Smithson et al. v. Saskem Chemicals Ltd., Nabisco Brands Ltd., Yorkton Co-Op Association Ltd. and O.K. Economy Stores Ltd., (1985) 43 Sask.R. 1 (QB)

• Judge: Noble, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 03, 1985
• Jurisdiction: Saskatchewan
• Citations: (1985), 43 Sask.R. 1 (QB)

Smithson v. Saskem Chemicals Ltd. (1985), 43 Sask.R. 1 (QB)

MLB headnote and full text

Smithson and Smithson v. Saskem Chemicals Limited, Standard Brands Canada Limited (now Nabisco Brands Ltd. by amendment), Yorkton Co-Operative Association Limited and O.K. Economy Stores Limited

(No. 129 A.D. 1978)

Indexed As: Smithson et al. v. Saskem Chemicals Ltd., Nabisco Brands Ltd., Yorkton Co-Op Association Ltd. and O.K. Economy Stores Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Noble, J.

October 3, 1985.

Summary:

The female plaintiff was annoyed by a clogged floor drain (a standard floor drain with a "U" joint or trap). She put two cups of "drainex" down the drain. Drainex was manufactured by Saskem Chemicals and sold to her by Yorkton Co-op. The drain still appeared to be clogged, so three days later she purchased some "Gillette's lye", manufactured by Nabisco Brands Ltd. and sold to her by O.K. Economy Stores. She put two tablespoons of the lye down the drain. An explosion occurred sending liquid up to the ceiling and getting on the plaintiff. As a result the plaintiff received 4th degree burns on her face and lost her sight. The plaintiff and her husband brought an action in negligence for damages against the manufacturers and distributors of the "drainex" and the "Gillette's lye".

The Saskatchewan Court of Queen's Bench allowed the plaintiffs' action against the manufacturers and assessed damages accordingly. The court dismissed the plaintiffs' action against the stores that sold the products to the female plaintiff.

Damage Awards - Topic 230

Eye injuries - Loss of sight in both eyes - A woman, approximately 30 years of age, was injured when two chemicals she put down a clogged drain caused an explosion - Extremely severe burns - Totally blind - Taste and smell partially impaired - 40 surgical operations in eight years - 276 days in hospital - Face rebuilt - Eyes grafted shut - Three more operations required - Housewife and mother who helped in family dry cleaning business - The Saskatchewan Court of Queen's Bench awarded the plaintiff $150,000.00 non-pecuniary damages, plus $72,000.00 for loss of past wages, $180,000.00 for loss of future wages, $535,000.00 for cost of future care and $225,000.00 for aids and appliances - See paragraphs 44 to 66.

Damages - Topic 1543

General damages - For personal injury - Non-pecuniary damages - Blindness - A woman was rendered totally blind when two chemicals she put down a floor drain exploded - The Saskatchewan Court of Queen's Bench stated that this was not a case where the maximum award as set by the Supreme Court of Canada in the "trilogy" of cases should be awarded, but was a case where close to the maximum was justified - The court noted that in 1984 figures the maximum set by the Supreme Court of Canada allowing for inflation would be $168,000.00, and awarded the woman $150,000.00 having particular regard to the devastating effect that sudden total blindness had on her life - See paragraph 52.

Damages - Topic 1546

General damages - For personal injury - Discount or capitalization rate and present value of future payments - The Saskatchewan Court of Queen's Bench adopted a 2% discount rate in calculating wage related damages and a 3% for non-wage related damages when calculating damages to which an injured plaintiff was entitled - See paragraphs 31 to 37.

Torts - Topic 4226

Suppliers of goods - Warranties - General - A woman put "drainex" down a clogged floor drain and several days later put "Gillette's lye" down the drain - An explosion occurred when the chemicals mixed in the drain and the woman was injured - She sued the stores that sold her the product alleging breaches of the Sale of Goods Act, ss. 16(1) and (2) (i.e. that the goods were not of merchantable quality and not fit for the purpose for which they were bought) - The Saskatchewan Court of Queen's Bench held that there was no breach of warranty and therefore the distributors were not liable - See paragraph 56.

Torts - Topic 4335

Suppliers of goods - Negligence - Manufacturers - Duty to warn users respecting dangers - The Saskatchewan Court of Queen's Bench referred to the degree to which the manufacturer of a hazardous product must warn the public of its attendant dangers - See paragraph 17 - The court discussed the manufacturers' warnings on the labels of two chemicals commonly used to unclog drains and held that the labels inadequately warned of the dangers of mixing the chemicals (drainex and Gillette's lye) - See paragraphs 13 to 20.

Torts - Topic 4335

Suppliers of goods - Negligence - Manufacturers - Duty to warn users respecting dangers - A woman put "drainex" down a clogged floor drain and several days later put "Gillette's lye" down the drain - An explosion occurred when the lye mixed with the "drainex" left in the drain - The woman was injured - She sued the manufacturers for damages - In allowing her action the Saskatchewan Court of Queen's Bench held that the manufacturers were negligent in failing to realize that the two chemicals could come together in the same floor drain and for failing to warn of this possibility - See paragraphs 11 to 20.

Torts - Topic 4364

Suppliers of goods - Negligence - Retailers and wholesalers - Duty to warn respecting dangers - A woman put "drainex" down a clogged floor drain and several days later put "Gillette's lye" down the drain - An explosion occurred when the chemicals mixed in the drain and the woman was injured - She sued the stores that sold her the products, alleging that the stores committed a tortious act in failing to warn her of the hazards of mixing the products - The Saskatchewan Court of Queen's Bench held that the duty of the distributors was to warn of dangers actually or constructively known and here the distributors knew no more than the consumer - See paragraph 58.

Cases Noticed:

Guidry v. Kem Manufacturing et al. (1976), 20 Alta. L.R.(2d) 130, refd to. [para. 16].

Lambert et al. v. Lastoplex Chemicals Co. Ltd. (1972), 25 D.L.R.(3d) 121, appld. [para. 17].

Andrews v. Grand & Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 557; 88 D.L.R.(3d) 452; 3 C.C.L.T. 225, refd to. [para. 26].

Thornton et al. v. Board of School Trustees of School Division No. 57, [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480; [1978] 1 W.W.R. 607, refd to. [para. 26].

Teno et al. v. Arnold et al. [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609; 3 C.C.L.T. 372, refd to. [para. 26].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294 refd to. [para. 31].

Cudmore and Cudmore v. Tabin (1984), 32 Sask.R. 105, refd to. [para. 34].

Pound v. Nackonechny et al. (1983), 28 Sask.R. 222; 27 C.C.L.T. 146, refd to. [para. 58].

Labreque v. Sask. Wheat Pool et al. (1977), 78 D.L.R.(3d) 289, affd., [1983] 3 W.W.R. 558, refd to. [para. 58].

Statutes Noticed:

Contributory Negligence Act, R.S.S. 1978, c. C-31, sect. 2 [para. 21].

Hazardous Products Act, R.S.C. 1970, c. H-3, generally [para. 12].

Counsel:

R.L. Barclay, Q.C., and W.M. Rusnak, for the plaintiffs;

B.J. Sherman, for the defendant, Saskem Chemicals Limited;

E.R. Gritzfeld, Q.C., for the defendant, Nabisco Brands Ltd.

R.D. Laing and A.M. Wallace, for the defendant, O.K. Economy Stores Limited;

D.A. Gerrand, for the defendant, Yorkton Co-operative Association Limited.

This case was heard before Nobel, J., of the Saskatchewan Court of Queens Bench, who delivered the following decision on October 3, 1985: