Hodgins v. Hydro-Electric Commission of Nepean, [1976] 2 SCR 501

Supreme Court of Canada

Hodgins v. Hydro-Electric Commission of Nepean, [1976] 2 S.C.R. 501

Date: 1975-10-07

Robert Hodgins (Plaintiff) Appellant;

and

The Hydro-Electric Commission of the Township of Nepean (Defendant) Respondent.

1975: May 1; 1975: October 7.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Duty of care—Estimate of electrical heating costs—Standard required in preparation of estimate—Estimate wrong—Requirement of establishing negligence rather than mere error.

Appellant decided to add an indoor pool to his house. He originally intended to heat the addition by a forced-air system but his electrical contractor suggested that he consider using electrical heating. An estimate of the yearly cost of such heating was obtained from the respondent, the exclusive electrical supplier for the area. This estimate proved to be very much less than the actual cost. Appellant subsequently sued the respondent for the difference between the actual and estimated heating cost for a three-year period together with the cost of the electrical installation which was to be removed and the cost of converting a forced-air system to accommodate the addition. He succeeded at trial but the appeal from that judgment was allowed.

Held (Spence J. dissenting): The appeal should be dismissed.

Per Laskin C.J.: It is not invariably enough to defeat the action in such a case merely to show that the defendant has used the skill or knowledge known to him or others in his field. The care or skill that must be shown must depend on what is the information or advice sought and which the defendant has represented that he can give. On the basis of the record there was no want of care on the part of the respondent’s agent who was knowledgeable in his field and who responded to what was asked of him.

Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.: While the estimate turned out to be much less than the actual cost it was not enough for appellant simply to prove that the estimate was wrong unless it also established negligence i.e. that the alleged error resulted from a lack of skill, competence or diligence on

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the part of the respondent or its employee. The estimate was an opinion and not a guaranteed cost.

Per Spence J., dissenting: There was evidence fully justifying the trial judge’s finding that there had been negligence. The estimate disregarded factors within the knowledge of the ordinary man and was not prepared with such care as the circumstances required.

[Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465; Mutual Life & Citizens’ Ass’ce Ltd. et al. v. Evatt, [1971] 1 All E.R. 150 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from P.J. Macdonald Co. Ct. J. in an action for damages for negligence. Appeal dismissed, Spence J. dissenting.

P.C.P. Thompson, for the appellant.

D.K. Laidlaw, Q.C., and P.A. Webber, for the respondent.

THE CHIEF JUSTICE—I agree with the conclusion of my brother Ritchie that the appeal should be dismissed but I do so on a different approach to the law. In a case like the present, where liability is sought to be based on negligent misrepresentation, I do not think that it is invariably enough to defeat the action that the defendant has used the skill or knowledge then known to him or to others in his field of endeavour. This point is made by my brother Spence in his reasons herein and I agree with it. In my opinion, the care or skill that must be shown by the defendant must depend, as it does here, on what is the information or advice sought from him and which he has unqualifiedly represented that he can give. He may assume to act in a matter beyond his then professional knowledge or that of others in the field and, if he does, he cannot then so limit the plaintiffs reliance unless he qualifies his information or advice accordingly or unless the plaintiff knows what are the limitations of the defendant’s competence when seeking the information or advice.

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In the present case, the record satisfies me that the heating cost estimate given by the respondent’s employee was responsive to what was asked of him by the appellant’s agent, who was knowledgeable in the field, and there was no want of care in formulating that response.

The judgment of Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of Ontario, allowing an appeal from a judgment rendered at trial by His Honour Judge Macdonald, directing that that judgment be set aside, and dismissing the action brought by the appellant to recover damages arising out of the alleged negligence of the respondent’s employee in estimating the cost of providing electrical heating for a room containing a swimming pool.

The appellant, who resided in the Township of Nepean, decided to add an indoor swimming pool to his home in 1967. He had originally intended to heat the new addition by a forced air system and a firm of architects had drawn plans for the addition incorporating such a heating system. However, the appellant’s electrical contractor, one Winch, suggested to him that he should consider using electrical heating in the proposed addition rather than the forced air system originally contemplated, and upon his asking Winch what the cost would be of heating electrically, the latter took the plans of the addition to John Runions an employee of the respondent, which was the exclusive electrical supplier for the area, for the purpose of obtaining an estimate of the yearly cost of the electricity required to operate the equipment designed to heat the room housing the swimming pool as designated in the plans.

