IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130702

Docket: M043663

Registry:
Vancouver

Between:

Linda Chapman

Plaintiff

And

William Chapman
and John Doe Manufacturers

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Russell

Reasons for Judgment

Introduction

[1]            
Ms. Linda Chapman (“Linda”) was injured in a single vehicle
accident on the Hope-Princeton Highway on September 4, 2002 (the “Accident”).

[2]            
She was driving southbound on Highway # 1, just north of the Yale
Tunnel.

[3]            
She lost control of her vehicle, a 1991 Grand Prix 6 cylinder 3 litre (the
“Vehicle”), on a shallow curve and drove into a cliff at a high speed.

[4]            
Linda was badly injured in the Accident and she was evacuated by air to
Vancouver Hospital.

[5]            
She has no recollection of the Accident.

[6]            
By agreement of the parties, the matters of liability and damages have
been severed. This trial deals solely with liability.

[7]            
The plaintiff’s theory of causation is that the throttle mechanism,
which governs the acceleration and deceleration of the car, stuck open, causing
the Vehicle to accelerate and remain in acceleration. This mechanical acceleration
resulted in the plaintiff losing control of the Vehicle and striking the cliff
face.

[8]            
The defendant says there is no evidence to support this theory.
Additionally, the defendant asserts that the throttle body taken from the Vehicle
sometime after the Accident revealed marks of tampering.

[9]            
Mr. William Chapman (“William”), the plaintiff’s father and the
owner of the Vehicle, says that he had an incident with the throttle sticking
some months before Linda’s Accident. He barely avoided a serious accident when
he could not disengage the throttle.

[10]        
He did not warn Linda of this potential problem and he did not take the Vehicle
to be inspected or repaired.

[11]        
William’s wife, Evelyn Chapman (“Evelyn”), also testified to an incident
involving the Vehicle in which the throttle stuck as she was entering Highway 1
from the Chilliwack on-ramp. She was able to disengage the throttle without
difficulty by “punching” it twice. This incident occurred about a year before the
Accident although in discovery, William stated that this incident occurred only
about a month and a half before the Accident.

[12]        
Evelyn says that she did not tell William about this problem until after
the Accident.

Issues

[13]        
William’s liability is the sole matter at issue.

[14]        
If, on a balance of probabilities, the evidence supports the plaintiff’s
assertion that the Accident was caused by the throttle body sticking open and that
William knew of this potential hazard and failed to warn Linda, his negligence
would be proved and he would be liable for her injuries.

[15]        
Subsumed in the issue of William’s liability is the general question of
causation.

Facts

The Plaintiff’s Evidence

[16]        
Linda was returning from her father’s fishing spot on the Fraser River on
the day of the Accident.

[17]        
She is now unclear about whether she recalls driving the 1991 Pontiac
Grand Prix before the Accident or whether she has been told of the
circumstances immediately preceding her impact with the cliff face.

[18]        
She believes she remembers her brother taking her up the trail to the
highway from the fishing spot in an all-terrain vehicle.

[19]        
Once she reached the highway, she crossed it to get into her car to
drive to Hope, where she would call customers for the fish caught at her
father’s fishing site.

[20]        
Whether she has an actual recollection of driving the car is
questionable. But she does recall waking up in Vancouver Hospital after the Accident.

[21]        
Linda’s evidence about the circumstances of the Accident is unhelpful as
a result of the injuries she received from the impact.

William’s Evidence

[22]        
William has run an auto body repair service for many years. He is not a
licensed mechanic but he can do such things as oil changes and simple repairs
on brakes. He also paints vehicles.

[23]        
William bought the Vehicle about two and a half years before the Accident
in 2002 in a private transaction. It appeared to be in good repair at the time
he purchased it.

[24]        
This was not his only automobile. In 2002, William also owned a 2000
Chevrolet pickup truck that he used regularly.

[25]        
Linda was using the Vehicle at the time of the Accident because her car
had been broken into and a window and door were under repair. William also
indicated that he had completed a $13,000 paint job on Linda’s car and that he
was not keen for her to use it, especially through the winter, so her car had
been stored.

