Lanteigne v. Foulem & Blanchard Ltée
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Bathurst
Paul S. Creaghan, J.
June 24, 1986
B/C/371/84
ALFRED LANTEIGNE, Plaintiff and FOULEM & BLANCHARD LTEE, (a duly incorporated company) Defendant
Counsel
Réginald Léger for the Plaintiff
Geri Mahoney for the Defendant
[1] Creaghan, J.: The Plaintiff, Alfred Lanteigne, was the owner of a 1979 Chevrolet Corvette automobile. When he purchased the vehicle in May of 1982, it had been driven approximately 50,000 miles. The Plaintiff testified that the car was in "good shape" when he bought it. He stated the vehicle was rated at 135 m.p.h. and that he had driven the car up to almost that speed. It was the fifth Corvette that Mr. Lanteigne had owned. He would run them for a year or two and then sell them.
[2] Soon after he bought the car, after having driven it about 3,000 miles, the exhaust system started to go, and in July, 1982 Mr. Lanteigne brought his Corvette to the Defendant, Foulem & Blanchard Ltée., to have the exhaust system replaced. The defendant company was operated by Norman Blanchard at the time in question who testified he had worked around cars for 14 years and had operated his own garage for 8 years and had taken instruction on muffler installation from Pronto Muffler.
[3] Mr. Blanchard advised Mr. Lanteigne that the standard muffler for a Corvette was expensive and that he did not have one in stock in any event. Mr. Lanteigne indicated that he wanted a good price on a double exhaust type muffler system. Mr. Blanchard suggested that he install a muffler system standard to the Z-28 Camero automobile. He stated that he had installed similar systems on at least 3 or 4 other Corvettes and that no problems resulted.
[4] Mr. Lanteigne testified that he told Mr. Blanchard that he was not familiar with exhaust systems but that if he thought it was good then, to put it on.
[5] It should be noted that Mr. Lanteigne was not only very familiar with the Corvette automobile, having owned 5 of them, but also that he was himself a person with considerable knowledge of automobile mechanics. He stated he had been around cars all his life and often did his own repairs on his car and that in this case he had brought the car to the garage because he was engaged in the crab fishing season.
[6] The exhaust system that was on the Corvette prior to replacement might be described as two 2" pipes joining at a "Y" at the converter and continuing as a single 2 1/2" pipe from the converter to the muffler and exhaust.
[7] The exhaust system that was replaced on the Corvette was two straight 2" pipes each leading to a muffler and exhaust without any converters attached. Where it was required that the pipes be bent, the diameter at the point of bending was reduced to 1 7/8".
[8] Subsequent to the replacement of the exhaust system on the Plaintiff's car by the Defendant, the evidence is that Mr. Lanteigne had a great deal of engine trouble with his car. The trouble is described by Mr. Lanteigne as being indicated by an engine knock that suggested engine problems of a serious nature.
[9] Mr. Lanteigne paid Mr. Blanchard $216.00 for his work and took the car from the Defendant's garage and drove to Shippagan and back. He noticed some reduction in power in that he could only do 100 to 105 m.p.h.. This might have been more noticeable in that Mr. Lanteigne might have expected more power from the dual exhaust system. By the time he was back in Caraquet the next morning the engine was knocking. He asked Mr. Robert Landry of Landry Auto Service to look at the problem. It was discovered that there were scratches on pistons. Mr. Lanteigne ordered Mr. Landry to take the motor out and do a complete motor job at a cost of $1,823.92. This work was billed August 4, 1982.
[10] When the car was ready, Mr. Lanteigne drove it to Tracadie. He states that he was driving not too fast to begin with -- around 70-75 m.p.h.. The engine began to knock again. He noticed a reduction in power about 10 miles out, he turned around and brought the vehicle back to Landry Auto Service.
[11] It was discovered that there were further scratches on other pistons and a piece broken from the camshaft. Mr. Lanteigne ordered another motor job that this time involved sending the entire engine block to the Good Brothers shop near Bathurst to have it bored. The cost of this repair was $1,157.61 excluding the cost of transport to Good Brothers and return to Caraquet. This work was billed August 7, 1982, just three days after the bill for the first motor job.
[12] After two weeks of further operation, the problem was back again. Mr. Lanteigne thought the problem might be overheating so he next brought the vehicle to Paul E. Chiasson who does radiator work. Mr. Chiasson did another motor job and replaced the engine block with one he had at hand. His bill was dated September 5, 1982 and was for $1, 357.71.
