Pound v. Nakonechny, Busch and Heinrich, (1983) 28 Sask.R. 222 (CA)

• Judge: Bayda, C.J.S., Hall and Tallis, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 03, 1983
• Jurisdiction: Saskatchewan
• Citations: (1983), 28 Sask.R. 222 (CA)

Pound v. Nakonechny (1983), 28 Sask.R. 222 (CA)

MLB headnote and full text

Pound v. Nakonechny, Busch and Heinrich

(No. 907)

Indexed As: Pound v. Nakonechny, Busch and Heinrich

Saskatchewan Court of Appeal

Bayda, C.J.S., Hall and Tallis, JJ.A.

November 3, 1983.

Summary:

The plaintiff lost a finger when paint escaped through a leak in a pressurized hose. The plaintiff retained the defendant solicitors to bring an action for him against the retailer and the manufacturer of the hose. The action against the manufacturer was not pursued. The action against the retailer was barred by s. 3(1)(d)(i) of the Limitation of Actions Act because it was not commenced within two years from the date the cause of action arose. The plaintiff then engaged new lawyers and sued his former solicitors for negligence in failing to commence the action before the limitation period had expired.

The Saskatchewan Court of Queen's Bench held that the defendant solicitors were negligent, but dismissed the plaintiff's action, because the plaintiff suffered no loss as he could have pursued an action in contract which was not statute barred and thereby recovered the whole of his damages. See paragraphs 38 to 52. The plaintiff appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Actions - Topic 1661

Cause of action - Concurrent remedies - General - The Saskatchewan Court of Appeal held that where the facts of a case support a possible liability in contract and in tort, the principle of mutual exclusivity excluded liability in tort, leaving liability in contract to prevail - The court also stated that this principle is no longer generally acceptable and has been replaced by the concurrent remedy or liability principle - This principle holds that tort and contract remedies may arise from the same act and the plaintiff may choose either remedy or both, but has been limited to cases involving common callings and professionals - See paragraphs 30 to 34.

Barristers and Solicitors - Topic 2584

Negligence - Particular negligent acts - Re commencement of action - The Saskatchewan Court of Appeal applied the principle that for a plaintiff to succeed in a negligence action for failure to commence an action within the limitation period, the plaintiff must establish that he probably would have succeeded in his original claim - See paragraph 7.

Barristers and Solicitors - Topic 2584

Negligence - Particular negligent acts - Re commencement of action - The plaintiff sued his solicitors for their failure to commence a negligence action for damages against a product retailer within the limitation period - The Saskatchewan Court of Appeal affirmed that although the solicitors were negligent, they were not liable to the plaintiff, because their conduct caused no damage, as the plaintiff could have pursued an action in contract which was not statute barred - The court held that the amount of damages would have been the same in either case - See paragraphs 18 to 36.

Damage Awards - Topic 34

Arm and hand injuries - Fingers - The Saskatchewan Court of Queen's Bench provisionally assessed $5,000.00 general damages for non-pecuniary loss for the loss of the middle finger of the right hand - See paragraph 50.

Limitation of Actions - Topic 10

General principles - Nature of action - Effect of - The Saskatchewan Court of Appeal held that where liability for damages for personal injuries was sought to be established in tort, the limitation period for bringing the action was two years pursuant to s. 3(1)(d)(i) of the Limitation of Actions Act - The court held that where liability for damages for personal injuries was sought to be established in contract, the limitation period was six years pursuant to s. 3(1)(f)(i) of the Act - The court held that the nature of the cause of action depended on the facts - See paragraph 18.

Torts - Topic 4205

Suppliers of goods - Products liability - Basis for liability - Contract v. tort - A painting contractor/carpenter purchased a "whip-end" hose from the defendant retailer to use as an attachment to a paint sprayer - The pressurized hose developed a leak causing paint to escape and puncture his finger, which was ultimately amputated - The Saskatchewan Court of Appeal held that the contractor's damage claim against the retailer was founded (by the pleadings and facts) in breach of an express or implied warranty - The court held that the claim was therefore in contract, or alternatively, in contract and tort - See paragraphs 34 to 35.

Torts - Topic 4361

Suppliers of goods - Products liability - Negligence - Retailers and wholesalers - Duty - General - The Saskatchewan Court of Appeal set out the duty of a retailer to a consumer - See paragraphs 26 to 27.

Cases Noticed:

Prior et al. v. McNab (1977), 16 O.R.(2d) 380, refd to. [para. 7].

Grant v. Australian Knitting Mills Limited et al., [1936] A.C. 85, refd to. [para. 14].

Andrews v. Hopkinson, [1957] 1 Q.B. 229, consd. [para. 14].

Yeoman Credit Ltd. v. Odgers et al., [1962] 1 W.L.R. 215 (C.A.), refd to. [para. 16].

