Court of Appeal for Ontario

Mayburry v. Ontario (Liquor Control Board)

Date: 2002-04-02

Counsel: J. Sebastian Winny, for Bacardi.

File: (C36336)

Reasons for Decision

[1] By the Court: The trial judge properly determined that the appellants had failed to meet the requisite standard of care in the circumstances on findings that were well supported by the evidence. The action was commenced by the respondents against the appellants on the basis of the appellants failure to make reasonable efforts to reduce the risk to life and limbs inherent in the design of its product. The appellants knew or ought to have known that a carbonated beverage in a glass container is a dangerous product because the sudden release of carbon dioxide within the beverage will create an explosive event causing the propulsion of glass shards in all directions. The explosive nature of the one-litre Bacardi Breezer attested to by the appellant's own expert was a danger to be guarded against by its manufacturer. The appellant's failed to take any steps aimed at reducing the risk to life and limbs associated with the handling of this product. Accordingly the appeal is dismissed.

[2] Turning now to the cross-appeal we are of the opinion it was not come within the test enumerated the Supreme Court in Spaks v. Thompson, [1975] 1 S.C.R. 618, of being that"very strong and exceptional case" that would allow us to vary the apportionment of negligence. The cross-appeal is therefore dismissed.

[3] Costs fixed in the amount of $20,000 to the respondent all in.

Appeal and cross-appeal dismissed.