Madalena's new leaky rotten house

Madalena's foster father builds a new leaky rotten house for Madalena




Madalena v. Kuun,


2009 BCSC 1597

Date: 20091123

Docket: S062218

Registry: Vancouver


Pamela Ann Madalena



Regional District of Comox –Strathcona, Karel Kuun
doing business as Plum Construction, Russ Nelson
Roofing Ltd., Tim Crisp doing business as
Sunwest Stucco, and John Doe #1



Before: The Honourable Mr. Justice Butler


Reasons for Judgment

Counsel for the Plaintiff:

Amy A. Mortimore

Counsel for the Defendant Karel Kuun doing business as Plum Construction:

Edward A. Holekamp

Place and Date of Trial:

Vancouver, B.C.
April 27-30 and May 1, 2009

Place and Date of Judgment:

Vancouver, B.C.
November 23, 2009


[1]             When Pamela Madalena, the plaintiff, wanted to build a new home in the Comox Valley, she turned to Karel Kuun, her former foster father.  She had lived with Mr. Kuun and his wife for ten years, between the ages of 7 and 17.  Ms. Madalena and the Kuuns maintained a close relationship after she left their home in approximately 1980.  Mr. Kuun, doing business as Plum Construction, worked as a contractor building single family homes in the Comox Valley.  When Ms. Madalena returned to Vancouver Island with her husband and family, she approached Mr. Kuun and he agreed to design and build the home at 2219 Sea Lion Way in the Comox Valley Regional District (the “Home”).

[2]             Ms. Madalena purchased a heavily treed lot in the Comox Valley.  She had a limited budget for the construction of the Home.  She liked the Cape Dutch style of homes built by Mr. Kuun.  She wanted a house in that style that was large enough for her family.  The parties did not enter into a formal agreement.  They had a series of informal discussions that led to agreement about the design of the Home.  They also agreed on the amounts to be spent on construction and paid to Mr. Kuun for his services.

[3]             The Home was built during the summer of 1998.  Ms. Madalena and her family moved into the Home in October 1998.  It is a two-storey wood frame building and was built with face-sealed exterior stucco walls.  It had minimal overhangs and a concealed gutter and downspout roof drainage system.  It was built within the limited budget set by Ms. Madalena.

[4]             About a year after construction was completed, Ms. Madalena discovered water entering one of the bedrooms.  Mr. Kuun attended, unplugged the gutters and performed repairs which appeared to remedy the problem.  About a year later, Ms. Madalena discovered water in the master bedroom closet.  Once again the carpet and underlay were lifted and the moisture was removed from the building.  Mr. Kuun attended to perform repairs.  He altered the water collection system on the roof by adding a perforated pipe along the length of the gutters.  A third leak was found about a year and a half later.  It was more extensive and took longer to repair.  Ms. Madalena lost confidence in Mr. Kuun and turned to other contractors to resolve the problem.

[5]             Ms. Madalena also noticed staining and cracking in the stucco on the exterior of the Home during the first years after construction.  Eventually she decided that repairs were required to the stucco.  In 2005, when the stucco repair work was performed, evidence of water damage was discovered underneath the stucco.  Ultimately Ms. Madalena retained a consultant to provide advice regarding the repairs required to halt the water ingress.  These repairs were performed at a cost of $139,016.13, including the investigation costs.  Ms. Madalena claims this amount as damages for negligent design and construction of the Home, or alternatively for breach of contract.

[6]             Mr. Kuun denies any negligence or breach of contract.  He says that the Home was designed and constructed according to the agreement between the parties.  He says that any damage to the Home from water ingress occurred as a result of Ms. Madalena’s failure to maintain the Home properly.  He says that he instructed her to regularly clean and maintain the gutters.  Had this been done, he alleges that there would have been no water ingress damage.  He also says that some of the work performed was done to upgrade the Home and had nothing to do with a water ingress problem.

[7]             Tim Crisp, doing business as Sunwest Stucco, is also a defendant in these proceedings.  Mr. Crisp did the stucco work when the Home was built in 1998.  That work included the application of sealant and the installation of flashings around the doors and windows.  Mr. Crisp did not defend the action and Ms. Madalena obtained judgment against him in default with damages to be assessed.

