Dear Colleagues:

Those of you looking for possible standard of care fact patterns will be intrigued by the Ontario Court of Appeals decision in Bingley v Morrison Fuels (http://www.ontariocourts.on.ca/decisions/2009/april/2009ONCA0319.htm). From the headnote:

In 1979, the plaintiffs hired the third party to decommission their old oil heating furnace and to convert their heating system to natural gas. After removing the oil furnace, the third party left in place the oil tank in the basement and the oil fill pipe and vent located on the exterior of the house. The cap on the oil fill pipe was tightened so that it could not be removed by hand and then turned down towards ground to indicate that the pipe was no longer in use. In 2001, an employee of the defendant misread the address on a delivery ticket, went to the plaintiffs' home, found the oil fill pipe, turned it around, loosened the cap with a wrench and pumped oil into the tank. The tank leaked, and oil entered the soil and groundwater, rendering the house uninhabitable and causing serious environmental contamination. The plaintiffs sued the defendant. The defendant settled that claim and made a third-party claim for contribution and indemnity. The trial judge dismissed the claim. The defendant appealed.

Held, the appeal should be allowed.

Per Juriansz J.A. (Blair J.A. concurring): It was open to the trial judge to find that the method used by the third party in performing the decommissioning job complied with the 1976 Canadian Gas Association Installation Code for Natural Gas Burning Appliances and Equipment and with industry practice in 1979. However, she erred in her approach to the analysis of reasonable foreseeability of harm. She considered whether a mistaken delivery occasioned by the particular chain of events that unfolded in this case was reasonably foreseeable rather than considering whether, in general, harm from a mistaken delivery of oil to the plaintiff's residence was reasonably foreseeable. Only the general harm itself must be reasonably foreseeable, not its manner of incidence. The third party's failure to take the measure of permanently plugging the oil fill pipe created a reasonably foreseeable risk that oil could be mistakenly pumped into the pipe at some later time. Combining reasonable foreseeability with the enormous potential harm and the trifling cost of permanently plugging the fill pipe led to the conclusion that the third party breached the standard of care it owed to the plaintiffs.

Per Simmons J.A. (dissenting): The trial judge concluded that, viewed from the perspective of 1979, there was no reasonably foreseeable risk of a mistaken oil-fill when the third party's conversion method was used because that method protected against the perceived risk of harm created by leaving the oil heating system components in place. This approach to the reasonable foreseeability of harm factor at the standard of care and breach stage of the negligence analysis was legally correct.

-- 
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435