nan IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2009 SKPC 009 Date: January 7, 2009 File: SC #10 of 2008 Location: Melfort Between: Glenn and Arlene Franklin and Haul Co. (Canada) Ltd. Selves For the Plaintiffs Real Faucher For the Defendant JUDGMENT R.D. JACKSON, BACKGROUND [1] The Plaintiffs claim $6,700.77 against the Defendant for water damage sustained to their belongings while in transit from Edmonton to Nipawin, Saskatchewan in a one ton, 17 foot cube van owned by the Defendant. [2] The Defendant denies responsibility relying upon term of the rental contract which stated “... understand that the equipment rented is water resistant and not water proof”, as well as posted disclaimers to this effect situated in several locations inside the truck box. [3] The Defendant states further that even if the goods were transported in heavy rain conditions as the evidence disclosed, the Plaintiffs are nonetheless the authors of their own misfortune by permitting the loaded truck to sit for an additional two days after reaching their destination in steady rain prior to its unloading. The Defendant also questions the quantum of damages sustained and puts mitigation of damages in issue. II ISSUES [4] The following issues arise for determination: a) Whether the Plaintiffs are precluded from recovery against the Defendant by virtue of the contractual term acknowledging the equipment to be water resistant only as well as the posted disclaimers to this effect. b) Apportionment of damages. c) Quantum of damages and mitigation. III ANALYSIS a) Whether the Plaintiffs are precluded from recovery against the Defendant by virtue of the contractual term acknowledging the equipment to be water resistant only as well as the posted disclaimers to this effect. [5] The Plaintiff, Glenn Franklin, testified that he had originally booked 26 foot, ton truck to move his belongings from his acreage near Edmonton to Nipawin, Saskatchewan. Upon the designated pick up date however, he was informed that this truck was not available and that arrangements were being made for him to take the subject one ton, 17 foot cube van instead. This was on Sunday morning and the Haul depot in Edmonton was extremely busy when he arrived necessitating wait in excess of one hour before being attended to. He signed the contract and the truck was delivered to him outside, the exchange taking only moments. No features were shown or explained to him and he simply drove off the lot, no doubt in rush because he was now several hours behind schedule. [6] term of the agreement that he entered into stated “I understand that the equipment rented is water resistant and not waterproof” and the final term read “I acknowledge that have received and agreed to the terms and conditions of this rental contract and the rental contract addendum”. [7] The Plaintiffs together with relatives and friends then loaded this vehicle together with an assortment of other private vehicles and trailers and set out for Nipawin, Saskatchewan where the Plaintiffs were relocating to. Approximately one hour out of Edmonton extremely heavy rain began falling which continued for the entire balance of the trip. Upon arriving in Nipawin some seven hours later, the Plaintiffs parked the Haul truck on flat level surface where it remained for the next two days before being unloaded on the possession date of their new home. Throughout this period it continued to rain heavily. Upon opening the Haul truck, it became apparent that several items at or near the rear door were water damaged. Subsequent investigation determined that the packing blankets utilised to wrap the furniture had become soaked which in turn then caused moisture to seep into the goods. [8] The Plaintiffs took the truck to the local Haul agent in Nipawin, Glenn Verklan, for inspection. Mr. Verklan utilised pressure washer on the back door to test the seams. His report, which was admitted into evidence by consent of the Defendant and marked P-3, is hereafter reproduced: ckd Rear Door for water leak Pressure washer. first sprayed the Top of Door, opend ck’d for signs of leak none. then sprayed sides of door from top to approx. ft. from bottom no leaks. then sprayed bottom of door ck’d for sign of leaks. Water was entering van body each corner of door along bottom. The door was not set flat corners. cleaned out corners set door, was better but did not seal tight. [sic] “Glenn Verklan” Glenn Verklan 10.01.07. [9] Notwithstanding that the Plaintiff, Glenn Franklin, signed the rental contract acknowledging that the equipment was not waterproof and only water resistant, it appears from the last three sentences of Mr. Verklan’s report that water was entering at the corners of the door by virtue of the door not sitting “flat at the corners”. Further, that this appeared remedial to some extent through cleaning. [10] The Court infers from Mr. Verklan’s report that the apparent defect in the inability of the door to sit flat would have permitted excess water to enter prior to being cleaned by Mr. Verklan. Perfection however could not be expected since it was acknowledged that the rental unit was not waterproof and therefore, some seepage may be expected even after the door had been cleaned and remedied. Nonetheless, this existing sealing problem would have taken it beyond the acknowledgment of the unit being only water resistant. This may well have applied to the door seal once cleaned and remedied by Mr. Verklan, but not before. [11] The same rationale applies with respect to the disclaimers posted inside the vehicle. The Court adds, however, that if the Defendant had been relying solely upon the disclaimers i.e. that this wording had not formed part of the contract, the Defendant would not have been able to rely upon them in any event since they were not brought to the attention of the Plaintiffs prior to executing the contract.