IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151119

Docket: M64650

Registry:
Nanaimo

Between:

Jason Little

Plaintiff

And:

Lisa Einarsen

Defendant

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]           
This case is about an unusual motor vehicle accident in which the plaintiff,
Jason Little, was hit by an unoccupied car. The car of the defendant, Lisa
Einarsen, rolled downhill from where it had been parked and hit Mr. Little
as he was walking across the parking lot.

[2]           
Almost six years later, Mr. Little says he still suffers from
severe back spasms, headaches, and nightmares and that he is unable to return
to his former work as a hardwood floor installer. The defence disputes both the
severity of Mr. Little’s injury and its relationship to the accident.

[3]           
But the first issue is whether the accident was caused or contributed to
by the negligence of Ms. Einarsen. No matter how severe Mr. Little’s
injuries may be, Ms. Einarsen is not required to compensate him unless she
is found to be at fault.

[4]           
The accident occurred on January 8, 2010, in the parking lot of a pub in
Nanaimo, B.C. Like much of Nanaimo, the parking lot was on a slope. Ms. Einarsen
parked her car at the top of the slope and, at some point while she was in the
building, the car rolled backwards down the hill.

[5]           
Mr. Little and his friends Rodney Cooper and Gurdvev Dhamia had
just arrived and were walking across the parking lot toward the pub. None of
them saw Ms. Einarsen’s car until after it had hit both Mr. Little
and Mr. Dhamia from behind. The car continued rolling downhill and hit at
least one other vehicle before hitting and coming to rest against a car owned
by Roger Stoddart. Neither Mr. Dhamia, who rolled off the back of the car,
nor Mr. Cooper, who was walking in front of the other two, actually saw
the car hit Mr. Little.

[6]           
Mr. Stoddart testified that he was inside the pub but came out when
alerted by an announcement and saw Ms. Einarsen’s car still resting
against his. The emergency brake in Ms. Einarsen’s car was operated by
pulling up a hand lever. Mr. Stoddart said he looked into the car and could
see that the emergency brake was on. That is consistent with the evidence of Ms. Einarsen,
who testified that she had pulled up the emergency brake lever when she parked
the car.

[7]           
Ms. Einarsen did not recall what gear she had left the car in, but
said it was her practice to leave it in first gear. She also did not recall if
she locked the car, but said she usually did. She said she had been inside the
pub for about 10 minutes when she learned what had happened.

[8]           
The car was a 1992 model that Ms. Einarsen said she acquired from
her sister no more than two years earlier. She said it was serviced regularly
and she was unaware of any mechanical problems at the time of the accident.

[9]           
 Ms. Einarsen produced a service history from a car dealership
indicating that a “semi‑annual inspection” had taken place on November
13, 2009—less than two
months before the accident. Later that month, the car had been towed into the dealership
after the engine overheated. A different repair shop replaced a fuel filter on
December 15, 2009.

[10]       
Ms. Einarsen also produced two invoices from that second repair
shop dated after the accident—January
15 and February 20, 2010. The February invoice indicates that the emergency
brake was adjusted. Ms. Einarsen believed the February invoice reflects
work done immediately after the accident that she was not able to pay for until
February 20, 2010.

[11]       
It is trite law that Mr. Little must show on a balance of
probabilities that the accident and resulting injuries were caused by a failure
of Ms. Einarsen to meet an applicable standard of care. As the authors Allen
Linden and Bruce Feldthusen succinctly state in Canadian Tort Law, 9^th
ed (Markham, ON: LexisNexis, 2011) at 254: “If the evidence shows only
that the defendant may have been at fault, the plaintiff will fail.”

[12]       
A plaintiff who has no direct or positive evidence of how an accident
occurred may rely on circumstantial evidence. The kind of circumstantial
evidence capable of raising at least a prima facie case of negligence was
at one time encompassed by the maxim res ipsa loquiter (the thing speaks
for itself). In Fontaine v. British Columbia (Official Administrator),
[1998] 1 S.C.R. 424, the Supreme Court of Canada said that phrase was not a
distinct principle of law and should no longer be referred to. The court stated
at page 435:

It would appear that the law
would be better served if the maxim was treated as expired and no longer used
as a separate component in negligence actions. After all, it was nothing more
than an attempt to deal with circumstantial evidence. That evidence is more
sensibly dealt with by the trier of fact, who should weigh the circumstantial
evidence with the direct evidence, if any, to determine whether the plaintiff
has established on a balance of probabilities a prima facie case of
negligence against the defendant. Once the plaintiff has done so, the defendant
must present evidence negating that of the plaintiff or necessarily the
plaintiff will succeed.

[13]       
Mr. Little relies on Noble v. Bhumber (16 January 1996),
Victoria VI101918 (B.C.C.A.), a decision of the Court of Appeal that predates Fontaine.
In that case, a car that had been parked on a street rolled downhill and struck
the plaintiff’s vehicle. The defendant testified that he had placed the car in
first gear, angled the front wheels to the curb, engaged the parking brake, and
locked the car. The trial judge found that the defendant must have done at
least one of those things and accepted a theory that some unknown person must
have tampered with the vehicle.