[8]             The issues raised by these circumstances are:

1.       Was the Home designed or built negligently or in breach of the terms of the contract?

2.       Was Ms. Madalena negligent in maintaining the Home?

3.       What damages were caused by the negligence or breach of contract of Mr. Kuun and Mr. Crisp?

4.       What is the apportionment of fault between the parties and Mr. Crisp?

Issue 1.        Was the Home designed or built negligently or in breach of the terms of the contract?

[9]             There were few differences in the evidence of the parties about the discussions that led to the agreement to build the Home.  Given their family-like relationship, the discussions were informal and did not touch upon the potential liability of Mr. Kuun for building or design faults, nor the existence or extent of any warranties.  The focus of the discussions was the layout of the Home and the amount of money available for the construction.  In their testimony, Ms. Madalena and her husband, Tom Finkelstein, attempted to minimize their involvement in the design of the Home.  In part, they did so to emphasize the fact that they have no knowledge of building construction.  However, I accept the evidence of Mr. Kuun that they did take an active role in determining the appearance and layout of the house.  Ms. Madalena also set a limit on the amount of money she had available to spend on construction.

[10]         I also accept Mr. Kuun’s evidence that in order to build the Home within the financial constraints, the parties agreed to proceed without the involvement of Mr. Kuun’s business, Plum Construction.  Mr. Kuun made the arrangements as Ms. Madalena’s agent to hire contractors and obtain permits, while she acted as the owner/builder.  She entered into agreements (through Mr. Kuun as her agent) with the various contractors and opened accounts with suppliers.  The workers were paid as independent contractors so that no one would have to pay GST on the labour charges.  Ms. Madalena obtained the course of construction insurance.  These steps resulted in savings on taxes, CPP, and other overhead expenses.  Mr. Kuun also made design changes to maximize the square footage of the Home and reduce the cost of the construction.

[11]         As a result, the Home was built within the budget of $187,000 set by Ms. Madalena.  In addition, she paid Mr. Kuun $15,000 to compensate him for the work he did as her agent and to cover equipment, tools and other overhead expenses.  I accept Mr. Kuun’s evidence that if the building had been built for an arm’s length client it would have cost significantly more.  He was prepared to proceed in the way he did because he wanted Ms. Madalena, as his foster daughter, to have a nice house at a reasonable cost.  I also accept that the layout, design and finishing choices made by Ms. Madalena resulted in the Home being finished with supplies and materials at a relatively low level of quality.

[12]         Mr. Kuun came to B.C. from South Africa.  He has a Bachelor of Arts in Philosophy as well as a Masters degree.  He has no formal education in building construction.  He began building homes with his brother who did have some training in architecture.  They built their first home in 1974.  Between that date and 1998 they built between 50 and 70 homes.  He learned the skills required for the various trades on the job.  He described how he taught himself to do wiring, plumbing and roofing by reading the relevant building codes and doing the work.  He also taught himself how to use AutoCad, which he used to assist with the design of homes.

[13]         As a result of his experience and self-teaching, by the time he built the Home for Ms. Madalena, he considered himself skilled in most aspects of construction.  He was also familiar with the trades people in the Comox Valley.  He felt competent to do everything required to design, build and oversee the construction of the Home.

[14]         Mr. Kuun prepared the drawings used to obtain the building permit and guide the construction.  These were not detailed construction drawings, but they were adequate to establish the layout of the rooms and the exterior appearance.  He selected and hired the sub-trades to work on the Home.  He performed a lot of the work himself and was also responsible for supervision of the sub-trades.  The work he performed included the application of the waterproof membrane on the roof and in the gutters.  He installed the windows.  His design for the Home included a hidden gutter system that had a scupper and downspouts hidden behind a stuccoed wall enclosure.  He designed the parapet above the portico over the front door entrance.  The parapet had a flat roof that adjoined the gutter running along the front of the house.  He designed the building envelope that featured windows flush with the stucco walls.  There was no rain screen incorporated in the building envelope as Mr. Kuun did not expect water to penetrate behind the stucco.

[15]         Major Thorne Ferguson, the president of C.E.S. Contracting Ltd. (“C.E.S.”) was called as a witness by Ms. Madalena.  C.E.S. was originally hired to replace the windows in the Home with a better quality window because the original windows were not opening properly.  When C.E.S. removed stucco around the windows, water damage was observed behind the stucco.  Subsequently, C.E.S. was hired to remove all of the existing building envelope and replace it with a rain screen and fibre board siding.  C.E.S. also removed the existing concealed gutter system and replaced it with an external gutter system tied in to the water drainage system.

