J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ALEM MENKERIOS and ACKLANDS LIMITED DEFENDANT The plaintiff appeared on his own behalf B. W. Wirth for the defendant JUDGMENT HALVORSON J. December 19, 1994 The plaintiff's finger was amputated after he injected it with paint from sprayer rented from the defendant. At issue is the defendant's potential liability forfailure to warn the plaintiff of the danger in using anairless paint sprayer. FACTS On December 30, 1988, the plaintiff rented paint sprayer from shop called "The Rent‑It‑Centre" which is tradename owned by the defendant. He signed form of agreement, and upon asking, was told how to clean the gun part of the sprayer after completion of the work. No warning was given respecting any hazards in using the sprayer, and no warning was printed on the agreement. After his painting project was finished, the plaintiff attempted to clean the gun with solvent in the manner which had been described to him. He experienced difficulties. The gun nozzle plugged and the paint and solvent dribbled out instead of spraying. He became angry. He bounced the sprayer on the floor and turned the switch on and off several times while activating the gun trigger. Then, while he was holding the gun in his right hand, he pulled the trigger with his left, and the sprayer began to function. jet of paint and solvent mixture pierced the tip of the plaintiff's right index finger which he had unintentionally placed in front of the nozzle. The plaintiff was rushed to hospital where surgical procedures were performed to clean the wound and stop the progress of the foreign substance. He remained in hospital for approximately two weeks. As the wound was not healing satisfactorily, discussions ensued respecting amputation of the finger. Naturally, the plaintiff wished to retain as much of the digit as possible. He delayed his decision for about week. Finally, on January 17, 1989, the finger was amputated at the second knuckle. LIABILITY It is the plaintiff's contention that this airless paint sprayer was hazardous product, so the defendant was duty bound to provide warning to renters, but did not. Reference is made to principles enunciated in Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), Crocker v. Sundance North West Resorts, 1988 CanLII 45 (SCC), [1988] S.C.R. 1186, Burfitt v. A. and E. Kille, [1938] K.B. 743, Smithson and Smithson v. Saskem Chemicals Limited, Standard Brands Canada Limited (Nabisco Brands Ltd.), Yorkton Co‑operative Association Limited and O.K. Economy Stores Limited, 1985 CanLII 2547 (SK QB), [1986] W.W.R. 145. In contrast, the defendant says warning was unnecessary because the dangers associated with placing finger in front of the sprayer nozzle would be well known to the ordinary, prudent person. Cited in support of this proposition were these comments from Fridman, The Law of Torts in Canada, Vol. (Toronto: Carswell, 1990), p. 10: Where the dangers of use are sufficiently apparent or well‑known to the ordinary prudent person, warning about such dangers is unnecessary. What the law is concerned with is dangers which would not be appreciated by, or known to the ordinary user or consumer of the product, dangers which are foreseeable by the manufacturer or other transferor but not expected by the ultimate user of consumer. [Emphasis added] am satisfied an airless paint sprayer of this type is dangerous. There was evidence the paint is ejected under pressure in the 2,500 pound per square inch range. Moreover, there was testimony as to the risk of damage should this spray hit the skin. Furthermore, I conclude that an ordinary userof this sprayer would not appreciate the disastrousconsequences likely to ensue if the unprotected body came incontact near the nozzle. The plaintiff says he was unaware of the danger, and believe him. Another witness testified how he once injected himself with an airless sprayer because he did not know the risk involved with the high pressure equipment, and he suffered permanent injury. These two victims were examples of ordinary users being harmed. In one sense the plaintiff was less vulnerable than an average renter because he was familiar with paint sprayers. He is an autobody man and uses sprayers in his trade. Seemingly, therefore, he was not likely candidate to inject himself. Yet he did. If he was not alive to the risk, should the defendant expect otherwise from renters who are unfamiliar with sprayers generally? In another sense the plaintiff was more vulnerable. He commonly puts his finger over the nozzle of his sprayers in the course of cleaning his equipment. The reason there is little or no risk in so doing is the minimal pressure at the nozzle. His sprayers operate on compressed air, and the pressure rarely exceeds 100 pounds. It is easy to understand how the plaintiff might have been lulled into accidentally allowing his finger to come near the nozzle of the defendant's sprayer. In his experience, there was no risk of danger at the nozzle. Danger was not expected by the plaintiff, but it was foreseeable by the defendant. That is why the defendant routinely warned prospective renters of the high pressure in the sprayer. There was evidence as well, from another lessor who explained how written warning notices were given to renters. Apparently, the industry is very cognizant that an airless paint sprayer can be hazardous in the hands of persons who do not appreciate the force of the spray which is emitted. It appears the reason no warning was given to the plaintiff when he picked up the sprayer can be attributed to careless lessor. This leads to an additional ground upon which the defendant seeks to avoid liability. In fact, the plaintiff