Kirk et al. v. McLaughlin Coal & Supplies Ltd.
 1 O.R. 311-313
ONTARIO [COURT OF APPEAL]
1st DECEMBER 1967.
Negligence — Proof — Res ipsa loquitur — Requirement of “control” by defendant — Oil furnance exploding — No intervention by plaintiff householder — Defendant only company to service furnace — Whether inference of negligence arises — Burden on defendant.
Where a householder has done nothing nor permitted anything to be done which might cause his oil furnance to explode and where defendant installed the oil burner, supplied the oil and was the sole service company for the furnace, res ipsa loquitur applies to raise an inference of negligence when the furnace explodes a month and a half after defendant has made repairs to it. Under the circumstances, effective “control” was in the hands of defendant and common experience is that explosions do not occur without negligence.
However, res ipsa loquitur is no more than a specific instance of circumstantial evidence. Where an inference of negligence arises, defendant need only give an explanation that is consistent with due care and the explanation is weighed against the inference and the liability is determined on the balance of probabilities.
APPEAL from a judgment of Hall, Co.Ct.J., sitting in Division Court, dismissing an action for damages for negligence.
T.H. Wickett, for appellants.
R.J. Murphy, for respondent.
EVANS, J.A. (orally):– This is an appeal by the plaintiffs from the judgment of W.A.C. Hall, Co.Ct.J., in the 8th Division Court of the County of Ontario on October 25, 1966, dismissing the plaintiffs’ action with costs.
The action arises from a claim by the plaintiffs for damages caused to their home in the City of Oshawa as the result of two explosions which occurred in their oil furnace on February 21 and March 6, 1966.
The facts as found by the trial Judge are as follows: The furnace was converted by the installation of an oil burner about 12 years ago and thereafter the defendant supplied oil to the plaintiffs and as part of the arrangement agreed to service the furnace, and also clean it annually.
On January 7, 1966, some repairs were made to the furnace by the defendant. On February 21st, the first explosion occurred. The furnace was put back in operating order by the defendant and on March 6th the second explosion took place.
The trial Judge accepted the evidence of the plaintiffs that they did not touch the furnace other than the thermostatic control to increase or decrease heat and that no one other than the defendant serviced the furnace.
The plaintiffs could not establish the cause of the explosions and were unable to establish any specific act of negligence which might cast responsibility upon the defendant. It was argued on their behalf that the circumstances surrounding the two accidents were such that the happenings in themselves formed a basis for inferring negligent conduct on the part of the defendant and was a situation where the maxim of res ipsa loquitur was applicable. The learned trial Judge rejected this submission, being of the view that exclusive control of the furnace by the defendant was a prerequisite to the application of the doctrine and further that to hold the defendant liable would be to make it an insurer of the plaintiff. With the greatest respect to the trial Judge, I must disagree. I am of the opinion that all the circumstances surrounding the incidents created a situation where res ipsa loquitur comes into operation. It is common knowledge that oil furnaces do not normally explode. The trial Judge accepted the evidence of the plaintiffs that they had done nothing nor had they permitted anything to be done, which might cause the explosions and we are then faced with the problem as to whether the explosions occurred under such circumstances that it is so improbable that they occurred without negligence on the part of the defendant that their occurrences alone immediately give rise to the inference that the defendant was in fact negligent. Having ruled out intervention on the part of the plaintiffs and having accepted the evidence that the defendants alone serviced the furnace, the trial Judge in my opinion was forced to conclude that effective “control” was in the hands of the defendant. I do not consider “control” to mean physical custody or possession. It is sufficient to establish “control” if it is demonstrated that the servicing and repairing of the furnace was the exclusive province of the defendant and that no other agency intervened. Res ipsa loquitur is no more than a specific instance of circumstantial evidence which may or may not be sufficient to raise an inference. In the present case, I believe that a situation was established where the happening of the explosions in themselves founded a basis from which an inference can be reasonably and properly drawn as a matter of common experience that the explosions resulted from negligence and that the negligence is properly attributed to the defendant.
Whatever procedural advantages the rule may have it does not relieve the plaintiffs of their primary burden of proving their case against the defendant. The defendant may avoid liability if it can meet the inference of negligence by giving an explanation showing the exercise of reasonable care in the maintenance and servicing of the furnace. In my opinion the evidence on behalf of the defendant fails to reach that standard and the inference of negligence raised by the plaintiff is sufficient to discharge the onus placed on them of proving their case on the balance of probabilities.
I recognize that it is not the function of the defendant to disprove negligence on its part. It is only required to give an explanation that is consistent with the exercise of due care on its part and then the explanation is weighed against the inference arising from the happening of the accident and the liability is determined on the balance of probabilities.
The appeal is allowed with costs fixed at $25. The judgment below is set aside and judgment will issue in favour of the plaintiffs for $394.43 together with costs and a counsel fee of