Walford et al. v. Jacuzzi Canada Ltd. et al.

[Indexed as: Walford v. Jacuzzi Canada Ltd.]

87 O.R. (3d) 281

Court of Appeal for Ontario,

Feldman, Blair and Rouleau JJ.A.

October 23, 2007

Torts -- Negligence -- Causation -- Plaintiff purchasing slide for her 4-foot-deep backyard swimming poor from another party and asking defendant pool store for advice on whether slide would be "okay" for use with her pool before installing it -- Defendant telling plaintiff that there would be "no problem" -- Plaintiff instructing her teenage daughter to only descend slide feet first -- Daughter disregarding that instruction [page282] and breaking neck after hitting chin on bottom of pool -- Plaintiff testifying that she would not have installed slide had she been warned about danger of using it incorrectly -- Defendant's failure to warn plaintiff about danger of incorrect use of slide causing or contributing to daughter's injuries.

Torts -- Negligence -- Contributory negligence -- Mother purchasing slide for her backyard swimming pool from another party and asking defendant whether it would be "okay" for use with her pool before installing it -- Defendant telling her that there would be "no problem" -- Mother installing slide and instructing daughter to only descend it feet first -- Daughter disregarding that instruction and breaking neck after hitting chin on bottom of pool -- Daughter bearing some responsibility for failing to comply with mother's instructions -- Daughter's contributory negligence being fixed at 20 per cent.

Torts -- Negligence -- Standard of care -- Duty to warn -- Plaintiff purchasing slide for her 4-foot-deep backyard swimming pool from another party and asking defendant pool store for advice on whether slide would be "okay" for use with her pool before installing it -- Defendant telling plaintiff that there would be "no problem" -- Defendant negligent and breaching its duty by failing to warn plaintiff of hidden danger of catastrophic injury from incorrect sliding technique.

MW purchased a 10-foot slide for her 4-foot-deep backyard swimming pool. Before installing it, she bought some fittings for the slide from a pool store, Pioneer. She had been a customer of Pioneer for two years, buying chemicals and other pool supplies there. She asked employees of Pioneer whether it would be "all right" or "okay" to use the slide with her pool, and was assured that there would be "no problem". MW testified that had she been told by Pioneer that it was not safe to use the slide, she would not have installed it even though she had already bought it. After installing the slide, she instructed her teenage daughter CW on how to use it, specifically telling her to only descend the slide feet first. When MW was not looking, CW crouched on her knees on the slide. When she entered the water head first, she hit her chin on the bottom of the pool and broke her neck, rendering her quadriplegic. MW, CW and other family members sued Pioneer and others for damages. The action was dismissed. The trial judge found that by telling MW that installing the slide on a 4-foot-deep pool was "okay", Pioneer's employees met the prevailing standard of care as set out in the U.S. Consumer Product Safety Standards ("CPSS"). The plaintiffs appealed the dismissal of the action against Pioneer only.

Held, the appeal should be allowed.

Per Feldman J.A. (Blair J.A. concurring): Based on their history, together with the fact that MW specifically sought Pioneer's advice as pool experts, there was a special relationship of trust and confidence between MW and Pioneer which was sufficiently close to create a duty of care. Pioneer was negligent in failing to warn MW, when she specifically asked about the suitability of the slide for a 4-foot-deep swimming pool, that there was a serious risk of catastrophic injury due to the pool's shallow depth if a person were to descend the slide other than by sitting upright and entering the water feet first. The trial judge was entitled to use the CPSS as the relevant standard of care, but he erred when he misapprehended the standard by referring only to the requirements governing minimum pool depth. Although the CPSS permitted the installation of a slide on a 4-foot-deep pool, that permission was qualified in the CPSS by many safety [page283] requirements concerning the risk of serious injury and instructions for reducing that risk. The danger from using a pool slide in relatively shallow water is not an obvious danger. A customer who installs a slide in a shallow pool creates a risk of catastrophic injury from incorrect sliding technique which would be entirely absent if the customer installed the same slide in a deeper pool. The nature and extent of this risk constitutes a hidden danger that engages the obligation to warn.

The basic test for determining causation is the "but for" test. MW's uncontroverted and unchallenged evidence was that had she been warned by Pioneer about the danger of using a slide with a 4-foot-deep pool, she would not have installed the slide. But for the failure of Pioneer's employees to respond to MW's inquiries by warning her of the risks of installing the pool slide on her pool, she would not have erected the slide and CW would not have been injured going down it. Pioneer's breach of duty and negligence caused or contributed to CW's injury.

As CW was unable to appreciate the nature or extent of the danger due to the absence of an authoritative warning, she did not assume the risk of catastrophic injuries when she went down the slide crouched over her knees. However, CW bore some responsibility for failing to heed MW's safety rules. Her contribution to her loss should be fixed at 20 per cent.

Per Rouleau J.A. (dissenting): The trial judge reasonably found that MW did not seek any advice about warnings or safety precautions. The very broad questions posed by MW could reasonably be understood as inquiring whether there were prohibitions or practical difficulties associated with the installation of the particular model of slide with a 4-foot pool. As Pioneer's employees did not take MW's inquiries to be about safety, their responses were accurate and in accordance with the only applicable legal standard, the CPSS. Moreover, Pioneer was not a manufacturer or even a distributor of the slide. It merely supplied missing parts for the slide. Its employees had no training with respect to the use of slides, did not hold themselves out to be experts on slides, and neither knew nor ought to have known that selling the mountings or fittings for the slide would result in the creation of non- obvious dangers. The trial judge did not err in applying a different and lower standard to Pioneer than to the manufacturer of the slide and in concluding that the standard of care was met on the facts of this case.

The trial judge's conclusion that even if the warnings had been given the accident would have occurred in any event was supported by the facts of this case. MW was clearly aware that the slide was dangerous if improperly used, and she installed it anyway and instructed CW not to go down head first. The failure to warn of the dangers of misuse did not cause CW's injuries.

APPEAL from the dismissal of negligence action by Cavarzan J., [2005] O.J. No. 1376 (S.C.J.).

Cases referred to

Amin (Litigation Guardian of) v. Klironomos, [1996] O.J. No. 826 (Gen. Div.); Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, [1997] S.C.J. No. 111, 158 Nfld. & P.E.I.R. 269, 153 D.L.R. (4th) 385, 221 N.R. 1, 490 A.P.R. 269, 37 B.L.R. (2d) 1, 40 C.C.L.T. (2d) 235; Deshane v. Deere & Co. (1993), 15 O.R. (3d) 225, [1993] O.J. No. 2233, 106 D.L.R. (4th) 385, 17 C.C.L.T. (2d) 130, 50 C.P.R. (3d) 449 (C.A.) [Leave to appeal to S.C.C. refused [1993] S.C.C.A. No. 494, 17 O.R. (3d) xvi, 20 C.C.L.T.(2d) 318n, 175 N.R. 321n]; Good-Wear Treaders Ltd. v. D & B Holdings Ltd., [1979] N.S.J. No. 532, 32 N.S.R. (2d) 380 (C.A.); Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, [1995] S.C.J. No. 104, 4 B.C.L.R. (3d) 1, 129 D.L.R. (4th) 609, 190 N.R. 1, [1996] 2 W.W.R. 77, 26 B.L.R. (2d) 169, 27 C.C.L.T. (2d) 1; [page284] Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10 C.C.L.T. (3d) 157; Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569, [1971] S.C.J. No. 132, 25 D.L.R. (3d) 121; Pack v. Country of Warner #5, Michelson, and Oliver Chemical Co. (Lethbridge) Ltd. (1964), 44 D.L.R. (2d) 215, 46 W.W.R. 422 (Alta. S.C.A.D.); Queen v. Cognos Inc., [1993] 1 S.C.R. 87, [1993] S.C.J. No. 3, 99 D.L.R. (4th) 626, 147 N.R. 169, 45 C.C.E.L. 153, 14 C.C.L.T. (2d) 113, 93 C.L.L.C. Â14-019; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, 278 D.L.R. (4th) 643; Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, [1973] S.C.J. No. 126, 40 D.L.R. (3d) 530; Schulz v. Leeside Developments Ltd. (1978), 90 D.L.R. (3d) 98 (C.A.)

