WestlawNext Canada insight Blog

Digest of the Week — Mechanical Failure Not "Negligence"

Little v. Einarsen |
2015 CarswellBC 3368 |
British Columbia Supreme Court

Motor vehicles | Evidence | Actions in tort | Proof of negligence | Inference from physical facts

Defendant's car rolled downhill from where it had been parked and hit plaintiff as he was walking across parking lot — Plaintiff said he still suffered from severe back spasms, headaches, and nightmares and that he was unable to return to his former work as hardwood floor installer — Defendant said she had parked car on slope and engaged emergency brake — She said car was serviced regularly and she was unaware of any mechanical problems at time of accident — Plaintiff brought action against defendant for injuries suffered in unusual motor vehicle accident — Action dismissed — Uncontradicted evidence was that defendant's car rolled downhill from where it was parked while emergency brake was engaged — Fact that emergency brake failed to perform principle function led to obvious inference that it was in some way defective — That inference was further supported by admissible business records from repair shop that indicated emergency brake was repaired or adjusted within days or, at most, few weeks after accident — Defendant's car had been inspected two months prior to accident — She could not have known that emergency brake was defective — Plaintiff failed to meet burden of proving that injuries were caused by anything defendant did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill.
© Copyright Westlaw Canada, Thomson Reuters Canada Limited. All rights reserved.