IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120927

Docket: S096203

Registry:
Vancouver

Between:

Stephen Robert Pennock,
SRP Adventure Tours Limited and the said SRP
Adventure Tours Limited d.b.a. Fantasy Balloon Charters and
Despen Enterprises Limited

Plaintiffs

And

Aerostar
International, Inc., Raven Industries, Inc.,
Adventure Flights Inc., and Jim Bilbrey

Defendants

And

Doug
Scott

Third
Party

Before:
The Honourable Mr. Justice Bowden

Reasons for Judgment

I.                
INTRODUCTION

[1]            
These proceedings arise from a tragic hot air
balloon fire that occurred on August 24, 2007, in Surrey, British Columbia.
In this action the pilot is seeking damages for personal injuries that he says
resulted from the negligence of the manufacturer of the balloon.

[2]            
The parties agree that the fire started as a
result of the failure of a fuel line or fuel hose used in the balloon which led
to the uncontrolled release of propane and an intense fire in the gondola of
the balloon.

[3]            
The plaintiffs’ position is that the accident
resulted from the improper assembly of the fuel line by the defendant Aerostar and/or
by Aerostar’s unsafe design of the balloon’s propane system.

[4]            
The defendants submit that the plaintiffs cannot
establish that the fuel hose was defective when it left the factory, and that
the plaintiff’s misuse of the hose caused it to fail.

[5]            
In these reasons the “balloon” refers to the
entire aircraft including the basket or what is referred to in the industry as
the “gondola,” and the balloon itself, which is referred to in the industry as
the “envelope.”

II.              
Issue

[6]            
The issue is whether the failure of the fuel
line and fire resulted from the negligence of Aerostar in assembling the fuel
line and/or designing the fuel system for the balloon.

III.            
Background

[7]            
The balloon flight on August 24, 2007,
began like many other flights that the plaintiff had piloted. He was an
experienced pilot with over 2,000 hours of flying time in a hot air balloon
without a previous accident or any injury to a passenger. The passengers
gathered at the launch site about 6:00 p.m. They signed waivers and the
plaintiff checked their weight to ensure that the total weight of the
passengers was within the capacity of the balloon.

[8]            
The balloon is described as a Raven S-77A and is
registered with Transport Canada as C-GTRU. The envelope was manufactured by
the defendant, Raven Industries Inc. (“Raven”), in 1983. Following the transfer
of Raven’s balloon division to a subsidiary, the defendant Aerostar
International, Inc. (“Aerostar”), assumed the responsibilities of the balloon’s
type certificate holder as regulated by Transport Canada. A type certificate
specifies the operating parameters of the balloon under the applicable
regulations. The remainder of the balloon, including what is referred to as an
RB12 gondola, was manufactured or assembled by Aerostar.

[9]            
The gondola was designed to carry a pilot and up
to 12 passengers. It contained a pilot’s compartment and four passenger
compartments.

[10]        
The balloon is launched and kept aloft by heat
introduced into the envelope from an HPIII Triple Burner located above the
pilot’s compartment. The burner is fuelled with liquid propane from the fuel
tanks standing in the gondola.

[11]        
At the time of the fire there were three 23-gallon
or V23 propane tanks and one 15-gallon or V15 propane tank on board. Two of the
V23 tanks were connected by a fuel line to two burners near the front of the
gondola. Their valves were closed. The V15 tank was connected by a fuel hose to
a burner near the rear of the gondola. Its valve was open.

[12]        
The V15 fuel hose consisted of a length of what
is referred to as SS25UL hose with metal fittings at either end. The burner end
of the V15 fuel hose had a swivel fitting. The tank end had a male pipe fitting
and was referred to as a “field attachable fitting.” The V15 hose and its
fittings were manufactured by Parker Hannifin Corporation (“Parker”). Aerostar
assembled the V15 hose and fittings. Part of the assembly process involved the
insertion of the hose into one end of the fitting at each end of the hose. The
user of the assembled hose is then able to connect and disconnect the hose from
the tank and burner, as appropriate for the fitting, using the other end of the
fitting. The fitting at the tank end or the field attachable fitting is
threaded in the area where the hose is inserted into it during assembly.