[13] Three weeks later the motor knock is back again. Mr. Lanteigne testified that by this time he was fed up putting money in the engine and he purchased a used motor from one Gilbert Leger and had Paul E. Chiasson install the new motor in the car. He paid Leger $677.00 for the motor and Chiasson $218.63 to install it. Both bills are dated September 21, 1982. Mr. Lanteigne testified that the replacement motor had about 50,000 miles on it and that he knew the guy who owned the car it was in before and the car worked good.
[14] This time Mr. Lanteigne decided to test the new engine without connecting the exhaust system. He drove the vehicle 8 to 10 miles without the exhaust system at speeds of 100 to 105 m.p.h. and the motor appeared to be working well
[15] Then Mr. Lanteigne took the car to the Defendant's garage because they had the correct brackets to hook up the exhaust system. On attaching the exhaust system, Mr. Lanteigne testified he took the vehicle out on the road and put it through the same stress of operation as before when the system was not attached. The engine knocking sound became evident.
[16] He returned with the vehicle to Paul E. Chiasson's garage. On examination the exhaust pipes were glowing red. Mr. Lanteigne stated he telephoned Mr. Blanchard to come and view the heated exhaust pipes, but when he came some one and one-half hours later, the pipes had cooled.
[17] At this point the Plaintiff, Mr. Lanteigne, became concerned that the exhaust system might be the cause of his problem.
[18] The replaced engine was making the knocking sound and Mr. Lanteigne took the vehicle to one Roger Lanteigne who apparently did a pressure test that indicated high, which result could point to a constriction in the exhaust system.
[19] At this point the newly replaced motor was knocking badly and Mr. Lanteigne ordered Mr. Paul E. Chiasson to rebuild and install another replacement motor at a cost of $1,876.80. The bill is dated October 15, 1982.
[20] On October 20, 1982 Mr. Lanteigne purchased a new exhaust system from Lounsbury Company Limited for $208.83. He then had his vehicle towed to the Irenée Doiron & Fils Ltée garage in Paquetville, N.B. and had the new exhaust system installed at a cost of $275.50.
[21] Mr. Lanteigne testified that he then drove the car with satisfactory engine performance until a friend smashed up the vehicle some five or six months later.
[22] From the time the Plaintiff took possession of his Corvette after the Defendant had replaced the exhaust system at a cost of $216.00 on July 20, 1982 to the time he had a new exhaust system installed by Irenée Doiron & Fils Ltée at a cost of $584.33 on October 25, 1982 -- a period of approximately three months -- the Plaintiff, Mr. Lanteigne, had caused three full engine jobs to be done on the original Corvette engine and further had installed two new completely rebuilt engines at a billed cost of $7,111.67. This is not to mention any damage resulting from loss of his own time, transportation, loss of use, inconvenience and frustration.
[23] Did the exhaust system installed in the Corvette by the Defendant cause the engine damage? If so, is the Defendant responsible at law in the circumstances of this case, and if so, to what extent does that liability include the costs incurred by the Plaintiff?
[24] The Plaintiff testified at length of his problems. He concludes, as a person who knows motor mechanics and who knows Corvettes, that the exhaust system installed by the Defendant was inadequate for the requirements of a Corvette engine operated at high speeds and that this was the cause of his trouble. He points to the fact that he did not have problems prior to the exhaust system replacement by the Defendant. He says he had no engine problems after he had the second exhaust system installed. His testimony about the pressure test, the loss of power, and the pipe glowing red all supports the argument that the exhaust system installed by the Defendant caused the problem.
[25] Norman Blanchard testified that he did not think it was possible that the exhaust system he installed caused the problem. He contended that two pipes of 2" provided as good an exhaust system as one with 2" and 2 1/2" pipe. He maintained that greater time of operation would have been required to result in engine damage from such a cause in any event. He pointed out that prior to 1974 and the use of cataletic converters, the Corvette had used the 2" dual exhaust system similar to the Z-28 Camero system he had installed.
[26] Each side called experts to support their positions. Each expert was credible and each came to opposite conclusions.
