Alberta Caterers Ltd. v. Vollan (R.) (Alta.) Ltd., Western Arch Rib Structures Ltd., Strzelecki (M.) Consulting Engineers Ltd. and Strzelecki, (1977) 10 A.R. 501 (TD)

• Judge: Cavanagh, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 06, 1977
• Citations: (1977), 10 A.R. 501 (TD)

Alta. Caterers Ltd. v. Vollan Ltd. (1977), 10 A.R. 501 (TD)

MLB headnote and full text

Alberta Caterers Ltd. v. R. Vollan (Alta.) Ltd., Western Arch Rib Structures Ltd., M. Strzelecki Consulting Engineers Ltd. and Strzelecki

Indexed As: Alberta Caterers Ltd. v. Vollan (R.) (Alta.) Ltd., Western Arch Rib Structures Ltd., Strzelecki (M.) Consulting Engineers Ltd. and Strzelecki

Alberta Supreme Court

Trial Division

Judicial District of Edmonton

Cavanagh, J.

December 6, 1977.

Summary:

This case arose out of the defective manufacture and sale of several laminated wood beams. The beams were used to support the roof of a building. Shortly after the building was completed the owner hired an engineer to examine suspected deficiencies in several of the roof beams. Subsequently the roof collapsed. The owner claimed damages from the contractor who constructed the building, from the manufacturer of the roof beams and from the engineer who failed to recognize signs of imminent failure of the beams.

The Alberta Supreme Court, Trial Division, held that the manufacturer and building contractor were liable to the owner in damages. Because the owner hired the engineer the Trial Division held that the owner was contributorily negligent and apportioned fault 50% to the engineer and 50% to the contractor and manufacturer. The Trial Division awarded the owner damages of $154,690.00.

Torts - Topic 7142

Concurrent tortfeasors - What constitutes concurrent tortfeasors - The roof of a new building collapsed due to the defective manufacture of several wooden roof beams - Prior to the collapse the owner hired an engineer to examine the beams - The engineer was negligent when he failed to recognize signs of imminent failure of the beams - The Alberta Supreme Court, Trial Division, held that the negligence of both the manufacturer and the engineer continued to operate at the time of the collapse of the building - See paragraph 28 - The Trial Division stated that the negligence of the engineer was not severable from the negligence of the manufacturer - See paragraph 29.

Building Contracts - Topic 5513

Engineers - Duty to owner respecting construction deficiencies - An owner of a recently constructed building hired an engineer to examine suspected deficiencies in several roof beams (which subsequently collapsed) - The Alberta Supreme Court, Trial Division, held that the engineer was negligent and liable to the owner because the engineer failed to recognize signs of imminent failure of the beams and should have ordered shoring and should have cleared the building - See paragraphs 21 to 25.

Damages - Topic 537

Limits of compensatory damages - Non-recoverable damages - Indirect consequences of the fault, impecuniosity of victim - A manufacturer manufactured defective roof beams which resulted in the collapse of the building - The owner of the building could not repair the building immediately due to impecuniosity - The Alberta Supreme Court, Trial Division, rejected the owner's claim for damages for losses which accrued after the date that the repairs could reasonably have been completed - See paragraphs 31 to 42.

Contracts - Topic 3735

Fundamental breach - Effect of exclusionary clause - A manufacturer sold wooden roof beams to a contractor for a building - The beams were defective and caused the collapse of the roof of the building - The manufacturer alleged that its liability was limited by an exclusionary clause which was printed on its price quotation to the buyer - The Alberta Supreme Court, Trial Division, held that the exclusionary clause was ineffective to restrict the liability of the manufacturer for such a fundamental breach of contract - The Trial Division stated that the buyer was entitled to damages for fundamental breach even though the buyer did not repudiate the contract - See paragraphs 16 to 17.

Cases Noticed:

Donoghue v. Stevenson, [1932] A.C. 562, folld. [para. 11].

Western Processing & Cold Storage Ltd. et al. v. Hamilton Construction Co. Ltd. and Dow Chemical of Canada Ltd., 51 W.W.R. 354, folld. [para. 17].

R.G. McLean Ltd. v. Canadian Vickers Ltd. (1970), 15 D.L.R.(3d) 15, folld. [para. 17].

Liesbosch Dredger v. S.S. Edison, [1933] A.C. 449, folld. [para. 35].

R. v. C.P.R., [1947] S.C.R. 185, folld. [para. 35].

Stewart v. I.A.C., [1949] 1 W.W.R. 1154, folld. [para. 35].

McKenzie Barge and Derrick v. Rivtow Marine Ltd., 70 D.L.R.(2d) 409, folld. [para. 35].

Dawson v. Helicopter Exploration (1958), 12 D.L.R.(2d) 1, folld. [para. 35].

Bischoff v. Sams, 50 D.L.R.(2d) 179, folld. [para. 35].

Abbott v. Kasza, [1975] 3 W.W.R. 163; [1976] 4 W.W.R. 20, folld. [para. 35].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1970, c. 65, sect. 8 [para. 29].

Counsel:

H.W. Veale, Q.C. and E.A. Bridges, for the plaintiff;

J.P. Brumlik, Q.C. and L.M.A. Lees, for the defendant Vollan;

P.J. Mousseau and R.G. Ferguson, for the defendant Western Arch Rib;

J.R. Singleton and J.T. Prowse, for the defendants Strzelecki and M. Strzelecki Consulting Engineers Ltd.

This case was heard by CAVANAGH, J., of the Trial Division of the Alberta Supreme Court. The judgment of CAVANAGH, J., was delivered at Edmonton, Alberta on December 6, 1977.