[16]         Major Ferguson gave evidence regarding his observations of the condition of the Home when he attended to perform the work.  He took photographs which showed staining and black mould around the windows.  It was evident that the face-seal system had failed around the window and door openings.  However, the areas with the most significant water ingress problems were the gutters, the concealed downspout system and the portico.  Major Ferguson noted that the membrane applied in the gutters did not extend high enough up the side of the gutter.  As a result, when the gutters were backed up and full of water, there would be leakage down the face of the building behind the stucco.  It was also evident from the staining of the Oriented Strand Board (“OSB”) sheathing that this kind of leaking occurred on an ongoing basis in certain areas of the Home.

[17]         The OSB sheathing behind the stucco on the portico and in the concealed downspout system had deteriorated so badly from moisture damage that, in places, it was falling apart.  The membranes applied to the flat roof above the portico did not serve to protect the wall structure.  The concealed downspout system was a poor design as it made it difficult to see if there was a blockage in the system.  Further, any moisture that escaped was trapped inside the stucco where it promoted the deterioration of the structure and the growth of mould.  In some parts of the Home there was damage to the wood frame structural members as well as to the sheathing.

[18]         Alex McGowan, a professional engineer employed by Levelton Consultants Ltd. with building envelope expertise prepared reports and gave expert evidence regarding the design of the Home.  In his report of February 25, 2009, he set out his opinion on the causes of the water ingress at the Home:

... [T]he primary reason for the failure of the building envelope at this residence was the unprotected face-sealed design of the walls (which requires continuity of the weather barrier on the exterior surface of the building envelope) combined with discontinuities at window openings and at the roof/wall interface.  The problem was compounded by the minimal protection provided by the lack of overhangs, the boxed-out windows at either end of the building that increase the exposure level of the stucco to wind-driven rain, and by leaks associated with the rainwater leaders concealed inside the walls.

[19]         In his site report of July 25, 2007, Mr. McGowan described the problems with the roof drainage in more detail:

Rain gutters are shallow, and direct water inside the false columns at four locations along the north and south elevations (Photo 9).  The rainwater leaders (or downspouts) are hidden inside the false columns.  If these downspouts become blocked, it is likely that water will back up inside the false columns, resulting in water damage.  Also, the flat roof above the main entrance is poorly detailed, with minimal upturn of the roofing membrane and poor drainage....

[20]         Mr. McGowan described in some detail how a blockage in the drainpipes would affect the drainage of water from the roof.  The water would rise in the scupper and flow back in the gutter.  It would eventually flow out and down at the lowest point of the gutter membrane either on the outside or the roof side of the gutters.  It was evident from photographs of the water damage that this is what occurred in many locations along the face of the Home.  Undoubtedly this is what happened when the interior leaks occurred.

[21]         Mr. McGowan’s 2009 report concludes that the design and construction of the Home “did not meet the requirements of the relevant building codes, guidelines and trade practices of 1998.”  While Mr. McGowan was cross-examined on his report, his conclusions were not seriously challenged.

[22]         I conclude that the Home was negligently designed and constructed.  It did not meet the requirements of the codes, guidelines and trade practices in effect in 1998.  The failure to design and build in accordance with those standards resulted in a building that had significant weaknesses.  The lack of overhangs and the design of the windows and face of the structure meant that the Home could only survive the wet Vancouver Island winters if the face-seal was impenetrable or there was some form of rain screen to allow moisture to escape behind the stucco surface.  Of course, the stucco was not impenetrable and there was no way for the moisture to escape once the face-seal and gutters started to fail.  The design problems were compounded by poor finishing of the windows and inadequate application of membrane to the gutters and flat roof.

[23]         I also conclude that the stucco work performed by Mr. Crisp was done negligently.  As noted by Mr. McGowan, for the face-seal system to be effective the doors and windows must be properly sealed and protected.  That was not done in this case.  The failure to properly seal and flash the windows and doors was an effective cause of the water ingress and the failure of the building envelope.

[24]         While Mr. Kuun and Ms. Madalena agreed that the Home was to be built at a low cost, that is not a defence to the claim.  The design and construction of the Home did not meet acceptable standards for the prevention of water ingress.  I find that Mr. Kuun is liable in negligence both for the design and construction of the Home.

