Cohen v. Coca-Cola Ltd.

ABBOTT J.:-This appeal is from a majority judgment of the Court of Queen's Bench' reversing a judgment of Collins J. in the Superior Court which had condemned respondent to pay to appellant the sum of $8,600.80 with Que.

interest and costs as damages for injuries sustained on September 4, 1957, and caused by the explosion of a bottle of Coca-Cola.

The facts are fully reviewed in the judgments below and " shortly stated they are these. In September 1957 appel- Abbott J. lant-then a minor-was employed by his father, one Jack Cohen, who operates a restaurant in the City of Montreal, at which Coca-Cola and other soft drinks were sold. Supplies of Coca-Cola were delivered weekly by respondent and when delivered were placed by respondent's employees in the basement of the restaurant premises. In his restaurant, Cohen had a freezer with a capacity of from four hundred to five hundred bottles. From time to time, as Coca-Cola and other soft drinks were required for the purpose of sale, they were brought up in cases from the cellar by employees of the restaurant, and then placed in the freezer.

As to the circumstances under which the appellant was injured the learned trial judge said:

As the Coca-Cola was required for the purpose of sale, the cases were brought up from the cellar for the purpose of putting the bottles into the freezer. The cellar had a cement floor and cement walls. It was heated by the landlord of the premises but there was no furnace in that part of the cellar in which Coca-Cola was kept. The plaintiff worked for his father in the restaurant. Sometime after 3.00 o'clock in the afternoon of September 4th, 1957, five or six such cases were brought up from the cellar by one of the employees of Jack Cohen. The plaintiff then started to put the bottles one by one out of the cases into the freezer. The first two sections of the freezer were reserved for Coca-Cola bottles, a third section for Seven-Up and Pepsi bottles and a fourth section for miscellaneous bottles. The plaintiff said that he had emptied most of the cases and had put the bottles in the freezer and there only remained about half a case so to empty. He then reached down and picked up a bottle of Coca-Cola with his right hand and was putting it into the freezer when he said the bottle exploded. The result of the explosion was that glass went into his left eye, causing to it the injuries in respect of which damages are now claimed by this action. The plaintiff said that the glass did not cut his face in any - other way and the only damage was to his eye. Upon the explosion, he dropped apparently what remained of the bottle in his hand and covered his two eyes to protect himself. He then looked in the mirror and found that his eye was bleeding. He went alone in a taxicab to the Montreal General Hospital where he remained until September 20th. Respondent's defence was that an accident such as that described by appellant was impossible and in support of that contention it led evidence which was largely a description of the type of bottle used by it, the procedure followed in inspecting and filling bottles as well as expert evidence as to what happened when bottles filled with its product were heated, struck with a hammer or banged together. As I have said, the learned trial judge maintained the Abbott J. action and in doing so he made certain findings. Dealing with the accident itself, he said this:

In considering this matter, the Court has only the evidence of the plaintiff to base itself on. There were produced no witnesses to the accident (apart from the plaintiff) which is not unusual in cases of this kind. The Court carefully watched the plaintiff in giving evidence. It has come to the conclusion after a very mature deliberation that he told the truth. His evidence seemed quite honest and it did not appear that he attempted to exaggerate the situation in any way. The only evidence before the Court is that the accident happened in the way that the plaintiff said that it did. The only evidence to the contrary is the evidence of the defendant that such an explosion could not have taken place for the reasons above mentioned. It may have been that the bottle was broken by the careless handling of the plaintiff and that fragments of glass so entered his eye. The evidence of the defendant, based on tests made by its expert was that fragments of glass coming from bottles which were broken deliberately by such expert were thrown up to a radius of 18 inches, so that it would be quite possible for the accident to have happened as suggested by the defendant. However the positive evidence was that the plaintiff was injured in the manner described by him. As the Court is not in a position to say that he was not telling the truth and the Defendant was unable to establish otherwise, it must accept as true his evidence as to the manner in which the accident happened.