The respondent’s business included the giving of heating cost estimates and both the trial judge and the Court of Appeal concluded that the relationship between the appellant and the respondent was one pursuant to which Runions and his employers owed a duty to the appellant to exercise reasonable

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care in preparing the heating cost estimate here in question.

The estimate made by Runions turned out to be very much less than the actual cost of heating the addition, but this is an action for negligence and, in my view, it is not enough for the appellant simply to prove that the estimate was wrong unless it is also established that the alleged error resulted from a lack of skill, competence or diligence on the part of Runions.

The learned trial judge took the view that the circumstances were governed by the opinions expressed in the House of Lords in Hedley Byrne and Company Limited v. Heller and Partners Ltd.[1], and that the respondent, through its employee Runions, was in breach of that duty of care to which the circumstances gave rise and that the appellant was therefore entitled to recover in damages for negligence.

The Court of Appeal, on the other hand, while agreeing that a duty of care was owed to the plaintiff by the defendant, concluded that the method of estimating the cost of heating employed by Runions was in accordance with the knowledge then available and that the procedure which he adopted was the same as others knowledgeable in the same art would have employed at the relevant time. The Manager of the Ontario Electrical League gave evidence on behalf of the respondent in the course of which the learned trial judge directed him to the document containing Runions’ estimate, and having stated that he had gone over the estimate, he was asked the following questions:

HIS HONOUR: And you couldn’t quarrel with the figure arrived at?

A. I couldn’t quarrel with the factors used, or the actual arithmetic and multiplication of the estimate, but I didn’t go out and take measurements of the room.

HIS HONOUR: No, I realize that, but if you had been doing it in 67, you would have done the same thing?

A. Yes, sir.

And the judge later asked him:

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HIS HONOUR: If you had been doing this heat loss estimate in 67, you would have done it the very same way that it was done by Mr. Runions?

A. In 1967, yes sir.

In light of Mr. Scott’s evidence as a whole, to which further reference will hereafter be made, Mr. Justice Evans, speaking on behalf of the Court of Appeal, made the following finding:

Did Runions exercise reasonable skill, competence and diligence in the preparation of the cost estimate or did he not? In the opinion of the expert, Runions calculated the heat loss in the same manner as anyone similarly expert in the art would have done in 1967. In light of that uncontradicted evidence, it would appear that Runions prepared his estimate according to the skill and knowledge available to those engaged in that particular field. If Runions met the standard then he was not negligent and no liability can be imputed to the defendant.

Throughout the argument of counsel on behalf of the respondent in this Court it was stressed that the question of the respondent’s liability must depend in great measure on what it was that Runions was asked to estimate and in this regard it was pointed out that the opinion sought by Winch, as the appellant’s electrical contractor, was an estimate of the cost of heating the room exclusive of the water in the swimming pool and that this was the estimate which Runions undertook to give.

In the course of his opening remarks at the trial, counsel for Mr. Hodgins was asked what kind of estimate it was that was referred to in the pleadings and he replied:

…The pool itself today is on a separate electrical heating system; the pool itself. The water in the pool is presently heated by electricity.

HIS HONOUR: Alright.

MR. THOMPSON: And the estimate that was prepared relates only to the heating of the room, so that the question of how the pool is heated doesn’t really enter into it.

In his own evidence Mr. Runions says:

Q. When Mr. Winch came to see you, what did he ask you to do specifically?

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A. To do a heat loss calculation for the room that that swimming pool would be in.

