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Motorcycle repair work found NOT to have caused crash

Hauer & Co. > Balance of probabilities  > Motorcycle repair work found NOT to have caused crash

Motorcycle repair work found NOT to have caused crash

In a recent decision of Cannon v. Al Perrett Enterprises Inc., 2018 BCSC 337, the Supreme Court of British Columbia examined the expert evidence put forward by both the plaintiff and defendant on the cause of a motorcycle crash.  The court preferred the evidence of the defendant’s expert.  It held the crash was not caused by any mechanical work done on the motorbike.

On August 21, 2013, the plaintiff, Roy Garnet Cannon, was injured when the motorcycle he was operating crashed on a highway near Merritt, British Columbia. No other vehicles were involved. The motorcycle had just been repaired at a repair shop owned by the defendant, Al Perrett Enterprises Inc. d.b.a. Kamloops Harley-Davidson. The plaintiff sought damages from the defendant for the injuries he suffered in the crash, alleging breach of contract and negligence. The defendant denied any negligence or breach of contract. It denied in any manner causing or contributing to the plaintiff’s accident. The plaintiff alleged that following repairs done at the defendant’s repair shop, he was operating his motorcycle when “the rear axle sheared off” causing him to lose control and crash.

The plaintiff argued that just prior to the crash the rear axle of the Motorcycle broke and that the back wheel of the Motorcycle locked up immediately prior to [the] Accident. The plaintiff felt the Motorcycle stop moving and the momentum carried his body through the windshield of the Motorcycle and over the handlebars.

The  plaintiff had been having problems with his motorcycle before the accident occurred. In August 2012, the plaintiff had both tires on the Motorcycle replaced by a business called Outta Control Cycles. On June 3, 2013, the plaintiff had repair work done on the Motorcycle, this time using the services of Kreater (West) Custom Motorcycles.

On about August 18, 2013, while in the midst of an annual motorcycle trip with his friend, the Motorcycle had engine trouble. The plaintiff was operating the Motorcycle about 100 kilometres outside of Banff, Alberta, when, as he described it, the “engine blew up”. The plaintiff had the Motorcycle towed to Kelowna, British Columbia and arranged for it to be repaired at Kreater.

On August 18 or 19, 2013, Kreater repaired the Motorcycle engine at a cost of $8,600.00. The plaintiff then retrieved the Motorcycle and carried on his road trip. On August 20, 2013, the day before the accident, the plaintiff again had problems with the Motorcycle. The rear drive belt broke. This occurred not far from Kamloops (about a 20-minute tow ride away), so the plaintiff had the Motorcycle towed to the defendant’s repair shop. The plaintiff hired the defendant to inspect, service and repair the Motorcycle. Mr. Olsen was the technician who did so.

On August 21, 2013, the plaintiff collected the Motorcycle from the defendant’s repair shop and rode off on it. He described that the Motorcycle “felt great” when he drove it away. The plaintiff was heading south to Merritt, in order to meet up with his friend and travelling companion again. The two friends had discussed which route would be best for the plaintiff to take from Kamloops to Merritt. Originally, the plaintiff had leaned towards taking Highway 5 (the Coquihalla Highway); however, his friend suggested that taking Highway 5A would be the better choice because it had switch-back turns and a relatively lower speed. These considerations were relevant to the plaintiff because travelling at a relatively lower speed would give him the opportunity to “break-in” his new rear tire. He knew he had a new tire that can be “slippery” during its initial use and that he, like all riders, have to be careful during its break-in period.

About 15 or 20 minutes after leaving the defendant’s repair shop in Kamloops on Highway 5A, the plaintiff reached a curve in the road with a scenic pull-out area by a lake. It was about 10 a.m. and the plaintiff was approximately 59 kilometres away from his starting point at the defendant’s repair shop. The pull-out area has a gravel surface. Vehicles use the pull-out to leave the highway and stop to look at the view. It was a clear, dry, summer day. No other vehicles were involved in the accident. No one saw the accident occur, although a truck driver parked at the pull-out heard the crash. The Motorcycle slid off the roadway, through the gravel pull-out area and into a cement barrier.

The plaintiff gave slightly varying accounts of his speed at the time of the accident. He said during his examination for discovery that the Motorcycle was travelling between 80 or 90 kilometres per hour. To Corporal Lyons shortly after the accident, he said that the Motorcycle was travelling at maybe 100 kilometres per hour. During his examination for discovery, he insisted he was travelling 90 kilometres per hour and explained that his inconsistent statement to the officer was perhaps the result of pain killers given to him at the hospital after the crash.

The plaintiff’s evidence contradicts what he told paramedics and police on the day of the crash and the evidence he gave at his examination for discovery in January 2015. With his inconsistent versions of events, the Court was left to question the reliability of the current evidence to the extent that it could accept it. At most, all the court could say is that the plaintiff cannot really say what happened in the crash.