did not lease the sprayer directly from the defendant. He leased from one Scott who operated leasing business out of his gas station. The defendant says Scott was an independent contractor for whose negligence the defendant is not vicariously liable. This is challenged by the plaintiff who laid an evidentiary foundation for an argument that the defendant and Scott were informal partners. Apart from the Scott operation, the defendant had three separate rental outlets run exclusively by the defendant. In support of the independent contractor theory, the defendant underscores the following factors: Scott owned the business premises; he set his own hours and hired his own staff; and the defendant did not direct or control Scott. Reliance is placed on the decisions in Stuart v. Pennant School District, 1927 CanLII 127 (SK CA), [1927] W.W.R. 949, Phil Lloyd's Restaurants Ltd. and Kormish (suing on behalf of himself in his personal capacity and on behalf of all creditors of Phil Lloyd's Restaurants Ltd.) v. North Forty Restaurants Ltd., Lloyd, Beatty and Gaudet (1983), 1983 CanLII 2086 (SK QB), 25 Sask. R. 40. On his part, the plaintiff points to these factors as indicators of partnership: the defendant owned the equipment to be leased by Scott; the defendant and Scott shared the rental profits 60‑40; Scott used the defendant's standard rental agreement; Scott operated under the defendant's tradename "The Rent‑It‑Store" with consequent signage; this name appeared in the yellow pages with the defendant's name; Scott's operation was connected to the defendant's rental outlet by computer and modem; Scott's rental income was monitored by the defendant through the computer; and there was nothing at Scott's outlet which indicated to the public that they were dealing with someone other than the defendant. Cited in support of the plaintiff's position was the judgment in Eisert v. Rural Municipalities of Martin and Silverwood (1956), 1955 CanLII 241 (SK CA), 18 W.W.R. 314. do not find it essential to resolve the issue whether the arrangement between the defendant and Scott was partnership or independent contractor. This is so because inthe particular circumstances, the defendant cannot escaperesponsibility to the plaintiff in either relationship. Having provided Scott with dangerous product for lease to others, the defendant remained vicariously liable. The defendant cannot delegate the duty of care owed to the plaintiff here. That proposition was spelled out by the Supreme Court of Canada in City of St. John v. Donald, 1926 CanLII 66 (SCC), [1926] D.L.R. 185 at 191: [I]t is, no doubt, the general rule that the person who employs an independent contractor to do work in itself lawful and not of nature likely to involver injurious consequences to others is not responsible for the results of negligence of the contractor or his servants in performing it. The employer is never responsible for what is termed casual or collateral negligence of such contractor or his workmen in the carrying out of the contract; and it is not universally true that he is responsible for injury occasioned by improper or careless performance of the very work contracted for; he is not so where the work is not intrinsically dangerous and if executed with due care, would cause no injury, and the carrying out of it in that manner would be deemed to have been the thing contracted for. His vicarious responsibility arises, however, where the danger of injurious consequences to others from the work ordered to be done is so inherent in it that to any reasonably well‑informed person who reflects upon its nature the likelihood of such consequences ensuing, unless precautions are taken to avoid them, should be obvious, so that were the employer doing the work himself his duty to take such precautions would be indisputable. That duty imposed by law he cannot delegate to another, be he agent, servant or contractor, so as to escape liability for the consequences of failure to discharge it. [Emphasis added]. third line of defence was advanced. The defendant contends the plaintiff is bound by term of the rental contract which stipulated that "The liability for injury caused by the operation of the equipment shall be that of the Lessee. ." As so often happens, the plaintiff was handed the contract and was shown where to sign, which he did without reading the document. He was unaware of the waiver term which is in small print on the reverse side. In light of thesefacts, I conclude the waiver is ineffective (see Crocker). find that the defendant is liable for the damage suffered by the plaintiff as consequence of the defendant's negligence in failing to warn of the danger in using an airless paint sprayer. DAMAGES Generally, damages flowing from the partial loss of an index finger are not great. However, on the facts before me, the plaintiff's loss is somewhat more extensive than the average. This is due to his unique situation. He now has less than half an index finger on his main working hand. This was his trigger finger for the many pieces of equipment in his shop which have triggers. He must now engage those triggers with the next finger which causes him difficulties. The hand tires easily. His grip is weakened. The stub finger is sensitive to cold and if bumped. corrective procedure may alleviate some of this discomfort. Measuring damages by comparison to similar cases is the accepted method of assigning monetary value to the loss. This is an imprecise exercise, but it is the best available. Cited to me as helpful are the assessments in Belof v. Buhs (1981), 1981 CanLII 2152 (SK QB), 12 Sask. R. 43 (Q.B.) and Pound v. Nakonechny, Busch and Heinrich, 1982 CanLII 2460 (SK QB), [1982] W.W.R. 