By a 2-1 margin, the Court of Appeal allowed an appeal by the plaintiffs and imposed liability on one of the defendants for a catastrophic swimming pool accident that had left a young girl a quadriplegic. In reaching its decision, the majority concluded that when employees of a pool store were asked whether it was “okay” to install a used slide with a 4-foot deep pool, the employees had a duty to warn of the risk of catastrophic injury from use of such a slide.

Walford v. Jacuzzi Canada Ltd. was an appeal from the 2005 trial decision of Mr. Justice John Cavarzan. In 1996, the plaintiff Correena Walford was 15 ¾ years old. She was making her second trip down a slide that her parents had installed the previous day beside their above-ground pool. The pool was four feet deep. The first time she descended, she had gone down feet-first. But on the second occasion, she had crouched over her knees. When she reached the bottom, she went into the water head first, struck her chin on the bottom of the pool and was rendered quadriplegic.

A number of defendants were sued, including Correena’s parents. By the time of the trial, some of the defendants had successfully moved for summary judgment and others had been let out of the action on consent. At trial, the suit had been dismissed against all remaining defendants, either on the basis that they had not been negligent or that their negligence had not caused the accident. Cavarzan J. concluded that the injury had stemmed from Correena’s “failure to heed the rules for the safe use of the slide” (including her mother’s instruction to descend the slide in a seated position). Damages were assessed at over $5 million.

The dismissal was appealed only as against the defendant Pioneer Family Pools (Hamilton) Inc. That company was the local pool store where, for the previous two years, the plaintiff’s parents had customarily bought chemicals and other supplies for their pool. In her evidence at trial, Marion Walford, the plaintiff’s mother, referred to Pioneer as, “my home base”.

As Madam Justice Kathryn Feldman characterized it, the issue on appeal was “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.”

Feldman J.A. concluded that Pioneer had breached a duty owed to the plaintiffs and that its negligence had caused the injury. Justice Robert Blair concurred. Mr. Justice Paul Rouleau would have upheld the trial judge’s findings, that Pioneer had not been negligent and had not caused the plaintiff’s injuries.

Negligence of Pioneer

Mrs. Walford (the plaintiff’s mother) had spoken on four occasions with a representative of Pioneer about a slide for her above-ground pool. The first time, she was considering the acquisition of a slide and called to ask if one was available for a 4-foot deep pool. She was told that there was, but that the cost was more than $1,000 and would have to be ordered from the manufacturer.

Then, Mrs. Walford saw a classified ad in the local newspaper, for a 10-foot slide manufactured by Jacuzzi. She telephoned Pioneer Pools and asked whether it would be “okay” to use the slide with her 4-foot pool. The Pioneer employee said that she did not see any problem with this.

Mrs. Walford went ahead and purchased the used Jacuzzi slide for $225. It was old and needed some parts. She drove directly to the Barton Street branch of Pioneer Pools and spoke with the store manager, with whom she had dealt in the past. She asked the manager to inspect the slide and to advise her whether it was all right to use the slide with the 4-foot pool. The manager told her that there would be no problem. The Barton Street branch manager also referred her to another branch of Pioneer Pools to obtain some tubing for the slide.

At that Pioneer outlet, Mrs. Walford again asked the employee whether it was all right to use the slide with the 4-foot pool and was told that it would be “okay”.

Importantly, Mrs. Walford testified that if she had been told by Pioneer’s employees, that it was not safe to use the slide, she would not have installed it, even though she had already paid for it. This evidence was determinative of the appeal on the issue of causation.

Mrs. Walford had laid down rules for use of the pool by her daughter and others. These included descending the slide feet-first only.

