IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111214

Docket: S088168

Registry: Vancouver

Between:

Allan James Scott Burgess

Plaintiff

And:

Buell Distribution Corporation, Buell Motorcycle
Company,

636221 B.C. Ltd., doing business as
Barnes Harley-Davidson/Buell,

XYZ Companies, John Doe 1, John Doe 2,
John Doe 3, and

Harley-Davidson Motor Company Group,
LLC and

Fred Deeley Imports Ltd., carrying on
business as

Deeley Harley-Davidson Canada

Defendants

And:

Harley-Davidson Motor Company Group,
LLC,
Fred Deeley Imports Ltd., carrying on business as
Deeley Harley-Davidson Canada

Third Parties

Before: The Honourable Mr. Justice
Cullen

Oral Reasons for Judgment

[1]            
THE COURT:  This is an application for the
following relief:

1.         The
Defendant HARLEY- DAVIDSON MOTOR COMPANY GROUP, LLC ("HDMC"), through
its representative Lance Onan, will submit to an examination for discovery at
the offices of Coast Reporting 1101 – 808 Nelson Street, Vancouver, B.C. at
10:00 a.m. on Tuesday, November 29, 2011 or such other time and date as may be
convenient for Mr. Onan and counsel for the Plaintiff to

2.         a.         answer
the questions attached as Schedule “A” and to answer any questions arising from
those questions, and

b.         to continue the examination for
discovery which was adjourned on November 15, 2011.

3.         The
length of the examination which is the subject of this order must not exceed 7
hours in duration, excluding the length of the examination Mr. Onan which took
place on November 15, 2011, or any period to which the Defendant HDMC consents,
subject to any further court order.

4.         The costs of and incidental to
the attendance of Mr. Onan at the examination for discovery which is the
subject of this order, and the costs of and incidental to this motion, are
payable by the Defendant HDMC to the Plaintiff in any event of the cause.

[2]            
The action arises
out of a single vehicle accident on Highway 99 in Delta. The vehicle was a
motorcycle with a sidecar. The plaintiff was the operator and sole rider of the
vehicle. The defendant is the manufacturer.

[3]            
This application
arises out of conceptual differences between the plaintiff and the defendant as
to the vehicle at issue in this action.

[4]            
From the
plaintiff’s perspective, the vehicle is an amalgam of a motorcycle, a sidecar,
and a mechanism connecting the two, including a hydraulic steering damper
designed to alleviate problems arising from wobbling when the vehicle was in coast
down mode and the driver’s hands off the handlebars.

[5]            
From the
defendant’s perspective, the vehicle is a discrete three-wheeled vehicle with
handling characteristics not shared by a two-wheeled vehicle.

[6]            
The plaintiff’s
notice of claim as amended implicates all three of the component parts of the
motorcycle’s sidecar vehicle as causative of the accident asserting, in part,
as follows:

10. At all material times the Defendants
HDMC were in the business of designing, manufacturing and selling motorcycles,
motorcycle parts and accessories ("HDMC  Products"), for distribution
and sale to consumers such as the Plaintiff through their authorized dealers in
Canada, including British Columbia, the U.S.A. and other countries.

13. At all material times the Defendants
HDMC and
XYZ COMPANIES and each of them, designed, engineered and manufactured the_,
following HDMC Products:

a.    
a
Harley-Davidson Touring motorcycle in the 2004 model year, serial number
5HD1FCW164Y618622, (the "Motorcycle");

b.    
a
motorcycle sidecar, serial number 1HD8SKX104T010151 (the
"Sidecar")

c.     
a
sidecar attachment kit to be used to install the Sidecar on the Motorcycle (the
"Sidecar Kit")

d.    
a
hydraulic steering damper which was part of the Sidecar Kit or, in the
alternative, sold separately as part of a steering damper kit (the
"Steering damper")

The
Motorcycle, Sidecar, Sidecar Kit and Steering Damper will be referred to
collectively as "the Products"

17. In March 2004, the Defendants DEELEY
and BARNES HARLEY, or either of them,  set up the Motorcycle and
the Defendant BARNES HARLEY installed the Sidecar on the Motorcycle using the
Sidecar Kit and Steering Damper (the "Assembled Motorcycle")

21. On or about the 15th day of May 2007
on Highway #99, in the southbound lane south of Highway #17, Delta, British
Columbia the Plaintiff was operating the Assembled motorcycle at a
highway speed, which had been designed, engineered and manufactured by
the Defendants, HARLEY DAVIDSON MOTOR COMPANY GROUP, LLC, BUELL DISTRIBUTION
CORPORATION, AND BUELL MOTORCYCLE COMPANY, XYZ COMPANIES and each of them, and
distributed, serviced and maintained in Canada by the Defendant, BARNES HARLEY
when the Assembled Motorcycle and/or Products malfunctioned causing the
Assembled Motorcycle to begin it began vibrating and shaking, and
unsafely performing with wobble and/or weave instability causing the
Plaintiff to lose control of the handling of the Assembled Motorcycle,
and causing the Assembled Motorcycle to collide with the centre median
(hereinafter referred to as the "Accident").

