Lem v. Barotto Sports Ltd. and Ponsness-Warren Inc., (1976) 1 A.R. 556 (CA)

• Judge: McDermid, Clement and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 15, 1976
• Citations: (1976), 1 A.R. 556 (CA)

Lem v. Barotto Sports Ltd. (1976), 1 A.R. 556 (CA)

MLB headnote and full text

Lem v. Barotto Sports Ltd. and Ponsness-Warren Inc.

Indexed As: Lem v. Barotto Sports Ltd. and Ponsness-Warren Inc.

Alberta Supreme Court

Appellate Division

McDermid, Clement and Haddad, JJ.A.

September 15, 1976.

Summary:

This case arose out of the plaintiff's claim against the defendants for damages for personal injuries. The plaintiff bought a shotgun shell reloading machine from the defendants and was taught and understood how to operate it. The plaintiff did not read an operating manual supplied with the machine. The manual gave detailed instructions on operation and what to do if certain kinds of errors were made by the operator. The machine could not mismanufacture a shell, if operated properly. The plaintiff made three separate errors in operating the machine with the result that a shell received a double charge of gunpowder and shot. The plaintiff was injured when it was fired. The plaintiff admitted his error, but claimed that the defendants had a duty to warn him of the possibility of such a mismanufacture. The plaintiff brought an action against the defendants for damages. The Alberta Supreme Court, Trial Division, dismissed the plaintiff's action.

On appeal the Appellate Division dismissed the appeal. The Appellate Division held that adequate warning and instruction was given the plaintiff and that the defendants could not be expected to foresee the combination of negligent errors which the plaintiff made - see paragraphs 19 to 25.

Evidence - Topic 2401

Presumptions - Unfavourable inference from failure to call witness - The plaintiff alleged that the defendants' failure to call a certain witness raised an inference adverse to the defendants' case - The Alberta Court of Appeal held that such an inference will be drawn only in respect of matters in dispute and where the person not called could give relevant evidence on the disputed matter - The Appellate Division held that the matter about which the person could have testified was not in dispute and refused to draw an adverse inference - See paragraph 14.

Sale of Goods - Topic 4113

Conditions and warranties - Implied term of quality or fitness - Sale of Goods Act, R.S.A. 1970, c. 327, s. 17(2) - Inherently dangerous machine - Duty to warn purchaser of hazard - The plaintiff bought a shotgun shell reloading machine from the defendants and was taught and understood how to operate it - The plaintiff did not read an operating manual supplied with the machine - The manual gave detailed instructions on operation and what to do if certain kinds of errors were made by the operator - The machine could not mismanufacture a shell, if operated properly - The plaintiff made three separate errors in operating the machine with the result that a shell received a double charge of gunpowder and shot - The plaintiff was injured when he fired the shell in his gun - The plaintiff admitted his error, but claimed that the reloader was not fit for the purpose within the meaning of s. 17(2), if negligent operation could result in danger and adequate warning was not given - The Alberta Court of Appeal held that adequate warning was given - The Appellate Division held in any event that s. 17(2) could not bear the interpretation urged by the plaintiff - See paragraph 26.

Torts - Topic 60

Causation - Foreseeability - What is foreseeable - The plaintiff bought a shotgun shell reloading machine from the defendants and was taught and understood how to operate it - The plaintiff did not read an operating manual supplied with the machine - The manual gave detailed instructions on operation and what to do if certain kinds of errors were made by the operator - The machine could not mismanufacture a shell, if operated properly - The plaintiff made three separate errors in operating the machine with the result that a shell received a double charge of gunpowder and shot - The plaintiff was injured when he fired the shell in his gun - The plaintiff admitted his error, but claimed that the defendants had a duty to warn him of the possibility of such a mismanufacture - The Alberta Court of Appeal held that adequate warning and instruction was given the plaintiff and that the defendants could not be expected to foresee the combination of negligent errors which the plaintiff made - See paragraphs 23 to 25.

Torts - Topic 4264

Suppliers of goods - Products liability - Duties of suppliers - Duty to instruct or provide instruction manual - Effect of purchaser's failure to read manual - The plaintiff bought a shotgun shell reloading machine from the defendants and was provided with a detailed instruction manual - The plaintiff failed to read the instruction manual - The plaintiff was injured from a mismanufactured shell after he negligently made errors in operating the machine - The Alberta Court of Appeal stated that the plaintiff was deemed to have knowledge of the contents of the manual, notwithstanding that he failed to read it - See paragraph 15.

Torts - Topic 4426

Suppliers of goods - Products liability - Inherently dangerous chattels - Duty to warn purchaser of hazard - The plaintiff bought a shotgun shell reloading machine from the defendants and was taught and understood how to operate it - The plaintiff did not read an operating manual supplied with the machine - The manual gave detailed instructions on operation and what to do if certain kinds of errors were made by the operator - The machine could not mismanufacture a shell, if operated properly - The plaintiff made three separate errors in operating the machine with the result that a shell received a double charge of gunpowder and shot - The plaintiff was injured when he fired the shell in his gun - The plaintiff admitted his error, but claimed that the defendants had a duty to warn him of the possibility of such a mismanufacture - The Alberta Court of Appeal held that adequate warning and instruction was given the plaintiff and that the defendants could not be expected to foresee the combination of negligent errors which the plaintiff made - See paragraphs 19 to 25.

Cases Noticed:

Barker v. McQuahe (1964), 49 W.W.R. (N.S.) 685, appld. [para. 14].

Lambert v. Lastoplex Chemicals Co. Limited, [1972] S.C.R. 569; 25 D.L.R.(3d) 121, appld. [para. 15].

Rivtow Marine Ltd. v. Washington Iron Works et al., [1974] S.C.R. 1189, appld. [para. 22].

Glasglow Corporation v. Muir, [1943] A.C. 448, appld. [para. 22].

Kaufman v. Toronto Transit Commission, [1960] S.C.R. 251, appld. [para. 22].

Yachetti et al. v. John Duff and Sons Ltd. et al., [1943] 1 D.L.R. 194, refd to. [para. 22].

Kalogeroupoulos et al. v. Cote et al. (1975), 3 N.R. 341, appld. [para. 23].

University Hospital Board v. Lepine, [1966] S.C.R. 561; 57 D.L.R.(2d) 701, appld. [para. 23].

Lessard v. Paquin, [1975] S.C.R. 665; 10 N.R. 620; 56 D.L.R.(3d) 726, appld. [para. 23].

Amos et al. v. New Brunswick Electric Power Commission (1976), 8 N.R. 537; 13 N.B.R.(2d) 307, appld. [para. 24].

Moule v. New Brunswick Electric Power Commission (1960), 24 D.L.R.(2d) 305, consd. [para. 24].

Vacwell Engineering v. B.D.H. Chemicals, [1969] 3 All E.R. 1681, varied [1970] 3 All E.R. 553, dist. [para. 26].

Clark v. Army & Navy Co-operative Society Limited, [1903] 1 K.B. 155, dist. [para. 26].

Statutes Noticed:

Sale of Goods Act, R.S.A. 1970, c. 327, sect. 17(2) [paras. 2, 26].

Counsel:

A.D. Hunter, for the appellant;

Thomas H. Ferguson, for Barotto Sports Ltd.;

D.G. Hart, for Ponsness-Warren Inc.

This case was heard before McDERMID, CLEMENT and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On September 15, 1976, at Calgary, Alberta, CLEMENT, J.A., delivered the following judgment of the Appellate Division: