Edmonton Flying Club et al. v. Northward Aviation Ltd. et al., Warner et al., Northwestern Utilities Ltd. et al. and Comstock International Ltd., (1979) 17 A.R. 507 (CA)

• Judge: Lieberman, J.A., Bowen, J. (ad hoc) and Morrow, J.
• Court: Court of Appeal (Alberta)
• Case Date: September 10, 1979
• Citations: (1979), 17 A.R. 507 (CA)

Edmonton Flying Club v. Northward Aviation (1979), 17 A.R. 507 (CA)

MLB headnote and full text

Edmonton Flying Club et al. v. Northward Aviation Ltd. et al. (defendants), Edmonton Flying Club, Canadian Controllers Ltd., Northwestern Utilities Ltd. and Warner (third parties), Northwestern Utilities Ltd., Edmonton Flying Club and Warner (fourth parties) and Comstock International Ltd. (fifth party)

Indexed As: Edmonton Flying Club et al. v. Northward Aviation Ltd. et al., Warner et al., Northwestern Utilities Ltd. et al. and Comstock International Ltd.

Alberta Court of Appeal

Lieberman, J.A., Bowen, J. (ad hoc) and Morrow, J.

September 10, 1979.

Summary:

This case arose out of a fire which destroyed an aircraft hangar. The owner of the hangar leased the hangar to a tenant, who was responsible for operating and maintaining the hangar's heating system. Some of the employees of the tenant negligently meddled with the controls of the heating system, which overheated and caused the fire. The tenant claimed contribution from the manufacturer and designer of the heating system.

The Alberta Supreme Court, Trial Division, in a judgment reported 13 A.R. 199, allowed the owner's action for damages against the tenant. The Trial Division held that the tenant was negligent in operating the heating system. The Trial Division held that the tenant was entitled to recover 25% of the owner's damages from the manufacturer of the heating system. The Trial Division held that the manufacturer was negligent in failing to detect a defect in the control system and also for failing to take corrective action after it had knowledge of the defect. In addition, the Trial Division held that the tenant was entitled to recover 25% of the owner's damages from the designer of the controls for the heating system. The Trial Division stated that the wiring diagram for the controls contained a design flaw and the designer's schemetic drawing was not illustrative to prevent an incorrect connection.

The unsuccessful parties appealed.

The Alberta Court of Appeal allowed only the appeal of the designer and affirmed the liability of the tenant and the manufacturer - see paragraph 1 to 38.

The Court of Appeal held that, although the designer was negligent, the intervening negligence of the manufacturer in failing to remedy the detected defect absolved the designer from liability - see paragraphs 40 to 52.

Landlord and Tenant - Topic 2806

The lease - Liability of tenant for maintenance and operation of a heating system - The plaintiff owner leased an aircraft hangar to a tenant who was responsible for operating and maintaining the hangar's heating system - The tenant hired a man to maintain the heating system - On several occasions employees of the tenant who were not competent operated the controls of the heating system - From in correct control settings the heating system caused a fire, which destroyed the hangar - The Alberta Court of Appeal held that the tenant was negligent and liable to the owner for damages - See paragraphs 1 to 9.

Torts - Topic 10

Negligence - Standard of care - General - The Alberta Court of Appeal held that the degree of care which a duty of care requires must be proportional to the degree of risk involved, if the duty should not be fulfilled - The Court of Appeal held that the magnitude of the risk, the likelihood of an accident and the possible seriousness of the consequences of an accident must be weighed against the difficulty and expense and any other disadvantage of taking precautions - See paragraphs 31 to 33.

Torts - Topic 60

Negligence - Causation - Foreseeability - The plaintiff owner leased an aircraft hangar to a tenant, who was responsible for operating and maintaining the hangar's heating system - Employees of the tenant negligently meddled with the controls of the heating system, which resulted in a fire which destroyed the hangar - The heating system contained a design defect, which in certain circumstances allowed the furnace to operate without a fan, causing overheating, which in fact happened from the meddling by the employees - The tenant claimed contribution from the manufacturer of the heating system, which alleged that the negligence of the tenant was not foreseeable by the manufacturer - The Alberta Court of Appeal held that the manufacturer could be expected to foresee meddling by untrained personnel with the heating system in a way which would activate its defect - See paragraphs 29 to 30.

Torts - Topic 60

Negligence - Causation - Foreseeability - A designer negligently designed a starter motor for a furnace - Proper hook-up of the circuitry on installation would have overcome the defect, but the installer did not ensure that the hook-up was done in the proper manner - The Alberta Court of Appeal held that it was not reasonably foreseeable by the designer that the installer, who was experienced and competent, would permit improper hook-up and that the designer was not liable for the damage which ultimately resulted from the defect - See paragraphs 49 to 52.

Torts - Topic 62

Negligence - Causation - Intervening causes - Novus actus interveniens - A manufacturer of a heating system installed a system, one of the components of which was negligently designed by the designer - The manufacturer subsequently became aware of the defect, but failed to remedy it - Several years later the defect caused a fire - The Alberta Court of Appeal held that, although the designer was negligent, its negligence was not a cause of the fire, because the manufacturer's subsequent awareness of and failure to remedy the defect broke the chain of causation and constituted a novus actus interveniens exonerating the designer from liability - See paragraphs 40 to 48.

