Lambert v. Lastoplex Chemicals, [1972] SCR 569

Supreme Court of Canada

Lambert v. Lastoplex Chemicals, [1972] S.C.R. 569

Date: 1971-12-20

Edison Howard Lambert and Elizabeth Helen Lambert (Plaintiffs) Appellants;

and

Lastoplex Chemicals Co. Limited and Barwood Sales (Ontario) Limited (Defendants) Respondents.

1971: November 8, 9; 1971: December 20.

Present: Martland, Judson, Hall, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Manufacturer’s liability—Inflammable product—Fire and explosion during product’s intended use—Duty of manufacturer to specify attendant dangers—Required explicitness of warning.

The male plaintiff purchased two one-gallon cans of a fast drying lacquer sealer, a product of the defendant manufacturer. He proposed to use it to seal a parquet floor which he was installing in the recreation room of his home, owned jointly by him and his wife, the co‑plaintiff. The recreation room was in the basement of the house and was separated from a utility room in part by a plywood wall and in part by a fireplace. There was a door opening at one end between the two rooms, but no door. In the utility room there was a natural gas furnace and a natural gas water heater, each of which had a pilot light.

There were caution notices on the labels of the container cans and before starting the application the plaintiff read the labels. When he had done about five-sixths of the floor, he saw a line of flame advancing towards him from the far side of the recreation room. He ran up the stairs but an explosion occurred before he reached the top. The explosion caused burns to his body and property damage.

It was agreed by the parties that the immediate cause of the fire which preceded the explosion was the contact of the fumes or vapours from the lacquer sealer with one or other or both of the pilot lights. The explosion occurred when the line of fire reached one of the container cans which was open and still half-filled.

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Judgment was given against the defendant at trial but, on appeal to the Court of Appeal, that judgment was reversed. An appeal by the plaintiffs was then brought to this Court.

Held: The appeal should be allowed and the judgment at trial restored.

Where manufactured products are put on the market for ultimate purchase and use by the general public and carry danger (in this case, by reason of high inflammability), although put to the use for which they are intended, the manufacturer, knowing of their hazardous nature, has a duty to specify the attendant dangers, which it must be taken to appreciate in a detail not known to the ordinary consumer or user. A general warning, as for example, that the product is inflammable, will not suffice where the likelihood of fire may be increased according to the surroundings in which it may reasonably be expected that the product will be used. The required explicitness of the warning will vary with the danger likely to be encountered in the ordinary use of the product.

Here, the labels lacked the explicitness which the degree of danger in the use of the lacquer sealer in a gas-serviced residence demanded. A home owner preparing to use the sealer could not reasonably be expected to realize by reading the cautions that the product when applied as directed gave off vapours to such a degree as likely to create a risk of fire from a spark or from a pilot light in another part of the basement area.

APPEAL from a judgment of the Court of Appeal for Ontario, allowing an appeal from a judgment of Morand J. Appeal allowed.

W.G. Dutton and B.J.E. Brock, for the plaintiffs, appellants.

P.B.C. Pepper, Q.C., and J.L. McDougall, for the defendants, respondents.

The judgment of the Court was delivered by

LASKIN J.—The issue in this case is whether a manufacturer of an inflammable product, namely, a fast drying lacquer sealer, is liable in tort to a user of the product, who is aware of certain caution notices on the labels on the container

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cans, for personal injuries and property damage sustained as a result of a fire and explosion which occurred during the use of the product in the circumstances hereinafter set out.

The male appellant, a consulting engineer who graduated in mechanical enginering, purchased from a flooring firm two one-gallon cans of Supremo W-200, a fast drying lacquer sealer manufactured by the respondent. He proposed to use it to seal a parquet floor which he was installing in the recreation room of his home, owned jointly by him and his wife, the co‑appellant. The recreation room was in the basement of the house, with stairs at the southwest leading up to the next level. The basement consisted of the recreation room, which was 600 square feet in area, and a furnace and utility room to the east which was separated from the recreation room in part by a plywood wall and in part by a fireplace. There was a door opening at the northerly end between the two rooms, but no door. In the furnace and utility room there was a warm-air natural gas furnace, with a pilot light near its front, hidden behind a panel, and also a natural gas water heater with a pilot light inside the jacket of the heater and also hidden from view. That room also contained laundry facilities.