[13]        
In preparation for launching the balloon, the
plaintiff and his crew carried out the inflation process. This process started
with a large fan blowing ambient air into the envelope. Next, a 10-gallon
propane tank was connected to a burner and used for hot inflation. The envelope
then rose to a vertical position and the gondola moved from lying on its side
to an upright position.

[14]        
The plaintiff then boarded the gondola. The
passengers were directed to get on board by another employee. The plaintiff
said that he only noticed eight people getting into the gondola but understood
that more people got on board. The plaintiff then disconnected the 10-gallon
tank and an employee took it from the gondola.

[15]        
The plaintiff next connected the V15 tank and
continued with the pre-flight inflation. He connected the fuel line from that
tank to a burner. He ignited the pilot light in the burner and initiated a
short burst of fuel that resulted in what he described as a “good blast of
flame.” He then began a “full burn” which produced a flame high into the
envelope. After that burn, as the plaintiff released the trigger mechanism, he
described hearing a loud sharp release of pressure which he described like the
sound of a truck releasing its air brakes. He looked up at the flame and then
heard an explosion on his right side. He heard gas escaping, felt vapor around
him and smelled propane. He felt a spray of fuel coming up beside his face. He
said he tried to turn off the pilot light but did not reach the switch before
the fuel ignited in the air around him and the passengers. The plaintiff
described it like being hit in the face with a blowtorch. He said he was
stunned and blinded. He yelled to the passengers to get out of the gondola. He said
that he reeled back in his compartment and fell out of the back of the gondola.
He did not immediately see what was happening to the passengers.

[16]        
When the plaintiff fell, he was burning, so he
rolled on the ground. He then saw the balloon and gondola rising off the ground.
The gondola was engulfed in flames. The line tethering the gondola to a truck
trailer broke and the balloon continued to rise. He noticed passengers
jumping from the gondola to the ground. Eventually, when the envelope had been
consumed by fire, the gondola fell hundreds of feet to the ground into a
trailer park.

[17]        
Apart from the plaintiff, there were 12
passengers. As a result of the fire and balloon failure many of them were
seriously injured and two died.

[18]        
The evidence establishes that when the plaintiff
activated the valve on the V15 tank for the second time, the V15 fuel hose
separated from the fitting at the tank end, allowing liquid propane to spray
uncontrollably around the gondola and ignite. The V15 fuel hose was seen by
some to whip around inside the gondola. This resulted from the release of
propane under pressure in the fuel hose. Propane also escaped from the tank
fitting where the fuel hose had been attached.

IV.           
Expert Evidence

[19]        
Gilles Amirault, a professional engineer with
expertise in mechanical engineering and forensic analysis, provided the Court
with his opinion as to how the failure of the V15 fuel line likely occurred.

[20]        
Mr. Amirault concluded that it is very likely
that the fire resulted from a rapid propane gas escape caused by a line
disconnection somewhere along the propane flow path from the tank valve to the
connection at the burner. He opined that it is very likely that the initial
connection failure was the pullout of the hose from the fitting at the tank
end.

[21]        
He noted that there was limited physical
evidence from the failure. Most of the material had been destroyed by the fire.
As a result, he said there were numerous ways in which the fuel line could have
failed and listed some of them to be as follows:

1)    A flaw within the line at the fitting end which grew around the
circumference of the line.

2)    The threaded fitting insert fractured as a result of reasonable or
unreasonable stresses causing a circumferential crack in the insert.

3)    The hose was improperly installed in that it was not installed with
the required depth of engagement into the fitting such that through continuous
use and handling the hose worked its way out of the fitting.

4)    The fitting was manufactured with a defect, either geometrical or
metallurgical, resulting in a premature failure of the fitting.

5)    The hose and fitting were subjected to higher external stresses than
those for which it was designed by the manufacturer. Such stresses could be
caused by bending the hose at the fitting connection and exceeding the minimum
bend radius or pulling on the hose with excessive force. (In these reasons I
will refer to these as “Excessive Stresses”).

6)    The threaded fitting insert was not properly positioned either from
an original installation problem or from repeated use such that the threaded
insert was partially unthreaded.

