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Assiniboine South School Division, No 3 v Hoffer & Greater Winnipeg Gas Co, [1970] 16 DLR (3d) 703; affd [1971] 4 WWR 746, affd [1973] 6 WWR 765

Facts:

Hoffer’s autotobaggan ran out of control, striking a gas-riser pipe installed by Greater Winnipeg Gas (GWG). A pipe fractured and gas leaked into the boiler room of the Assiniboine school. The gas in the school ignited, and an explosion and fire occurred caused damage to the school.

At trial: Court allowed damages to the school against the owners of the autotobaggan (the Hoffers) and GWG (damages allocation was 50% for each defendant).

Issue(s):

Was the damage reasonably foreseeable and therefore recoverable?

Ratio:

The test of foreseeability of damage is a question of what is possible rather than what is probable.

Analysis:

Precedent:
** As per Wagon Mound #1, liability depends on whether the damage is of such a kind as a reasonable person should have foreseen. In that case, it was Important to note that defendants did not know, and could not reasonably have been expected to know, that furnace oil was capable of being set afire when spread on water
** As per Wagon Mound #2, recovery may be had, provided the event giving rise to the damage is not regarded as “impossible” even if it rarely happened
** Thus: The test of foreseeability of damage becomes a question of what is possible rather than what is probable

Analysis of Hoffer in the case at bar:
** Damage was of the type or kind which any reasonable person might foresee
*** Gas-riser pipes are common
*** Damage to it is not of a kind that no one could anticipate
*** Foreseeability is broad when you let a power toboggan run at large
** Hoffer’s conduct was a causally relevant factor (not just up until the pipe broke, after which GWG would be liable): BUT FOR Hoffer’s act, the explosion would not have occurred

Analysis of GWG in the case at bar:
** They constructed the pipe-riser negligently; in a place where and how it could be expected to be hit and damaged
*** Protective pipes could have been installed at small cost and difficulty
*** The duty to take protective measures increases in direct proportion to the risk

Holding:

Decision against Hoffers and GWG.


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