Q. I see. Do I assume from that that he did not ask you to do a heat loss with respect to the pool itself?

A. No, he didn’t.

In light of this evidence and of counsel’s own statement, I think it can be taken that the estimate requested was an estimate relating exclusively to the room as the swimming pool was to be heated by a separate circuit. Under these circumstances Runions prepared his estimate without making any allowance for the water in the pool and Mr. Scott, to whose evidence I have made reference earlier and whose qualifications as an expert in the electrical heating field were not questioned, approved the approach adopted by Runions and went on to say that the question of whether the water in the pool would involve a heat loss factor which should be taken into consideration in estimating the cost of heating the room, was one which was the subject of studies which were still underway and that their results were inconclusive. Mr. Scott’s evidence was uncontradicted and, having regard to his position as Manager of the Ontario Electrical League, his approval of Runions’ work and methods in my opinion fully supports the finding of Evans J.A. that “Runions prepared his estimate according to the skill and knowledge available to those engaged in that particular field.”

Having regard to the reasoning adopted by the learned trial judge, it appears to me to be desirable to reproduce the passage from the opinion of Lord Reid in the House of Lords in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., supra, in which he describes the courses open to a reasonable man whose opinion is sought by one whom he knows to be relying upon it. Lord Reid said, at p. 486:

A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him. He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer would require: or he could simply answer without any such qualification. If he chooses to adopt

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the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a, relationship with the inquirer which requires him to exercise such care as the circumstances require.

In the present case it is apparent that Runions adopted the last course indicated by Lord Reid with the result that the respondent must be taken “to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship” with the appellant requiring its employee to exercise “such care as the circumstances required.”

In the Hedley Byrne case the respondent banking company had replied to the inquiry seeking its advice in a letter which was prefaced by the words “For your private use and without responsibility on the part of this bank or its officials” and this clear qualification relieved them of liability for what might otherwise have been considered to be carelessness. In the present case the learned trial judge obviously considered that an obligation rested upon Runions as the respondent’s employee to qualify his statement, and in the course of his reasons for judgment he said:

…there was no qualification, either on the estimate or given verbally, that he had no experience in calculating heat loss in a room containing a swimming pool, and that the criteria to be used in such circumstances were still the subject matter of research by the Ontario Electrical League, of which he was an authorized representative.

This passage indicates the qualification which the learned trial judge considered to be necessary on the assumption that the swimming pool was one of the considerations in the estimate requested, but be that as it may, the qualification referred to in the context in which it appears is obviously drawn from the language used by Lord Reid in the case of Hedley Byrne, supra, which appears to me to establish that while qualification of such an opinion is a defence, failure to qualify is not of itself a separate item of negligence but rather a circumstance which gives rise to responsibility on the part of the person giving the opinion and his employer where the opinion is given carelessly or there is a

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failure to exercise such care in giving the opinion as the circumstances may require.

It appears to me that this case has been presented from beginning to end in accordance with the allegation of negligence contained in the Statement of Claim which is as follows:

The negligence of the servant of the Defendant consisted of expressing a written opinion of the estimated annual heating cost which was grossly erroneous and could have only been the result of acts of misfeasance or non-feasance on his part.

As I indicated at the outset, I do not think it to be enough simply to prove that the estimate was wrong unless it can also be shown that it was wrong because of carelessness or a failure to exercise such care as the circumstances required.

The words “such care as the circumstances require” as employed in the Hedley Byrne case, supra, are made the subject of comment in Mutual Life and Citizens’ Assurance Company Limited v. Evatt[2], where Lord Diplock observed in the course of delivering his opinion at p. 159:

…in their Lordships’ view the reference to ‘such care as the circumstances require’ pre‑supposes an ascertainable standard of skill, competence and diligence with which the advisor is acquainted or has represented that he is.

I can find no evidence that Runions acted carelessly or failed to live up to the ascertainable standard of competence and diligence existing in the electrical heating field in 1967 as described by the expert, Scott. On the contrary, the evidence appears to me to indicate that Runions complied with such standards as were then ascertainable. The estimate was an opinion and the fact that the respondent company was known to be in the business of making heating cost estimates does not convert it into a guaranteed cost.

I agree with and adopt the following conclusion contained in the reasons for judgment of Evans J.A.:

The defendant did not warrant the accuracy of its information nor the soundness of its advice. In the instant case there was no failure on the part of the defendant to discharge the only duty in law which it

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owed to the plaintiff, which was to take reasonable care in the preparation of the cost estimate.

For all these reasons I would dismiss this appeal with costs.

