Elms Construction Ltd. v. Addy Demolition and Excavation (1970) Ltd., (1977) 5 A.R. 281 (DC)

• Judge: Feehan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 17, 1977
• Jurisdiction: Alberta
• Citations: (1977), 5 A.R. 281 (DC)

Elms Constr. Ltd. v. Addy Demolition (1977), 5 A.R. 281 (DC)

MLB headnote and full text

Elms Construction Ltd. v. Addy Demolition and Excavation (1970) Ltd.

Indexed As: Elms Construction Ltd. v. Addy Demolition and Excavation (1970) Ltd.

Alberta District Court

Judicial District of Edmonton

Feehan, J.

March 17, 1977.

Summary:

This headnote contains no summary.

Torts - Topic 6730

Defences - Consent - Voluntary assumption of risk - Implied consent - Construction activities - The plaintiff housebuilder hired the defendant to backfill a recently poured concrete basement - The defendant advised the housebuilder that it did not have a small tractor available which would be suitable for the job - The housebuilder told the defendant to go ahead and use a larger tractor which was available - The ground was wet and the tractor was too heavy for the job which resulted in the collapse of the concrete basement wall - The Alberta District Court rejected the defence that the housebuilder consented to the risk and held the defendant 100% at fault - The Alberta District Court stated that in the circumstances the housebuilder did not appreciate the danger of the situation and did not voluntarily consent to take the risk.

Cases Noticed:

Seymour v. Maloney and Car & General Insurance Corp. Ltd., [1955] 4 D.L.R. 104; 36 M.P.R. 337 [affd. 2 D.L.R.(2d) 369; [1956] S.C.R. 322], folld. [para. 9].

Carnegie v. Trynchy and Carnegie (1966), 57 W.W.R. 305, folld. [para. 11].

Benjamin et al. v. Boutilier et al., 3 N.S.R.(2d) 282; 17 D.L.R.(3d) 611, dist. [para. 13].

Counsel:

A.W. Germain, for the plaintiff;

W.J. Kenny, for the defendant.

The judgment of the Alberta District Court was delivered by FEEHAN, J., at Edmonton, Alberta on March 17, 1977.