Peterson v. Clark (J.) & Son Ltd.
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
Currently being edited for N.B.R.(2d) (Supp.) - judgment temporarily in rough form.
Temp. Cite: [1998] N.B.R. (2d) (Supp.) TBEd. FE.026
(F/C/188/96)
See important note at end
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 destroyed when the car hydroplaned and went off the road. She sued the defendant. She alleged that the rear tires were worn out when she bought the car and argued, inter alia, that the car was not of merchantable quality. The New Brunswick Court of Queen's Bench, Trial Division, held that the defendant did not breach any common law or statutory duty with respect to the vehicle's condition and dismissed the action.
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 destroyed when the car hydroplaned and went off the road -- She sued the defendant -- She alleged that the rear tires were worn out when she bought the car and argued, inter alia, that the car was not of merchantable quality -- The New Brunswick Court of Queen's Bench, Trial Division, 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.
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 uality or fitness -- Merchantable quality --[See Consumer Law - Topic 1724].
Cases Noticed
McGouey v. Lawson Motors Ltd. (1982), N.B.R.(2d) 225; 110 A.P.R. 225 (Q.B.), dist. [para. 12].
Thériault v. Roy (1990), 109 N.B.R.(2d) 75; 273 A.P.R. 75 (Q.B.), dist. [para. 14].
Counsel
David W. McMath, for the plaintiff;
David T. Hashey, Q.C., for the defendant.
This action was heard on January 20, 1998, before Russell, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who released the following decision on February 11, 1998.
[1] Russell, J.: The plaintiff purchased a used car from the defendant. Following an accident in which the car was destroyed and the plaintiff was injured she now says the vehicle was not of merchantable quality. The accident occurred when the car left a wet highway after skidding allegedly because of hydroplaning. The plaintiff says this happened because the rear tires were worn out when she bought the vehicle. Apart from the condition of these tires the plaintiff makes no other allegations about the merchantable quality of the car.
[2] By a consent order the parties have separated the questions of liability and damages and the trial proceeded only on a question of liability.
[3] Some of the allegations made by the plaintiff in the Statement of Claim follow:
"14. The Plaintiff states that her injuries and damages were caused by reason of the negligence, breach of duty and breach of contract of the Defendant, particulars of which include:
(a) retailing, selling and distributing the Pontiac to the Plaintiff when it knew or ought to have known that the same was dangerous, not of merchant-able quality and not fit for its intended purpose;
(b) retailing, selling and distributing the Pontiac to the Plaintiff which was not safe for operation on highways in all usual weather conditions;
(d) failing to replace the worn rear tires when their condition was brought to its attention;
(f) failing to warn the Plaintiff of the inherent instability and danger associated with the use of the Pontiac with its worn rear tires;
(h) employing incompetent servants and agents without proper knowledge and training in the operation of motor vehicles and in the importance of adequate tire tread on rear tires of front wheel drive vehicles.
"16. The Defendant expressly and impliedly warranted that the Pontiac was fit for the purpose intended as a motor vehicle and that it was of merchantable quality. The Defendant is in breach of these express and implied warranties.
"18. The Plaintiff pleads and relies upon the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1 as amended and in particular sections 1, 2, 10, 11, 12, 14, 15, 24, 25, 27 and 28 thereof.
"19. In the alternative the Plaintiff pleads and relies upon the Sale of Goods Act, R.S.N.B. 1973, c. S-1, as amended, and in particular section 15 thereof."
[4] The Statement of Defence says in part:
"5. As to paragraph 16 of the Statement of Claim, the Defendant states that the tires on the said vehicle were not warranted but were fit for their purpose and had been inspected at the time of sale. The Defendant otherwise denies statements and allegations contained therein and puts the Plaintiff to the strict proof thereof.
"9. The Defendant states that the sole cause of the Plaintiff's injuries, if any, was her negligence in the operation of the vehicle in wet conditions."
[5] Counsel agreed on a Statement of Facts which are reproduced here:
"1. On March 10, 1994, Tracy L. Peterson, (hereinafter referred to as "the Plaintiff") purchased a used 1991 Pontiac Firefly Turbo (hereinafter referred to as "the vehicle") from J. Clark & Son Limited, (hereinafter referred to as "the Defendant").
2. The vehicle's odometer reading at the time of the plaintiff's purchase was approximately 58,536 kilometres.
3. On June 14, 1994 while operating the vehicle, the plaintiff was involved in a single motor vehicle accident.
4. At the time of the accident, the vehicle had an odometer reading of 071,639 kilometres.
5. The four tires on the vehicle at the time of the accident had tread gauges of 5/32 for the right front tire, 5/32 for the left front tire, 3/32 for the left rear tire and 2-3/32 for the right rear tire.
6. The Province of New Brunswick Official Vehicle Inspection Station Manual issued by the Department of Transportation Motor Vehicle Branch at page 55 requires rejection of a vehicle for inspection when: "The tire is worn so that less than 1.6 mm. (2/32") tread remains when measured in any two adjacent major grooves at three locations spaced approximately equally around the outside of the tire."