[25]         As noted in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85, at para. 43, a contractor or designer owes a duty in tort to subsequent purchasers if it is found that the building, as constructed, has defects that pose a substantial danger to the health and safety of occupants.  A contractor who breaches that duty of care will be liable for the reasonable cost of repairing the defects.  Of course, a contractor or designer owes that same duty of care to the original purchaser and will be liable for the costs of repair.  Here, both Mr. Kuun and Mr. Crisp were in breach of the duty owed to Ms. Madalena.  As a result, both are liable for the reasonable cost of repairs to the Home.

[26]         Before leaving this issue, I should comment on one additional argument raised by Mr. Kuun.  He argued that in light of the family relationship and the low price paid by Ms. Madalena for the Home, the agreement between the parties must include an implied term that Ms. Madalena bore the risk of any design or construction deficiencies.

[27]         I cannot accept that argument.  Normally, where a contractor agrees to design and build a home, there will be an implied warranty that the house will be reasonably fit for habitation upon completion of the construction.  That warranty is not implied where the house construction is complete at the time of sale.  That is not the case here as Ms. Madalena did not purchase a completed home.  Rather, she contracted with Mr. Kuun to build the Home as the residence for her family.  There was nothing in the discussion of the parties to suggest that the Home would not be fit for habitation or that Ms. Madalena would bear the risk of design or construction failures.  I would have expected evidence of such a discussion if the parties intended to shift those risks to Ms. Madalena.

[28]         There may be some circumstances that could lead a court to imply a term that the purchaser of a home was accepting the risk of design or construction failure leading to an uninhabitable home.  For example, such a term might be implied if a contractor performed the construction services without charging for labour or materials.  However, the circumstances present in this case do not lead to such a conclusion.  Mr. Kuun was paid for all of the time he spent working on the construction of the Home.  He was paid an additional $15,000 for his overhead and for supervision and management.  The sub-trade contracts were awarded on the basis of competitive bids.  There is no basis to find that there was an implied term that any risk regarding the fitness of the Home was to be borne by Ms. Madalena.

Issue 2.        Was Ms. Madalena negligent in maintaining the Home?

[29]         Mr. Kuun testified regarding the specific instructions he gave to Ms. Madalena and her husband to clean the gutters.  This was particularly important given the setting of the Home.  It was surrounded by trees and was within a kilometre of the ocean.  It was buffeted by winds and rain during winter storms.  Leaves and debris from both deciduous and coniferous trees collected in the gutters.  It was apparent that Mr. Kuun did not appreciate at the time of construction how quickly the gutters could be blocked by leaves.  He understood this when he attended at the Home to repair the roof after the first leak.  He advised Ms. Madalena of the drainage problem and gave her two options:  cut down the surrounding trees or clean the gutters every two weeks.  Ms. Madalena and Mr. Finkelstein indicated that they were very fond of the trees and did not want to remove any from the yard.  That left them with the option of instituting a proper maintenance system.  Mr. Kuun impressed upon her the need to clean the gutters regularly and frequently during the rainy season.

[30]         When the second leak occurred it was evident that Ms. Madalena was not performing the gutter cleaning as frequently as required.  He developed a plan to try to alleviate the problem.  He installed a four-inch perforated pipe along the length of the gutter.  This would allow water to drain into the gutter and down the downspout without transmitting leaves along the gutter where they would collect quickly in the scupper.  It was not a total solution to the problem.  The intent was to lengthen the time between gutter cleanings.  He advised Ms. Madalena that this new device meant the cleaning did not have to be done every two weeks, but that it still had to be done frequently.  Further, it meant that the gutters needed to be inspected frequently so they could be cleaned on an as needed basis.

[31]         Ms. Madalena and her husband deny receiving such specific warnings about the necessity and frequency of gutter cleanings.  On this issue, the testimony of both was vague and imprecise.  I accept the evidence of Mr. Kuun in preference to that of both Ms. Madalena and Mr. Finkelstein.  I find that neither of them was interested in maintenance of the gutters and so disregarded Mr. Kuun’s advice.  I find that he fully advised them of the importance of attending to regular and frequent gutter cleaning.