[27] Mr. Joseph Roy was called for the Plaintiff. He has a background as a licensed heavy equipment mechanic, attended the St. John Institute of Technology where he studied diesel engines and fuel systems, he received his B. Ed. in 1973 and his M.A. in 1979. He has been teaching motor mechanics at Mathieu Martin High School in Moncton for 11 years and in 1984 got his automotive journeyman's license. Mr. Roy has experience with high performance racing automobiles. He was declared to be an expert in the field of automobile motor mechanics.
[28] Mr. Roy was in court and listened to the evidence of the Plaintiff, Mr. Lanteigne. He testified that the exhaust pipe installed by the Defendant on the Corvette, particularly at the bends where he measured the diameter at even less than 1 7/8", constituted a constriction in the exhaust system. He explained that back pressure in the exhaust system raises the temperature in the combustion chamber in the engine and usually first causes damage to the pistons which are manufactured with an alluminum alloy which is more susceptible to damage. He testified that for a 1979 Corvette the manufacturer recommended a 2 1/4" pipe for the 350 cubic inch engine as was the case here. He stated that he would never go smaller than the original system.
[29] Mr. Roy testified that five motors all showed scuffed pistons on the exhaust side which in his opinion was caused by overheating. From the evidence presented to him, particularly the fact that the engine knocking began after the original exhaust system was replaced and stopped after it was disconnected and a new system installed, he concluded that in his opinion the trouble had to be with the exhaust system. In his opinion the engine operating at high levels of revolutions per minute with insufficient exhaust building back pressure would overheat the combustion chamber of the engine and cause damage to the pistons. He maintained that in certain circumstances the damage could occur quickly -- in a matter of minutes.
[30] Mr. Roy states that given the experience of five different motors with a common exhaust system installed by the Defendant, his opinion is that the exhaust system had to be a common factor that directly contributed to the damage.
[31] The Defendant led evidence from Mr. Victor Dugas who is the general shop foreman at Hatheway Ltd. in Bathurst. He has worked with Hatheway Motors on motor vehicles continually for twenty-one years. He has his motor vehicle repair mechanics provincial certificate, his truck and tractor license and his interprovincial journeyman's certificate. He taught the course in motor vehicle repair mechanics at the Bathurst Trade School for one year. Mr. Dugas has considerable practical experience in vehicle exhaust systems. He was declared an expert in the field of automobile motor mechanics.
[32] Mr. Dugas was in court and listened to the evidence of the Plaintiff, Mr. Lanteigne, the expert witness for the Plaintiff, Mr. Roy, and the testimony of the proprietor of the Defendant, Mr. Blanchard.
[33] He gave his opinion that damage to a car's engine, particularly piston scuff, as was the case here, was caused by overheating. He stated that in his experience such damage was usually caused by radiator problems. He also set out other possible causes of such damage in order of the most common in his experience as poor lubrication, worn rings or tapered cylinders, preignition caused by wrong timing, lean mixture or carbon deposits and "back pressure if the engine is operated for a long period of time with restricted exhaust but this seldom happens".
[34] Mr. Dugas was of the opinion that given the period of time involved that the vehicle was operated with the exhaust system installed by the Defendant in place, that restriction in the exhaust system could not have caused the engine damage complained of in such a short period of time. He states that under normal conditions the smaller exhaust pipes installed by the Defendant should not cause a problem.
[35] Mr. Dugas stated that he personally would not have installed the exhaust system in question on the Plaintiff's Corvette only because the system did not provide the emission control required by environmental regulations and not because it would cause damage to the car's engine.
[36] After a thorough review of the evidence and upon considering the balance of probabilities, I have concluded that the Plaintiff has satisfied the onus upon him that the preponderance of evidence supports a finding that the exhaust system installed by the Defendant directly contributed to the damage to the Corvette's engine and the resulting damages suffered by the Plaintiff.
[37] As to the liability for this damage by the Defendant, there is no evidence that the exhaust system was installed in breach of the contract to install or was installed in a negligent manner. Indeed there is no allegation in that regard.
[38] The legal claim against the Defendant is based upon an obligation arising from the position of the Defendant as a person providing the service of exhaust system installation, holding out an expertise in this field, which is relied on by the Plaintiff, and then installing an exhaust system which is inadequate and causes damage to the Plaintiff. The Defendant breached its duty in this regard and it is upon this breach of duty that the Plaintiff relies for his claim.