[6] The vive voce evidence revealed that shortly after the vehicle was bought a skidding incident occurred on a wet or damp highway between Moncton and Fredericton when the plaintiff's friend, Terry Collins, was driving accompanied by the plaintiff. Upon their return to Fredericton the plaintiff alone, and a short time after, the plaintiff accompanied by Mr. Collins, complained to the defendant's employee that sold her the vehicle about the condition of the rear tires in that they were "bald". That individual on each occasion inspected the tires and said there was sufficient tread. The defendant acknowledged these visits took place. It should be noted that prior to the sale the plaintiff and Mr. Collins inspected and drove the vehicle. Presumably the state of wear of the tread on all four tires was visible to a casual inspection.
[7] Despite their concerns about the condition of the rear tires the plaintiff and Mr. Collins drove the vehicle some 13,139 kms. between March 10, 1994 and June 14 of that year. On an annualized basis that amounts to some 50,300 kms. a year (or 31,363 miles a year). The plaintiff lives some 8 or 9 blocks from her then place of employment. She drove to and from work and made a trip to Moncton as previously mentioned. In addition she only acknowledged 9 or 10 return trips to Saint John and trips every second week to McGivney which is distant 60 kms. from Fredericton. Mr. Collins confirmed the plaintiff's evidence. It is difficult to reconcile their evidence about their driving habits with the proven odometer readings on the vehicle. Driving some 13,000 kms. in a little over 3 months, while not extraordinary is perhaps more than normal, particularly on rear tires that were believed to be unsafe by the plaintiff and Mr. Collins near the beginning of that period.
[8] Before the car was sold the vehicle was inspected by Wayne Chase, a mechanic employed by the defendant. Mr. Chase gave evidence and while, understandably, he could not remember this vehicle personally, I am satisfied the documentation produced by the defendant accurately reflects the vehicle's history during the relevant period. This shows that on February 18, 1994 routine maintenance was performed on the vehicle along with a motor vehicle safety inspection. On February 21, 1994 two new tires were purchased for the car and installed on March 2, 1994 along with an air filter which had been ordered when the maintenance was performed (see: Exhibit 2, tabs 9, 10 & 14).
[9] It is apparent from the Agreed Statement of Facts and other evidence that the front tires had 5/32 inch tread after the accident and that these tires had 8/32 inch when new. It is apparent then that over the 13,000 kms. the plaintiff operated the vehicle the tread on the front tires wore approximately 3/32".
[10] The tread depth of the rear tires at the time of purchase is not known but it is agreed by both parties that after the accident these tires had a depth of 3/32" on one and between 2-3/32" on the other. It is not difficult to conclude these tires would have worn to some degree during the plaintiff's ownership and while they may not have been subjected to as much wear as the front tires on a front wheel drive vehicle it is probable the rear tires may have had as much as 3-4/32" of tread when the car was sold to the plaintiff.
[11] Clearly the rear tires marginally exceeded the requirements of the Province of New Brunswick, Department of Transportation, Motor Vehicle Branch vehicle inspection guidelines after the accident so far as tread wear is concerned. Without doubt they met the requirements at the time of sale some 13,000 kms. previously.
[12] The plaintiff relies on McGouey v. Lawson Motors Ltd., 42 N.B.R. (2d) 225 . In that case the frame of the vehicle was grossly rusted and this was not ascertainable on a casual inspection. Mr. Justice Barry said at page 231:
"I consider that the rusted frame was a major breach of warranty entitling the plaintiff to reject or rescind the contract. Under the statute, it is my opinion that there is an obligation on vendors of consumer products to take all reasonable inspection steps and they are not entitled to rely on a so-called " safety sticker" which could be little less than a joke depending on the inspector. Of course, some inspection stations are above reproach and can be relied upon, but there is nothing to stop an owner from replacing very good tires with very poor ones immediately after inspection. There is nothing in the Act entitling a dealer to rely on such a sticker."
[13] That situation is distinguishable from the established facts here. Certainly the tread wear was visible upon sale and, more importantly, the evidence establishes that at the date of sale there was adequate tread on the rear tires. Not only was there a so-called safety sticker on the vehicle but it was placed there by the defendant after doing an inspection and replacing components as necessary, including two front tires.
[14] Certainly the vehicle was durable for some 13,000 kms. (quite apart from the fact there is no evidence about what caused the hydroplaning on June 14) and exceeded Provincial tire tread requirements after the accident. Thus Theriault v. Roy, 109 N.B.R. (2d) 75 is distinguishable.
[15] None of the other authorities cited by the plaintiff avail her on the facts known here. I am satisfied the defendant did not breach any common law or statutory duty with respect to the vehicle's condition and accordingly the plaintiff's action is dismissed.
[16] The defendant is entitled to costs which I assess arbitrarily given that this is only a determination of the liability issue. I allow the defendant party and party costs of $1,000 plus provable disbursements.
This decision in this case was appealed.
Back to New Brunswick's Consumer Product Warranty Legislation Home Page.