[26]        
He says that he and his wife used the Vehicle from time to time. He
reported that his wife used the car at highway speeds several times a week to
go from Agassiz to Hope, Chilliwack and Abbotsford. He estimated the number of
times he had used the Vehicle before the Accident was twenty to thirty times,
despite the fact that he was using the Vehicle to drive to work six days a week.

[27]        
On the day of the Accident, William was at his fish camp. It was late afternoon,
around 4:30 to 5:00 pm, when Linda arrived. He told her he did not need her
help, sent her home with $50 and asked to get orders for his fish.

[28]        
He was across the river netting fish when he heard his son screaming. He
learned Linda had been in a bad collision and he went to Hope to see the
remains of the car. En route he saw the site of the Accident.

[29]        
He spent many weeks by Linda’s side in the hospital.

[30]        
William described an incident he had with the Vehicle about two months
before Linda’s Accident. He had passed a truck west of the Lake of the Woods
hill, heading downhill towards Boston Bar, when the Vehicle continued to
accelerate. He estimated the speed of the Vehicle exceeded 130 km/h when, out
of desperation, he turned the ignition off to attempt to slow it down. However,
his steering locked once the ignition was off. He hit the brakes and the Vehicle
turned cross ways on the American Creek Bridge with a transport truck oncoming.
He attempted to restart the Vehicle, hit the throttle a couple of times and
managed to get the Vehicle going and straightened out. It ran fine after he
restarted it and the Vehicle seemed normal.

[31]        
His estimate of speed changed from his discovery evidence where he
indicated he was travelling at 60 km/h, substantially below the 100 km/h speed
limit at the bottom of the hill, and 90 to 110 km/h when the throttle stuck.

[32]        
William says he turned the key off one curve before the bridge.

[33]        
His evidence at trial was that as he came down the hill after the Vehicle
had accelerated, he was travelling 140 to 160 km/h when he shut the key off. He
described a curve following a straight stretch that he had to make at this high
speed as he turned off the key and his steering wheel locked.

[34]        
His evidence was unclear about how he steered through the curve with a
locked steering wheel.

[35]        
At question 152 of his discovery of October 13, 2010, William said he
had to get out of the car after he had stopped it, open the hood and hit the
throttle to make it release.

[36]        
He did not mention getting out of the car in his earlier discovery on
November 18, 2005 or in his testimony at trial.

[37]        
He says it did not dawn on him the car would present the same problem
for his daughter.

[38]        
Even though this incident with the car upset and frightened him, he did
nothing to have it examined.

[39]        
He says that he does not have a “lead foot” and his wife did not receive
speeding tickets when she was driving the car almost daily.

[40]        
Following the Accident and after receiving the proceeds of his car
insurance for the total loss, he repurchased the wreck of the Vehicle from ICBC
for $500 to recover personal items that Linda had lost in it. He took the front
seat out but he did not find her personal articles. He kept the Vehicle for
three years but he says it disappeared three times. On one occasion, the
Vehicle was removed at the behest of ICBC. Another time, it was taken by a
scrap yard without permission. When it was returned to him, he stored the
Vehicle behind his repair shop. On yet another occasion, upon his return from a
trip to Vancouver, the Vehicle had disappeared. This time he was unable to
trace it.

[41]        
During the time William kept the Vehicle, Linda’s then-lawyer had an
engineer inspect the throttle body. This engineer, who gave evidence for the
plaintiff, removed the throttle body and kept it in his custody while and after
he inspected it.

[42]        
At the time William bought the Vehicle, he changed the oil, did a
compression test and checked the brakes. The Vehicle ran well.

[43]        
Had the Vehicle required mechanical repair, he would have taken it to a
friend in Hope who is a licensed mechanic. Even after his wife reported a
problem with the accelerator, he did not take the Vehicle to his friend for
inspection or repair.

[44]        
He agreed that in his discovery of October 18, 2010, at question 131, he
had indicated that his wife had told him about the throttle sticking before the
Accident. Two weeks later, he had taken the Vehicle out to investigate if the
throttle was sticking; the incident on the Lake of the Woods hill described
above ensued.