22. The Defendants, and each of them,
knew, or ought to have known, that under reasonably foreseeable use there was a
risk that the following products could develop wobble and/or weave instability,
or loss of stability or steering control, creating a risk or danger of serious
injury or death to users such as the Plaintiff:

a)    the FLHTCUI model
and related models in the "touring motorcycle" class or product line
designed or manufactured by HDMC including, but not limited to, those equipped
with sidecars installed on motorcycles during or after manufacture;

b)    motorcycles equipped
with sidecars in the model line of the Sidecar or in model lines or classes
similar to the Sidecar;

c)     motorcycles equipped
with sidecars installed using the Sidecar Kit product line or similar product
lines; and

d)    motorcycles and/or
sidecars equipped with steering dampers in the model line of the Steering
Damper or similar steering damper model lines

23. The Defendants, and each of them, owed
the Plaintiff a duty of reasonable care, including a duty to warn the
Plaintiff about dangers involved in the use or operation of the Assembled
Motorcycle and the Products when the Defendants knew, or ought to have known,
of those dangers.

25. The Products and the
Assembled Motorcycle product at the time they it left the
hands of the Defendants, and each of them, was were defective and
unreasonably dangerous for its the intended use and at all
material times the Defendants, and each of them, knew or ought to have known
that persons who utilized the Products produce were exposed to an
unacceptable risk due to the motorcycle’s propensity to of danger
that the defects could impair or interfere with the drivers’ ability to
maintain control of the Assembled Motorcycle.

26.
Notwithstanding
the said knowledge by the Defendants, and each of them, of the defect in the Products
and the Assembled Motorcycle product, the Defendants, and each of
them, continued to promote, advertise and sell the Products and the
Assembled Motorcycle product to the consuming public without warning
owners and users of the product’s defective and unreasonably dangerous
characteristics and their substantial exposure to serious harm caused by
the dangers in the use of the Products and the Assembled Motorcycle,
without recalling the Products and the Assembled Motorcycle product
for modification to alleviate the defective qualities, and without adequately
instructing owners and users of the Products and the Assembled Motorcycle product concerning possible precautions and
safety measures which were peculiarly within the knowledge of the Defendants,
and each of them.

27.
The said Accident was caused or
contributed to solely and entirely by the negligence and breach of
duty of the Defendants HDMC and XYZ COMPANIES, and each of them,
the particulars of which include:

(a) 
In failing to take reasonable care to
design and manufacture the Products designing and manufacturing a motorcycle
so that would impair or interfere with the driver’s ability to maintain
control of the Assembled Motorcycle would not be impaired or interfered with thereby
causing the driver to lose control;

(b) 
in failing to adequately, or at all, warn
the Plaintiff, or other members of the public, that the said Assembled
Motorcycle could impair or interfere with the driver’s ability to maintain
control of the handling of the Assembled Motorcycle thereby causing the
driver to lose control;

(c) 
in designing, engineering and
manufacturing a defective product, in particular the Products and the
Assembled Motorcycle not fit for its intended purpose and not fit for its
intended use;

(d) 
in failing to instruct the said Plaintiff
or other members of the public on how to safely ensure the Assembled
Motorcycle and the Products motorcycle would not impair or interfere
with the driver’s ability to maintain control;

(e) 
in failing to recall the defective Products
product for modification to alleviate the defective qualities;

(f)   
in improperly maintaining and
servicing the Motorcycle, including providing substandard goods and services

(f)   
failing to conduct reasonably sufficient
testing and inspection of the Products including testing during and after the
design of the Products and, in particular, testing and inspection for wobble
and/or weave instability including testing without a steering damper;

(g) 
failing to respond appropriately to
testing and inspection results by making design changes of the following products
separately, or in combination,:

the HDMC Products,
including the Sidecar, Sidecar Kit, and Steering Damper, designed and
manufactured for installation on, or use with, the FLHTCUI model and related
models in the "touring motorcycle" class or product line including
the Motorcycle;

(h)    failing to adopt, or in the alternative to adhere to,
a reasonable system for collecting, assessing and responding to information or
complaints made prior to the Accident  of incidents of wobble and/or weave
instability, or loss of stability, handling or steering control of:

(i)   the
FLHTCUI model and related models in the “touring motorcycle” class or
product line designed or manufactured by HDMC including those equipped with
sidecars installed on motorcycles during or after manufacture; and,

(ii) motorcycles
equipped with sidecars in the model line of the Sidecar or in model lines or
classes related to the Sidecar.

