] The additional factor which must be considered is the fact that the drying process was delayed because of the mechanical failure of equipment placed by the first company engaged to repair the damage.
[46] Again, it is true that water remained in the basement longer than might have been the case under ideal conditions. But the damage had been done before any work was undertaken and there is no evidence before me by which I can determine that because of "novus actus interveniens", a new and intervening act subsequent to the rupture of the tank, further damage was caused or further loss occurred.
[47] On the whole of the evidence, and upon the admission of a breach of a statutory warranty by the defendant, I am satisfied that the whole of the resulting damage was foreseeable and was caused by the rupture in the water heating tank which was not durable for the purpose intended.
[48] It was agreed that the total loss suffered by the plaintiffs was $16,747.79.
[49] One other aspect might be addressed. The evidence is not at all satisfactory but the defendant raised the issue that the plaintiffs had been, through their insurer, partially compensated by the liability insurer of First General Services. This is the company that placed drying equipment in the residence which failed to function properly.
[50] The president of First General Services testified that "about $1,700" was paid by his insurer. Precise information on this matter could have been obtained.
[51] But ignoring it would result in double compensation to this extent and this should not be permitted.
[52] I will therefore deduct $1,700 from the amount allowed as the plaintiffs' loss.
[53] The result is that there will be judgment for the plaintiffs against the defendant in an amount of $15,047.79.
[54] The plaintiffs are also entitled to costs of $2,250 together with provable disbursements, having applied Scale 3 to an amount involved of $15,000.
Judgment for plaintiff.
Editor: Reginald W. Curtis
This decision in this case was appealed.
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