[45]        
The date upon which Evelyn told William about the throttle issue is
unclear.

[46]        
 William denies he fabricated the story of the throttle sticking before the
Accident. He also denies tampering with the throttle body mechanism after the Accident.

Evelyn’s Evidence

[47]        
Evelyn drove the Vehicle off and on for two years before Linda’s Accident.

[48]        
She had no problems with it until one day, six to eight months before
Linda’s Accident, as she was driving off Young Street in Chilliwack to head
east on Highway 1, she stepped on the accelerator to merge with the
traffic and the gas pedal stuck. She hit it twice and it unstuck. She described
her action by saying she “just flipped it” and it worked again.

[49]        
Since she solved the problem so easily, she forgot about it.

[50]        
Had the accelerator not unstuck so easily, she said she would have put
the car in neutral and applied the brakes.

[51]        
Evelyn had no other problems with the car and she used it on the morning
that Linda had her Accident. She needed canning supplies that day because she
was canning salmon and she drove into Hope to buy some lids. Because she was
canning, she did not accompany Linda to the fishing camp the afternoon of the Accident.

[52]        
Evelyn said she did not mention this incident with the Vehicle
immediately after it happened because it was not of concern. She did mention it
to William but she was not sure when she did. She was also unsure as to whether
she told William about the incident at the time he told her of his experience
with the throttle sticking.

[53]        
She recalls William telling her about his incident with the Vehicle on
the Lake of the Woods Hill. Her incident was about six to eight months before the
Accident and about three to four months before William’s incident.

[54]        
That the issue was of such little concern to both William and Evelyn is
clear from the fact that they made no repairs to the throttle body and
continued to drive the Vehicle on a daily basis.

[55]        
From this fact it is clear that if the throttle body had stuck open, it
was on an entirely intermittent basis.

Evidence of Harvey Pidherny

[56]        
Mr. Pidherny has been a long-haul trucker for many years. He is
currently 57 years old.

[57]        
He no longer travels Highway #1 from Hope to Yale. He considers the road
to be too dangerous since it is only two lanes and in his view it should be four
lanes.

[58]        
He describes the stretch leading up to the Yale tunnels as winding. It
has a speed limit of 70 km/h.

[59]        
On the afternoon of September 4, 2002, it was still daylight at the time
of the Accident. Mr. Pidherny recalls that it was getting dark at the time
he made his report to the police at the scene.

[60]        
The traffic was moderate. There was no one in front of him on the road;
he was leading what traffic there was. He was driving westbound to Vancouver.

[61]        
There is what he described as a tight corner following the exit from the
Yale Tunnel. He noticed the Vehicle approaching at a high rate of speed. The
Vehicle appeared beside him as another truck (heading eastbound) approached. The
Vehicle passed him and he pulled to the right to afford as much passing room as
possible. He noted the driver appeared to be hanging on to the wheel with both
hands and fighting it since she was travelling much too fast. As she passed his
truck and pulled back into her lane to avoid the oncoming truck, the Vehicle
began to fishtail in front of him. He tried to get out of the way. He did not
notice whether her brake lights were illuminated since he was preoccupied with
getting out of the way and not hitting the Vehicle as she bounced off the cliff
face.

[62]        
The place on the highway where the Vehicle began to pass his truck is
marked with a double line indicating no passing.

[63]        
Mr. Pidherny estimates that as Linda’s Vehicle passed him, it was
travelling at about 80 to 90 km/h on a curve marked at 70 km/h. He says he
would have slowed to 60 km/h for the corner because his truck was loaded.

[64]        
He could not tell whether the Vehicle continued to accelerate as it
passed him but he is clear that it was travelling at too high a rate of speed
to make the corner safely.

[65]        
He could see the driver of the car as she passed him since the height of
his cab provided him with a vantage point that allowed him to see the entire
front seat of the Vehicle.

[66]        
 When the Vehicle passed him, it made an abrupt right turn into the
cliff face. At that point in time, he had already stopped his truck.

[67]        
Mr. Pidherny impressed me as an objective, fair witness but his
evidence did not assist in resolving the central issue in this case.