(iii) motorcycles
and/or sidecars equipped with steering dampers in the model line of the
Steering Damper or in model lines or classes similar to the Steering Damper.

(i)       
failing to warn consumers such
as the Plaintiff of the risk that the handling and performance of the Assembled
Motorcycle could be adversely affected in the absence of a steering damper, or
by a worn or malfunctioning steering damper, if the Assembled Motorcycle was
operated at highway speeds when these Defendants knew or ought to have known of
that potential danger;

(j)       failing to warn consumers such as the Plaintiff  of
reasonably safe service, inspection and replacement intervals for the Products,
in particular the Steering Damper, when the proper functioning of the Products
enabled the operator to maintain safe handling of a motorcycle and when these
Defendants knew, or ought to have known, that operating the Assembled
Motorcycle if the Products were worn, broken, defective, or improperly adjusted
this could result in death or injury of the user;

(k)     failing to warn consumers such as the Plaintiff of the
signs of wear, potential or actual malfunction or failure of the Products which
could lead to wobble and/or weave instability and the steps that ought to be
taken if those signs were present.

[7]            
It is on the
footing of those pleadings and allegations that the plaintiff sought to examine
the defendant’s representative on the following questions:

1.         At the time that the
Defendant HDMC was engaged in the design process for the Burgess motorcycle
model, sidecar model and sidecar kit model, what internal design standards
relating to the handling characteristics with respect to safety did HDMC have
for two-wheeled motorcycles?  [page 89, lines 21-25; page 90, lines 1-5; page
91, lines 1-25; page 92, lines 1-11]

2.         Is wobble or weave
instability something that can affect the handling of a motorcycle?  [page 94;
lines 1-22]

3.         Did any of the
Harley-Davidson design standards relate to the steering control of touring
motorcycles?  [page 95, lines 20-25; page 96, lines 1-21]

4.         Did Harley-Davidson have
internal design standards relating to wobble in two wheeled touring
motorcycles?  [page 97, lines 2-14]

5.         Did Harley-Davidson do
wobble testing for two-wheeled motorcycles?  [page 97, lines 20-25]

6.         Did Harley-Davidson
motorcycles experience oscillation of the steering assembly relative to the
body of the motorcycle at speeds of 50 miles an hour or greater?  [page 145,
lines 19-25; page 146, lines 1-3]

7.         Did Harley-Davidson touring
motorcycles experience oscillation of the steering assembly relative to the
body of the motorcycle at speeds of 50 miles an hour or greater?  [page 146,
lines 4-25; page 147, line 1]

8.         Does
Harley-Davidson have a definition that it uses to describe or identify the
oscillation of the steering assembly relative to the body of the motorcycle at
speeds greater than 30 miles an hour?  [page 147, lines 22-25; page 148, lines
1-8]

[8]            
The defendant in
response, and in keeping with its concept of the motorcycle sidecar as a
characteristically discrete vehicle, takes the position that the questions
which the plaintiff wished to pose to the defendant’s representative were
irrelevant insofar as they related to the characteristics of a two-wheeled
vehicle as opposed to a three-wheeled vehicle.

[9]            
In its response to
the plaintiff’s application, the defendant submits as follows:

Questions
asked at an examination for discovery must be relevant to the matters in issue.
The accident involved a three-wheel vehicle. The handling characteristics of
two-wheel and three-wheel vehicles are significantly and fundamentally
different. At page 4 of his expert report which is Exhibit A to Valerie Winters’
second affidavit at Tab 4 of the binder, Mr. Ezra (Mr. Ezra is plaintiff’s
expert in this action) says that

A
motorcycle that is equipped with a sidecar is no longer a powered single track
vehicle which is the proper technical designation of a motorcycle with no side
car. An MCSC (motorcycle sidecar) is a specific vehicle that should not be
thought of as a motorcycle. In the MCSC configuration a steering input results
in forces between the tire and the road that cause the vehicle to move to the
right or to the left which is much more akin to the steering dynamics of a car.

Questions
about the handling characteristics of a two-wheel vehicle are irrelevant.