Authorities referred to

Fleming, John G., The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) Prosser, William L., Handbook of the Law of Torts, 4th ed. (St. Paul, Minn.: West Publishing, 1971)

Paul J. Pape and David S. Steinberg, for appellants. Barry A. Percival, for respondent.

[1] FELDMAN J.A. (BLAIR J.A. concurring): -- The appellant Correena Walford was 15 3/4 years old when she went down the slide her parents had just installed beside their 4-foot, aboveground, backyard pool, hit her chin on the bottom of the pool and broke her neck. The trial judge dismissed the appellants' claims for negligence and failure to warn against a number of defendants, including the respondent pool store that sold the mother some fittings for the slide and assured her that installing the slide with her pool would be "okay" and "no problem". The appellant Correena Walford was rendered quadriplegic by the accident. The trial judge assessed her damages at over $5 million. There is no appeal from that assessment.

[2] The sole issue of liability on the appeal is whether the pool store breached a duty of care to the appellants by telling the mother that it was "okay" and that there would be "no problem" with installing the slide on their 4-foot-deep aboveground pool, without warning her of the potential for catastrophic injury, and if so, whether that breach caused or contributed to the damage that the appellant Correena Walford suffered.

[3] In my view, the trial judge erred in finding no breach of duty by the respondent for failure to warn and no negligent misrepresentation, and for finding that Correena Walford's negligence was the sole cause of the accident. For the following reasons, I would allow the appeal. [page285]

Facts from the Reasons of the Trial Judge

[4] The Walfords had owned at least three aboveground, backyard pools, the most recent of which at the date of the accident, July 12, 1996, was the Mardi Gras pool they bought second-hand and installed in 1994. It was 16 feet wide, 24 feet long, and 4 feet deep. Correena's grandfather had lived with the family until his death in April 1996 and expressed the wish that the family obtain a slide for the pool. The appellant Mrs. Marion Walford wanted to fulfill that wish using funds from her father's estate. She believed that a slide could be installed with her family's pool because the cover of the Mardi Gras Installation Instructions booklet that had accompanied the pool featured an illustration of a child using a slide installed at the end of the pool. However, she sought further assurances that a slide was in fact appropriate for a 4-foot-deep pool.

[5] She first contacted Pioneer Pools at their Barton Street store, where she had been a customer for two years. She bought chemicals and other pool supplies for her pool there, and a representative had attended her pool to assist with the installation of a new vinyl liner and, on another occasion, with an algae problem. Mrs. Walford relied on the expertise of the store's staff to keep her pool in proper working order and trusted their advice. When she first called about a slide, it was to inquire whether a slide was available for a 4-foot pool. She was told that it was, but there was no floor model, the cost was over $1,000 and it had to be ordered from the manufacturer.

[6] Mrs. Walford next called the City of Hamilton building department, which told her either that they did not regulate slides or that there was no city regulation prohibiting the use of a water slide with a 4-foot pool.

[7] She subsequently saw a classified ad that Kevin Boyle had placed in The Hamilton Spectator offering a 10-foot pool slide manufactured by Jacuzzi for $350. She called the number and asked the man she spoke with whether the slide could be used with a 4-foot pool. He responded that he did not see a problem. She again called the City of Hamilton building department and spoke to a different official who gave her the same response as before.

[8] Before going to see the Boyles' slide, Mrs. Walford made two further inquiries for information. First she called her Pioneer Pools store and spoke to a female employee. Mrs. Walford told the employee about Mr. Boyle's advertisement and asked whether it was okay to use the slide with a 4-foot pool. The Pioneer Pools employee said that she could not see a problem. Mrs. Walford [page286] then called another pool shop, Acorn Pools, whose employee also could not foresee a problem.

[9] Eventually, Mrs. Walford went with her neighbour, Judy Dunn, to the Boyles' residence and purchased the slide for $225. The slide was quite old and had some broken parts. Mrs. Walford testified that Kevin Boyle's father, William, told her that it had been mounted on a 4-foot pool similar to hers. It turned out that the Boyles had purchased the slide 15 years earlier at a garage sale and that they had never installed it. The claim against Kevin and William Boyle for negligent misrepresentation was dismissed at trial and no appeal was taken from that part of the judgment.

[10] After purchasing the slide, Mrs. Walford loaded it into her van and drove directly to the Barton Street Pioneer Pools store. There she spoke with the store manager, Sumera Fraser, whom Mrs. Walford had dealt with before. Mrs. Walford asked Ms. Fraser to inspect the slide, which Mrs. Walford and Ms. Dunn pulled partway out of the van. Mrs. Walford asked Ms. Fraser whether it was all right to use this slide with her 4-foot pool and she was told again that there would be no problem.

[11] The slide's installation required securing the three metal legs that support the front portion of the slide with mountings that Mrs. Walford purchased from the store. Ms. Fraser also pointed out that the tubing that supplies water to the two jets that lubricate the slide was missing, and referred Mrs. Walford to another Pioneer Pools store on Highway 53 for those parts. Mrs. Walford went to the Highway 53 Pioneer Pools store the next day. The first clerk she spoke to there directed her to an older male employee at the back of the store who was knowledgeable about the tubing.

[12] Mrs. Walford described the slide as a 10-foot-long slide manufactured by Jacuzzi Canada, as it had been advertised. Although the slide was 10 feet in length, it was 7 feet, 6 inches high measured from the deck to the top of the handrail, 6 feet, 3 inches from the seat to the deck and 6 feet, 6 inches from the seat to the water. The older male employee supplied Mrs. Walford with two kinds of tubing and assured her that one would fit her slide. Mrs. Walford again asked if it was all right to use the slide with her 4-foot-deep pool and he told her that it would be "okay". He also drew her a sketch that showed how the mountings were to be installed on the deck.

[13] Mrs. Walford testified that she felt it was important that employees of Pioneer Pools see the slide. She said that although the older male employee at the Highway 53 store did not see the slide, he appeared to be knowledgeable and she relied on his [page287] expertise. She testified that had she been told by Pioneer Pools that it was not safe to use the slide, she would not have installed it, even though she had already bought it.

[14] During all of her inquiries, Mrs. Walford did not specifically ask whether it would be safe to install or use the slide with a 4-foot-deep pool. However, the trial judge found that her concern was with the slide's safety. Nor was there any suggestion in the evidence that anyone's response to her inquiries would have been different had she used the word "safe" rather than "okay".

