Milburn v. David Canning Heat and Maintenance Limited

Milburn v. David Canning Heat and Maintenance Limited

Defendant was liable for negligent misrepresentation because he twice represented the sewer line location with apparent certainty using the Scout without disclosing its limitations or his limited experience with the instrument, the claimant reasonably relied on those representations and suffered compensable loss; claimant awarded damages mitigated by set-off for defendant's proven invoices.

Citation
2018 NSSM 36
Parties
Claimant; Defendant by Counterclaim: NED (EDWARD) MILBURN; Defendant; Claimant by Counterclaim: DAVID CANNING HEAT & MAINTENANCE LIMITED
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
20 July 2018
Procedural Posture
Small Claims Court Civil (negligent Misrepresentation) / Decision (hearing/judgment)
Outcome
Claim allowed in part; Counterclaim allowed; set-off applied resulting in judgment for claimant.
Legal Topics
Duty of Care, Reliance, Evidence, Damages, Set Off
Source Language
English
Contract Tort Negligent Misrepresentation Property Damage Duty of Care Reliance Evidence Damages +1 more

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Parties

NED (EDWARD) MILBURN

Claimant; Defendant by Counterclaim

DAVID CANNING HEAT & MAINTENANCE LIMITED

Defendant; Claimant by Counterclaim

Procedural Posture

Small Claims Court Civil (negligent Misrepresentation) / Decision (hearing/judgment)

Legal Issues

  1. 1 Whether the defendant negligently misrepresented the location of the sewer line
  2. 2 Whether the claimant reasonably relied on that representation and suffered compensable loss
  3. 3 Extent of recoverable damages and applicable set-off for defendant's counterclaim

Ratio Decidendi

Defendant was liable for negligent misrepresentation because he twice represented the sewer line location with apparent certainty using the Scout without disclosing its limitations or his limited experience with the instrument, the claimant reasonably relied on those representations and suffered compensable loss; claimant awarded damages mitigated by set-off for defendant's proven invoices.

Court Disposition

Claim allowed in part; Counterclaim allowed; set-off applied resulting in judgment for claimant.

Orders

  • Claimant awarded $7699.35 for combined excavation and restoration and costs.
  • Set-off granted for defendant's counterclaim and costs totalling $736.50.