SPENCE J.(dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on May 3, 1973. By that judgment, the Court of Appeal for Ontario allowed an appeal from the judgment of His Honour Peter J. Macdonald in the County Court of the Judicial District of Ottawa-Carleton pronounced on June 29, 1972.

His Honour Judge Macdonald had awarded to the plaintiff, here appellant, damages in the amount of $4,990.36.

The plaintiff owned and occupied premises in the Township of Nepean and was in the process of erecting an addition thereto for the purpose of housing an indoor heated swimming pool. He had intended to supply the heat to this addition by forced air but at the suggestion of one Lionel T. Winch, an electrical contractor who had done various work for the plaintiff and his company, considered heating the room containing the pool by the use of electricity. Mr. Winch, at the plaintiffs request, furnished him with an estimate of the cost of equipping this room with heaters and installing the same. The plaintiff then, in order to make his decision, desired an estimate of what he termed the “cost of operation” of the electrical heating system, and requested this information from Mr. Winch. Mr. Winch, as the plaintiff’s agent, requested the defendant Hydro-Electric Commission of the Township of Nepean to supply such estimates. The Hydro-Electric Commission of the Township of Nepean was the sole supplier of electric current in the area and, as found in both courts below, was in the business of supplying estimates of heating costs. It must be remembered that its interest was not that of a mere volunteer giving the benefit of his professional skill gratuitously but that it hoped to sell additional electrical power to the plaintiff upon his deciding to heat the room containing the swimming pool by use of electricity.

Throughout the evidence, there is reference to “heat loss calculations” but this is, in my view,

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merely the use of a technical term. What was requested and what was given was an estimate of the cost of heating the room containing the pool, and the fact that such estimate is arrived at by calculating various heat losses is irrelevant.

Mr. Winch conferred with one John A. Runions (referred to often in the evidence as Runyans), who was a sales technician with the Hydro-Electric Commission of the Township of Nepean, and delivered to Mr. Runions a group of plans, copies of which were produced at trial and marked as an exhibit. Mr. Runions testified that “he (Winch) had a set of drawings and wanted me to do a heat loss calculation. Subsequently I found that the drawings were plans for an addition to Mr. Hodgins’ home”. Mr. Runions acknowledged that he knew that the plans were for an addition to contain a swimming pool and one of them showed where the swimming pool would be marked out in the floor area. Both courts below have noted Mr. Runions’ admission that he knew the purpose of the room was to contain a swimming pool and, in fact, Mr. Runions, in his evidence in-chief, testified that Mr. Winch had asked him if he, Runions, had any idea how much heat would be required to heat the water in the pool if Mr. Hodgins did it electrically and that he (Runions) had informed Mr. Winch that the Commission did not have much experience on it, that there were formulae, and that basically if you use a rule of thumb you could heat an indoor pool for about one-half kilowatt per thousand gallons, or if it were an outdoor pool, about one kilowatt an hour for a thousand gallons.

It is, therefore, most apparent that what Mr. Winch, for and on behalf of the appellant, was asking from Mr. Runions, the servant of the respondent, was the cost of heating a room in which there was to be a swimming pool filled with water. Mr. Runions made no inquiries and was supplied with no information beyond that. He did not, for instance, inquire as to the capacity of the pool. He did not ask at what temperature the water in the pool was to be maintained. He did not even ask at what temperature the room was to be maintained, although his estimate was based on an assumption that that room temperature was to be

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72° Fahrenheit. Mr. Runions proceeded to make an estimate using a manual and calculating the various factors because of the construction shown in the plans provided him and using the rate for electricity which was then charged by the respondent commission. This estimate amounted to $178 per annum. That estimate, produced at trial as Exhibit 5, was, as I have said, based on the assumption that the room containing the pool was to be maintained at 72° F. It was also based on the assumption that six inches of insulation was to be installed on the ceiling and four inches on the walls of the addition. Mr. Winch testified that that, or the equivalent insulation, was, in fact, installed and that the moisture barrier also required in the estimate was installed and was free from any tears when completed. Based on this estimate, the appellant ordered Mr. Winch to instal the electrical heaters.