[15] That evening, the Walfords installed the slide on the deck of the pool. The next day, Correena and her next door neighbour, Shauwn Dunn, went swimming in the pool and used the slide. Mrs. Walford was very safety conscious and had firm rules for the use of the pool, including no diving, no running and mandatory use of the ladder to get in and out. There was a "no diving" sign in a window of the house facing the pool. Either Mr. or Mrs. Walford was always present when the pool was in use. Before the children were permitted to use the slide, Mrs. Walford gathered them together and instructed them on the rules for the use of the slide. Her rules included: no pushing; no running; one person had to be down the slide before the next one started up the ladder; no one underneath the slide when one person was going down; and descending the slide only "feet first", or as Correena testified, "on their bums".

[16] Correena heeded her mother's directions and slid in a seated position the first time down, but the second time she was crouched over her knees. She slid this way because she thought it would be fun and she had done it with no restrictions on waterslides such as those at Canada's Wonderland and other large parks. Mrs. Walford watched Correena go down the slide the first time, but was distracted talking to a neighbour and did not see Correena slide the second time. When Correena entered the water head first, she went forward fast and her chin hit the bottom of the pool. She felt her body float to the top and she could not move. She had been rendered quadriplegic.

Legal Findings by the Trial Judge

[17] The original action included claims against Pioneer Pools; Kevin and William Boyle; Esther Williams Pools of Canada Inc., the manufacturer of the Mardi Gras pool; and Jacuzzi Canada Ltd., the manufacturer of the slide. The trial judge found no liability on the part of any of the defendants, either because they were not negligent, or because their negligence did not cause the accident. The appellants appealed only against Pioneer Pools.

[18] The trial judge analyzed whether Pioneer Pool had any duty to the appellants, and if it did, whether it breached that [page288] duty by failing to meet the standard of care. He also addressed the issue of causation, but only in the context of the appellants' claim against Jacuzzi Canada.

Duty of care

[19] The trial judge found that Mrs. Walford's relationship with the Barton Street Pioneer Pools store, her reliance on Pioneer Pools' employees for expert advice regarding her pool, and her trust in the store personnel to give her expert advice may establish a special relationship giving rise to a duty of care.

Standard of care

[20] The trial judge found that by telling Mrs. Walford that installing a slide on a 4-foot-deep pool was "okay", Pioneer Pools' employees met the prevailing standard of care as set out in the U.S. Consumer Product Safety Standards ("CPSS"). The CPSS criteria for pool slides came into effect on July 19, 1976. He found that it provides that for pools between 3 and 4 feet deep, a slide should be no higher than 6 feet, 6 inches from the deck to the seating surface and restricted to use by children under 13 years old. For a water depth of 4 feet or more, "unrestricted slides" may be used. For slides 7 feet, 6 inches or less in height, the minimum water depth is 4 feet.

[21] The trial judge concluded that the answer that Pioneer Pools' employees gave to Mrs. Walford was truthful and not misleading, accurate and consistent with the only applicable legal standard in existence. He stated that this finding would be the same had Mrs. Walford asked the specific question whether it was "safe" to use a water slide 6 feet, 3 inches above the deck and 10 feet in length with a 4-foot-deep aboveground pool. However, he also agreed with Pioneer Pools' submission that the proper answer to that question either in 1974 before the CPSS or in 1996 was, "yes, if properly used".

[22] He later stated that the respondent was not negligent because the motivation of the Pioneer staff was to supply the requested missing parts, not to mislead Mrs. Walford in order to make a sale.

[23] Because the trial judge concluded that Pioneer Pools had met the applicable standard of care, he found that the appellants had not established any breach of duty. Consequently, the issue of causation did not arise in relation to Pioneer Pools.

Causation

[24] In assessing the appellants' claim against Jacuzzi Canada, the manufacturer of the slide, the trial judge found that the slide [page289] fell far short of meeting the CPSS standard for warning labels. The slide's warning label, as well as its lettering, were smaller than the specification's requirements. The label was worn down at the edges and its lettering was grey, extremely faded and partially missing due to weathering. The CPSS specification requires pool slide labels to be coloured, permanently attached and tamper-proof.

[25] Neither Mrs. Walford, Correena, nor their neighbour Shauwn, who was swimming and using the slide with Correena, saw the warning label. The trial judge found that the label in its deteriorated condition was easy to miss. The warning label read:

Enter water feet first.

One person only on the slide at a time.

Never stand going down the slide.

[26] The trial judge found that Jacuzzi Canada was negligent for failing to give adequate warning to users of the slide of the "extreme danger of serious injury from the improper use of the slide". He also found that pool slides can be used safely in a 4-foot pool. However, he concluded that although neither Mrs. Walford nor Correena saw the old label on the slide prior to the accident, the inadequate label was not the cause of the accident. Rather, the cause of the accident was Correena's failure to heed the warning her mother gave her to "go feet first".

Issue on the Appeal

[27] Was Pioneer Pools negligent when it failed to warn a customer, who specifically asked about the suitability of a slide for a 4-foot-deep swimming pool, that there was a serious risk of catastrophic injury due to the pool's shallow depth if a person were to descend the slide other than by sitting upright and entering the water feet first? If so, did Pioneer Pool's negligence cause or contribute to Correena's damage?

Analysis

Duty of care

[28] In The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 191, John G. Fleming discusses the cause of action arising from physical injury caused by negligent words:

Misrepresentations of safety are a common cause of personal injury and a familiar form of negligence which the law has long considered actionable, as in the case of dangerous premises and products concealing a trap or flaw beneath a misleading appearance of safety. Scant, if any, attention has been paid in these and other contexts to the fact that the gist of complaint against the defendant is that he created the risk by misrepresentation rather than [page290] by failing to inspect or actually digging the pitfall. Admittedly, often enough the misrepresentation consists, not in something he said, but in his failing to say anything at all (that is to warn); but this should matter no more than whether communication was by gesture (like waving a motorist over a level crossing into the path of an approaching train) or by means of the spoken or written word.

[29] In Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, [1997] S.C.J. No. 111, at p. 1229 S.C.R., the Supreme Court described the law on duty to warn as follows:

The law may be simply stated. Manufacturers and suppliers are required to warn all those who may reasonably be affected by potentially dangerous products: Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569, and Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634. This duty extends even to those persons who are not party to the contract of sale: Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189. The potential user must be reasonably foreseeable to the manufacturer or supplier-manufacturers and suppliers . . . do not have the duty to warn the entire world about every danger that can result from improper use of their product.

[30] The duty to warn of potentially dangerous products applies only to dangers that are not obvious. In Schulz v. Leeside Developments Ltd. (1978), 90 D.L.R. (3d) 98 (C.A.), an 18-year-old boy rented a motor boat from the defendant. The teenager decided to climb over the windshield of the boat while the boat was travelling at full speed, and ride on top of the bow of the boat while holding onto a rope that was tied to a cleat on the bow. When the boat suddenly lurched, the boy fell into the water, came into contact with the propeller and was rendered paralyzed. The British Columbia Court of Appeal found that the danger of riding on top of the bow of a speeding motor boat was an obvious one. It adopted the statement on "obvious dangers" from William L. Prosser's Handbook of the Law of Torts, 4th ed. (St. Paul, Minn.: West Publishing, 1971) at 649:

One limitation commonly placed upon the duty to warn, or for that matter the seller's entire liability, is that he is not liable for dangers that are known to the user, or are obvious to him, or are so commonly known that it can reasonably be assumed that the user will be familiar with them. Thus there is certainly no usual duty to warn the purchaser that a knife or an axe will cut, a match will take fire, dynamite will explode, or a hammer may mash a finger.