[1] b) Apportionment of damages. [12] The Plaintiffs acknowledge that the U Haul truck remained parked outside in heavy rainfall for two days and nights prior to being unloaded. This undoubtedly exacerbated the scope of the damage claimed since the water would have continued to seep in unabated for roughly six times as long as the trip itself took. Glenn Franklin acknowledged that he would have seen the decals inside the truck when he loaded it indicating that the unit was not waterproof and therefore he would have had knowledge that this may have been potential problem in leaving it sit for two extra days. Although he may have had little choice due to the inclement weather and the possession date for his property being two days hence, this nonetheless cannot be visited upon the Defendant in terms of assessing the totality of the damages suffered. Although hardly scientific, the Court concludes that in all the circumstances the Defendant to be only 20 responsible for the damages sustained to the Plaintiffs’ possessions. c) Quantum of damages and mitigation. [13] The Plaintiffs identified four specific items to be water damaged: a) Mattress and box spring Glenn Franklin testified that the damage sustained by the mattress and box spring was purely cosmetic with no discernible functional damage whatsoever. Photographs were tendered evidencing faint stain on the mattress, approximately two-thirds along one side together with four rust spots on the box spring. The Plaintiffs attempted to clean the damaged areas with moderate success. No attempt was made to have the items professionally cleaned. In the circumstances the Court assesses damages at $200.00. b) Kitchen/dining room table Photographs indicated that the laminate on the table was raised and swollen to the extent that the table could not close. This item was purchased in August, 2006, as part of five piece dinette suite for the sum of $899.97. The Court assesses damages of $150.00. c) Foosball Table The damage to this item again is with respect to laminate lifting on top and swollen wood on the ends, making the table virtually inoperable since the players are unable to have sufficient clearance to turn at the damaged end. The Plaintiffs produced an invoice of April 1, 2004 indicating that they had purchased the item used for the sum of $2,436.45. The Court estimates the current value of this table, prior to damage, to be $800.00. d) Dresser and mirror According to the photographs tendered and the evidence of the Plaintiff, Glenn Franklin, no damage was sustained to the dresser itself. The mirror, however, is mildewed and swollen to twice its size and the finish ruined. These items were acquired in the early 1990's with the mirror costing $249.00. The Court assesses its current value prior to damage to be $100.00. IV CONCLUSION [14] The Plaintiffs have proven damages totalling $1,250.00. The Court has determined the Defendant, for the reasons stated, to be responsible for 20% of these damages, totalling $1,250.00 x 20% = $250.00. [15] The Plaintiff shall have judgment against the Defendant in the amount of $250.00, plus costs of issuing the claim and service, if any. R.D. Jackson, J. [1] Aurora TV Radio Ltd. v. Gelco Express Ltd. 1990 CanLII 11152 (MB QB), 65 Man. R. (2d) 145, [1991] W.W.R. 525 (Man. C.A.) See also: Fridman, The Law of Contract 4th Ed. P. 610
The plaintiff claims against the defendant for water damage sustained to their belongings while in transit from Edmonton to Nipawin in a one ton, 17 foot cube van owned by the defendants. The issues are whether the plaintiffs are precluded from recovery against the defendant by virtue of the contractual term acknowledging the equipment to be water resistant only as well as the posted disclaimers to this effect. HELD: The plaintiff shall have judgment for $250 plus costs of issuing the claim and service. 1) Notwithstanding that the plaintiff signed the rental contract acknowledging that the equipment was not waterproof and only water resistant, it appears from the last three sentences of the inspection report that water was entering at the corners of the door by virtue of the door not sitting flat at the corners. This defect would have permitted excess water to enter prior to being cleaned. Perfection could not be expected since it was acknowledged that the rental unit was not waterproof and some seepage may be expected even after the door had been fixed. Nonetheless, the sealing problem would have taken it beyond the acknowledgment of the unit being only water resistant. 2) The plaintiff acknowledges that the truck remained parked outside in heavy rainfall for two days and nights prior to being unloaded. This exacerbated the scope of the damage claimed since the water would have continued to seep in unabated for roughly six times as long as the trip itself took. The Court concludes that the defendant is only 20% responsible for the damages sustained to the plaintiff's possessions.