The heaters installed were as follows: three radiant heaters over the doors around the edge of the pool and three smaller baseboard type heaters in the dressing rooms and bathroom in the addition and adjacent to the actual pool. The appellant commenced to heat the addition by the use of these electrical heaters.

At first, the bills which came to the appellant were in no way exceptional but some months later the respondent wrote to the appellant pointing out that there had been an error in the billing and enclosing a corrected statement which showed that the appellant owed the sum of $458.48 in arrears. Those arrears covered only the period from January to May 1968 at one rate and the period from July to September 1968 at a slightly higher rate, the rate in the area having been increased at that time. Subsequent calculations have shown, and the appellant proved, that instead of his electrical cost having been increased by about $15 per month by the heating of this addition, such costs have been increased by about $48 per month.

The learned trial judge accepted the calculation that the cost of heating this addition containing the swimming pool by the use of electricity was $230 per year more than the estimated cost. In other words, the estimate provided by the respondent was more than 100 per cent in error. In these

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circumstances, the appellant took these proceedings against the respondent claiming damages for negligence in providing the estimate of electrical heating costs.

After trial, His Honour Judge Macdonald, applying Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd.[3], found negligence in the respondent commission in supplying such an erroneous estimate and awarded damages to the plaintiff which I shall consider hereafter.

The Court of Appeal for Ontario, in reasons given by Evans J.A., allowed an appeal from this award being of the opinion that Mr. Runions, in giving his estimate, had complied with the standard of care required being “such care as the circumstances require”, citing Lord Reid’s famous dictum in Hedley Byrne at p. 486:

A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him. He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer would require: or he could simply answer without any such qualification. If he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the circumstances require.

This finding is based upon the evidence given at trial by Mr. Runions and also by Mr. William L. Scott, a professional engineer and the manager of the Ontario Electrical League. It was this body which had published the manual setting out the method to be used in making the calculation of heat loss in buildings and it was this body which had instructed Mr. Runions, and indeed it also instructed Mr. Winch. It was Mr. Scott’s evidence that when the estimate was given, Exhibit 5 dated November 16, 1967, the science had not sufficiently progressed to permit an accurate estimate of the cost of heating a room containing a swimming

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pool, particularly in calculating the loss of heat from the room to the water and that, in fact, even at the date of the trial, experimentation and possible formulae were still being worked out. Mr. Scott testified that had he been called upon to perform the task requested from Mr. Runions he would have made the same calculation and arrived at the same result.

Evans J.A. said, in giving reasons for the Court of Appeal:

The question then arises: Did Runions exercise reasonable skill, competence and diligence in the preparation of the cost estimate or did he not? In the opinion of the expert, Runions calculated the heat loss in the same manner as anyone similarly expert in the art would have done in 1967. In the light of that uncontradicted evidence, it would appear that Runions prepared his estimate according to the skill and knowledge available to those engaged in that particular field. If Runions met the standard then he was not negligent and no liability can be imputed to the defendant. That the estimate was incorrect is not questioned, but it is not sufficient that the plaintiff establish merely that the Runions estimate was wrong, he must go further and establish that the incorrect estimate resulted from a lack of skill, competence or diligence on the part of Runions.

The Court of Appeal for Ontario, therefore, allowed the appeal and the appellant has appealed to this Court upon leave granted by this Court.

In addition to my outline of the facts above, I wish to make reference to several additional pieces of evidence.

Mr. Runions purported to make his calculation of heat loss simply as if the room had contained a concrete slab floor. He did have full knowledge that the room was not to contain a concrete slab floor but was to contain a heated pool of many thousands of gallons capacity, although he made no effort to ascertain that capacity. He made a calculation without asking any questions as to the type of heating apparatus which it was proposed to install in the room. In cross-examination, Mr. Runions admitted that if radiant heating were installed it would make a difference in the use of certain factors in his calculation but stated that he had used “what is termed the conventional method for doing the heat loss calculation”. He agreed

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that if radiant heaters were the method used, then the height of the installation of such radiant heaters was an important part of the calculation and that if he had realized that radiant type heaters were being used he would have consulted someone familiar with doing calculations for commercial buildings and get his recommendation. Mr. Runions further admitted that he was aware of the regulation restricting the location of baseboard heaters near water and agreed “they wouldn’t want the baseboard heater right at the edge of the pool”.