Many of the bottles containing Coca-Cola distributed by respondent were used over and over again after being returned to the respondent's plant, where they were cleaned and inspected before being refilled. Referring to the evidence led by respondent as to the method of the filling and inspection of bottles, the learned trial judge said:

It is obvious that the inspection of the defendant to prevent defective bottles from being filled with Coca-Cola was inefficient and it could not possibly detect all the defects. There is no other conclusion to come to but that it would be quite easy for a defective bottle to pass an inspector. The inspection took place before the bottles were filled, so that the bottles went through the subsequent process of filling and capping without inspection, an automatic process requiring the use of machines. After stating that it was reasonable to infer that it was a defective bottle which resulted in the injury of the appellant, the learned trial judge reached this conclusion:

On the evidence as a whole the Court finds that the defendant was negligent in not having an inspection system adequate to prevent defective bottles reaching customers. It was the fault of the defendant that the bottle exploded because the bottle provided by the defendant was not strong enough to withstand the pressure of the gas put into it by the defendant.

He was also of opinion that respondent had "la garde juridique" of the bottle within the meaning of art. 1054 of the Civil Code.

The judgment at trial was reversed by the Court of Queen's Bench, Rinfret J. dissenting. The ratio of the majority decision appears to be that appellant's version of the accident required some form of corroboration and that he had failed to discharge the burden of establishing that the bottle of Coca-Cola was not damaged in some way after delivery to the restaurant. With respect I am unable to agree with those findings.

The bottler of carbonated beverages owes a duty to furnish containers of sufficient strength to withstand normal distribution and consumer handling. Little is to be gained by discussing the numerous decided cases involving the explosion of bottles containing such beverages. Each case turns upon whether the evidence in that particular case excludes any probable cause of injury except the permissible inference of the defendant's negligence.

In the present case, boxes each containing twenty-four bottles of Coca-Cola were placed in the basement of the restaurant by employees of the respondent. On the day of the accident, a case containing the bottle which exploded, along with several other cases containing Coca-Cola, was brought up from the basement by a dish-washer employed in the restaurant. The bottles contained in these cases were then placed in the freezer by appellant and were handled only by him. The particular bottle which exploded was taken from the last case to be unloaded. The appellant described the manner in which he took each bottle from the wooden cases and placed it in the freezer. There is no suggestion in his evidence, either in chief or on cross-examination that they were handled in other than the ordinary way. The learned trial judge was entitled to draw the inference that the bottle which exploded was not mishandled from the time it was placed in the basement by respondent's employees until it was picked up by appellant to be placed in the freezer.

In my opinion evidence which was accepted by the learned trial judge created a presumption of fact under art. 1238 of the Civil Code, that the explosion of the bottle which caused injury to appellant was due to a defect for which respondent was responsible and that the latter failed COUR SUPRftME DU CANADA to rebut that presumption. It follows that I do not find it necessary to express any opinion as to whether appellant was entitled to invoke the presumption of liability under art. 1054 of the Civil Code.

Abbott J.

As to damages, the amount awarded, while perhaps generous, is not such as to warrant interference by this Court. I would allow the appeal with costs here and below and restore the judgment of the learned trial judge.

DAVID BEATTIE ........................

APPLICANT; *Feb. 20

AND

Feb. 24

HER MAJESTY THE QUEEN .......... RESPONDENT. MOTION FOR LEAVE TO APPEAL

Criminal law-Leave to appeal-Whether question of law-Whether magistrate properly exercised discretion as to sanity of accused-Whether accused deprived of right to counsel-Criminal Code, 1958-64 (Can.), c. ss. 524(1), 597(1)(b)-Canadian Bill of Rights, 1960 (Can.), c. 44.

The applicant was convicted of unlawfully having in his possession an offensive weapon. His appeal was dismissed by the Court of Appeal for British Columbia. On his application for leave to appeal to this Court, two grounds were urged by his counsel: (1) that the magistrate should have directed that an issue be tried to determine whether the accused, because of insanity, was incapable of conducting his defence; (2) that the accused was deprived of his right to counsel and to a fair trial.

Held: The application for leave to appeal should be dismissed.

Under the provisions of s. 597(1) (b) of the Criminal Code, leave to appeal to this Court may be granted on any question of law alone. No question of law was involved in the determination of whether the magistrate had properly exercised his discretion under s. 524(1) of the Code. In any event, it appeared that the magistrate had carried on an investigation. The sufficiency of that investigation as well as the conclusion to which the magistrate came, are not matters involving a question of law.