[32]         While they denied receiving warnings from Mr. Kuun, both Ms. Madalena and Mr. Finkelstein admitted that they were aware of the need to clean gutters on occasion.  They retained a contractor, Chorebusters, to do that.  Ms. Madalena said that Chorebusters attended frequently during the winter months to perform the cleaning.  However, the documentation produced showed that Chorebusters only attended at the Home on four occasions to clean the gutters in the years between 1998 and 2005.  No one from the company was called as a witness.  I cannot accept the evidence of Ms. Madalena and Mr. Finkelstein that Chorebusters attended on more than four occasions.

[33]         I find that Ms. Madalena did not maintain the gutters properly.  Neither she nor Mr. Finkelstein performed the work themselves.  Chorebusters was brought in to do the cleaning only four times in the space of seven years.  The frequency of cleaning was inadequate given the circumstances that faced Ms. Madalena.  Her failure to properly maintain the gutters contributed to water damage in the Home.  This was the most significant water ingress problem at the Home.  While the failure of the face-seal system around the windows and doors would have ultimately led to a need to repair the residence, it was the leaking from the gutters and downspouts that created the early requirement to repair the entire building envelope.

[34]         In summary, I find that Ms. Madalena was contributorily negligent in failing to properly maintain the gutters when she ignored the detailed advice and warning from Mr. Kuun on the need to perform that maintenance.

Issue 3.        What damages were caused by the negligence or breach of contract of Mr. Kuun and Mr. Crisp?

[35]         The total claim for damages is $139,016.13.  The largest component of this is the remediation work done by C.E.S. at a cost of $70,472.44.  This covered removal of the existing stucco, repair and replacement of damaged structural members, and installation of the new rain screen system including the fibre board siding.  The damage claim includes charges from Levelton Consultants Ltd. for field review and site visit in the amount of $6,663.69.  Another significant part of the claim is the Sierra Stucco charges of $27,899.75.  Most of these costs were incurred in 2005 when Ms. Madalena was first investigating the stucco deterioration and the overall water ingress problem.  These were charges for removal and patching of portions of the stucco.  The new windows in 2006 were purchased from Vera-De for a cost of $28,798.50.  There was also landscaping expenses of $2,337.55.  These were charges incurred to restore landscaping damaged during the repairs to the building envelope.  The remaining claims are for repair costs incurred at the time of the initial leaks.

[36]         There are two significant and related issues with respect to the damage claim.  First, Mr. Kuun argues that Ms. Madalena replaced the windows because she wanted to install a higher quality window than she purchased when the Home was built.  Second, he says that the remediated building is of a higher quality than that which Ms. Madalena contracted to buy.  He argues that she should not receive the full value of the repairs as that would give her something better than what Mr. Kuun was contracted to build.  I will consider each of these arguments in turn.


[37]         There is no question that the windows purchased from Vera-De were a significant upgrade to the windows installed at the time of the original construction.  Ms. Madalena indicated that she wanted to replace the windows because many of them did not open properly.  There was no evidence that tied the malfunction of the windows to the water ingress problems or any construction defect.  I infer that the windows did not function properly simply because they were of poor quality.  Major Ferguson confirmed that C.E.S. was retained to upgrade the windows.  In his letter of February 5, 2008, he stated that his firm was “contracted in October 2006 to remove the old windows and replace with a better quality window”.  Ms. Madalena agreed in cross-examination that the decision to replace the windows was made before there was any perceived need to replace the building envelope.  She agreed that the new windows were “quite an upgrade” to what were originally installed.

[38]         In these circumstances, I have no hesitation in concluding that the decision to replace the windows with higher quality windows was unrelated to the water ingress problem.  Ms. Madalena decided to upgrade the windows in the Home.  The windows would have been replaced even if there was no problem with the building envelope.  Ms. Madalena decided to replace them because she wanted windows of better quality.  The replacement of the windows was not caused by the water ingress.  Accordingly, the cost of the new windows is not recoverable as damages.


[39]         A more difficult question given the evidence in this case is whether the damage award should be reduced because Ms. Madalena received a better quality building as a result of the replacement of the building envelope.  I have noted above that the building was constructed in a cost effective manner to achieve the largest possible floor area at the least cost.  There is no question that the decisions made throughout the construction were motivated by cost.  I conclude that Ms. Madalena would not have spent the funds necessary to install a rain screen in 1998 had she been given that option.