Negro v. Pietro's Bread Co. Ltd., [1933] 1 D.L.R. 490 (Ont. C.A.), refd to. [para. 17].

Buckley v. Lever Brothers Ltd., [1953] 4 D.L.R. 16 (Ont. H.C.), refd to. [para. 17].

Sigurdson et al. v. Hillcrest Service Ltd. et al. (1977), 73 D.L.R.(3d) 132 (Sask. Q.B.), refd to. [para. 17].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465; [1963] 2 All E.R. 575, not appld. [para. 23].

Puls v. Bulman Brothers Limited, [1933] 3 W.W.R. 485 (Man. C.A.), dist. [para. 24].

Pack v. County of Warner No. 5 et al. (1964), 46 W.W.R.(N.S.) 422, refd to. [para. 27].

Watson v. Buckley, Osborne, Garrett & Co., Ltd. et al., [1940] 1 All E.R. 174, refd to. [para. 27].

Kubach et al. v. Hollands et al., [1937] 3 All E.R. 907 (K.B.), refd to. [para. 27].

J. Nunes Diamonds Ltd. v. Dominion Electric Protection Company, [1972] S.C.R. 769, refd to. [para. 30].

Carl M. Halvorson Inc. v. Robert McLellan & Co., Ltd. et al., [1973] S.C.R. 65, refd to. [para. 30].

Schwebel v. Telekes, 61 D.L.R.(2d) 470 (Ont. C.A.), refd to. [para. 30].

Gouzenko v. Harris et al. (1976), 72 D.L.R.(3d) 293 (Ont. H.C.), refd to. [para. 30].

Jarvis v. Moy, Davies, Smith et al., [1936] 1 K.B. 399 (C.A.), refd to. [para. 30].

Clark et al. v. Kirby-Smith, [1964] 1 Ch. 506, refd to. [para. 30].

Bagot v. Stevens Scanlan & Co. Ltd., [1966] 1 Q.B. 197, refd to. [para. 30].

Homenick v. Wiebe (1964), 49 W.W.R.(N.S.) 616 (Man. Q.B.), 53 W.W.R.(N.S.) 252 (Man. C.A.), dist. [para. 31].

Esso Petroleum Co. Ltd. v. Mardon, [1976] 1 Q.B. 801, refd to. [para. 32].

Midland Bank Trust Co. Ltd. et al. v. Hett, Stubbs & Kemp (a firm), [1978] 3 All E.R. 571, refd to. [para. 32].

Batty v. Metropolitan Property Realisations Ltd. et al., [1978] 1 Q.B. 554, refd to. [para. 32].

Giffels Associates Ltd. v. Eastern Construction Co. Ltd. et al. (1976), 68 D.L.R.(3d) 385, affd., 19 N.R. 298; 84 D.L.R.(3d) 344 (S.C.C.), refd to. [para. 33].

Dabous v. Zuliani et al. 68 D.L.R.(3d) 414 (Ont. C.A.), refd to. [para. 33].

Power v. Halley (1978), 30 Nfld. & P.E.I.R. 484; 84 A.P.R. 484; 88 D.L.R.(3d) 381 (Nfld. T.D.), refd to. [para. 33].

Jacobson Ford-Mercury Sales Ltd. v. Sivertz (1979), 10 C.C.L.T. 274 (B.C.S.C.), refd to. [para. 33].

Parsons v. Uttley Ingham & Co., [1978] 1 All E.R. 525, refd to. [para. 35].

Harrison v. Casto, 271 S.E. 2d 774, refd to. [para. 48].

Jewett v. Patt, 591 P. 2d 1151, refd to. [para. 48].

Golden v. Duggins, 374 So. 2d 243, refd to. [para. 48].

Kitchen v. Royal Air Forces Ass'n et al., [1958] 2 All E.R. 241, refd to. [para. 51].

Statutes Noticed:

Limitation of Actions, R.S.S. 1978, c. L-15, sect. 3(1)(d)(i) [paras. 13 to 14, 18 to 19, 24, 36]; sect. 3(1)(f)(i) [paras. 13 to 14, 18 to 19, 29, 34 to 35].

Authors and Works Noticed:

Fleming The Law of Torts (5th Ed.), pp. 176 [para. 42]; 512-513 [para. 26].

Waddams, Products Liability (2nd Ed.), p. 16 [para. 27].

Irvine, Concurrent Remedy or Concurrent Liability (1979-80), 10 C.C.L.T. 281 [para. 32].

Counsel:

E.R. Gritzfeld, Q.C. and S. Johnson, for the appellant;

R. Rath, for the respondent.

This appeal was heard before Bayda, C.J.S., Hall and Tallis, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered by Bayda, C.J.S., at Regina, Saskatchewan, on November 3, 1983.