McCain Foods Ltd. v. Grand Falls Industries Ltd. et al., (1991) 116 N.B.R.(2d) 22 (CA)

• Judge: Angers, Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 18, 1990
• Jurisdiction: New Brunswick
• Citations: (1991), 116 N.B.R.(2d) 22 (CA)

McCain Foods v. Grand Falls Ind. (1991), 116 N.B.R.(2d) 22 (CA);

    116 R.N.-B.(2e) 22; 293 A.P.R. 22

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Grove Manufacturing Company, a division of Kidde Inc. (defendant and third party/appellant) v. McCain Foods Ltd., a body corporate (plaintiff/respondent) and Grand Falls Industries Ltd., a body corporate (defendant/respondent)

(56/90/CA)

Indexed As: McCain Foods Ltd. v. Grand Falls Industries Ltd. et al.

New Brunswick Court of Appeal

Angers, Rice and Ayles, JJ.A.

May 22, 1991.

Summary:

Grand Falls Industries orally agreed to provide a hydraulic crane and an operator to lift a crate for McCain Foods. The crane collapsed during the lift destroying the contents of the crate. McCain Foods com­menced an action in contract and negligence against Grand Falls Industries for damages. McCain also sued the manufacturer of the crane, Grove Manufacturing Co., alleging negligence.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 106 N.B.R.(2d) 296; 265 A.P.R. 296, allowed McCain's action against Grand Falls Industries and Grove Manufacturing, and assessed damages accordingly. The court held that (1) Grove Manufacturing negli­gently manufactured the crane and therefore was liable to McCain for damages, and (2) Grand Falls Industries breached an implied warranty of fitness in its oral contract with McCain and was therefore liable to McCain, but was entitled to full indemnity from Grove Manufacturing. Grove Manufacturing appealed.

The New Brunswick Court of Appeal allowed the appeal. The court held Grove and Grand Falls jointly and severally liable for McCain's damages. Further, Grand Falls, upon satisfying McCain's judgment in whole or in part, was entitled to enter judgment against Grove Manufacturing for 75% of the amount it paid to McCains.

Torts - Topic 4302

Suppliers of goods - Negligence - Stan­dard of responsibility - Lessors - The New Brunswick Court of Appeal discussed the duty of a lessor of machinery to ensure that the machinery is properly inspected prior to being used for hire - See para­graphs 16 to 24.

Torts - Topic 4302

Suppliers of goods - Negligence - Stan­dard of responsibility - Lessors - Grand Falls Industries owned a twelve year old crane it purchased at an auction - McCain Foods hired the crane to lift a juice pack­aging machine - While lifting, the crane toppled from its carrier and extensively damaged the machine - The New Bruns­wick Court of Appeal held Grand Falls Industries 25% responsible for McCain's damages for failing to properly inspect the crane - Inspection would have revealed a fatigue related defect in the welding of the crane - See paragraphs 16 to 24.

Torts - Topic 4332

Suppliers of goods - Negligence - Manu­facturers - Defective manufacture - [See Torts - Topic 4335 ].

Torts - Topic 4335

Suppliers of goods - Negligence - Manu­facturers - Duty to warn users respecting dangers - Grand Falls Industries purchased a used twelve year old crane at an auction - Grove Manufacturing, the manufacturer of the crane, was aware of possible weld­ing problems - The manufacturer was also aware that Grand Falls had purchased the crane but made no effort to warn of the welding problem - McCain Foods hired the crane from Grand Falls Industries to lift a machine - While lifting, the crane toppled damaging the machine - The New Brunswick Court of Appeal held the man­ufacturer 75% responsible for McCain's loss, for faulty welding and for failing to warn Grand Falls - See paragraphs 25 to 27.

Torts - Topic 4371

Suppliers of goods - Negligence - Lessors - General - Grand Falls Industries owned a twelve year old crane it purchased at an auction - McCain Foods hired the crane to lift a juice packaging machine - While lifting, the crane toppled from its carrier and extensively damaged the machine - The New Brunswick Court of Appeal held Grand Falls Industries 25% responsible for McCain's damages for failing to properly inspect the crane - Inspection would have revealed a fatigue related defect in the welding of the crane - See paragraphs 16 to 24.

Torts - Topic 4371

Suppliers of goods - Negligence - Lessors - General - The New Brunswick Court of Appeal discussed the duty of a lessor of machinery to ensure that the machinery is properly inspected prior to being used for hire - See paragraphs 16 to 24.

Cases Noticed:

Donoghue v. Stevenson, [1932] A.C. 562, refd to. [para. 16].

Leitz v. Saskatoon Drug and Stationery Company Limited, [1980] 5 W.W.R. 673; 4 Sask.R. 35; 112 D.L.R.(3d) 106 (Q.B.), refd to. [para. 18].

Stewart and Stewart v. Lepage's Incor­porated, [1955] O.R. 937 (H.C.), refd to. [para. 18].

Paine v. Colne Valley Electricity Supply Co., [1938] 4 All E.R. 803, refd to. [para. 18].

Dransfield v. British Insulated Cables Ltd. (1938), 54 L.Q.R. 59, refd to. [para. 18].

Castle v. Davenport-Campbell Company Limited, [1952] O.R. 565; 3 D.L.R. 540, refd to. [para. 19].

Grant v. Australian Knitting Mills Ltd., [1936] A.C. 85, refd to. [para. 19].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, refd to. [para. 26].

Neonex Housing Industries Ltd. v. Ameri­can Building Company (1981), 36 N.B.R.(2d) 305; 94 A.P.R. 305 (C.A.), refd to. [para. 26].

Neilson v. Atlantic Rentals Ltd. (1974), 8 N.B.R.(2d) 594 (C.A.), refd to. [para. 53].

Star Express Merchandising Co. v. V.G. McGrath Pty. Ltd., [1959] V.R. 443, refd to. [para. 55].

McFee v. Joss, [1925] 2 D.L.R. 1059 (Ont. C.A.), refd to. [para. 59].

Statutes Noticed:

Tortfeasors Act, R.S.N.B. 1973, c. T-8, sect. 3 [para. 60].

Authors and Works Noticed:

McGregor on Damages (15th Ed. 1988), p. 190 [para. 7].

Rainaldi, Linda A., Remedies In Tort (1988), vol. 3, p. 20-18 [para. 26].

Counsel:

Christopher M. Correia, for the appellant;

Donald M. Gillis, Q.C., and Paulette Gar­nett, for the respondent;

John P. Barry, Q.C., and Deirdre L. Wade, for the respondent.

This appeal was heard on October 18, 1990, before Angers, Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal. The decision of the court was delivered on May 22, 1991, including the following opinions:

Angers, J.A. (Ayles, J.A., concurring) - see paragraphs 1 to 34;

Rice, J.A., dissenting - see paragraphs 35 to 62.