[22]        
Mr. Amirault said that each of the potential
ways that he described as how the line could have failed was unlikely; however,
he opined that based on his review of the published literature and his
analysis, from a statistical standpoint, the most likely of the potential
causes were that the hose was improperly installed onto the fitting or that the
hose was subjected to Excessive Stresses. He was not able to say whether one of
these causes was more likely than the other.

[23]        
Peter Senez testified. He is a professional
engineer who specializes in fire protection engineering. He has experience with
propane and other flammable gases and liquids both from a design standpoint and
in terms of forensic analysis. He conducted a forensic analysis of the wreckage
of GTRU and considered the adequacy of the design of the propane system from a
fire safety prospective. While he has experience with propane fuel systems he
does not have any experience in relation to fuel systems used in hot air
balloons. Nor does he have any expertise in relation to aeronautical
engineering or aviation. As a result, I ruled that I would not accept those
aspects of his expert report that I considered to be outside his area of
expertise.

[24]        
The plaintiffs rely in particular on the aspects
of Mr. Senez’ report which relate to the need for a fail-safe device in a hot
air balloon like GTRU. In a ruling regarding Mr. Senez’ areas of expertise
I said that I would give little, if any, weight to his opinion regarding the
need for a failsafe device in a hot air balloon. The evidence satisfies me that
there are numerous considerations involved in determining whether a particular
fire safety mechanism is suitable for use in a hot air balloon, but many of
those considerations require experience with the design of hot air balloons
that Mr. Senez did not have.

A.             
The V15 Propane Tank

[25]        
The plaintiff, Mr. Pennock, testified that he
acquired the V15 tank so that he would have the maximum fuel on board when he
launched. By using fuel from the V15 tank he could bring the envelope up to the
necessary lift temperature without using fuel from the V23 tanks. He said
that as soon as the balloon was upright and stable, he would switch to the V23 tanks
for flight. His testimony regarding the use of the V15 tank was unclear. I
understood him to say that he did not fly the balloon using the V15 tank
and said he only used it for inflation. At another point in the trial his
evidence was that he would sometimes have the V15 tank on board but I
understood him to say that he would not use it as a source of propane for the
burners. I find that while he may have occasionally had the V15 tank on board during
flight he would only use the V23 tanks to provide propane to the three burners.

[26]        
There is some question as to whether the flight
manual produced by the defendant, Aerostar, approved of the use of three V23
tanks and a V15 tank on board while the balloon was in flight. In view of the
conclusions that I have reached in this case I do not find it necessary to
determine if the V15 tank on board together with the three V23 tanks was a
permitted configuration and, if not, to what extent the presence of the four
tanks on the day of the accident contributed to the outbreak of the fire.

B.             
The V15 Fuel Hose

[27]        
An exemplar of the V15 fuel hose was filed
as Exhibit 2.

[28]        
In the expert report of Mr. Amirault, there is a
description of a V15 fuel hose. It is 97 inches in length with a fitting
attached at each end.

[29]        
The V15 fuel hose in use at the time of the
accident was put into service by the plaintiff in the spring of 2004 or about 3½
years before the accident. The plaintiff described how he would coil the V15 fuel
hose around the tank each time that he was finished using it. The tank end
fitting remained attached as the hose was coiled. He said that when the hose was
disconnected from a burner he would coil it gently around the collar at the top
of the tank and store it there until he used it again. He said that it would be
wrapped two or three times around the collar. He described the bend in the hose
when this was done as being the natural curl of the hose as it comes from the
factory. When he was doing one flight a day, the plaintiff said that he would
coil and uncoil the fuel line either four times a day, or, if he operated two
flights, eight times a day.

[30]        
The plaintiff testified that the V15 tank
was never knocked over and had no dents in it. He said that the hose would
always stay with its tank. I take him to be referring to when the V15 tank
and hose were in his possession because he also said that the V15 tank
could have hit something or the hose could have been stepped on when it was not
in his possession.

[31]        
The plaintiff described how he used the
10-gallon tank. He said that its hose was handled in the same way as the V15
hose except by different members of the crew. He said that it never failed,
even after testing by the Transportation Safety Board following the accident.

[32]        
As an example of the amount of use of the V15 fuel
hose, the plaintiff said that in 2006 he carried out about 97 flights. He
agreed that it would have been coiled and uncoiled about 580 times during
that season of flying.

