Stewart v. J.M. Investments Ltd. and Flengeris, (1992) 106 Sask.R. 71 (ProvCt)

• Judge: Schmeiser, J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 06, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 106 Sask.R. 71 (ProvCt)

Stewart v. JM Inv. Ltd. (1992), 106 Sask.R. 71 (ProvCt)

MLB headnote and full text

Frank Stewart, Bridgette Stewart, Erynne Stewart by her litigation guardian Frank Stewart and Shane Stewart by his litigation guardian Frank Stewart (plaintiffs) v. J.M. Investments Ltd. and John Flengeris (defendants)

(Nos. 372 to 375/92)

Indexed As: Stewart v. J.M. Investments Ltd. and Flengeris

Saskatchewan Provincial Court

Judicial Centre of Regina

Schmeiser, J.

October 6, 1992.

Summary:

The Stewarts suffered from food poisoning in varying degrees after eating a pizza whose meat was contaminated. They sued the restaurant from where the pizza came from.

The Saskatchewan Provincial Court (Small Claims) allowed the action and assessed damages.

Damage Awards - Topic 358

Injury and death - Disease and illness - Food poisoning - Frank and Bridgette Stewart and their children Erynne and Shane suffered from food poisoning in varying degrees after eating a pizza whose meat was contaminated - They sued the restaurant from where the pizza came from - The Saskatchewan Provincial Court (Small Claims) allowed the actions and awarded damages as follows for pain and suffering: 1) to Frank and Bridget Stewart, $250; 2) to Erynne Stewart, $150; 3) to Shane Stewart, $350 - Costs and interest were also awarded - See paragraphs 16 to 18.

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering - [See Damage Awards - Topic 358 ].

Torts - Topic 167

Negligence - Evidence, presumption of negligence, res ipsa loquitur - Res ipsa loquitur, presumption of negligence - The Stewarts became ill after eating a Hawaiian pizza that tasted "funny" - They sued the restaurant from where the pizza came from - They raised res ipsa loquitur to establish a link between the pizza and their illness - The Saskatchewan Provin­cial Court allowed the action - The court said: "The ordinary principles of circum­stantial evidence point to the conclusion that the illness arose from the pizza. The doctor's report confirms that the symptoms are consistent with eating contaminated processed meat - an ingredient of the Hawaiian pizza ... I conclude that the plain­tiffs have established a prima facie case on a balance of probabilities." - See para­graphs 1 to 14.

Cases Noticed:

Heimler v. Calvert Caterers Ltd. (1974), 49 D.L.R.(3d) 36 (Ont. Co. Ct.), consd. [para. 7].

McNeil v. Airport Hotel (Halifax) Ltd. (1980), 41 N.S.R.(2d) 490; 76 A.P.R. 490 (N.S.S.C.T.D.), refd to. [para. 9].

Shawinigan Carbide v. Doucet (1909), 42 S.C.R. 281, consd. [para. 10].

MacDonald v. York County Hospital, [1972] 3 O.R. 469 (C.A.), affd. [1976] 2 S.C.R. 825, consd. [para. 11].

Statutes Noticed:

Sale of Goods Act, R.S.S. 1978, c. S-1, sect. 16(2), sect. 52(1) [para. 15].

Small Claims Act, R.S.S. 1978, c. S-50.1, generally [para. 1].

Counsel:

Gerald Heinrichs (Merchant Law Group), for the plaintiffs;

Glenn Headley (McKercher, McKercher & Ass.), for the defendants.

This action was heard by Schmeiser, J., of the Saskatchewan Provincial Court (Small Claims).

Schmeiser, J., delivered the following decision on October 6, 1992.