Reported as: 2018 SKQB 344
Docket Number: QB18331 , QBG 11/14 JCB
Court: Court of Queen's Bench
- Civil Procedure � Pleadings � Statement of Claim � Application to Amend
- Civil Procedure � Trial � Non-Suit
Digest: The plaintiff brought an action seeking damages from the defendants for injury he suffered when cutting a plastic product manufactured by Sabic and sold to him by Silvester. The plastic shattered and a piece of the plastic entered his eye and he lost the sight in it. The claim alleged that Sabic was negligent in its design, manufacturing or inspection of the product and alleged negligent safety instruction or failure to warn of safety concerns. Against Silvester, the plaintiff alleged it sold the product knowing that it was unfit and dangerous to use and without adequate examination or testing to ensure it would be safe when used for its intended purpose. After the plaintiff finished presenting his case at trial, the defendants applied for non-suit. The plaintiff then applied to amend his pleadings. The plaintiff�s proposed amendment of his claim against Sabic was based on its failure to warn consumers of the risks of cutting the plastic, including the fact that injury could result from shattering, and against Silvester, that it was aware of the instructions for cutting the product which it knew or ought to have known were unsafe and resulted in the injury to the plaintiff when he followed the instructions on the product. Silvester made many arguments opposing the proposed amendment, such as: it introduced a new cause of action against it; it would be prejudiced since the plaintiff had closed his evidence at trial; it was futile because the plaintiff had not presented any evidence that Silvester had knowledge that Sabic�s instructions were unsafe and failed to warn of the risks; and was bad in law because there was no evidence that it knew or had reason to suspect the product posed potential danger. The plaintiff argued that it had raised the failure to warn as a cause of action against Sabic in its original pleadings. Silvester had cross-claimed against Sabic, alleging that it owed a duty of care to it as a retailer to ensure that the instructions were provided regarding the use and handling of the product. Therefore, Silvester treated the issue of proper instructions as an issue.
HELD: The plaintiff�s application for leave to amend was granted. The...