In his third
affidavit at paragraph 6, Mr. Ezra says that the steering assembly to
Harley-Davidson motorcycles with sidecars are identical to the steering
assemblies of solo motorcycles and he is incorrect. Harley-Davidson motorcycles
with sidecars have steering dampers (see Brendelson affidavit 2 at Tab 5 in
this binder, para. 3(a)). See also Mr. Ezra’s expert report at page 7, second
paragraph, which is Exhibit 8 of the December 13th, 2011 affidavit of Valerie
Winters at Tab 4 of this binder.

In
this third affidavit at paragraph 8, Mr. Ezra says that oscillations and
wobbles of the steering mechanism on Harley-Davidson motorcycles with sidecars
are identical to oscillations or wobble of the steering mechanisms on solo
motorcycles and he is incorrect. Riders of Harley-Davidson motorcycles in
ordinary trim do not experience wobble at highway speed (see Brendelson
affidavit 2 at Tab 5 in this binder, paragraph 6).

[10]        
The parties agree
that the operative rule is Rule 7-2(18)(a) which reads as follows:

(18)      Unless
the court otherwise orders, a person being examined for discovery

(a)
must answer any question within his or her knowledge or means of
knowledge regarding any matter, not privileged, relating to a matter in
question in the action ….

[11]        
The plaintiff
takes the position that it is the pleadings which determine the issues and
hence the question of relevance citing the decision of the British Columbia
Court of Appeal in Cominco Ltd. v. Westinghouse Canada Ltd., [1979]
B.C.J. No. 1963.

[12]        
The plaintiff says
the Court on an application such as this ought not to consider evidence in
rendering a decision as to do so prejudges the effect of the examination for
discovery and usurps the role of the trial judge.

[13]        
The defendant on
the other hand says the only way to determine relevance within the meaning of
the Rule is to consider what the available evidence is likely to establish. The
defendant says if I consider the evidence of its expert it will establish that
the questions concerning the characteristics of a two-wheeled vehicle are
simply not relevant to the characteristics of a three-wheeled vehicle and
should not be permitted under the Rule.

[14]        
The plaintiff on
the other hand submits that even if I do consider the evidence the question is
simply not so clear cut that I could make a determination without effectively
usurping the role of a trial judge.

[15]        
As I see it, this
is not a case where it could be said that on the pleadings there is no
relevance to the questions being posed. As Seaton J.A. pointed out in West
Coast Transmission:

It
is not appropriate to plead evidence and the information respecting these other
cables is essentially evidence from which the Court will be asked to conclude
that the defendants knew or ought to have known of a danger. The respondents
relied upon an affidavit to the effect that evidence of non-tech cable would
not be a guide to the propensities of tech cable. The respondents refused to
answer questions on that subject. I do not think it appropriate to conclude on
affidavit evidence that a proposition is unsound and exclude the area from the
examination. That is what was done here. It was said then that before there
could be examination with respect to cable other than tech cable the appellant
would have to establish that the other cable was similar. I know of no
procedure whereby a party can prove an aspect of his case before discovery. The
decision on similarity ought to be made at trial, not before trial, and
particularly not before discovery.

[16]        
In my view, on
that basis the order sought should go. If I am wrong in that however, I am
still not satisfied having considered the evidence put before me that there is
not some relevance to the questions being posed. There is a difference between
the views of the experts as to the possible cause of the accident and whether
it resides exclusively in the characteristics of the vehicle as a three-wheeled
vehicle or whether it has its source in the component parts of the two-wheeled
vehicle. And that is a question essentially for the trial judge.

[17]        
In his affidavit
of December 12, 2011, the plaintiff’s expert deposes as follows in para. 6:

6.         The
steering assembly of the Harley-Davidson motorcycle sidecar is identical to
that found on the solo motorcycle. The underlying steering assembly response of
the base solo motorcycle will behave in the same manner as that same unit will
respond when attached to the motorcycle sidecar. This is because they are
exactly identical mechanical devices. What will be different is the level of
the response of the solo motorcycle vehicle compared to the level of response
of the motorcycle sidecar vehicle and the path each vehicle takes due to
shaking (oscillations) of the steering assembly once that shaking is initiated.

[18]        
While I do not in
any way wish to be taken as resolving the issue which undoubtedly is a very
complex one, I am simply not able to say that the characteristics of some components
of the two-wheeled vehicle as revealed by the questions posed may not be
germane to the effect upon the three-wheeled vehicle at issue in this lawsuit
and, accordingly, for those reasons, I will grant the application of the
plaintiff.

“The Honourable Mr. Justice Cullen”