By Andrew D. Delmonico and Matthew T. Potomak
General contractors take on significant legal exposure when agreeing to build a new home or even to renovate an existing home. For instance, general contractors may be liable for the negligent work of their employees or others engaged by them in connection with a construction project. The recent case of Edwards v Parkinson’s Heating Ltd., 2018 BCSC 593 addresses a general contractor’s liability in relation to a subcontractor who was alleged to have negligently installed and/or serviced a fireplace, causing serious carbon monoxide poisoning to the homeowners.
The Facts
The plaintiffs in this case hired a local general contractor (the “General Contractor”) to renovate their two-storey detached home in Vancouver (the “Project”). The General Contractor, in turn, hired the defendant subcontractor (the “Subcontractor”) to perform the mechanical, gas, and fireplace work at the Project.
In performing its scope of work at the Project, the Subcontractor removed, and later reinstalled, a fireplace to accommodate ongoing renovations.
After the renovations were largely completed, the Subcontractor was hired directly by the homeowners to service their fireplace, and did so on two separate occasions. Following the servicing of the fireplace, the plaintiffs began to experience concerning symptoms, including: severe headaches, loss of balance, loss of concentration, nausea, and fatigue. The plaintiffs’ friend suggested that there might be a gas leak. After inspection, it was determined that high levels of carbon monoxide – a colourless, odourless, and tasteless poisonous gas – were indeed emitting from the living room fireplace.
Upon further investigation, it was determined that the cause of the leak was a missing screw designed to secure the draft hood to the spill tube, which vents carbon monoxide and other exhaust gases from the fireplace. This caused a gap allowing carbon monoxide to vent directly back into the plaintiffs’ home.
The Subcontractor ultimately replaced the screw, but the plaintiffs asserted that they had already suffered brain damage from exposure to carbon monoxide in their home. As a result, the plaintiff homeowners sued both the General Contractor and the Subcontractor for the negligent installation and servicing of the fireplace.
The Decision
After a lengthy trial, the BC Supreme Court held that the Subcontractor, but not the General Contractor, was liable in negligence.
The plaintiffs argued that the General Contractor and the Subcontractor each owed and breached an independent duty of care to the plaintiffs to install the fireplace in a reasonably competent and safe manner free from any latent and dangerous defects. However, the Court was unable to find persuasive evidence that either defendant was negligent in the original installation of the fireplace.
However, the Court did find that the Subcontractor breached a duty of care to the homeowners when it later serviced the fireplace and failed to note the missing screw, which would have helped to ensure the proper ventilation of poisonous gases (such as carbon monoxide).
The plaintiffs were ultimately awarded damages in excess of $300,000.00. What could be argued was a small mistake by the Subcontractor in failing to install a screw resulted in both big losses to the homeowners, as well as a sizeable damage award against the Subcontractor.
Lessons Learned
- Even though in this case the General Contractor was found not to be liable for the negligent work that caused the homeowners’ damages, it should be remembered that a general contractor’s duty of care to his or her clients generally includes a requirement to adequately supervise the work of employees and subcontractors. Given this liability and the overall importance of retaining qualified subcontractors, a general contractor may wish to include a term in its subcontract preventing subtrades from assigning their work to other subcontractors.
- It is also desirable for subcontractors to carry their own general liability insurance to cover defective work, in addition to the insurance maintained by the general contractor. •
This article was written by Andrew D. Delmonico and Matthew T. Potomak, who practise in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604.864.8877 (Abbotsford) or 604.684.8668 (Vancouver).