[31] Schulz and the obvious dangers principle referred to by the British Columbia Court of Appeal were relied on by this court in Deshane v. Deere & Co. (1993), 15 O.R. (3d) 225, [1993] O.J. No. 2233 (C.A.), at pp. 241-42 O.R.

[32] However, where the nature and extent of the danger of using a product is not obvious and a consumer seeks reassurance from a merchant concerning the safety or propriety of a product, [page291] the answer must not be misleading. This is essentially a claim in negligent misrepresentation, augmented in the circumstances where a potentially dangerous product is involved, by the duty to warn. The five elements of a claim for negligent misrepresentation are: (1) a duty of care based on a "special relationship", (2) a misleading representation, (3) negligence in making the misrepresentation, (4) reasonable reliance on the representation, (5) damage caused by the reliance. See Queen v. Cognos Inc., [1993] 1 S.C.R. 87, [1993] S.C.J. No. 3, at p. 110 S.C.R.

[33] The trial judge acknowledged that there may be a sufficiently close relationship between Mrs. Walford and Pioneer Pools to create a duty of care. I agree that there was such a relationship and that such a duty existed here. Mrs. Walford was a two-year customer of Pioneer Pools for parts and servicing and she trusted the store for help and advice regarding matters relating to her pool, including the installation of a slide. She had originally enquired about purchasing her slide from her Pioneer Pools store. It is plain on the evidence that there was a relationship of proximity between Mrs. Walford and Pioneer Pools that created a duty of care. As the trial judge observed later in his reasons when he explained why there was no similar relationship between Mrs. Walford and the Boyles, the men from whom she bought the slide, Mrs. Walford did not rely on them because she consulted with two pool supply businesses, "experts in the field".

[34] As McGarry J. stated in Amin (Litigation Guardian of) v. Klironomos, [1996] O.J. No. 826 (Gen. Div.), at para. 28, "it is clear that both the distributor and retailer have a duty to warn the consumer of inherent dangers with respect to the products they distribute or sell." In this case, although Pioneer Pools did not sell the slide to Mrs. Walford because they did not have one in stock and a new one would have been too expensive for her, they sold her parts for the slide she did buy, gave her instructions on how to install it and offered her specific reassurances about installing it on her 4-foot- deep pool.

[35] I therefore agree with the trial judge that a prima facie duty of care arose when Pioneer Pools' employees assured Mrs. Walford that her slide was appropriate for use with a 4- foot pool, in the course of selling her the parts that would enable such use. There are no relevant policy reasons in the circumstances of this case to negate this prima facie duty. In the context of negligent misrepresentation, there was a special relationship of trust and confidence between Mrs. Walford and Pioneer Pools, based on their history, together with the fact that she specifically sought their advice as pool experts. (See Cognos, supra, at pp. 116-18 S.C.R.) [page292]

Standard of care

[36] Having found that a duty of care existed between Pioneer Pools and Mrs. Walford, the trial judge turned to the standard of care. He was satisfied that the respondent met the standard of care when its employees told Mrs. Walford, in response to her questions, that it was "okay" or "no problem" to install a 10-foot long slide with a 4-foot-deep aboveground pool.

[37] The appellants' first submission is that the trial judge made a palpable and overriding error when he said that Mrs. Walford "did not seek any advice about warnings or safety precautions" from the respondent. There is no dispute that Mrs. Walford did not testify that she specifically used the word "safety". Nevertheless, the trial judge had no doubt that Mrs. Walford's concern was with safety. The trial judge made no finding whether Pioneer Pools' employees objectively understood that Mrs. Walford was asking about safety, nor was there any evidence about that. He also made no finding that they would not have reasonably understood her to be asking about safety. However, he concluded that the answer Pioneer Pools' employees gave Mrs. Walford would have met the standard of care had she specifically asked about safety.

[38] In the context of a customer who asks a vendor of pool supplies whether it is "okay" to install a slide with a pool of a specified shallow depth, it is clear that the customer's concern is safety. There is really no other issue. The question is, once the vendor decides to answer the customer's question, does the standard of care in this context encompass a duty to warn the customer of the safety issues relevant to installing a pool slide with a 4-foot-deep pool? Or, put another way, was Pioneer Pools negligent when its employees told Mrs. Walford that it was "okay" or "no problem" to install her slide on her pool, without any qualification or warning about the dangers of using such a slide?

[39] The standard of care depends on the circumstances and the context in which the duty arises. In this case, Mrs. Walford was asking for advice and assurance that it was appropriate for her to install a slide on a 4-foot-deep aboveground pool. She asked Pioneer Pools' employees about this three times: when she bought fittings for the slide, when she obtained tubing and instructions for the slide's proper installation and when she first called the store to inquire about buying a new slide for her pool.

[40] The respondent held itself out as having expertise regarding pools and pool accessories. Mrs. Walford trusted the respondent. No one from Pioneer Pools testified at the trial. The only evidence from Pioneer Pools was excerpts from the examination [page293] for discovery of Ms. Fraser, the manager of the Barton Street Pioneer Pools store, that were read into the record by the appellants' counsel. Ms. Fraser said she did not remember Mrs. Walford, but she had a memory of two women coming with a slide in a van and asking for tubing. She did not recall her conversation with them. She testified that she had no training regarding the propriety of using a slide with a 4- foot pool. The only information the store had on site regarding slides was a pool technician's manual and a brochure on the slide model that Pioneer Pools distributed. Nevertheless, she stated that when she sold pool supplies to individuals, she would give them the benefit of her knowledge and experience in respect of those supplies.

[41] The trial judge determined the standard of care based on the only applicable legal standard for pool safety in North America that existed at the time, the American standards promulgated in the CPSS in 1976.

[42] The trial judge also referred to the Jacuzzi Canada slide brochure and to Jacuzzi Canada owner's manual, which were attached to the report of the appellants' expert witness, for other evidence of the prevailing safety standard. The Jacuzzi Canada brochure, dated March 1, 1973, refers to its slides, including the model Mrs. Walford purchased, as "safe and serviceable". The minimum recommended water depth for that model is 4 feet. It is described as suitable for adults and children. The owners' manual, dated February 1, 1976, refers to the same 4-foot minimum water depth and recites three "safety tips", which are the same as those found on the faded label attached to the slide: "1. Enter water feet first; 2. One person only on the slide at time; and 3. Never stand going down slide." The trial judge concluded that Jacuzzi Canada's printed information in 1996 would not have said anything different from the CPSS.

[43] An expert who testified for the appellants at the trial also referred to the American National Standard for Aboveground/Onground Residential Swimming Pools, a voluntary standard sponsored by the National Spa and Pool Institute ("NSPI"). The trial judge determined that the NSPI standard was not applicable for several reasons. Little turns on this finding by the trial judge because the CPSS standard that the trial judge recognized as the relevant standard contains extensive safety precautions for pool slides beyond the pool depth requirements that were the only ones he referred to.

[44] The trial judge went on to discuss the features of the Walfords' pool. He found on a balance of probabilities that the pool's depth was in excess of 4 feet, based on evidence that the pool bottom had been excavated a few inches when it was installed and [page294] that Mrs. Walford topped up the pool every day. He concluded that the depth of the water in the pool therefore exceeded 4 feet and consequently could accommodate "unrestricted slides" under the standard promulgated by the CPSS.