[33]        
The plaintiff said that on the day of the
accident during the time it took to fill the V15 tank with propane he
inspected the hose. He said that he would have connected the male
fitting to a burner and tightened that with a wrench. He would then pressurize
the hose and look for any sign of leaking such as frost or clouding caused by
the cold propane. He would rub his hand down the hose to feel if there were any
cold spots and then sniff for any signs of propane. He also checked for any
fraying and said he did not see any. He said that he keeps the hoses in
pristine condition.

[34]        
The fuel hoses for the V23 tanks were
inside protective leather covers on the superstructure of the gondola where
they went from the tanks to the burners. The fuel hoses for the 10-gallon tank
and the V15 tank were loose and not kept under covers when they were used.

[35]        
Douglas Scott testified. He is an aircraft
maintenance engineer and qualified to inspect and repair hot air balloons. He
has over 30 years’ experience and has worked on at least 30 different
types of hot air balloons including those manufactured by Raven. He has
inspected the plaintiff’s balloon for a number of years. He testified that he
has never rejected it for not being airworthy. He has not done any repairs on
it. Any required repairs were done by a company known as Adventure Flights, a
dealer that serviced Raven and Aerostar balloons.

[36]        
Mr. Scott described the balloon GTRU as being in
pristine condition. He performed an annual inspection on it. On May 7,
2007, he did what he described as a “cold inflation” and a “hot inflation” with
the balloon fully inflated. He performed a submersion leak test on the V15 hose
using pressurized nitrogen gas up to 300 pounds per square inch. It passed.
He could not recall the V15 hose ever failing that test.

[37]        
Mr. Luis Moreiras, a professional engineer with
a degree in mechanical engineering, testified. He was previously employed by
Parker for over 30 years and became the senior engineer in Parker’s hose
products division before his retirement. Parker manufactured the SS25UL raw
hose and end fittings that Aerostar assembled into the V15 fuel line.

[38]        
Mr. Moreiras testified that over his career with
Parker he was aware of 100 to 200 hose separations occurring from all of
Parker’s hoses. Most of the assembled fuel lines that Parker produces have
crimped fittings and are not field-attachable as the one in this case. Of the
failures he is aware of, between 10 and 30 involved field-attachable fittings.
One of Parker’s plants assembles about 1,000 fuel lines each day and the
other two Parker plants produce hundreds of fuel lines per day. The total
produced would therefore be in the vicinity of 450,000 fuel lines per year.

[39]        
Mr. Moreiras said that hose separation could
occur as a result of defective manufacture of the fitting, internal threads
being flattened, a metallurgical anomaly or the improper assembly of a fitting
and hose. He also said that 25% of the fuel lines with field attachable
fittings which are examined because of pull-out can be attributed to use in the
field. He said that with respect to the V15 hose in this case, Parker has
been unable to determine why the separation or pull-out occurred.

[40]        
Of the four examples of hose failures that had
come to Mr. Moreiras for examination from Aerostar, all of the problems
arose because of service-related issues such as hose abrasion, exceeding minimum
bend radius, kinked lines or improper use. None were found to be as a result of
improper assembly.

V.             
Plaintiffs’ Argument

[41]        
The plaintiffs argue, firstly, that the V15 fuel
line was assembled improperly at Aerostar’s factory, likely through the failure
to insert the hose to an adequate depth in the fitting. This defect then
resulted in the hose slowly pulling out of its fitting and failing on the day
of the accident when it was pressurized.

[42]        
Secondly, the plaintiffs say that the design of
the propane system was defective because there was no emergency shutoff or
other mechanism to deal with the risk of a propane leak and fire.

[43]        
The plaintiffs say that although there is no
direct evidence of improper assembly it can be inferred from the circumstantial
evidence in this case. They submit that there is no evidence of improper use of
the V15 hose and that should lead to the inference that the hose and fitting
were improperly assembled.

[44]        
With regard to the design of the propane system,
the plaintiffs submit that a propane fire in the balloon was a foreseeable
hazard and Aerostar and Raven had a duty to investigate and install appropriate
mechanisms to reduce the risk of fire such as a 90-degree shutoff valve, a
halon suppression system or a thermal shutoff.