Expert Evidence

[68]        
Two experts testified and provided reports to the court.

[69]        
David Little, P. Eng. of Baker Materials Engineering Ltd. presented
expert evidence to the Court on behalf of the plaintiff.

[70]        
His qualifications were accepted by the third party and I accepted Mr. Little
as an expert in forensic engineering, failure analysis and accident
reconstruction.

[71]        
On January 16, 2003, Mr. Little examined the Vehicle. The throttle
body has remained in his custody ever since, with the exception of the time
given to the third party’s expert for examination.

[72]        
When Mr. Little looked at the Vehicle, it was some four and a half
months after the Accident.

[73]        
Mr. Little focused his examination on the exterior damage to the
car and in particular, on the acceleration system. He also attempted to
determine whether any problem with the throttle body was caused by the force of
the collision or was present before the Accident.

[74]        
In the acceleration system of the car, the accelerator is connected by
cables to the throttle body. The throttle body contains a valve that opens and
closes to allow more or less air through it. Air is necessary to the combustion
of the gas, which in turn drives the pistons and rotates the engine. As Mr. Little
puts it, “[i]ncreased air and gasoline (in the right ratio) will result in the
engine rotating faster and … the vehicle travelling faster.”

[75]        
When he tested the working of the throttle body, he found that the
springs would not work to return the throttle plate to the closed position once
the accelerator pedal was no longer depressed, although the springs were intact
following the Accident.

[76]        
He concluded that the pin on which the throttle body rotated was out of
place. It had been pushed into the throttle body and was binding the throttle
linkage. He concluded that this defect had caused the throttle plate once open to
remain open.

[77]        
He also concluded that the pin could not have been forced out of place
by the collision because there was dirt on the pin; had the pin not been out of
place at the time of the collision it would have remained inside the metal throttle
body, which houses it, and it would not have collected dirt as it did.

[78]        
He could not explain why the problem of the throttle body sticking was
so intermittent that the Vehicle was driven the morning of the day of the Accident
without any problem and aside from the incidents alleged by William and Evelyn,
months before Linda’s Accident, there were no other problems with the throttle
body.

[79]        
The third party’s expert was Mark Bailey, P. Eng., of MEA Forensic. His
qualifications as an expert in forensic materials, engineering and failure
analysis were accepted.

[80]        
Another engineer from MEA Forensic examined the motor of the Vehicle on
June 20, 2003, at which time the engine had been removed from the vehicle by Mr. Chapman
in advance of the engineer’s arrival.

[81]        
Mr. Bailey examined the throttle body from the Vehicle at Baker
Materials Engineering on January 19, 2010.

[82]        
 Mr. Bailey agreed that the source of the throttle body problems
was the “inward displacement of the pin”. It caused the throttle body linkage
to bind, causing in turn the connector arm to which the accelerator cable is
attached to fail to rotate, leaving the throttle plate open even after there
was no longer any pressure on the accelerator pedal.

[83]        
The pin is placed in the throttle assembly with a force-fit; it is pushed
into the hole in the throttle body at the manufacturing stage with force.

[84]        
However, Mr. Bailey found that pushing out the pin slightly less
than 1 mm relieved the sticking problem and allowed the throttle body to
operate normally. As he put it, had the pin been pushed in and displaced before
the time of the Accident, the Vehicle would not have been roadworthy at all
because “it would be accelerating all the time [and] this condition would be
readily apparent to any driver”.

[85]        
Mr. Bailey found marks on the head of the pin that were consistent
with the pin having been displaced inwards to the throttle body by force. He
does not conclude that this force could only have been caused by tampering
post-Accident but he says that the force of the collision could have been an
alternative cause of the movement of the pin.

[86]        
I accept Mr. Bailey’s explanation and prefer it to that of Mr. Little
for the reason that the failure of the throttle body simply could not have been
intermittent had the pin been pushed in as far as it was pre-Accident.

Causation

[87]        
The plaintiff must satisfy the Court, on a balance of probabilities,
that but for the defendant’s negligent act, she would not have sustained her
injury. The “but-for” test is the general test for factual causation. It is a
well-established principle of tort law that the negligent conduct must be necessarily
connected to the injury.