[14]       
The Court of Appeal noted that the car had been found to be unlocked
after the accident and there was no evidence of a break‑in. It also found
the defendant must have been mistaken about the wheels having been turned into
the curb because the car had a system that locked the wheels in place when the
ignition key was removed. The court referred to what is now s. 191(2) of
the Motor Vehicle Act, R.S.B.C. 1996, c. 318, which reads:

(2) A driver must not permit a motor vehicle to stand
unattended or parked unless the driver has

(a) locked it or made it secure in
a manner that prevents its unauthorized use, and

(b) if the motor vehicle is standing on a grade, turned the
front wheels of the vehicle to the curb or side of the highway.

[15]       
On that basis, the Court concluded:

[12]      Was it reasonably
foreseeable that if the defendant did not secure the vehicle in the way
described in s. 192(2), someone would enter the vehicle, take it out of
gear, release the brake and let it roll down the hill and that the vehicle
would strike someone or something on the way? In my opinion, the defendant is
caught by the very explanation offered in answer to the res ipsa loquitur
inference and which the learned trial judge accepted, namely, that it is
plausible that an unknown person could have caused this mischief. The
legislature thought a risk of unauthorized use was sufficient to enact the
requirement to lock the vehicle: s.192(2)(a). When the defendant testified that
he took all the usual precautions he displayed an awareness of the peril that
occurred. In my opinion, these factors compel a reversal of the judgment below
and lead to a finding of liability against the defendant.

[16]       
In this case, there is no evidence that the vehicle was unlocked. At its
highest, the evidence is only that Ms. Einarsen cannot recall whether she
locked it or not. Even if it was unlocked, there is no evidence of a causal
relationship between that and what happened. As for s. 191(2)(b), there is no
evidence there was a curb and no evidence of what may have been on either side
of Ms. Einarsen’s car. In my view, that is not the circumstance to which
s. 191(2)(b) was meant to apply, and the section is not evidence of any
standard of care applicable in these circumstances.

[17]       
In this case there is both direct and circumstantial evidence that
permits the court to draw the necessary inferences about what caused the
accident. It is not necessary to speculate about tampering or other possible
causes for which there is no evidence.

[18]       
The uncontradicted evidence is that Ms. Einarsen’s car rolled
downhill from where it was parked while its emergency brake was engaged. The
fact that the emergency brake failed to perform its principle function leads to
the obvious inference that it was in some way defective. The inference is
further supported by admissible business records from the repair shop that indicate
the emergency brake was repaired or adjusted within days or, at most, a few
weeks after the accident.

[19]       
In the absence of any direct or circumstantial evidence pointing to any
other cause, it must be concluded that the accident would not likely have
occurred if the emergency brake had been functioning properly. Putting it in
slightly different terms, the accident, on the balance of probabilities, would
not have occurred but for the failure of the emergency brake to perform its
intended function.

[20]       
Whether Ms. Einarsen can be held at fault for that failure depends
on whether it was foreseeable—whether
she knew or ought to have known about a defect or inadequacy that might cause
the emergency brake to fail.

[21]       
An owner of a vehicle owes a duty not to use it or permit it to be used
if he or she knows or ought to have known that it is defective in any way that
might cause an accident. The court will find that an owner ought to have known
about a defect that would have been detected by the exercise of ordinary care,
caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998
CarswellBC 3834 (S.C.) at para. 81.

[22]       
In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:

[175]    ….However, an owner is
not liable for all consequences that may flow from an accident that happens as
a result of a mechanical defect in a vehicle. Liability only occurs for those
defects that went uncorrected, when either the owner knew, or should have known
by the exercise of reasonable care, of their existence.

[23]       
There is no evidence that the emergency brake had failed in the past or of
any defect of which Ms. Einarsen knew or should have known. Arguably, the
age of the car heightened Ms. Einarsen’s duty to be satisfied that all
components were in good working order. I find that, by having the vehicle
inspected only two months before the accident, she had done what was reasonable
to comply with that duty.

[24]       
There is no evidence that the mechanics who performed that inspection
failed to notice or repair a problem with the emergency brake or that Ms. Einarsen
had any reason to believe they had. There is no evidence of any problem with
the emergency brake that became apparent between the dates of the inspection
and the accident.

[25]       
In short, while Mr. Little clearly suffered injuries, he has failed
to meet the burden of proving that they were caused by anything Ms. Einarsen
did or failed to do or by any mechanical defect she could have detected with
ordinary care, caution, or skill. In view of that failure to prove liability
and a resulting entitlement to damages, it is not necessary to comment upon or
attempt to resolve the many issues about the nature and extent of Mr. Little’s
injuries.

[26]       
The action must be dismissed with costs.

“N. Smith, J.”