VI.           
Aerostar’s Argument

[45]        
Aerostar submits that the Court cannot conclude
that the failure of the fuel hose could not have occurred in the absence of
negligence by Aerostar. It argues that having over 30 years of assembly
experience without a previous pull-out failure, should any inference be drawn,
it should be that the failure resulted from in-service handling problems.

[46]        
Aerostar also says that when the fuel hose
functioned properly for four years and was subject to daily and annual
inspections, including one in May 2007 when it was declared 100% airworthy, it
cannot be established on a balance of probabilities that the hose was defective
when it left the factory.

[47]        
Aerostar also submits that the expert, Mr. Amirault,
conceded that explanations exist for the failure that are as consistent with no
negligence on the part of Aerostar as with negligence.

[48]        
Aerostar says that there is no evidence that a
defect existed when the hose left the assembly plant and no evidence as to why
the failure took place.

[49]        
As to defective design, Aerostar says the
plaintiff chose to modify Aerostar’s design by adding a supplementary fuel tank
and line that was unanticipated by Aerostar and a use that the plaintiff knew
was an impermissible addition to the fuel configuration of the balloon.

[50]        
Aerostar also argues that the design of one of
the fail-safe systems referred to in the evidence is irrelevant because the loss
would have occurred in any event because the fire occurred so quickly after the
hose failure.

VII.          
ANALYSIS

[51]        
The law regarding a manufacturer’s duty is
stated in Farro v. Nutone Electrical Ltd., [1990] O.J. No. 492 at para.
11:

11        A manufacturer has a duty to take
reasonable care in the manufacture of his product, including all its component
parts, and failure to take such reasonable care can result in liability to the
ultimate user or consumer.

12        In Charlesworth on Negligence,
5th ed. (London: Sweet & Maxwell, 1971) at 394, paras. 631-632, the
following appears:

The duty of the manufacturer may be said to
be to take reasonable care in the manufacture of his product, and failure to
take such care will render him liable to any consumer or user whose person or
property is injured by his product, provided (1) the product causing the injury
has the same defect as it had when it left the manufacturer; and (2) the
manufacturer should have contemplated that the product would be consumed or
used in the same condition as it was in when it left him.

…A manufacturer’s duty is not limited to
those parts of his product which he makes himself. It extends to component
parts, supplied by his sub-manufacturers or others, which he uses in the
manufacturer of his own products. He must take reasonable care, by inspection
or otherwise, to see that those parts can properly be used to put his product
in a condition in which it can be safely used or consumed in the contemplated
manner by the ultimate user or consumer.

[52]        
I consider the duty of an assembler of a product
such as Aerostar in this case to be substantially the same as that of a
manufacturer. Thus, Aerostar had a duty to take reasonable care to see that the
hose and fittings that it assembled could be safely used in the contemplated
manner by the ultimate user.

[53]        
If I find that Aerostar was negligent in the
assembly of the V15 fuel hose, the plaintiff must also establish that the
failure of the product caused damage to the plaintiff. In the circumstances of
this case this requires that the plaintiff show on a balance of probabilities
that but for Aerostar’s negligence the fire would not have occurred with the
resulting injuries.

[54]        
Based on the expert evidence of Mr. Amirault, because
of the damage sustained by the V15 hose in the fire, there is no direct evidence
of the cause of the failure of the hose. Mr. Amirault opines that there are six
possible causes of the hose separation, all of which are unlikely but two of
which are the most likely. The plaintiffs submit that an inference can be drawn
from the circumstantial evidence that the V15 fuel hose was defective when
it left Aerostar’s assembly plant. In essence, the plaintiff argues that
because the hose was not subject to any Excessive Stresses, the Court should
infer that the separation resulted from improper assembly by Aerostar.

[55]        
The plaintiffs cite commentary at page 63 of Products
Liability, 4th ed., by S.M. Waddams, as follows:

Rarely can a
plaintiff prove by direct evidence that a defect existed when the product
containing it left the factory. The existence of a defect, and its presence in
the product at the material time, has always been held to be provable by
inference from circumstantial evidence. Such evidence usually shows that the
plaintiff has not misused the product, and that it has failed in normal use. The
ability of the plaintiff to succeed on such evidence is rightly regarded as an
important part of the substantive law of products liability.