[40]         The rain screen system installed by C.E.S. is a more expensive building envelope system than the face-sealed stucco finish used at the time of construction.  It is a better system than that for which Ms. Madalena contracted and was prepared to pay.  However, there was no direct evidence establishing the cost differential of the rain screen system.  The question that arises here is whether Ms. Madalena should be entitled to the full cost of repair given my finding that the Home was negligently designed and built, and my finding that the rain screen design employed in the reconstruction represents a betterment to her.  The question is complicated by the lack of evidence of the amount of the betterment.

[41]         Historically, the case law regarding the effect of betterment on the assessment of damages has been split, particularly where the sole basis for the betterment was that the plaintiff was receiving new property in the place of older property.   Recently, however, the B.C. Court of Appeal in Laichkwiltach Enterprises Ltd. v. F/V Pacific Faith (Ship), 2009 BCCA 157, affirmed that damages can be reduced when restoration or repair increases the value of a plaintiff’s property.  Mr. Justice Low stated at para. 36:

Betterment is a question of fact to be determined on the evidence and with regard to what is reasonable in the particular case.  The starting point is the cost of repair.  In some cases, that cost will also be the end point.  In other cases, betterment will be proven and it will fall to the trier of fact to assess the extent of the betterment.

[42]         The situation in Laichkwiltach was somewhat different; in that case, the defendant negligently damaged the plaintiff’s boat and the necessary repairs enhanced the overall condition of an older boat in need of some repair.  In the present case, the defendants negligently constructed the plaintiff’s house and the necessary repairs resulted in Ms. Madalena receiving something better than that which she contracted to buy.  However, the general principle in Laichkwiltach – that a court can use betterment in assessing damages – still applies.  The same principle has been applied in cases involving negligent construction where courts have reduced damages on the basis of betterment:  Reed v. Garbutt, [2003] O.J. No. 4201 (S.C.J).  As a result, I consider it appropriate in this case to reduce the damages on the basis of betterment.

[43]         The only damages claimed by Ms. Madalena that could be subject to a betterment reduction would be those spent on the installation of the new rain screen and fibre siding.  This is a portion of the C.E.S. costs.  It is only a portion of those expenses because C.E.S. did both the demolition of the old system as well as the installation of the new system.  None of the other expenses – for landscaping, stucco, leak repair and site investigation – incurred by Ms. Madalena resulted in any betterment to her.

[44]         The onus is on Mr. Kuun to prove betterment.  I find that he has met the burden to show that Ms. Madalena has received, as a result of the repair work, a better quality home that is more valuable than that which she contracted to acquire.  However, Mr. Kuun has not presented sufficient evidence to establish the exact amount of that betterment.  In these circumstances the choice I have is to either award the full amount of the damages or reduce the award by estimating the extent of the betterment.  The former will result in overcompensation to Ms. Madalena.  The latter approach will produce a result that may or may not be correct.  Given these two alternatives, the latter approach is preferable.  Bearing in mind that there is a possibility that Ms. Madalena could be undercompensated by this approach, the amount applied as a reduction for betterment should be modest.  Accordingly, I find that the rain screen envelope represents a betterment of $7,500 or roughly 10% of the total cost of the C.E.S. work.

[45]         In summary, the damages recoverable for the negligent design and construction of the Home are $102,717.63.

Issue 4.        What is the apportionment of fault between the parties and Tim Crisp?

[46]         Having concluded that both Mr. Kuun and Mr. Crisp were at fault in designing and constructing the Home and that Ms. Madalena was at fault in her maintenance of the Home, I must determine the apportionment of fault pursuant to the provisions of the Negligence Act, R.S.B.C. 1996, c. 333.

[47]         In Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.), Lambert J.A. set out the proper approach to apportionment of fault at para. 19:

The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”.  It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage.  So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness.  So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances.

[48]         In Aberdeen v. Langley (Township), 2007 BCSC 993, at paras. 62-63, Groves J. provided a helpful review of the factors that should be taken into account to determine the amount by which the conduct of the parties fell short of the standard of care required in the circumstances:

[62]      Thus, fault is to be determined by assessing the nature and extent of the departure from the standard of care of each of the parties.  Relevant factors that courts have considered in assessing relative degrees of fault were summarized by the Alberta Court of Appeal in Heller v. Martens, supra, at ¶ 34 as follows:

1.   The nature of the duty owed by the tortfeasor to the injured person…

2.   The number of acts of fault or negligence committed by a person at fault…

3.   The timing of the various negligent acts.  For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault…

4.   The nature of the conduct held to amount to fault.  For example, indifference to the results of the conduct may be more blameworthy…  Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis…

5.   The extent to which the conduct breaches statutory requirements.  For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy…

[Authorities omitted.]

