DATE: 20001102

DOCKET: C31632

COURT OF APPEAL FOR ONTARIO

RE: CHRISTOPHER SEDDON, FREDA SEDDON, FREDERICK SEDDON, EDWINA SEDDON (Plaintiffs/Respondents) – and – CARRIER CANADA LIMITED (Defendant/Appellant)

BEFORE: CARTHY, ABELLA AND SHARPE JJ.A.

COUNSEL: Michael C. Bruder,

for the Appellant

Marshall A. Swadron,

for the Respondents

HEARD: October 30, 2000

On appeal from the judgment of Justice Gerald Day dated January 29, 1999.

E N D O R S E M E N T

[1] The respondent Christopher Seddon sustained an injury to his eye while repairing a heat pump distributed by the appellant Carrier Canada Limited. The respondent applied pressurized gas to the heat pump. The centre of the end dust cap of the suction valve sheared away, struck the respondent’s eyeglasses, broke them and injured the appellant’s right eye. The parties agreed on damages and the sole issues at trial were liability and contributory negligence.

[2] The trial judge found liability on the part of the appellant on the ground that the suction valve had a design defect that caused the loss. The trial judge also found that the respondent was contributorily negligent to the extent of fifteen percent because he was not wearing safety glasses. The appellant submits that the trial judge erred in finding that injury was caused by the alleged design defect. The respondent cross-appeals the finding of contributory negligence. Both the appeal and the cross-appeal are entirely fact-driven. We are not persuaded that either party has established “palpable and over-riding error” on the part of the trial judge: see Stein v. The Ship “Kathy K” (1975), 1975 146 (SCC), 62 D.L.R. (3d) 1 (S.C.C.).

[3] The trial judge’s finding of liability against the appellant was based on the evidence and analysis of the plaintiff’s expert witness, James Rushbrook. In his evidence, Rushbrook testified that the valve in question was defective for two reasons. First, the use of dissimilar metals in the valve resulted in galvanic corrosion with the result that an excessive amount of gas was allowed to pass up the side of the valve and the “O-ring” seal mechanism was defeated. Rushbrook identified as a second and related design defect the use of a sealing dust cap made from an alloy susceptible to stress corrosion cracking. The use of the cap, in Rushbrook’s opinion, resulted in a foreseeable build-up of internal pressure beneath the cap on account of the defeated “O-ring” mechanism, and gave rise to an explosive release of pressurized Freon gas.

[4] While the trial judge’s reasons are somewhat cryptic, it is apparent that he essentially accepted the evidence of Rushbrook in preference of the experts called on behalf of the appellant. In particular, the trial judge made a clear finding that “the valve stem being manufactured from two dissimilar metals connecting at the threads contributed to the failure of the system by allowing the passage of gas through the stem to a degree that would not otherwise be”. The trial judge did not accept the theory offered by the appellant that the cause of the explosion was that the respondent damaged the “O-ring” by applying heat when soldering near the valve. Nor did the trial judge accept the respondent’s theory that tampering or replacement of the dust cap was a contributing factor to the accident. This finding is supported by Rushbrook’s evidence. He testified that it made no difference whether the cap in question was the original cap or a replacement cap. The cap that sheared was of the same composition as the cap placed on the valve by the manufacturer and the defect was one of design, namely, that the cap’s corrosive quality, combined with the corrosion of the sides of the valve, created an explosive pressure.

[5] During oral argument we were referred to extensive extracts from the evidence of experts called by the appellant. Particular reference was made to the evidence that when new, the dust cap could withstand considerable pressure. While it is regrettable that the trial judge did not canvass the evidence in greater detail, his reasons do demonstrate that he considered all the issues and that in the end, he was essentially persuaded by the evidence of Rushbrook and unpersuaded by the appellant’s experts. In these circumstances, there is no basis for us to interfere with his factual findings that do find support in the evidence.

[6] Nor are we persuaded that it would be appropriate for us to interfere with the trial judge’s finding of contributory negligence. In our view, it was open to the trial judge to conclude on the evidence, as he did, that as the respondent was dealing with a pressurized system “one would expect as a prudent course of conduct that he would protect himself with suitable protective spectacles”. We note that the trial judge did take into account the fact that the projection was of greater force than safety glasses could withstand. He found that safety eyewear would have retarded the force to some extent. In these circumstances, we are not persuaded that there is any basis for this court to interfere with the trial judge’s finding that the respondent is contributorily negligent to the extent of fifteen percent.

[7] Accordingly, both the appeal and the cross-appeal are dismissed with costs.

“J.J. Carthy J.A.”

“R.S. Abella J.A.”

“Robert J. Sharpe J.A.”