At trial, Cavarzan J. had held that Mrs. Walford’s relationship with the Barton Street Pioneer Pools outlet might establish a special relationship giving rise to a duty of care. However, he went on to conclude that the store had met the applicable standard of care. The standard was determined to be as set out in the “U.S. Consumer Product Safety Standards” or “CPSS”. It appears that those standards would permit the use of a slide of the height of the one purchased by Mrs. Walford (6′ 6″), with a 4-foot pool, but only by persons younger than 13 years. (Correena Walford had been 15 ¾ at the time of the accident.)

The Court of Appeal treated this as a case involving not only liability for failure to warn, but also one of negligent misrepresentation.

The majority of the Court of Appeal held that the trial judge had misinterpreted the CPSS in finding that, for pools with a water depth greater than 4 feet, the CPSS would permit the use of “unrestricted slides”. Justice Feldman said that the trial judge had erroneously thought that “unrestricted” meant that a slide of any height could be used, when the term actually meant that the slide could be used by persons older than 13.

In addition, the majority of the Court of Appeal said that the trial judge had erred by referring only to the CPSS governing minimum pool depth. The Court pointed out that “[a]lthough 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. The standard contains an extensive discussion of the dangers of swimming pool slides.”

But all of this analysis about water depth and slide height seems to have been largely beside the point, from the perspective of the Court of Appeal. The majority reproduced, in considerable detail, various commentaries that apparently accompanied the CPSS in the United States (having been created under the authority of the United States Consumer Product Safety Act). Those commentaries highlighted the dangers of using a pool slide in a face-forward orientation, including paraplegia and quadriplegia. The majority in the Court of Appeal held that, “the accepted standard for pool slides involved more than simply a consideration of minimum pool depths. The standard [CPSS] 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”. This conclusion was based on the further finding, that the use of a slide with a 4-foot pool gives rise to a “hidden danger”.

Given the relationship between Mrs. Walford and the Barton Street Pioneer Pools outlet, the majority in the Court of Appeal determined that the store’s employees had been negligent in having failed to warn her of the hidden danger of catastrophic injury resulting from erecting a slide for use with a 4-foot pool. By failing to incorporate this obligation as part of the applicable standard of care, the trial judge had, said the majority, erred in law.

Causation

The majority also said that Cavarzan J. had erred in his causation analysis. Applying the “but for” test recently reaffirmed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, he should have accepted “Mrs. Walford’s uncontroverted and unchallenged evidence..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”.

The Court did apportion 20 percent contributory negligence to Correena for having disobeyed her mother’s instructions to slide feet first only.

Rouleau J.’s Dissent

Justice Rouleau would have dismissed the appeal, both on the issues of standard of care and causation.

He felt that key findings made by the trial judge with respect to standard of care were factual in nature and that there was no basis upon which the Court of Appeal could interfere. He did not accept that Mrs. Walford’s questions about whether it was “okay” to use the slide rose to the level of enquiries about safety precautions that should be taken. (However, he did acknowledge that if her questions could reasonably have been understood in that way, then Pioneer’s answers had been negligently given.)

Rouleau J.A. noted that Pioneer’s employees were not experts in slides and had no special knowledge or skill. He pointed out that the standard of care is lower for distributors than for manufacturers and that “[i]t 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.” He felt that the employees had met the standard of care relative to the question asked of them (“Is it okay?”)

Even if Pioneer had failed to meet the standard of care, Justice Rouleau would have dismissed the appeal on the basis of causation. He said that the trial judge had rejected (albeit by implication) Mrs. Walford’s evidence, that she would not have installed the slide, had she been told of risks associated with its use. Justice Rouleau observed that on the information she did have, Mrs. Walford was aware that the slide was dangerous if used improperly, but she went ahead and installed it anyway. Without referring specifically to the “but for” test, the trial judge had correctly applied it in concluding that the accident would have occurred even if appropriate warnings had been given by Pioneer.

Finally, Justice Rouleau disagreed with the majority’s interpretation of the standard of review in Housen v. Nikolaisen. He noted that the trial judge’s findings of negligence should not be disturbed, absent “palpable and overriding error”. Since no such error had been made, the appeal should fail.