[45] This finding appears to have been the principal basis for the trial judge's conclusion that the assurances given Mrs. Walford by Pioneer Pools' employees accorded with the CPSS requirements and therefore met its standard of care. However, the trial judge misinterpreted the CPSS slide requirements regarding pool depth. Under the CPSS, the term "unrestricted slide" means a slide that can be used by persons older than 13 years of age, rather than a slide of any height. Instead, for pools of between 4 to 5 feet in depth, the CPSS restricts slides to a maximum height of 7 feet, 6 inches. As noted above, for pools between 3 and 4 feet in depth, the CPSS standard prohibits the use of slides taller than 6 feet, 6 inches, which was the height of the Walfords' slide, and prohibits any use by persons over 13 years of age. Furthermore, it does not seem physically possible that either topping up or digging an excavation for an aboveground pool -- essentially a rectangular box with a single open face -- whose depth dimension is 4 feet could result in a water depth of over 4 feet.

[46] In any event, whether the pool's actual depth was a few inches deeper than 4 feet is not relevant to Pioneer Pools' failure to warn. Because Mrs. Walford always described her pool as a 4-foot pool when she was talking to the Pioneer Pools' employees, the advice they gave her related to a 4-foot pool and not a deeper one.

[47] On the issue of the need for a deep pool to properly accommodate a slide, the trial judge referred to the evidence of Frederick Schall, the senior vice-president of Esther Williams, the company that manufactured the appellants' Mardi Gras pool. His evidence was that a slide would have been appropriate for the Mardi Gras pool model that had a 7-foot, 6- inch deep end known as a "hopper". He believed that the picture on the Walfords' pool manual that displayed a pool with a slide at the end was intended to show a hopper pool, rather than a pool like the Walfords', with a uniform 4-foot depth.

[48] Based on the evidence before him, I agree that the trial judge was entitled to use the CPSS as the relevant standard of care. However, in doing so, he erred when he misapprehended the standard by referring only to the requirements governing minimum pool depth. Although the CPSS permitted the installation of a slide on a 4-foot-deep pool, that permission was qualified in the CPSS by many safety requirements concerning the risk of serious injury and instructions for reducing that risk. [page295] The standard contains an extensive discussion of the dangers of swimming pool slides.

[49] The standard was produced by the U.S. Consumer Product Safety Commission, which was charged with developing a mandatory consumer product safety standard for swimming pool slides under the authority of the United States Consumer Product Safety Act. Under the heading "Description of the Standard", the Commission explains its goals as follows:

The standard addresses the risk of quadriplegia and paraplegia by (1) specifying that slides must impart a low angle of attack of the slider into the water, (2) establishing slide height versus water depth relationships which are to be conveyed to the consumer by intended use criteria that must accompany the slides, and (3) requiring mandatory permanent, and explicit signs on all sides to (a) restrict adult-sized persons from the use of slides placed in shallow water, (b) inform users of the proper body position to use as they go down the slide, and (c) inform slide users of the injury potential that exists if slide use warnings are ignored.

[50] Following the description of the proposed standard, the Commission discusses the views of several commentators. The comments under the heading "Mode of Injury" are instructive:

Several commentators argue that the warning signs and intended use instructions provided in the proposed standard do not sufficiently explain the nature of the mechanism that produces the serious injuries of paraplegia and quadriplegia as a result of belly slides. Briefly, these injuries appear to be caused by a forward flipping of the body that may result in the forceful impact of the top or rear of the head with the pool bottom. The Commission agrees that the previously published signs and instructions allow consumers to believe that the danger involves a straight line impact with the bottom as with a shallow dive. What the consumer may not realize, however, is that the unexpected flipping motion will subject the slider to sudden forces beyond his or her control. The awareness of this mechanism will reinforce the user's knowledge (conveyed by the required signs and instructions) that the arms should be kept extended with the head and fingers pointing up.

[51] As a result of this comment, the Commission modified both the required instructions and diagrams to better explain the danger to consumers.

[52] Another commentator suggested prohibiting belly slides altogether because, as that commentator said, "head first belly sliding is inherently dangerous under any circumstance and should not be allowed". The Commission rejected this suggestion, reasoning that because there do exist safe belly sliding techniques and "head first belly sliding is a common way of using swimming pool slides", prohibiting belly sliding would not be effective, especially in home pools. The Commission favoured recommending a minimum water depth of 4 feet for slide installation along with warning signs and instructions to be attached to the slide "to instruct the slide user in sliding techniques that, if [page296] followed, will reduce the unreasonable risk of injury associated with swimming pool slides".

[53] Commentators also suggested that the Commission instruct customers to restrict the installation of slides to pools sufficiently deep that injuries could not occur as a result of the user hitting the bottom of the pool. Some commentators noted studies on the risk of injury resulting from improper head first sliding in water depths of less than 5 feet. This suggestion was also rejected by the Commission because of the increased risk of drowning in deep water. The Commission instead recommended that defined transom signs be attached to all slides that displayed drawings of how a person can be injured going head first down a slide and flipping forward striking the bottom. That recommendation is based on this very significant statement by the Commission:

The Commission believes that a person who purchases or uses a swimming pool slide should be given the information necessary to exercise an informed judgment on the merits of the product. A significant part of that information is a clear statement of the nature of the risks of injury associated with the use of the product. This is particularly important when the nature of the injury is as serious as paralysis or drowning. Figures U and V in [the standard] apprise the potential user or purchaser of risks and consequences known to occur, and it is the Commission's view that the explicit nature of the transom signs is necessary and desirable to eliminate or reduce the unreasonable risk of injury associated with swimming pool slides.

(Emphasis added)

[54] The Commission concludes its discussion of its considerations and reasons for recommending the final standard with a summary of its findings. The first finding addresses the standard's importance:

(1) The Commission finds that unreasonable risks of death and injury from accidents are associated with swimming pool slides. These risks are (i) quadriplegia and paraplegia resulting from users (primarily adults using the swimming pool slide for the first time) sliding down the slide in a head first position and striking the bottom of the pool, (ii) leg fractures resulting from feet first entry, (iii) impact of sliders with other people in the pool, and (iv) falls from the slide ladder.

[55] These excerpts from the Commission's standard and its explanation demonstrate that the accepted standard for pool slides involved more than simply a consideration of minimum pool depths. The standard included many other safety requirements, the most important of which is the mandatory provision of information and instructions concerning the extreme and non-obvious danger of paralysis if a slide is used improperly.

[56] The excerpts also show that the danger of pool slides is not something that is generally known based on "common sense". In [page297] fact, the standard recognizes that head-first belly slides are a common and popular use of a slide. Consumers will not know, however, that by entering the water head first from a pool slide, there is an unexpected and uncontrollable flipping by the body that causes the head to hit the bottom of the pool if the water is shallow. Consumers also will not know that this can and does cause paraplegia and quadriplegia, catastrophic injuries that they would not expect or anticipate from using a simple and commonly available recreational device.

[57] In other words, the danger from using a pool slide in relatively shallow water is not an obvious danger. Consumers do not know that 4 feet is the minimum depth for installing a pool slide that is usable by persons older than 13 years of age and that at such a depth, if one does not go down feet first, a significant risk of catastrophic injury arises. They do not know at what depth it becomes safe to go down head first so that the slider will not hit the bottom of the pool.