Cartwright, Ritchie and Spence JJ.

There was no evidence that the applicant was deprived of the right to retain and instruct counsel without delay or was deprived of the right BEI to a fair hearing.

Droit criminel-Permission d'appeler-Question de droit-Le magistrat a-t-il exerc proprement sa discretion concernant l'dtat mental de l'accus6-L'accusg a-t-il t6 privg de son droit de retenir un avocat -Code

Criminel, 1958-54 (Can.), c. 51, arts. 54(1), 597(1)(b)- Declaration canadienne des Droits, 1960 (Can.), c. 44.

Le requirant a t6 trouv6 coupable d'avoir eu ill6galement en sa possession une arme offensive. Son appel fut rejet6 par la Cour d'appel de la Colombie-Britannique. Lors de sa requite pour permission d'appeler devant cette Cour, deux motifs ont 6t6 soulev6s par son avocat: (1) le magistrat aurait ordonner que soit examin6e la question de savoir si l'accus6 6tait, pour cause d'ali6nation mentale, incapable de subir son procks; (2) l'accus6 a 6t6 priv6 de son droit de retenir un avocat et d'avoir un procks 6quitable.

Arrit: La requite pour permission d'appeler doit 8tre rejet6e.

En vertu des dispositions de I'art. 597(1)(b) du Code Criminel, la permission d'appeler devant cette Cour peut 6tre accord6e sur toute question de droit strict. Aucune question de droit ne se soulive dans la d6termination de la question A savoir si le magistrat a exerc6 proprement sa discrition en vertu de l'art. 524(1)

du Code. A tout 4v6nement, il appert que le magistrat a fait une enquite. La suffisance de cette enquite ainsi que la conclusion AL laquelle le magistrat en est arriv4, ne sont pas des sujets soulevant une question de droit. Il n'y a aucune preuve que le requ6rant a t6 priv4 de son droit de retenir et de constituer un avocat sans d6lai ou qu'il a t6 priv6 de son droit h une audition 6quitable.

REQURTE pour permission d'appeler devant cette Cour d'un jugement de la Cour d'appel de la Colombie- Britannique. Requite rejetie.

APPLICATION for leave to appeal from a judgment of the Court of Appeal for British Columbia. Application dismissed.

F. A. Brewin, Q.C., for the applicant.

SPENCE J.:-This is an application for leave to appeal from the Order of the Court of Appeal for British Columbia made on November 18, 1966. By that Order the said Court dismissed an appeal by this applicant from a conviction by Magistrate D. Hume at Vancouver, on July 8, 1966, on the charge that the accused unlawfully did have in his J possession an offensive weapon, to wit, a knife, for a purpose dangerous to the public peace, contrary to the form of the statute in such case made and provided, and from his sentence upon such conviction.

In this Court, the accused was represented by counsel who urged two grounds of appeal:

Firstly, that the Magistrate ought to have directed that an issue be tried to determine whether the accused, because of insanity, was incapable of conducting his defence. Such an issue is provided for in s. 524(1) of the Criminal Code. Secondly, that the accused was deprived of his right to counsel and his right to a fair trial, contrary to the provisions of the Canadian Bill of Rights, Statutes of Canada 1960, c. 44.

As to the first ground of the application, after consideration of the matter, I have come to the conclusion that the only question involved is whether the magistrate properly exercised his discretion to determine whether there was, in the words of the section, "sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence". Under the provisions of s. 597(1) (b) of the Criminal Code, if leave is granted, an appeal to this Court may be taken on any question of law alone. I am of the opinion that there is no question of law involved in the determination of whether the magistrate had properly exercised his discretion. It would appear that the magistrate did in fact carry on an investigation to determine whether an issue should be directed. The sufficiency of that investigation, and the conclusion to which the magistrate came, are not matters involving a question of law.

As to the second ground, there is no evidence that the applicant was deprived of the right to retain and instruct counsel without delay or was deprived of the right to a fair hearing in accordance with the principles of fundamental justice.

I would dismiss the application for leave to appeal. Application dismissed.