[88]        
This test was most recently affirmed and set out in Clements v.
Clements, 2012 SCC 32:

[8]        The test for showing
causation is the “but for” test. The plaintiff must show on a balance of
probabilities that “but for” the defendant’s negligent act, the injury would
not have occurred. Inherent in the phrase “but for” is the requirement that the
defendant’s negligence was necessary to bring about the injury ―
in other words that the injury would not have occurred without the defendant’s
negligence. This is a factual inquiry. If the plaintiff does not establish this
on a balance of probabilities, having regard to all the evidence, her action
against the defendant fails.

[9]        The “but for”
causation test must be applied in a robust common sense fashion. There is no need
for scientific evidence of the precise contribution the defendant’s negligence
made to the injury. See Wilsher v. Essex Area Health Authority, [1988]
A.C. 1074 (H.L.), at p. 1090, per Lord Bridge; Snell v. Farrell,
[1990] 2 S.C.R. 311.

[10]      A common sense
inference of “but for” causation from proof of negligence usually flows without
difficulty. Evidence connecting the breach of duty to the injury suffered may
permit the judge, depending on the circumstances, to infer that the defendant’s
negligence probably caused the loss. See Snell and Athey v. Leonati,
[1996] 3 S.C.R. 458. See also the discussion on this issue by the Australian
courts: Betts v. Whittingslowe (1945), 71 C.L.R. 637 (H.C.), at p. 649;
Bennett v. Minister of Community Welfare (1992), 176 C.L.R. 408
(H.C.), at pp. 415-16; Flounders v. Millar, [2007] NSWCA
238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal, [2008]
HCA 19, 245 A.L.R. 653, at paras. 137-44.

[Emphasis
in original.]

[89]        
I cannot find that Linda has proved causation in this case.

[90]        
There is quite simply no evidence that the throttle body stuck in the
moments preceding Linda’s impact with the cliff face, causing the Accident.

[91]        
I am asked to infer causation from the pre-existing issues with the
Vehicle that were experienced by William and Evelyn. Their evidence related to
intermittent problems with the throttle body on the Vehicle. This evidence is
an insufficient evidentiary basis for finding that on September 2, 2002, the
sticking of the throttle body caused Linda to speed past Mr. Pidherny’s
truck, lose control and hit the cliff face.

[92]        
The evidence tends to suggest that the Vehicle for the most part
operated normally. William and Evelyn drove the Vehicle for months without any
ill effects after they experienced the acceleration problem. William also said
on discovery that after the Lake of the Woods hill incident, he got out of the
car and “hit” the throttle a couple of times. The Vehicle seemed to accelerate
and decelerate properly after that incident.

[93]        
I also accept the expert evidence of Mr. Bailey that the Vehicle
could not have been operated pre-Accident had the pin in the throttle body been
in the location it was found in by Mr. Little following the Accident.

[94]        
Even if I had accepted Mr. Little’s report over Mr. Bailey’s
conclusions, I still could not have found that his report supported the
conclusion that the cause of the Accident was the failure of the throttle body.
His report only identified a problem with the throttle body; it could not
explain when and why the Vehicle would perform normally. Nor can his report
identify with any certainty that the throttle body caused the Accident.

[95]        
The throttle body is not the only possible cause of the Accident and it
is not a necessary cause. Linda does not recall the events leading up to
the Accident. She cannot tell us whether she was simply speeding at the time of
the Accident on a dangerous part of the highway.

[96]        
I need not find there was tampering with the pin. I find only that the
plaintiff has failed to prove on the balance of probabilities that but for her
father’s negligence she would not have suffered injury.

[97]        
Even if factual causation was met, as noted by counsel for the third
party, it would be mere speculation on my part to find that mechanical failure
foreseeable by William caused the Accident.

Disposition

[98]        
The plaintiff’s case is dismissed.

[99]        
The parties may arrange a time with the Registry should they wish to
speak to costs.

“L.D. Russell J.”

________________________________________

The
Honourable Madam Justice Loryl D. Russell