On the morning of June 3, 1967, the male appellant prepared to apply the lacquer sealer. He left open the door at the head of the stairway leading to the recreation room, he took out all furniture in that room and other articles and put them in the adjoining furnace and utility room, he swept the recreation room floor, and he opened a window to the northwest of the recreation room and also one at the southeast end. There was a basement window in the furnace and utility room which he left closed and he did not extinguish the pilot lights in the furnace and water heater. The day was a warm one (the records showed the temperature to be 71 degrees when the male appellant began his preparatory clean-up at about 9 a.m., and it rose to 76 degrees by 10 a.m. and to 80 degrees by 11 a.m.) and, unlikely as it was that the automatic furnace would go on, he none the less turned down the thermostat.

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He began to apply the sealer about 10 a.m., working from east to west where he had egress at the stairway. Before starting the application he read the labels; and although in his evidence he stated that he had no recollection of reading one of the three that were on each can, it was not contended that his legal position was better on that account. After an hour’s work, when he had done about five-sixths of the floor, he saw a line of flame advancing towards him from the east side of the recreation room. He dropped his roller applicator and ran up the stairs but an explosion occurred before he reached the top. The explosion caused burns to his body and, of course, property damage. Quantum was agreed upon and only the issue of liability was litigated.

The trial before Morand J. and the hearing in the Ontario Court of Appeal, which reversed the judgment against the present respondent, proceeded on the concurrence of counsel for the parties that the immediate cause of the fire which preceded the explosion was the contact of the fumes or vapours from the lacquer sealer with one or other or both of the pilot lights in the furnace and utility room. On the evidence, the explosion occurred when the line of fire reached one of the cans of lacquer sealer which was open and still half-filled (the second can was then empty) and was on the part of the recreation room floor not yet sealed. It appears that the furnace and water heater were about five feet from the wall partition which separated the recreation room from the furnace and utility room and that the distance from the furnace unit to the open door leading to the recreation room was not over eighteen feet and probably closer to twelve feet.

Supremo W-200, the respondent’s product, has a low flash point, almost as low as that of gasoline, and its inflammability accordingly spells great danger. The danger resides in the likely ignition of its fumes or vapours which, given a favourable ambient temperature, could result even from a spark when turning on a light switch and, certainly, from an open flame and from a gas pilot light. A low flash point means greater vaporization, and although this speeds up the drying time,

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the spread of fumes increases the hazard according to sources of ignition in the surrounding area. The largest of the three labels on the cans of Supremo W-200 contained, under the heading “Drying Time”, the following inscription: “Approximately 30-60 minutes depends upon temperature”. A higher room temperature will improve drying time because it increases the volatility of the lacquer sealer.

The three labels on the cans of the respondent’s product contained, respectively, the following cautions: (1) The largest label, rectangular in shape, which bore the name and description of the product, contained on its end panel, in addition to drying time information, the words “Caution inflammable! Keep away from open flame!”. Along the side of this panel, vertically and in small type, were the words “Danger—harmful if swallowed, avoid prolonged skin contact, use with adequate ventilation, keep out of reach of children”. (2) A diamond‑shaped red label with black lettering, issued in conformity with packing and marking regulations of the then Board of Transport Commissioners for Canada and having shipping in view, had on it in large letters the following: “KEEP AWAY FROM FIRE, HEAT AND OPEN‑FLAME LIGHTS”, “CAUTION”, “LEAKING Packages Must be Removed to a Safe Place”, “DO NOT DROP”. (3) A third label, rectangular in shape, contained a four language caution, which was in the following English version: “CAUTION, INFLAMMABLE—Do not use near open flame or while smoking. Ventilate room while using.”

The evidence disclosed that a lacquer sealer sold by a competitor of the respondent contained on its label a more explicit warning of danger in the following terms: “DANGER—FLAMMABLE”, “DO NOT SMOKE. ADEQUATE VENTILATION TO THE OUTSIDE MUST BE PROVIDED. ALL SPARK PRODUCING DEVICES AND OPEN FLAMES (FURNACES,

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ALL PILOT LIGHTS, SPARK-PRODUCING SWITCHES, ETC.), MUST BE ELIMINATED, IN OR NEAR WORKING AREA.”

