Brian Martin ordered a piece of cheesecake at the Travelodge in Melfort, Sask. Being allergic to nuts, he asked if the apple caramel cheesecake contained any. No, replied Georgina Geddes, the waitress. As it turned out, there was a walnut in the cheesecake, Martin went into anaphylactic shock and he had to be rushed to hospital.
Currie J of the Sask. QB concluded that Geddes (and by extension the owner of the motel) were liable in negligence and negligent misrepresentation: Martin v Interbooks Ltd, 2011 SKQB 251 [Link available here].
The defendants were also liable for injuries sustained through breach of warranties of fitness for purpose under the Consumer Protection Act and the Sale of Goods Act. Martin had communicated his purpose to consume nut-free cheesecake; Geddes and the motel-owner therefore supplied the cheesecake on the basis that it would be reasonably fit for that purpose, which it wasn’t. Martin got $25K for pain and suffering, $1.5K for medical expenses and pre-judgment interest.