See also Vigoren v. Nystuen, supra, at ¶ 90 (summarizing these same factors).

[63]      Many of the above-noted factors are discussed in Chiefetz, Apportionment of Fault in Tort, supra, at pp. 102-104.  Considering that, I conclude it would be appropriate to add the following as relevant factors:

6.   the gravity of the risk created;

7.   the extent of the opportunity to avoid or prevent the accident or the damage;

8.   whether the conduct in question was deliberate, or unusual or unexpected; and

9.   the knowledge one person had or should have had of the conduct of another person at fault.

[49]         Applying those factors to the circumstances of the present case I apportion liability 75% to Mr. Kuun, 15% to Mr. Crisp and 10% to Ms. Madalena.  Below I set out some of the factors I have taken into account for each of the parties.

Mr. Kuun

[50]         Mr. Kuun must bear the largest portion of the fault.  The duties owed by a designer/builder to his client are well understood.  Mr. Kuun was responsible for ensuring that the design and construction of the Home conformed to the building standards of the day.  Ms. Madalena, as the purchaser of the Home, expected that the Home would be reasonably fit for habitation and would not be subject to leaks shortly after it was constructed.  Mr. Kuun breached his duty to her in a number of ways:  there were several design flaws as well as problems with construction.  The negligent design is the most blameworthy fault because without it, the impact of the subsequent construction and maintenance breaches on the integrity of the Home would not have been so serious.  Quite simply, the gravity of the risk created by the design faults was much greater than what was created by the other breaches.  In addition to the design faults, he also personally performed some of the inadequate construction work.  As a result, he is responsible for the majority of the faulty work that led to the water damage.

Mr. Crisp

[51]         As a stucco contractor Mr. Crisp knew that the design required the building envelope to be impermeable and that, in order to accomplish this, the window and door openings had to be properly sealed and flashed.  His failure to properly carry out these fundamental tasks significantly increased the risk of building envelope failure.  As I noted above, the defective construction of the face-seal system would ultimately have led to a need for repairs even without the gutter system design, construction and maintenance breaches.

Ms. Madalena

[52]         The failure to properly maintain the gutter system, along with the poor design and construction of that system, significantly increased the risk of leakage.  The failure of the gutter system caused the worst leaks as well as the damage to the portico and much of the damage to the sheathing and structural members.  While the design and construction errors preceded the negligent maintenance, Ms. Madalena was given detailed warnings and advice about possible solutions.  She knew from experience, after the first leak in the Home, the likely consequences of failing to maintain the gutters.   In spite of the specific warnings and instruction she did nothing to prevent the damage which she knew was imminent.   As I have already mentioned, her negligence meant that there was much more damage to the Home than there otherwise would have been.  In addition, the repairs to the Home were required much sooner than they would have been if she had heeded the advice and maintained the gutter system.


[53]         I have concluded that Mr. Kuun was negligent in the design and construction of the Home.  His failure to design and build in accordance with the standards of the day resulted in a building that was susceptible to water ingress.  I also have concluded that the stucco work performed by Mr. Crisp was done negligently.  The failure to properly seal and flash the windows and doors was an additional cause of the water ingress.

[54]         As a result, I find both Mr. Kuun and Mr. Crisp liable for the reasonable cost of repairs to the Home.  The replacement of the original windows with significantly better windows was unrelated to the water ingress problem and is not recoverable as a cost of repair.  In addition, the replacement of the face-sealed stucco building envelope with a rain screen amounts to betterment such that the full cost of that repair is not recoverable.  The reasonable cost of the repairs after deduction of the cost of the windows and the betterment is $102,717.63.  Ms. Madalena is also entitled to prejudgment interest.

[55]         Finally, I have concluded that Ms. Madalena was contributorily negligent in failing to properly maintain the Home.  Liability is apportioned between the parties in the following amounts:  75% to Mr. Kuun, 15% to Mr. Crisp and 10% to Ms. Madalena.

[56]         Subject to any submissions the parties wish to make regarding settlement offers, costs will be payable at Scale B in the same proportion as each party’s respective liability:  Negligence Act, s. 3(1).

“Butler J.”