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 Technical bulletins
February 2012

The failure of ceramic toilet tanks... A breach in the defense!

By Philippe Bouchard Eng., P. Eng., CFEI, CVFI, Guy Voisine Eng., P. Eng.,

Special Edition

A recent judgment from the Quebec Court of Appeal in a case opposing CRANE Canada Inc. and ECONOMICAL INSURANCE COMPANY (in which CEP Forensic Engineering, Inc. had testified as an expert witness in the Quebec Superior Court) will likely change the dynamics in regards to the investigation of failures of ceramic toilet tanks.

Figure 1: Example of a toilet tank failure

We have known for many years that insurers receive numerous claims related to cracked toilet tanks. The scenario is typical: the insured comes back from a relaxing weekend in the country and discovers a nightmarish situation, the drywall ceiling has fallen and water is flowing from the upper storey of the residence!

The insured then observes that the source of the leak is a crack in the toilet tank in the bathroom. Until recently, this type of claim was rarely the object of legal procedures against the manufacturers of toilet tanks, given the obstacles and previous judgments rendered which made the presentation of technical proof more difficult. However, two important rulings were recently reached in this type of file.

Figure 2: Example of a toilet tank failure

Firstly, in a February 2010 judgment, the Honorable Judge of the Quebec Superior Court, Geneviève Marcotte, ruled on a case relative to a cracked toilet tank in which our colleague, Guy Voisine, Eng., was acting as an expert witness. In this file, the opinion of CEP Forensic Engineering, Inc. was to the effect that some tanks have a manufacturing defect, which after several years, allows the absorption of water into the ceramic through microscopic pores in a non-homogeneous manner. This causes residual stresses in the material and eventually leads to the tank's failure by cracking.

The Honorable Geneviève Marcotte stated in the ruling that the Defendant (CRANE, the manufacturer of the tank) did not succeed in rebutting the legal presumption, which weighed against them by showing misuse or damage of the tank by the third party. The Court concluded that the Defendant was thus responsible for the damages which ensued as a result of the failure of the tank.

The Court noted that it is often difficult for the party which claims the existence of a manufacturing defect to demonstrate that this defect existed at the moment of the installation of a product. The existence of a defect and its presence in the product through the years is generally proven by inference or circumstantial evidence by demonstrating the absence of misuse of the product and the fact that the defect revealed itself during normal usage of the product. The objective and scientific examination of a tank by an expert generally facilitates and completes the proof needed in the courts.

Secondly, The Honorable Justice Marcotte's judgment was appealed by the manufacturer of the tanks. The appeal was subsequently dismissed with costs by the Quebec Court of Appeal. In the summary of the appeal, it was stated that: "The Appellant contests the factual determinations of the trial judge, blaming her of mainly having adopted the opinion of the Respondent's expert witness' thesis which apparently would have no scientific value and therefore could not be used to add support to the judgment."

The Honorable Judges held that:
"Moreover, even if one excluded the evidence of the tests done by the Respondent's expert witness, the fact remains that the circumstances of this case, established here by factual presumption in conformity with Article 2849 C.c.Q. (notably: a typical and premature damages to product of a normal usage, obvious usage problem, normal usage conditions and correlative absence of excessive or abusive usage), the existence of a manufacturing defect engenders the application of the presumption of Article 1527 C.c.B.C. The Appellant objected to this evidence only with conjectures, suggesting either an impact to the tank or the excessive tightening of the assembly bolts. These conjectures are insufficient and do not constitute a preponderance of evidence of a nature to refute the presumption against the manufacturer and relieve the Appellant from its responsibility under Article 1524 C.c.B.C."

Hence, the Court of Appeal has reinforced the concept that a manufacturer bears the burden o proving that a failure is not the result of a manufacturing defect. The Judgment from the Quebec Superior Court, as well as the one from the Quebec Court of Appeal should constitute important steps in the advancement of cases related to cracked toilet tanks for insurers. Henceforth, it will be easier to present water absorption tests (performed in laboratories) mainly if we consider paragraph 15 of the judgment where it is written that: "Consequently, a cause does not have to be determined with scientific precision if the proof none-the-less leads one to conclude in all likelihood the inferred existence of a manufacturing defect."

When a claim related to failure of ceramic toilet tanks is brought to the attention of an insurer, you can be assured that CEP Forensic Engineering, Inc. has the knowledge, competence and expertise needed to carry out a technical analysis of this type of file acquired through the examination of dozens of ceramic toilet tanks and the participation in the court proceedings mentioned above.