[58] The trial judge recognized that these risks were not obvious when he dealt with the claims against Jacuzzi Canada. Based on the CPSS standard that the trial judge found was the applicable standard of care, the duty to warn of non-obvious dangers was similarly engaged when Pioneer Pools' employees responded to Mrs. Walford's specific inquiries for advice concerning pool safety. As Mrs. Walford reasonably viewed Pioneer Pools' employees as pool experts whom she trusted and who were prepared to provide her with advice about her slide, they were obliged to provide a non-negligent answer in accordance with the duty to warn. That their motive, as found by the trial judge, was only to sell pool parts and not to mislead, does not absolve them from this duty of care. They were obliged to tell Mrs. Walford that although a slide could be used with a 4-foot pool, this was the minimum permissible depth for sliders above 13 years of age, and that if sliders did not go down feet first, they risked catastrophic injury. These are not mere "safety tips". Nor do they convey warnings about dangers that would be obvious to the average consumer, such as those arising from jumping off the top of the slide or descending the slide in a standing position. As the U.S. Consumer Products Safety Commission recognized after making extensive findings, a customer who installs a slide in a shallow pool creates a risk of catastrophic injury from incorrect sliding technique, which would be entirely absent if the customer installed the same slide in a deeper pool. The nature and extent of this risk constitutes a hidden danger that engages the obligation to warn.

[59] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at para. 36, the Supreme Court explained that although a [page298] finding of negligence is one of mixed fact and law, where a trial court errs by applying an incorrect standard, there is an error of law, which is subject to the correctness standard of appellate review. In this case, the trial judge committed an error of law by applying an incorrect standard.

[60] Applying the correct standard of care, the respondent, Pioneer Pools, was negligent and breached its duty by failing to warn Mrs. Walford when she sought advice from its employees of the hidden danger of catastrophic injury from erecting a slide on a 4-foot-deep aboveground pool.

Causation

[61] In its recent decision in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, at para. 7, the Supreme Court clarified that the basic test for determining causation remains the "but for" test. Mrs. Walford's uncontroverted and unchallenged evidence was that had she been warned by Pioneer Pools about the danger of using a slide with a 4-foot pool, (i.e., "but for" the failure to warn) she would not have erected the slide, even after buying it. My colleague Rouleau J.A. suggests that the trial judge implicitly rejected this evidence even though the trial judge did not say so, and that he must have rejected it because he found the sole cause of the accident was Coreena's failure to listen to her mother when she did not go down feet first. To the contrary, the reliability of that evidence was supported by the trial judge's finding that Mrs. Walford was extremely safety conscious and cautious about her children's use of the pool, and by her many efforts to satisfy herself from knowledgeable people that it would be "okay" to install a slide with a 4-foot pool. With respect to the legal conclusion regarding causation, it appears that the trial judge's finding on causation was made without considering or applying the "but for" test.

[62] In my view, based on the evidence and applying the "but for" test: but for the failure of the respondent's employees to respond to Mrs. Walford's inquires by warning her of the risks of installing the pool slide on her 4-foot pool, she would not have erected the slide and Correena would never have been injured going down it. The breach of duty and negligence of the respondent therefore caused or contributed to Correena's injury.

Contributory negligence

[63] Having found negligence and causation, the issue of contributory negligence arises on the appeal. The trial judge found that Correena's failure to heed her mother's admonition to only [page299] go down the slide "on her bum" was the sole cause of the accident. Because I have concluded that the negligence of the respondent caused or contributed to the accident based on the "but for" test, I must now consider whether Correena's conduct makes her to some degree legally responsible for the accident.

[64] Although Mrs. Walford gave her children many instructions and rules about using the pool, including to only slide down "on their bums" or "feet first", she did not tell them why that was important or the extent of the danger if they were to deviate from that position. Mrs. Walford did not tell them because she had not been warned herself and was consequently unaware of the nature or degree of risk she had created by installing a slide on her shallow pool. Nor could Correena have reasonably known that her behaviour was as reckless as it turned out to be, as she was accustomed to using slides installed on deeper pools that did not require her to slide down feet first to ensure safety. As the U.S. Consumer Products Safety Commission found, using a pool slide in a position other than feet first is not necessarily a dangerous practice in deep pools and head first slides are a commonly accepted means of using swimming pool slides. The risk of catastrophic injury and paralysis only arises in the context of slides installed in pools whose water depth is close to or at the CPSS' minimum depth standards. Furthermore, the cause of this risk is not immediately apparent to untutored users: it occurs principally because a slider's body flips forward uncontrollably when it enters the water, even if the slider enters the water in a straight line. Considering that Correena was unable to appreciate the nature or extent of the danger due to the absence of an authoritative warning, she clearly did not assume the risk of catastrophic injuries when she went down the slide crouched down over her knees.

[65] However, Correena does bear some responsibility for failing to heed her mother's safety rules. Although neither Correena nor her mother could have been reasonably expected to know why sliding only feet-first was a crucial safety rule in their shallow pool -- indeed, it would have been largely irrelevant if the pool had been significantly deeper -- Mrs. Walford appears to have correctly intuited that sliding feet- first would have ensured her children's safety. Correena's knowing decision to ignore her mother's admonitions indicates a degree of carelessness on her part. In my view, her contribution to her loss can reasonably be fixed at 20 per cent.

[66] The appellants Sherrett, Mellanie and Trevor Walford also appeal the trial judge's finding that they did not suffer a loss of care, guidance and companionship as a result of the accident on [page300] the basis that he misperceived the evidence on this claim. I would not give effect to this ground of appeal.

Result

[67] The trial judge assessed the damages in this case and there is no appeal from that assessment. I would set aside the finding of the trial judge that the respondent was not negligent and substitute a finding of negligence. I would assess the appellant Correena Walford's contributory negligence at 20 per cent and award damages accordingly.

[68] I would also award the appellants their costs of the trial. If they are unable to agree on the quantum, the amount is to be assessed. The appellants will also have their costs of the appeal fixed at $30,000 plus disbursements and GST.

[69] ROULEAU J.A. (dissenting): -- I have had the benefit of reading the reasons of Feldman J.A. Central to her view that the trial decision should be set aside and a finding of negligence made, is that the trial judge erred in finding that the standard of care was met on the facts of this case. With respect, I disagree.

[70] This was a most unfortunate case involving a teenager suffering very serious permanent injury. After a ten-day trial for reasons comprising some 76 pages, the trial judge concluded that the responses given by the respondent's employees to Mrs. Walford's questions met the appropriate standard of care. For the reasons that follow I see no basis for setting that finding aside. The trial judge did not commit palpable and overriding error in the exercise of his fact finding function nor did he err in his application of the law of negligence to the facts of the case.

The Trial Decision

[71] The trial judge correctly instructed himself on the law of negligence. He determined that the respondent owed a duty of care to Mrs. Walford and then set about determining the appropriate standard of care applicable in the circumstances.

[72] The standard of care is an objective standard whereby the law requires that the court assess the conduct of the alleged tort-feasor against the minimum level of performance that the community would expect of a reasonable person in the same circumstances and position as the alleged tort-feasor.