As I have already said, Mr. Runions realized that the room was to contain a swimming pool and, in fact, had given an informal suggestion as to the approximate cost of heating the water in the pool. He had the plans and he could see from a mere glance at the plans that if baseboard heaters had been used around the wall they would have been far too close to the edge of the water to have been permitted under the safety regulations. These factors should have warned Mr. Runions that he would have to make his estimate on the radiant type of heater in the proposed building and, therefore, even without reference to any lack of science in calculating heat loss from the room to the water, his estimate was erroneous on his admitted knowledge at the time.

As I have already pointed out, the Court of Appeal judgment would seem to be based upon the proposition that if Mr. Runions calculated the heat loss in the same manner as anyone similarly expert in the art would have done in 1967, then Mr. Runions was not negligent and no liability can be imputed to his employer, the respondent. I have two comments upon that statement. In the first place, this was not what Mr. Runions did. This was not a case of him estimating the cost of such room in an erroneous fashion because science had not progressed sufficiently to allow him to estimate it correctly. I have illustrated that Mr. Runions was asked to estimate the heat cost of a room containing a swimming pool. Although so requested, he provided an estimate for a different thing—a room of the same dimensions but containing merely a concrete slab floor. Moreover, as I have already pointed out, he did even this erroneously

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because he failed to make his estimate based on the use of radiant heaters although that equipment only could be installed in the room containing a swimming pool. Secondly, I am unable to accept as absolute the statement that if Mr. Runions had prepared his estimate according to the skill and knowledge available to those engaged in that field, he was by that mere fact free from any liability for negligence. Prosser on Torts, in the 4th ed. 1971, deals with that matter on pp. 167-8:

Much the better view, therefore, is that of the great majority of the cases, that every custom is not conclusive merely because it is a custom, and that it must meet the challenge of “learned reason”, and be given only the evidentiary weight which the situation deserves. It follows that where common knowledge and ordinary judgment will recognize unreasonable danger, what everyone does may be found to be negligent;

In Texas & Pacific Railway Co. v. Behymer[4], Holmes J. said: [at p. 470]

What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.

In The T.J. Hooper[5], Learned Hand J., giving the judgment for the Court, said at p. 740:

Is it then a final answer that the business had not yet generally adopted receiving sets? There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. Ketterer v. Armour & Co. (C.C.A.) 247 F. 921, 931, L.R.A. 1918D, 798; Spang Chalfant & Co. v. Dimon, etc., Corp. (C.C.A.) 57 F. (2d) 965, 967. Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.

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A similar view was enunciated in Canada in Anderson v. Chasney[6], (Man. C.A.) where McPherson C.J.M. said at pp. 73-74:

The question left for consideration is: Was the doctor negligent in the care of the child after the operation had been completed? It was submitted that the expert testimony given, clearly relieved him of all negligence and that the expert testimony had to be accepted on that point. I cannot agree with that argument. Where there is other evidence in contradiction of the opinion of the expert testimony, which can be understood by a layman, those facts can be taken into consideration. In 48 Corp. Jur., p. 1151, it is stated:

“Expert evidence is not required, however, where the results of the treatment are of such character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves.”

And in Mehigan v. Sheehan (1947), 51 Atl. Rep. (2d) 632: “Expert testimony is not necessary for proof of negligence in non-technical matters or matters of which an ordinary person may be expected to have knowledge.”

While the method in which the operation was performed may be purely a matter of technical evidence, the fact that a sponge was left in a position where it was or was not dangerous is one which the ordinary man is competent to consider in arriving at a decision as to whether or not there was negligence.

The appeal from the Court of Appeal for Manitoba was dismissed in this Court: [1950] 4 D.L.R. 223, and the Court expressly agreed with McPherson C.J.M.