761 (Sask. Q.B.) and the usual array of cases from Goldsmith, Damages for Personal Injury and Death in Canada, (Toronto: Carswell, 1991‑1992). These awards must be grossed up for inflation (see Bunce v. Flick, [1991] W.W.R. 623 (Sask. C.A.) and Demyen Sirounis (1991), 93 Sask. R. 66 (C.A.). The plaintiff is not entitled to the benefit ofinflation for all the years 1989 to 1994 because there was noexcuse for dragging on this minimal damage action for sixyears. Had the claim been adjudicated in timely fashion, only few years of inflation would have intervened. Taking all of these factors into account, I assessthe plaintiff's damages for pain and suffering and loss ofamenities of life at $10,000. In addition, the plaintiff claims loss of income, past and future. He says he was unable to function at his job for about three months after the amputation, although he apparently went to work. He needed an extra man. If there was financial loss here, there was no evidence to prove it, nor was there basis laid for calculation. Then, in December, 1989, bank seized the plaintiff's assets, and he made an assignment in bankruptcy three months later. He maintains this resulted from his injury and subsequent inability to work full time that year. Again, this assertion was not substantiated by evidence. His tax returns do not reflect diminished income. Part of the problem in considering this past income loss is that the plaintiff was self‑employed during 1988‑89, but he was salaried worker before and after that. His net income was much less when he owned his own business. Essentially, he was better off financially after his business failed, and he worked for others. Today, he has his own shop again. There may well have been past loss of income, but it was not proved. Loss of earning capacity seems apparent. He says it now takes him nearly twelve hours to accomplish the work he formerly did in nine. His expertise is in meticulous painting and reassembling of vehicles. Because of the missing index finger, he tires more quickly holding paint sprayer and other equipment, so he produces less. He sometimes requires assistance for heavy or fine tasks. He has learned to compensate. As stated in Dagenais v. Glombowski (1987), 56 Sask. R. 60, the plaintiff must establish on balance of probabilities that future loss will occur. Matheson J. commented that the evidence need only reveal reasonable, as distinct from speculative, possibility of loss being incurred. Considering all the evidence I conclude the loss ofcapacity exists, but it is not great. A nominal award of$5,000 under this head is fair and adequate. further argument must be settled. The defendant contends the plaintiff should be responsible for share of his loss because he was contributorily negligent. This submission has two prongs. The first prong is based on the fact that the plaintiff delayed some five days before authorizing the amputation of the finger. Any exacerbation of the damages resulting from this procrastination should not be charged to the defendant. The plaintiff had duty to mitigate his loss. accept this argument, but nothing flows from it. There was no evidence that the delay in the decision made any difference, and in particular, it was not shown that earlier amputation would have saved more of the finger. The second prong arises from the circumstances related by the plaintiff as to how his finger came to be in the vicinity of the nozzle. The defendant says the plaintiff was negligent in allowing his finger near the spray. disagree. The plaintiff had no reason to be scrupulously careful about the position of his finger because he was unaware of the risk. Respecting the banging of the sprayer on the floor, it is speculation only, that this was contributing factor. Finally, Saskatchewan Health sustained an expense of$3,789.50 for the plaintiff's care, and the defendant isliable for that indebtedness. The plaintiff shall have judgment against thedefendant for $18,789.50 ($10,000 + $5,000 + $3,789.50) pluscosts and pre‑judgment interest on $10,000 from January 1,1990 to December 31, 1990. This interest has been limitedbecause the plaintiff ought to have brought the matter on fortrial more expeditiously. He cannot expect to receive interest for the years in which he did not vigorously prosecute his claim. This is especially so here where the non‑pecuniary damage issue was uncomplicated.
The Plaintiff rented a paint sprayer from the Defendant. He accidentally injected one of his fingers with paint. The finger had to be amputated. He commenced these proceedings against the Defendant seeking damages for a failure to warn him of the danger associated with the use of the paint sprayer. HELD: Judgment for the Plaintiff.  1)The paint sprayer was of the 'airless' type. It operated at 2,500 lbs. pressure. This would not have been appreciated by the ordinarily prudent user. The Defendant therefore had a duty to warn. 2)The Defendant could not escape liability because the sprayer had been rented from a location owned and operated by an independent contractor. Where an enterprise or activity is inherently dangerous, the duty to warn can not be delegated. In such a situation the party who retains the independent contractor remains vicariously liable. 3)The waiver in the rental contract was ineffective. It was a standard form agreement signed on its face with the terms of the contract on the reverse. 4)The Plaintiff was awarded general damages of $10,000.00, $5,000.00 for loss of earning capacity and recovered $3,789.50 for SHSP. 5)The usual increase in general damages for inflation and pre-judgment interest were both reduced because the Plaintiff had not presecuted his action expeditiously.