[73] As noted by Feldman J.A., deciding whether the standard of care has been met is a question of mixed fact and law. From a reading of the trial judge's reasons as a whole, it is apparent that two findings were central to his conclusion that the respondent [page301] had met the appropriate standard of care. The two findings were with respect to the following:

(1) how would Mrs. Walford's questions be understood in the circumstances; and

(2) what is the level of expertise expected of a reasonable person in the respondent's circumstances.

The findings made in answer to these two questions are principally factual in nature and support the trial judge's conclusion that the standard of care was met. I see no basis to set them aside. I also agree with the trial judge's conclusion that, even if warnings as to the proper use of the slide had been given, the accident and injury would nonetheless have occurred. The claim would therefore also fail on the issue of causation. I will address each of these points in turn.

Standard of Care

(a) Mrs. Walford's question

[74] On three occasions Mrs. Walford asked the respondent's employees whether it was "okay" to use the Jacuzzi slide with her 4-foot pool. The trial judge noted that Mrs. Walford was a very cautious person and that, in her mind, her concern was safety.

[75] In a standard of care analysis, however, the trial judge must determine objectively what a reasonable person in the circumstances would have understood from the question. The trial judge therefore had to determine how, given the factual matrix of the case, Mrs. Walford's questions would be understood. Having reviewed the facts, the trial judge concluded that Mrs. Walford "did not seek any advice about warnings or safety precautions". His finding in this regard is, in my view, reasonable.

[76] On the first occasion, Mrs. Walford called the respondent and asked the question in contemplation of purchasing a slide. On the latter two occasions, the context within which the questions were asked was a consumer presenting herself at a store after having already purchased a used slide. The apparent reason for her visit to the store was to purchase a few small parts needed for the installation and repair of the slide. The questions made no reference to safety. Mrs. Walford did not ask whether installing such a slide with a 4-foot pool was safe nor did she ask how such a slide could safely be used in this 4-foot pool. The very broad questions posed by Mrs. Walford could reasonably be understood as inquiring whether there are prohibitions or practical difficulties associated with the installation of this model of [page302] slide with a 4-foot pool. Assuming that the employees were familiar with the CPSS standard, the relevant standard applicable to the slide, the correct response was that slides of this type were permitted and appropriate for use with a 4-foot pool.

[77] The trial judge found that the responses given by the respondent's employees were "accurate and in accordance with the only applicable legal standard". In my view, this finding is supported by the record. In fact, the answers were essentially the same as the answers given by officials of the City of Hamilton. When asked the same question by Mrs. Walford, the city officials appeared to interpret "okay" as an inquiry as to whether using a slide of this type in a 4-foot pool is generally allowed, and responded that they knew of no prohibition against such use.

[78] Had the question been reasonably understood to be an inquiry as to the warnings that should be given or safety precautions that should be taken to ensure the safe use of such a slide, I would agree with the view taken by Feldman J.A. that the answers given were in breach of the duty of care. The questions, however, were not posed in that way and were not understood in that way nor could the respondent's employees be reasonably expected to understand them to be an enquiry of that type, given the context in which the questions were asked.

[79] From a reading of the trial judge's reasons as a whole and the conclusions he reached, it is apparent the trial judge found as a fact that the questions asked by Mrs. Walford were not taken by the respondent's employees to be an inquiry as to safety. That he made such a finding is also apparent from the fact that, after stating that the answers given were truthful and not misleading, the trial judge went on to consider a hypothetical situation. As the trial judge put it, "even if" Mrs. Walford's questions "were taken to mean '[i]s it safe to use a water slide which is 6'3" above the deck and 10' in length, with a 4' deep above ground pool?'" (underlining added) the trial judge would still have considered the answers given to be correct. The trial judge would not have presented it as an alternate or hypothetical scenario unless he had made the primary finding that the questions had not been understood to be an enquiry about safe use of a slide.

[80] In dealing with this hypothetical, the trial judge found that even if the questions asked had been understood to be an inquiry as to the safety of using that water slide with the aboveground pool, the answers given were truthful and not misleading. I take from this finding that the trial judge considered that even if the questions had reasonably been understood in that way, the respondent's employees could make the assumption that Mrs. Walford would use the slide in accordance with the [page303] manufacturer's safety instructions. In the trial judge's view, based on the CPSS standard, the answers given to this hypothetical interpretation of the questions would also be correct, as the CPSS standard does not find that installation of such a slide in a 4-foot pool is unsafe. While one may or may not agree with this part of the trial judge's reasons, because I have concluded that the trial judge's primary finding -- that the questions were not an inquiry as to whether it was safe to use the slide with a 4- foot pool or an inquiry about warnings or safety precautions -- was supported by the evidence, I need not resolve this issue in order to dispose of the appeal.

(b) The level of expertise of the respondent's employees

[81] It is trite law that experts are held to a higher standard of care than the ordinary person. In her reasons, Feldman J.A. concluded that the respondent's expertise and knowledge were such that its duty to warn included a duty to advise of the risk of serious injury if misused and to give instructions as to how it should be used so as to reduce the risks. The duty she would impose on the respondent is similar to the duty imposed on the slide's manufacturer, Jacuzzi Canada Ltd. In my colleague's view, the "duty to warn of non-obvious dangers was similarly engaged when [the respondent's] employees responded to Mrs. Walford's specific inquiries for advice concerning pool safety".

[82] With respect, I disagree. First, as set out earlier, I do not interpret the questions posed by Mrs. Walford in the way Feldman J.A. has set out in her reasons. They were not a "specific inquiry for advice concerning pool safety" nor was Mrs. Walford seeking "advice from [the respondent's] employees of the hidden danger of catastrophic injury from erecting a slide on a 4-foot-deep aboveground pool". Mrs. Walford simply asked if it was "okay" to use it. The trial judge rejected the suggestion that it would reasonably be understood to be an inquiry as to whether the slide could safely be used with a 4- foot pool or an inquiry about the safe usage of a slide in a 4-foot pool.

[83] Second, quite apart from the interpretation to be given to the questions posed by Mrs. Walford, the trial judge had to determine whether the respondent's employees' answers were negligently given. Relevant to this issue are the expertise of the respondent's employees and the nature of the relationship. The trial judge noted that the respondent's employees were "not instructed to inquire as to the type of pool, should a customer come to the store for parts for a pool slide". They would have had no training in that regard. The trial judge did not conclude that the respondent's employees held themselves out to be [page304] experts with respect to slides. He concluded that the evidence did not establish that the respondent "either knew or ought to have known that selling mountings to [Mrs.] Walford would permit her to install a slide that was unsafe in the circumstances". As the respondent's employees possessed neither special skill nor knowledge on the facts of this case, the reasonable pool store employee would not be expected to know that selling the parts to Mrs. Walford would lead to the installation of a slide that would be improperly used. This is a factual inference that the trial judge was entitled to draw from the evidence before him. It follows, therefore, that the employee should not be held to an obligation to warn and the answers given were not negligent.

[84] The trial judge was aware that a different and higher standard of care applies to manufacturers, since manufacturers have detailed knowledge of products gained through its own testing and can appreciate the risks and dangers not known to ordinary consumers. [See Note 1 below] The standard applicable to distributors of products may, depending on what a distributor knew or ought to have known about the product, be the same or lower than that expected of manufacturers. [See Note 2 below] It follows that the standard for a vendor of replacement parts will usually be lower still, since the vendor of replacement parts would not normally be expected to have the knowledge available to manufacturers or distributors or to advise customers respecting the proper use of the product.

