Stephenson v. Kerekanich et al.; Central Peace Dairies Ltd. v. Stephenson and Kerekanich, (1976) 2 A.R. 198 (TD)

• Judge: Wachowich, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 19, 1976
• Citations: (1976), 2 A.R. 198 (TD)

Stephenson v. Kerekanich (1976), 2 A.R. 198 (TD)

MLB headnote and full text

Stephenson v. Kerekanich et al.; Central Peace Dairies Ltd. v. Stephenson and Kerekanich

Indexed As: Stephenson v. Kerekanich et al.; Central Peace Dairies Ltd. v. Stephenson and Kerekanich

Alberta Supreme Court

Trial Division

Judicial District of Edmonton

Wachowich, J.

December 17, 1976.

Summary:

This case arose out of a claim for damages for the loss of an automotive garage by fire. The defendants washed their truck with raw gasoline and then drove the truck into the plaintiff's garage where open flames existed in a furnace and in a water heater. The truck caught fire and the plaintiff's garage was destroyed. The Alberta Supreme Court allowed the plaintiff's action and held the defendants were negligent because they should have foreseen the possibility of gas vapour igniting in the circumstances.

Bailment - Topic 2209

Liability of bailee - Bailment for benefit of bailor and bailee - Bailment of chattel for repairs - The plaintiff's truck was destroyed by fire after it was left at a garage for repairs - The garage owner established that the fire was started by a third party - The Alberta Supreme Court, Trial Division, dismissed the plaintiff's action against the garage owner - The Alberta Supreme Court stated that a bailee in such circumstances is not an insurer - See paragraph 26.

Evidence - Topic 2401

Presumptions - Inference from failure of a party to call available evidence - The plaintiff established a prima facie case of negligence against the defendants - The defendants attended at trial but did not testify - The trial judge of the Alberta Supreme Court, Trial Division, inferred from the defendants' failure to testify that their evidence would have been unfavourable to their case - See paragraphs 15 to 22.

Torts - Topic 167

Negligence - Evidence - Presumption of negligence - Res ipsa loquitur - The defendants washed their truck with raw gasoline and then drove the truck into a garage where open flames existed in a furnace and in a water heater - The truck caught fire and the plaintiff's garage was destroyed - The Alberta Supreme Court, Trial Division, applied the evidentiary rule of res ipsa loquitur - See paragraph 24.

Torts - Topic 4628

Dangerous activities - Use of flammable materials - Gasoline - The defendants washed their truck with raw gasoline and then drove the truck into a garage where open flames existed in a furnace and in a water heater - The truck caught fire and the plaintiff's garage was destroyed - The Alberta Supreme Court, Trial Division, held that the defendants were negligent because they should have foreseen the possibility of gas vapour igniting in such circumstances.

Cases Noticed:

Murray v. City of Saskatoon, 4 W.W.R.(N.S.) 234, folld. [para. 15].

Baumann v. Springer Construction Ltd. et al. 58 W.W.R. 592, folld. [para. 16].

Doxtator et al. v. Burch et al., 29 D.L.R.(3d) 542, folld. [para. 16].

Attorney General of Canada v. Diamond Waterproofing Ltd. et al., 48 D.L.R. (3d) 353, folld. [para. 17].

Co-Operative Fisheries Ltd. v. Canadian Imperial Bank of Commerce, 7 D.L.R.(3d) 610, refd to. [para. 20].

Ure v. Fagnan, 9 D.L.R.(2d) 480, refd to. [para. 20].

Erison v. Higgins, 48 D.L.R.(3d) 687, folld. [para. 24].

Walker v. Coates et al., [1968] S.C.R. 599, folld. [para. 24].

Tataryn v. Co-Operative Trust Co. of Canada Ltd. et al., 65 D.L.R.(3d) 99, folld. [para. 24].

Counsel:

R.A. McLennan, Q.C., for the plaintiffs;

J.A. Weir, for the defendants;

H.B. Madill, for the plaintiff Central Peace Dairies Ltd.

The judgment of WACHOWICH, J., was delivered at Edmonton, Alberta on December 19, 1976.