A comparison of the cautions on the two competing products shows that the labels of the respondent did not warn against sparks, or specifically against leaving pilot lights on in or near the working area. In neither case was any point made of the rapid spread of vapours from the products.

The appellants founded their action against the respondent on negligence, including in the specifications thereof failure to give adequate warning of the volatility of the product, and it was argued throughout on that basis and on the defence, inter alia, that the male appellant was the author of his own misfortune. The hazard of fire was known to the manufacturer, and there is hence no need here to consider whether any other basis of liability would be justified if the manufacturer was unaware or could not reasonably be expected to know (if that be conceivable) of particular dangers which its product in fact had for the public at large or for a particular class of users.

Manufacturers owe a duty to consumers of their products to see that there are no defects in manufacture which are likely to give rise to injury in the ordinary course of use. Their duty does not, however, end if the product, although suitable for the purpose for which it is manufactured and marketed, is at the same time dangerous to use; and if they are aware of its dangerous character they cannot, without more, pass the risk of injury to the consumer.

The applicable principle of law according to which the positions of the parties in this case should be assessed may be stated as follows. Where manufactured products are put on the market for ultimate purchase and use by the general public and carry danger (in this case, by reason of high inflammability), although put to

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the use for which they are intended, the manufacturer, knowing of their hazardous nature, has a duty to specify the attendant dangers, which it must be taken to appreciate in a detail not known to the ordinary consumer or user. A general warning, as for example, that the product is inflammable, will not suffice where the likelihood of fire may be increased according to the surroundings in which it may reasonably be expected that the product will be used. The required explicitness of the warning will, of course, vary with the danger likely to be encountered in the ordinary use of the product.

In my opinion, the cautions on the labels affixed to the container cans of Supremo W-200 lacked the explicitness which the degree of danger in its use in a gas-serviced residence demanded. A home owner preparing to use that lacquer sealer could not reasonably be expected to realize by reading the three cautions that the product when applied as directed gives off vapours to such a degree as likely to create a risk of fire from a spark or from a pilot light in another part of the basement area. This was the view of the trial judge, who also concluded that any special knowledge possessed by the male appellant did not make the cautions sufficient vis-à-vis him. The Court of Appeal expressly differed from the trial judge in this latter respect, holding (in its words) that “having regard to the plaintiff’s knowledge as to the dangers inherent in the application of this product in an enclosed space the warning given by the [manufacturer] was equal to the requirements of the situation”, and that his failure to turn off the pilot lights after having turned down the thermostat was an error of judgment, exonerating the manufacturer from liability.

The question of special knowledge of the male appellant was argued in this Court as going to the duty of the respondent to him and not to his contributory negligence. What was relied on by the respondent as special knowledge was the fact that the male appellant had qualified as a professional engineer, he knew from his exper-

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ience that a lacquer sealer was inflammable and gave off vapours, and hence knew that it was dangerous to work with the product near a flame. This, however, does not go far enough to warrant a conclusion that the respondent, having regard to the cautions on the labels, had discharged its duty to the male appellant.

I do not think that the duty resting on the respondent in this case can be excluded as against the male appellant, or anyone else injured in like circumstances, unless it be shown that there was a voluntary assumption of the risk of injury. That can only be in this case if there was proof that the male appellant appreciated the risk involved in leaving the pilot lights on and willingly took it. The record here does not support the defence of volenti. On the evidence, there was no conscious choice to leave the pilot lights on; rather, it did not enter the male appellant’s mind that there was a probable risk of fire when the pilot lights were in another room. There is thus no basis in the record for attributing an error of judgment to the male appellant. Nor do I think there is any warrant for finding—and this would go only to contributory negligence—that he ought to have known or foreseen that failure to turn off the pilot lights would probably result in harm to himself or his property from his use of the lacquer sealer in the adjoining area.

I would, therefore, allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of Morand J. in favour of the appellants. They should have their costs throughout.

Appeal allowed with costs.

Solicitors for the plaintiffs, appellants: Montgomery, Cassels, Mitchell, Somers, Dutton & Winkler, Toronto.

Solicitor for the defendants, respondents: G.E. Vickers, Toronto.