[85] As found by the trial judge, "[t]he standard for manufacturers to meet when devising programmes to alert owners about product defects or dangers is thus very high". Jacuzzi was held to this high standard which included a continuing duty to warn of the non-obvious dangers of serious injury from improper use of [page305] the slide. The respondent, however, was not a manufacturer nor even a distributor of the slide. The trial judge noted that the respondent "merely supplied missing parts for the slide", that the respondent's employees had no training with respect to use of slides and that the employees neither knew nor ought to have known that selling the mountings or fittings would result in the creation of non-obvious dangers. The respondent was in a very different role and position as compared to Jacuzzi. Based on his findings of fact, the trial judge applied a different and lower standard to the respondent. He rejected the suggestion that the respondent had to tell Mrs. Walford more than simply advising her that the slide could be used in a 4-foot pool. In my view, the trial judge was correct in applying a lower standard of care to the respondent and in concluding that the standard of care was met on the facts of this case.

Causation

[86] Even assuming that the trial judge erred and that, in response to Mrs. Walford's questions, the respondent ought to have advised her of the various cautions outlined in the CPSS document, I would nonetheless dismiss the appeal.

[87] Although the trial judge did not address the issue of causation in the context of the claim against the respondent, he did deal with causation when he considered the claim made against the manufacturer, Jacuzzi. He found that Jacuzzi had fallen below the standard of care by not taking steps to ensure that appropriate warnings were fixed to the slide. A manufacturer has the duty to ensure that its warning labels are according to CPSS standards and Jacuzzi had failed "to give adequate warning to users of the slide of the extreme danger of serious injury from improper use of the slide". Having made this determination, he nonetheless found that even if the duty of care had been met and the warnings provided, the accident and injury would have occurred. The basis of his finding was that Mrs. Walford had given the appropriate warnings to her daughter and it was her daughter's failure to heed the warnings that caused the accident.

[88] Feldman J.A. would set aside this finding by the trial judge. She does so by accepting that Mrs. Walford's "uncontroverted and unchallenged evidence was that had she been warned by Pioneer Pools about the danger of using a slide with a 4-foot pool . . . she would not have erected the slide, even after buying it". Applying the "but for test", Feldman J.A. concluded that the injury would not have occurred if the respondent's employees had warned Mrs. Walford of the dangers if misused. [page306]

[89] Mrs. Walford's evidence on this point needs to be put into context. At trial, Mrs. Walford's position and the evidence of her expert was that the slide was defective and unsafe. She maintained that it did not meet CPSS standards and should never have been installed. It is in this context that the trial judge would have considered Mrs. Walford's testimony on this point. In the face of Mrs. Walford's evidence and even recognizing Mrs. Walford's safety-conscious nature, the trial judge concluded that even if Jacuzzi had warned of the extreme danger of serious injury from improper use of the slide, the accident would have occurred. Although the trial judge did not specifically reject Mrs. Walford's assertion that she would not have installed the slide had she been warned of the risks, its rejection is implicit in the conclusion he reached. It is also reasonable when weighed in light of the evidence that risk of injury or death if misused exists for all slides, whether installed in a 4-foot or deeper pool, as well as the evidence of Mrs. Walford's knowledge of the risks. The trial judge's conclusion that even if the warnings had been given the accident would have occurred is therefore supported by the facts of this case. This finding on causation applies to the claim against the respondent as well as the claim against Jacuzzi.

[90] When considering Mrs. Walford's statement, the trial judge would have had in mind that, contrary to the appellants' position, installation of the slide met CPSS standards. More importantly, the trial judge was aware that the U.S. Consumer Product Safety Commission charged with developing the CPSS standard found that "unreasonable risks of death or injury from accidents are associated with swimming pool slides". Any slide purchased would come with a warning of serious risks if misused. Although the level and nature of risk varies according to the type of slide and depth of the pool, use of slides in any pool carries serious risks that requires warnings and obedience to warnings.

[91] In any event, from the evidence it is clear that Mrs. Walford was aware that the slide was dangerous if improperly used and she nonetheless installed the slide. Although, as noted by Feldman J.A., Mrs. Walford may not have been aware of the precise mechanism whereby injury could occur if someone were to go down head first or were to belly slide, Mrs. Walford was clearly aware that it was dangerous for a person to go down the slide other than in the seated position. Mrs. Walford agreed that it "was obviously dangerous and foolhardy" to go down the slide head first and that it is "just plain common sense to go down on your bum and enter the water feet first". As she testified, this was "my common sense". Mrs. Walford therefore instructed her [page307] children accordingly. They were to go down feet first and not go into the pool head first.

[92] After finding that despite these instructions, Coreena went down the slide on her knees with the intention of entering the water head first, the trial judge concluded that the failure to warn of the dangers of misuse did not cause the injury.

[93] In my view, although not specifically referred to, the trial judge was aware of and applied the "but for test" and the evidence provides an appropriate basis for his finding that even if the appropriate warnings had been given as to the risks, including the risks of belly sliding, the accident would nonetheless have occurred.

Conclusion

[94] As noted at the outset of these reasons, there were key findings made by the trial judge respecting the reasonable interpretation of Mrs. Walford's questions and the level of expertise expected of the respondent's employees in the circumstances of this case. Both of these findings were factual inferences based on evidence before the trial judge, and there is no basis to set them aside. Even if they are not considered to be stand alone findings of fact and are taken to be a part of the overall determination of whether the standard of care was met, the trial judge's finding of negligence is a question of mixed fact and law which is entitled to a high degree of deference. The trial judge did not apply an incorrect legal test and he considered all of the evidence. As set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at paras. 29-30, "a finding of negligence by the trial judge should be deferred to by appellate courts" because "requiring a standard of 'palpable and overriding error' for findings of negligence made by either a trial judge or a jury reinforces the proper relationship between the appellate and trial court levels".

[95] In my view, the trial judge did not commit palpable and overriding error. The trial judge was in the best position to decide the appropriate standard of care in the circumstances and whether the respondent's answers were negligently given and fell below that standard. Those findings are entitled to deference. The appeal would also fail on the issue of causation. I would, therefore, dismiss the appeal.

[96] I would also award the respondent its costs of the appeal fixed at $17,000 inclusive of disbursements and GST.

Appeal allowed. [page308]

Notes

Note 1: Manufacturers have a significant duty to warn customers of dangers resulting from negligent design, dangers involved in use or reasonably foreseeable misuse of the product and inherent and avoidable risks to the unusually susceptible customer of a generally safe product. See, e.g., Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3. S.C.R. 1210, [1997] S.C.J. No. 111; Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569, [1971] S.C.J. No. 132; and Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, [1995] S.C.J. No. 104.

Note 2: Suppliers also have a dutyto warn of dangers. In cases involving suppliers, liability has usually been found where the supplier actually knew of the defect or potential dangerous use. See. e.g., Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, [1973] S.C.J. No 126; Pack v. County of Warner #5, Michelson, and Oliver Chemical No. (Lethbridge) Ltd. (1964), 44 D.L.R. (2d) 215, 46 W.W.R. 422 (Alta. S.C.A.D.); and Good-Wear Treaders Ltd. v. D & B Holdings Ltd., [1979] N.S.J. No. 532, 31 N.S.R. (2d) 380 (C.A.).