[39] In my view there was an implied warranty that the exhaust system would be fit for the operational requirements of a 1979 Corvette car and the provisions of section 15(a) of the Sale of Goods Act, 1973 R.S.N.B. c. S-1 apply. Further it has been held that the Consumer Product Warranty and Liability Act, 1973 R.S.N.B. c. C-18.1 applies to personal automobiles as a consumer product. McGovey [sic] v. Lawson Motors Ltd. (1983), 42 N.B.R. (2d) 225. It follows that the Plaintiff in this case should be able to rely on the warranty provisions of that Act with respect to the sale of a replacement part for a personable [sic] automobile.
[40] In addition " ...it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise." Hedley, Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C.465 per Lord Morris of Borth-Y-Gest at p. 594.
[41] The evidence indicates that the Defendant was in the business of exhaust system installation and held out an expertise in this field. Although the Plaintiff was experienced himself in automobile mechanics and although he was looking for cheaper muffler than that normally specified for a Corvette, the evidence is not contradicted that in this case the Plaintiff relied on the expertise of the Defendant to install an exhaust system in this instance and that therefore legal liability of the Defendant to the Plaintiff arises.
[42] The extent of the damages for which the Defendant should be responsible is again a difficult question in this case.
[43] Including the amount paid to the Defendant to install the exhaust system of $216.00 and excluding the cost of replacing that system, the Plaintiff paid $7,327.67 in repairs to the Corvette's engine. In addition there were other out of pocket claims not established for transportation and loss of use.
[44] Although I have come to the conclusion that the Plaintiff has satisfied his onus of establishing that the breach of obligation by the Defendant (be it in contract or tort) directly contributed to his damage, I am not convinced that there were other factors which directly contributed to the damage. There is evidence that the Plaintiff drove the Corvette "hard" and that it may have had more than normal use. However the only evidence before the Court is that the Plaintiff drove the car in excess of 100 m.p.h. Although the Court in no way condones this obvious breach of the law, it remains that there is no basis, given the operational capacity of the Corvette, that establishes such use constituted contributory negligence by the Plaintiff that directly contributed to the damages.
[45] It is suggested by the Defendant that poor workmanship or material employed to effect repairs or replacement on one or more occasion after the Defendant had replaced the exhaust system, was a likely cause of the damage which occurred to the Corvette's engine. Again however, the Court has no evidence of such poor workmanship or deficient material so as to establish an alternative direct causative factor for the damage. To my mind it is likely that the existence of lean mixture and wrong timing could well have exacerbated the circumstances but there is not firm evidence to make a finding in this regard.
[46] The extent of the damages relating to the liability of the Defendant is another question.
[47] First, I am concerned that the Plaintiff did not act reasonably in the circumstances to correct the situation which arose and to mitigate his damages. He was very knowledgeable in automobile mechanics, he knew that the Defendant had not installed a specified Corvette muffler, from the first operation of the car after the installation he noticed less than an expected level of power which is a clear indication of restricted exhaust levels. Yet, given these circumstances he ordered three complete motor jobs and the installation of a newly rebuilt engine before he came to the conclusion that the exhaust system installed by the Defendant might have been the cause of his problem.
[48] The expert witness led by the Plaintiff testified that after the first motor job when the problem continued he might have suspected the exhaust system.
[49] I am also concerned with the extent of the damages claimed. The evidence shows that each time the engine knock condition arose, The Plaintiff addressed the problem by ordering either a complete motor job or an engine replacement. It does not show that all of this work was necessary nor that all the work done or the material installed was related to the damage caused by the Defendant rather than an effort by the Plaintiff to improve the overall engine quality and performance of his car while the opportunity presented itself. I am unable to determine from the evidence just what the reasonable damage suffered by the Defendant and caused by the Plaintiff should be.
[50] The Plaintiff shall recover damages from the Defendant for the cost of repair to the Corvette engine directly caused by the inadequacies of the exhaust system installed by the Defendant which damages I set in the amount of $3,000.00. This amount is set arbitrarily but with a view to the approximate amount paid to initially replace the exhaust system together with the cost of the first two motor jobs. I also considered the evidence of the expert Joseph Roy to the effect that his minimum cost to rebuild an engine is in the area of $2,500.00.
[51] In addition the Plaintiff shall recover simple interest fixed at 10% for a period of four years amounting to $1,200.00. Judgment shall therefore be entered against the Defendant in the amount of $4,200.00, and the Plaintiff shall have costs of $1,000.00 based upon scale 3 and an amount involved of $4,000.00 together with allowable disbursements.
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