The Court found nothing from the repair work completed by Mr. Olsen to suggest that there would be a problem with the motorcycle. Mr. Olsen replaced the broken drive belt, rear tire and brake pads on the Motorcycle on August 20, 2013. Mr. Olsen recalled the drive belt, an after-market belt, “was shredded and blown off and wrapped around the front sprocket”, but that upon inspection “no damage was caused by the drive belt to the other parts of the motorcycle”. Mr. Olsen, as of 2013, had worked on many Harley Davidson motorcycles, taken courses in the repair and maintenance of them and was very familiar with removing and replacing motorcycle wheels.

Mr. Olsen attached copies of two relevant documents to his affidavit – the service invoice for work and parts for the Motorcycle (the “Service Invoice”) and the service order worksheet (the “Worksheet”) for the Motorcycle. Mr. Olsen used these documents to explain the work he did on the Motorcycle as he has little to no recollection of the actual work. In accordance with his usual practice, Mr. Olsen explained that if he came across a concern or issue when working on a motorcycle, he would write it down on the Worksheet. For his work on the Motorcycle this day, Mr. Olsen wrote down that he replaced the belt and all primary seals and replaced the rear tire and brake pads. He further wrote down details about the belt he was replacing.

Mr. Olsen explained that as part of his usual practice following repairs, he took the Motorcycle for a test drive on his usual test drive route, which is about three kilometres. Mr. Olsen found no problems with the Motorcycle on its test drive.

Mr. Olsen also explained that the parts listed on the Service Invoice are the usual parts that he would use for replacing a belt on a motorcycle, except for the “rubber bumper”, an item that keeps the brake calipers from rattling. Mr. Olsen had a Harley Davidson service manual for Softail Models at the time he worked on the Motorcycle. Mr. Olsen deposed that he followed that procedure when he replaced rear tires on motorcycles.

The plaintiff’s expert in the accident reconstruction was Dr. Toor. Dr. Toor opined that there was a deformed rear fork arm that should have been seen by Mr. Olsen when he worked on the Motorcycle. The plaintiff says the deformation either caused a misalignment in the rear wheel, or Mr. Olsen caused the misalignment by tightening the adjustment bolt despite the deformation. This misalignment caused a build-up of pressure which caused the failure of the rear axle and lock up of the rear tire, causing the crash.

[87]         Dr. Cepuṧ summarized his view of Dr. Toor’s findings and conclusions at page 21:

Dr. Toor’s conclusion is largely theoretical and unsupportable by the evidence. He requires that a small selective element of damage pre-existed the crash, while the balance of damage surrounding it is post-crash. He concludes that a broken adjuster implies that an alignment operation was performed, and that therefore the selected element of damage should have been detected by the person performing the adjustment. He does not offer what should have been done at that point in time.

The expert of the defence was Dr. Cepuṧ. The Court stated:

[88]         Dr. Cepuṧ also opined about the cause of the accident at pages 21-22:

In my opinion, the evidence overwhelmingly supports a clear sequence of events leading to the accident, which does not require tenuous assumptions or selective unsupportable observations, conclusions, or opinions.

1)     The motorcycle was on a brand-new rear tire, known to be initially slippery.

2)     Control of the motorcycle was lost around a corner.

3)     The crash resulted in extensive damage to the motorcycle, rendering it unrideable.

4)     All the damage is consistent with the traumatic impact associated with crashing – including the fractured axle and adjuster.

5)     There was no damage to the rear end of the motorcycle prior to the accident.

In concluding that no fault for the motorcycle crash rests on the defendants, the court held that:

  • Toor failed to explain how the left side of the fork was bent or deformed in the same direction as the right and how only one of these pre-dates the crash.
  • The deformation Dr. Toor says pre-existed the accident that led to the other difficulties causing the crash are, even to the untrained eye, very noticeable defects.
  • Olsen’s evidence was reliable. The Motorcycle handled normally before the accident, which is inconsistent with the pre-existing deformation notion.
  • The right rear fork arm damage observed by both experts cannot be isolated from the other post-crash damage to the Motorcycle.
  • Given the significant nature of the defect Dr. Toor asserts pre-existed the crash, there would have to be some evidence of prior trauma, of which there is none. Dr. Cepuṧ’ explanation that given the significant pre-existing forces capable of bending drop outs would have required significant lateral loading, these forces would have likely destroyed the Motorcycle, rendering it inoperable and “unavailable for this accident”.
  • Toor’s opinion involves a reasoning process that seems circular. His opinion depends upon pre-existing damage that is, in reality, explained by the accident. The forces required to deform the rear fork, the deformation that Dr. Toor says pre-existed the accident, are precisely the type of forces that occurred in the crash itself, forces that rendered the Motorcycle unrideable.

The Court held:

[143]     In the end, I conclude the plaintiff cannot prove that, on a balance of probabilities, the crash occurred due to any fault resting upon the defendant. The action is dismissed, with costs to the defendant.


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