Surely, in the present case, even “an ordinary man” would understand that one could not approach the estimate of the cost of heating a room which surrounded a swimming pool containing thousands of gallons of water without knowing the temperature at which the water was to be maintained. In view of the task which Mr. Runions knowingly assumed, his disregard for factors within the knowledge of the ordinary man and his disregard as well of other factors which he expressly acknowledged knowing, such as the effect of the use of radiant heaters on his calculations, it is my opinion that there was evidence fully justifying the learned trial judge in finding that Mr. Runions

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had been negligent in that he had failed to “exercise such care as the circumstances required”, per Lord Reid in Hedley Byrne, supra. Therefore, I would allow the appeal.

Macdonald, County Court Judge, at trial, awarded judgment of $4,990.36. This sum, the learned trial judge arrived at by the following calculation:

Although the Court of Appeal for Ontario allowed the appeal from this judgment and, therefore, directed the dismissal of the plaintiff’s action, the Court of Appeal considered the award of damages and Evans J.A. said:

Had I concluded that Runions was negligent in the preparation of the estimate and that the plaintiff, relying on such estimate, installed an electric heating system which apart from excessive operating costs, adequately performed the function for which it was intended, I do not consider that the proper approach to the assessment of damages is to consider simply the excess of actual operating cost over the estimated cost. The detriment suffered by the plaintiff in one year would be the difference between the operating cost of a forced-air heating system of the type originally contemplated and the cost of the electrical energy actually consumed in the heating system installed. His damages would be assessed in an amount equal to the present value of that difference for the projected life of the forced-air system. This calculation would be influenced if there were an appreciable difference in the installation costs of the two systems. In other words, some allowance should be made to reflect the difference in capital cost between the competing systems. In the present case there was no evidence to assist, the Court in reaching a proper assessment even if liability had been established against the defendant.

[Page 518]

Earlier in his reasons, Evans J.A. had noted that the learned trial judge might have been under the impression that quantum of damages had been agreed to at trial. Counsel for the appellant in the Court of Appeal, that is, the defendant, and the respondent in this Court, was not the same counsel who appeared for the defendant at trial and a reading of the record as to the commencement of the trial gives a very strong indication that, in fact, the sum of $3,230.70 and the sum of $878 had been agreed to. Mr. Thompson who had appeared throughout as counsel for the plaintiff, here appellant, presented the estimate for the cost of renovation and that estimate was marked as an exhibit as was also the invoice for the cost of the heaters and installation of them. The learned trial judge after such presentation, asked this question: “That is the normal way of admitting damages—admitting as to quantum but not as to liability. Is that your position?” Mr. Baker, the then counsel for the defendant, here respondent, said “Yes, that is the position”.

The sum of $881.66 was a calculation but it would seem to be a proper calculation of the difference between the actual and the estimated cost of heating by electricity. I am, therefore, of the opinion that in the first place the learned trial judge was justified in assuming that he was making an award of damages, the amount of which had been agreed to and was only required to consider whether the plaintiff, here appellant, had established the defendant’s liability therefor. Even if there had not been an agreement as to the amount, and counsel for the respondent in this Court argued strenuously that all that had been agreed to was that the calculation was accurate and not the method of arriving at the damages, I am of the opinion that the learned trial judge should not be criticized for his method of arriving at the damages. The Court of Appeal was of the opinion that what should be allowed was the present value of the difference between the actual and estimated cost of heating taken over the normal life of such equipment and that there should be deducted from that any excess of the cost of installation of the forced air system over the cost of the electrical system. I cannot accept the proposition that that is the only way in which damages should be calculated.

[Page 519]

Due to the respondent’s negligent advice, the appellant had completed the building with an electric installation. Upon the appellant’s discovery of the grossly inaccurate character of that negligent advice, the appellant felt bound to discard this electrical installation and replace it with the proven type of heating which he had contemplated originally. This entailed not only discarding the electrical equipment but a very considerable tearing apart of the building so that the ducts for the forced air heating could be installed. I can see no reason why the appellant should not be allowed as damages the costs of putting the building into shape for such originally planned type of heating equipment.

I, therefore, would allow the appeal in full and restore the judgment of the learned trial judge. The appellant is entitled to his costs throughout.

Appeal dismissed with costs, SPENCE J. dissenting.

Solicitors for the appellant: Scott & Aylen, Ottawa.

Solicitors for the respondent: Bell, Baker, Thompson, Oyen & Webber, Ottawa.