[56]        
As to any misuse of the product after it leaves
the factory, the Ontario Court of Appeal in Farro referred to Prosser
W.L., Law of Torts, 3d ed. (1964) at 671, where the learned author
states:

Since the
injured plaintiff almost never has any direct proof of what has occurred in the
manufacturer’s plant, he usually must resort to circumstantial evidence. In the
ordinary case this means that he must rely upon the doctrine of res ipsa
loquitur. In order to bring himself within the doctrine, he must make it appear
that the cause of the injury was something which lay within the responsibility
of the defendant. In other words, he must introduce evidence to exclude the
possibility that it was due to his own conduct, or that of intermediate handlers
or any meddling third party.

[57]        
The plaintiff is not relying on the doctrine of res
ipsa loquitur; however, in Smith v. Inglis Ltd., [1978] N.S.J. No.
495, the Appeal Division of the Nova Scotia Supreme Court said at para. 8:

The appellant
does, however have the burden of establishing on a preponderance of probability
on the evidence as a whole that the respondent was the agency responsible for
the defect which caused him injury. This he may discharge by showing
circumstantially that the defect must have been there when the refrigerator
left the factory. He can in my opinion do this if he can exclude the probability
of some other person having created the hazard after the product left the
factory.

[58]        
Mr. Amirault concluded that of the six examples
of possible causes of the hose failure that he referred to in his report, which
he said were all unlikely, the most likely was either the improper assembly of
the hose or being subjected to Excessive Stresses when it was in service. He
did not suggest, nor did the plaintiff argue, that the failure may have
resulted from a combination of any of the possible causes. Mr. Amirault
conceded that explanations exist for the failure of the hose which are as
consistent with no negligence on the part of Aerostar as with negligence.

[59]        
It is apparent that hose separations are rare. Mr. Moreiras’
evidence was that of the millions of feet of hose manufactured by Parker,
during his career with Parker he was aware of only 100 to 200 separations.
He testified that the main cause was the improper insertion of the hose into
the fitting when it was assembled. He said that most of the failed hoses involved
crimp fittings and were not field attachable as in this case. He said of the hoses
returned, 25% of the separations involving field attachable fittings were
attributable to the use of the hose in the field.

[60]        
The evidence of Mr. Moreiras is perhaps of some
statistical value; however, in my view, it does not shed meaningful light on
the cause of the hose separation in this case. Indeed, he said that Parker was
unable to determine the cause of the separation in this case.

[61]        
The plaintiffs argue that they presented cogent
evidence to eliminate Excessive Stresses of the hose as a likely cause of the
separation, leaving improper assembly as the likely cause of the separation. The
only evidence regarding the handling of the V15 hose over its 3½ years of
ownership by the plaintiff was from the plaintiff and a former employee, Paul
Laporte.

[62]        
The plaintiff, Mr. Pennock, said that he always
handled the V15 with care. He said that the V15 tank was never knocked
over nor was the V15 hose ever pulled, yanked, bent or kinked. However, in
cross-examination, he agreed that when the V15 tank and hose were out of
his possession and control, such as when he handed them to a crew member before
departing on a flight, the tank could have been hit by something or the fuel
line could have been stepped on. As a result, I take Mr. Pennock’s
comments regarding the handling of the V15 tank and hose to relate only to
the time that they were in his possession or control.

[63]        
Mr. Laporte said that when the plaintiff used an
auxiliary tank for inflation, such as the V15 tank, the plaintiff would
disconnect the tank from the burner, wrap the hose around the tank and hand it
to him or another member of the crew. He said that he would then put the tank
in the back of a truck and follow the balloon to its landing place. Based on
the number of flights taken in 2006 alone, the plaintiff would have handed the
V15 tank and hose to an employee for handling and transportation many times
while it was in service.

[64]        
There is no evidence as to how the V15 tank
and hose were handled by employees including placement in the truck or whether
they underwent any stresses during the time that they were transported. In
cross-examination regarding the transportation of the V15 tank and hose in
the truck, the plaintiff said he did not recall the tail end of the hose, which
I take to be the unattached end, coming loose, but said that it was possible. During
the time that a flight was taking place there is no evidence that the plaintiff
would have known how the V15 tank and hose were being handled by his employees.

