January 19, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Walford v. Jacuzzi Canada Ltd, Pioneer Pools and other defendants was a case recently heard by the Ontario Court of Appeal. Ms. Walford had purchased a used slide for her pool through a classified ad. The slide was a 10 foot slide and her pool was a 4 foot deep backyard swimming pool. Before the slide was installed Ms. Walford purchased some fittings from Pioneer Pools to install the pool. She had been a customer at Pioneer Pools for the previous 2 years and she had inquired with the employees at Pioneer Pools as to whether the slide would be appropriate for her pool. She was assured by the employees that the slide would be “all right” and “okay” to use with her pool and she was told there would be “no problems”. It was Ms. Walford’s position that had she been told by Pioneer that the slide would be unsafe for her pool then she would not have installed it. After the slide was installed Ms. Walford told her daughter that she was only to slide feet first. Her daughter slid down on her knees which resulted in her entering the water head first. She hit her chin on the bottom of the pool and broke her neck, rendering her quadriplegic. At trial the judge dismissed all claims against the defendants. The Walford’s appealed the decision against Pioneer Pools only.
At trial the trial judge found that Ms. Walford’s reliance on Pioneer for advice regarding the care of her pool may establish a special relationship giving rise to a duty of care. However, the trial judge noted that the answers provided by the Pioneer employees met the only legal standard which was provided under the U.S. Consumer Product Safety Standards for pool slides. The trial judge held that the answer provided by Pioneer was truthful and not misleading, accurate and consistent with the only applicable legal standard in existence.
On appeal, the majority allowed the appeal against Pioneer. Based on their history together, that Ms. Walford specifically sought Pioneer’s advice as pool experts, there was a special relationship of trust and confidence between the Walford’s and Pioneer which was close enough to create a duty of care between them. Pioneer was found to be negligent in not informing the Ms. Walford about the risk of catastrophic injury if a person went down the slide improperly. The risk of catastrophic or serious injury was viewed as a hidden danger to the consumer and Pioneer should have advised Ms. Walford about that hidden danger.
The appeal court emphasized that the test for determining causation is “but for” test. Ms. Walford’s unchallenged evidence at trial was that had she been warned by Pioneer about the danger of using a slide with her pool, she would not have installed the slide. “But for” the failure of Pioneer’s employees to warn Ms. Walford about the risks of installing the pool slide on her pool, she would not have erected the slide and her daughter would not have been injured going down the slide. Pioneer contributed to the daughter’s injury by breaching the duty it owed to Ms. Walford.
However, the appeal court did attribute some liability to Ms. Walford’s daughter. Although she could not appreciate completely the danger of sliding down on her knees because of no warning from Pioneer, the daughter failed to follow her mother’s safety rules and therefore she was found to be 20% at fault.
The court of appeal was not unanimous on this issue. There was a dissenting opinion that would have upheld the trial judge’s decision of no liability on the part of Pioneer. The dissenting judge felt that the questions asked by Ms. Walford dealt more specifically with the installation of the slide to the pool and that she was not seeking advice about warnings or safety precautions. As the Pioneer employees did not believe that Ms. Walford was asking about safety issues, their answers were accurate. Also, the dissenting judge noted the Pioneer was not even the manufacturer or distributor of the slide. Pioneer was only supplying missing parts for the slide. The Pioneer employees did not represent themselves as experts on slides and were not aware or required to be aware that supplying the parts would result in the creation of non-obvious dangers. The dissenting judge agreed with the trial judge applying a lower standard of care on Pioneer. The dissenting judge also noted that even if the warnings would have been provided the accident would still have occurred. The dissenting judge noted that Ms. Walford was obviously aware of the dangers and had provided warnings to her daughter which her daughter did not heed. The failure to warn of danger did not result in the daughter’s injuries.
It will be interesting to see if this case will be appealed by Pioneer to the Supreme Court of Canada.