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Bags or Boxes? Plaintiff Fails to Establish That Defendant Is Responsible for Explosion of Over 1,200 50 Gallon Containers of Tomato Sauce

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A recent, and entertaining, decision of Justice Morgan demonstrates how sometimes the court must make decisions in the face of being presented with two compelling, competing, theories. It also demonstrates the fundamental legal principle that the Plaintiff has the onus of establishing its case on a balance of probabilities.

The Plaintiff is the owner and operator of a tomato processing plant and storage facility in Leamington, Ontario, the tomato capital of the country.

The Defendant is the creator of the “bag-in-box storage system”. The Defendant manufactures aseptic bags that line the inside of boxes that are designed to be used as part of a two part system with corrugated boxes. The Defendant does not manufacture the boxes that go with the bags, but recommends manufacturers who make boxes that are known to be compatible with the liner bags.

In the summer of 2000, the Plaintiff had several thousand containers of concentrated tomato sauce stored in its warehouse. What started as a small problem of leaking boxes quickly escalated into a major disaster. A domino effect of the leaking boxes caused the boxes to explode and the pallets on which they rested to collapse. All told, over 1,200, 50 gallon boxes were destroyed.

The Plaintiff had a consulting engineer inspect the bags. His finding was that there were weak zones in the side seams of the bags and concluded that there were intermittent bonding problems resulting in some sections of the seams being weak.

The Defendant retained a packaging expert to give evidence. This expert concluded that the boxes were too large to be compatible with the bags and were improperly stacked, both in terms of how the boxes were loaded onto the pallets and, most importantly, that multiple tiers of boxes were stacked upon each other. According to this expert, these factors, along with length of storage time and humidity caused the failure of the bag-in-box units.

Justice Morgan found that “in the contest between bags and boxes, there is no 100% winner”. He stated that he could not rule out that the bags may have suffered intermittent seam failure. He also stated that based on the evidence he would not conclude definitively that the Plaintiff’s choice of boxes and the method of stacking them was the sole cause of the spill. He noted that “looking at the experts alone, the contest comes out more or less even.”

However, in looking at all of the evidence Justice Morgan stated that he could conclude with certainty that the Plaintiff had not proved on a balance of probabilities that the bags were defective and that they caused the spill.

In reaching this conclusion, Justice Morgan cited some of the evidence provided by non-expert witnesses, including the fact that the Defendant had recommended a particular box manufacturer which was rejected by the Plaintiff because the Plaintiff wanted to purchase the boxes from a cheaper source, and also that the Plaintiff acknowledged that smaller boxes would have been more suitable, but elected to go with larger boxes because they looked better.

Justice Morgan noted that the Plaintiff was more focused on “price and presentation of the boxes more than it was on the efficacy and physical integrity of the bag-in-box system.”

In the result, the Plaintiff’s claim was dismissed as it was unable to persuade the court that, on a balance of probabilities, the cause of the disaster was defective bags.

Comments

  1. David Glenn Law
    June 4th, 2013 at 12:13 pm

    When you compromise the quality the product is not a smart choice. Always put safety and efficacy first. So you won’t end losing a lot of money and get tangled a long run of court trial and huge amount of expenditures seeking for legal help.

  2. David Cheifetz
    June 5th, 2013 at 3:49 pm

    Matt,

    A niggle for lawyers –

    You’re right that the action was dismissed because the plaintiff didn’t meet the onus of proof; however, you’re explanation of the judge’s rationale is slightly off. The difference matters to somebody analyzing the case, even if it doesn’t to the winning and losing parties.

    The action wasn’t dismissed because the plaintiff “was unable to persuade the court that, on a balance of probabilities, the cause of the disaster was defective bags.” Quoting Morgan J, at para. 53, the action was dismissed because the “Plaintiff has not proved on the balance of probabilities that the bags were defective and that they caused the spill.”

    We have to understand that sentence to mean the plaintiff hadn’t proved breach of contract or, assuming the action was also asserted in tort – the reasons don’t make it clear enough – breach of duty and standard, even assuming this contract created actionable tort duties. However, once the trial judge found no breach of contract or breach of tort duty & standard, then by definition there wasn’t causation law.

    Nonetheless, of course the condition of the bags was a cause of the incident. If the bags had been made out of unbreakable diamond, they’d not have leaked.

    The trial judge’s conclusions are summarized in four paragraphs:

    [48] I cannot rule out that the bags may have suffered intermittent seam failure due to a faulty sealing process in the Defendant’s plant. Mr. Stone’s testing of the bags suggests that possibility. At the same time, I cannot rule out that the boxes may have been the wrong size and stored or stacked in a way that made them structurally unsound. Mr. Young’s analysis of the 2000 photos suggests that possibility.

    [53] On the evidence before me I cannot conclude definitively that the Plaintiff’s choice of boxes and its method of stacking them was the sole cause of the spill in July 2000. What I can certainly conclude, however, is that the Plaintiff has not proved on the balance of probabilities that the bags were defective and that they caused the spill.

    [54] There are two possible explanations in evidence; but once all of the evidence is reviewed, the more likely explanation is that it was the ill-fitting boxes stacked on top of each other that caused the spill. That does not fully explain Mr. Stone’s findings that some of the bags had intermittent weak spots, but it does explain why of all the Defendant’s customers for aseptic bag liners in 1999-2000, only the Plaintiff suffered torn bags and leakage.

    [55] Needless to say, the onus of proof is on the Plaintiff. The Defendant does not have to prove that its theory about the boxes is correct. It is sufficient to dismiss the claim that the Plaintiff has not proved on a balance of probabilities that its own theory about the bags is correct.

    Using your terminology, the action was dismissed because the plaintiff was unable to persuade the court that, on a balance of probabilities, the bags were defective and that defective condtion was a necessary part of the combination of factors that made up the cause.

    Or, if you want to use Athey’s terminology – assuming the case was argued in tort too: I can’t tell from the reasons – the plaintiff failed to establish, on the balance of probability, that any defective condition of the bags was part of the cause.

    David