Torts - Topic 62

Negligence - Causation - Intervening causes - Novus actus interveniens - A manufacturer of a heating system in stalled a system, which contained a negligent design defect - A fire resulted from the subsequent negligent operation of the system by the owner - The manufacturer pleaded that the subsequent negligent operation by the owner constituted an intervening cause of the damage, which exonerated the manufacturer from liability - The Alberta Court of Appeal held that, where the manufacturer was aware of the defect and foresaw the possible results of improper operation by the owner, the negligent operation was not a novus actus interveniens which would absolve the manufacturer from liability - See paragraphs 34 to 38.

Torts - Topic 76

Negligence - Duty of care - General principles - The Alberta Court of Appeal held that in order to establish that a duty of care arises in a particular situation there were two stages of enquiry - Firstly, it must be determined whether there is a sufficient relationship of proximity or neighbourhood between the wrongdoer and the injured party that in the reasonable contemplation of the wrongdoer carelessness on his part may be likely to cause damage to the injured party, in which case a prima facie duty of care arises - Secondly, if so, it must be considered whether there are any considerations which ought to negative, reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach may give rise - See paragraphs 21 to 26.

Torts - Topic 79

Negligence - Duty of care - Factors limiting scope of duty of care - In 1941 as part of a crash wartime effort a hangar construction program was begun - A manufacturer installed the heating systems in the hangars, the furnaces of which contained a design defect - In 1967 after one of the hangars had passed into civilian use the defect caused a fire - The manufacturer pleaded that it should be relieved from liability because of the passage of time and because of the new civilian use, security respecting which was not as great as it was under military use - The Alberta Court of Appeal held that neither the passage of time nor the type of use were sufficient to absolve the manufacturer from liability - See paragraphs 27 to 30.

Torts - Topic 4327

Suppliers of goods - Product liability - Negligence - Manufacturers - Defective goods - In 1941 the defendant manufactured a heating system for an aircraft hangar - The controls for the heating system were defective - The manufacturer had knowledge of the defective controls and failed to take corrective action - The heating system caused a fire in 1967 which destroyed the aircraft hangar - The Alberta Court of Appeal held that the manufacturer was negligent and liable to the owner of the hangar - See paragraphs 1 to 9.

Torts - Topic 4332

Suppliers of goods - Product liability - Negligence - Manufacturers - Defective design - A designer designed the wiring for controls for a heating system for an aircraft hangar - The design contained a flaw, which the manufacturer and installer subsequently discovered, but did not remedy - Many years later the defect caused a fire - The Alberta Court of Appeal held that, although the designer was negligent in its design, it was absolved from liability, because of the intervening negligence of the manufacturer in failing to remedy the discovered defect - See paragraphs 40 to 52.

Cases Noticed:

Abbott et al. v. Kasza et al., [1976] 4 W.W.R. 20, appld. [para. 23].

Roe v. Minister of Health, [1954] 2 Q.B. 66, appld. [para. 23].

Anns v. Merton L.B.C., [1977] 2 W.L.R. 1024, appld. [para. 24].

Phillips v. Chrysler Corp., [1962] O.R. 375, appld. [para. 28].

Gilchrist v. A & R Farms Ltd., [1966] S.C.R. 122, appld. [para. 30].

Morris v. West Hartlepool Steam Navigation Company Limited, [1956] A.C. 552, appld. [para. 31].

Northwestern Utilities Ltd. v. London Guarantee and Accident Company, [1936] A.C. 108, appld. [para. 32].

The Oropesa, [1943] 1 All E.R. 211, refd to. [para. 35].

Iron and Steel Holding and Realization Agency v. Compensation Appeal Tribunal, [1966] 1 W.L.R. 480, appld. [para. 36].

Overseas Tank Ship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (Wagon Mound (No. 1)), [1961] A.C. 388, appld. [para. 49].

Glasgow Corporation v. Muir, [1943] A.C. 448, appld. [para. 32].

Weld-Blundell v. Stephens, [1920] A.C. 956, appld. [para. 34].

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1970, c. 65 [para. 66].

Authors and Works Noticed:

Charlesworth on Negligence (6th Ed.), paras. 233-235 [para. 35].

Counsel:

I.W. Outerbridge, Q.C. and R.L. Duke, for Comstock International Limited;

W.J. Girgulis and C.P. Clark, for Canadian Controllers Limited;

D.O. Sabey, Q.C., W.S. Rice and D.H. McDermid, for Northward Aviation Ltd. et al.;

H.L. Irving, Q.C. and S.F. Goddard, for Edmonton Flying Club;

P.R. Chomicki, for Edmonton Flying Club as defendants by counterclaim and third party;

A.D. MacLeod and D.A. McGillivray, for Northwestern Utilities Ltd.;

J.P. Warner, for George Warner.

This case was heard before LIEBERMAN, J.A., BOWEN, J. (ad hoc), and MORROW, J.A., of the Alberta Court of Appeal.

On September 10, 1979, LIEBERMAN, J.A., delivered the following judgment for the Court of Appeal: