Peterson v. Clark (J.) & Son Ltd.
New Brunswick Court of Appeal
(1998), 206 N.B.R.(2d) 246 (CA)
Temp. Cite: [1998] N.B.R.(2d) TBEd. NO.008
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
The plaintiff purchased a used car from the defendant. The plaintiff was injured and the car was destroyed when the car hydroplaned and went off the road. The plaintiff sued the defendant, alleging that the rear tires were worn out when she bought the car and arguing, inter alia, that the car was not of merchantable quality. The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported [1998] N.B.R.(2d) (Supp.) No. 27, dismissed the action. Peterson appealed. The New Brunswick Court of Appeal dismissed the appeal.
Sale of goods - Statutory warranties - Particular warranties - Of durability - The plaintiff purchased a used car from the defendant - The plaintiff was injured and the car was destroyed when the car hydroplaned and went off the road - She sued the defendant, alleging that the car was not of merchantable quality because the rear tires were worn out when she bought the car - The trial judge held that the defendant did not breach any common law or statutory duty with respect to the car's condition and dismissed the action - The car was inspected before sale - The tread wear was visible upon sale - The rear tires exceeded Provincial tire tread requirements - The car was durable for the some 13,000 kms it was driven within three months of its purchase - The New Brunswick Court of Appeal dismissed the plaintiff's appeal.
Consumer Law - Topic 1728
Sale of goods - Statutory warranties - Particular warranties - Of fitness for purpose - [See Consumer Law - Topic 1724 ].
Sale of Goods - Topic 4106
Conditions and warranties - Implied or statutory terms as to quality or fitness - Fitness or suitability of goods - [See Consumer Law - Topic 1724 ].
Sale of Goods - Topic 4108
Conditions and warranties - Implied or statutory terms as to quality or fitness - Merchantable quality - [See Consumer Law - Topic 1724 ].
Torts - Topic 4354
Supplier of goods - Negligence - Retailers and wholesalers - Sale of defective goods -[See Consumer Law - Topic 1724].
Cases Noticed
Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118, refd to. [para. 5].
Fontaine v. British Columbia (Official Administrator) - see Fontaine v. Loewen Estate.
Counsel
David W. McMath, for the appellant;
David T. Hashey, Q.C., for the respondent.
This appeal was heard by Rice, Turnbull and Drapeau, JJ.A., of the New Brunswick Court of Appeal. On October 23, 1998, the court issued the following oral judgment.
[1] By the Court [orally]: June 14, 1994 was a rainy day. As Tracy L. Peterson was driving near Nashwaak Bridge, N.B., where rain had accumulated on the highway, her Pontiac Firefly hydroplaned. Ms. Peterson was unable to regain control of her motor vehicle and it left the highway and struck a tree. As a result, Ms. Peterson sustained injuries.
[2] Ms. Peterson purchased the Pontiac Firefly from J. Clark & Son Ltd. on March 10, 1994 after she inspected it and took it for a test drive. One week later, Ms. Peterson was driving from Moncton to Fredericton, N.B. when the Pontiac briefly skidded on water. However, Ms. Peterson did not lose control. Once in Fredericton, Ms. Peterson inspected the rear tires and considered that they were worn. She complained to a salesman at J. Clark & Son Ltd. and asked that the rear tires be replaced free of charge. The salesman refused, taking the position that the condition of the rear tires was not such that their replacement was warranted, at least on the basis proposed by Ms. Peterson. Notwithstanding her concern, Ms. Peterson did not replace the rear tires and the evidence indicates that she did not experience any further skidding or hydroplaning incidents until June 14, 1994.
[3] On March 21, 1996 Ms. Peterson brought an action for damages against J. Clark & Son Ltd. alleging that her injuries and resulting damages were caused by the negligence, breach of duty and breach of contract by J. Clark & Son Ltd. The crux of Ms. Peterson's claim was that J. Clark & Son Ltd. sold her the Pontiac Firefly when its rear tires were worn to such an extent that they were unsafe. She alleged that the unsafe condition of the tires led to the hydroplaning of June 14th. Ms. Peterson pled the Consumer Product Warranty and Liability Act , S.N.B. 1978, c. C-18.1, as amended, and in particular ss. 1, 2, 10, 11, 12, 14, 15, 24, 25, 27 and 28. She also pled s. 15 of the Sale of Goods Act , R.S.N.B. 1973, c. S-1. Finally, she claimed that the facts brought into play the doctrine of "res ipsa loquitur". With respect to the present status of this doctrine in canadian law, we refer to Fontaine v. Loewen Estate , [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118.
[4] The trial took place before Mr. Justice Russell of the Court of Queen's Bench. After hearing the witnesses and considering the evidence, Mr. Justice Russell was satisfied that J. Clark & Son Ltd. had not breached any common law or statutory duty with respect to the Pontiac's condition. He also found that Ms. Peterson had failed to establish what had caused the hydroplaning of June 14, 1994. As a result, he dismissed Ms. Peterson's action.
[5] In arriving at his decision, the trial judge made a number of findings of fact. They include the following: (a) at the time of sale of the Pontiac, its front tires were new and had a tread depth of 8/32",(b) during the following three months, the Pontiac Firefly was driven some 13, 000 kms, (c) during this period, its use resulted in the front tires being worn to such an extent, that the treads went from 8/32" to 5/32"; (d) at the time of sale, the tread on the rear tires was probably as much as 3- 4/32" and was adequate; and (e) at the time of the accident, the rear tires had a tread depth of 3/32" on one and 2-3/32" on the other and, accordingly, the tread depth marginally exceeded the inspection guidelines set out in the Province of New Brunswick, Department of Transportation, Official Vehicle Inspection Station Manual .
[6] Before liability could be imposed on J. Clark & Son Ltd., Ms. Peterson had to satisfy the trial judge that J. Clark & Son Ltd. had breached some duty imposed by the common law or by a statutory provision and that, by such a breach, it had caused her damages.
[7] There was evidence to support the trial judge's findings of fact. Moreover, we are satisfied that his findings are reasonable and that they are not the result of any palpable or overriding error. As well, we are satisfied that the trial judge considered all of the relevant evidence and that he did not misapprehend the evidence. In our view, he properly declined to draw the inference of a causal link between the condition of the tires and the accident of June 14th. It is trite law that findings of fact and the drawing of evidentiary conclusions from those facts are the province of the trial judge. See Fontaine v. Loewen Estate, at p. 437, para. 34 [S.C.R.].
[8] On the basis of the facts properly found by him, Mr. Justice Russell's ultimate decision to dismiss Ms. Peterson's action is correct in law. The appeal is therefore dismissed with costs.
Appeal dismissed.
Editor: David Weir/pdk
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