[65]        
There is no evidence that the plaintiff
instructed his employees, such as Mr. Laporte, as to how the V15 tank
and hose were to be handled, or that they understood how it was to be handled
by them.

[66]        
The evidence of the plaintiff was that he coiled
the V15 hose around the tank in a way that matched the shape of the hose. There
was also evidence that other balloon operators followed the practice of
wrapping a fuel hose around the tank when it was not in use. Mr. Moreiras
testified that he had never seen a hose separate because of coiling or
uncoiling. However, in cross-examination, Mr. Amirault said that he did
not do an analysis of the stresses on the exemplar hose from coiling and
uncoiling. As a result there is no expert evidence regarding the effect on the
V15 hose and fitting of being coiled and uncoiled over 500 times each
season that it was used.

[67]        
In my view, the evidence does not exclude the
V15 fuel line being subject to some form of Excessive Stress as a likely
cause of its failure, in particular, while it was not in the possession of the
plaintiff. I am left unable to find that the failure of the hose was due to either
one of the two most likely causes identified by Mr. Amirault.

[68]        
Accepting that the two most likely causes of the
hose failure were either improper assembly or Excessive Stress during service,
and having concluded that the evidence does not exclude Excessive Stress as a
likely cause, the plaintiff has failed to establish on a balance of
probabilities that the failure occurred as a result of the improper assembly of
the hose by Aerostar.

[69]        
The plaintiff also submits that the design of
the fuel system by Aerostar for GTRU was defective. In particular, the
plaintiff says that with the knowledge of the risks of fire on a hot air
balloon which Aerostar must have had, the fuel system should have been designed
with safety features such as a 90-degree shutoff valve on the V15 tank, a
thermal shutoff, an excess flow valve or a halon fire suppression system which
are present on some balloons manufactured by other companies.

[70]        
While the report of Mr. Senez concluded
that there were fire protection systems available for hot air balloons, I ruled
that the effectiveness of such systems required expertise with fuel systems in
hot air balloons that Mr. Senez did not have. The evidence of Mr. West,
the chief technology officer of Raven Industries, was that such failsafe
systems had been considered by Aerostar and rejected or not considered because,
it can be inferred, of the risks associated with a system that is beyond the
control of the pilot and stops the flow of fuel in the balloon.

[71]        
I am also persuaded by Aerostar’s submission
that in the circumstances of the fire in this case, a failsafe mechanism, which
had to be operated by the plaintiff as pilot, would not have prevented the
injury to the plaintiff and the loss of the balloon. The evidence of the
plaintiff was that the fire occurred in a “heartbeat.” Also, he said that from
the time when he heard a popping noise, it was almost instantaneous when he was
effectively blown out of the gondola by the fire. It is also apparent that any
device which stopped the release of propane from the tank when a fire occurred
would not have prevented a fire resulting from liquid propane spraying out of
the detached V15 fuel hose as it moved around inside the gondola. The plaintiff
described being hit across his face by something, and liquid coming out of the
fuel line and then being engulfed by flame. The evidence did not establish the
extent to which the fire and resulting injuries and damage was attributable to
the propane escaping from the V15 tank itself or the propane escaping from
the pressurized fuel in the V15 fuel hose.

[72]        
The plaintiffs have not established that the
inclusion in the balloon of any of the safety devices referred to would have
prevented the fire and the resulting injuries and damage in this case.

[73]        
The plaintiffs’ statement of claim includes an
allegation that the defendant, Aerostar, failed to warn the plaintiffs of the
risks posed by the design and assembly of the propane burner system. As I have
said, the evidence did not establish which of the two most likely causes
identified by Mr. Amirault caused the failure of the hose; however, assuming
that the failure was caused by its misuse while in service, the evidence does
not establish that such misuse was foreseeable by the defendant Aerostar. Further,
there is insufficient evidence to support a finding that any failure to warn by
Aerostar caused the loss in this case.

[74]        
The plaintiffs’ claim is dismissed with costs to
the defendant Aerostar.

“Bowden
J.”