Georgyev v., 2019 BCPC 343

Citation: Georgyev v. 659861 B.C. Ltd. 2019 BCPC 343 Date: 20191018 File No: 1853341 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PETAR GEORGYEV and VASIL GEORGYEV CLAIMANTS AND: 659861 B.C. LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Appearing on their own behalf: P. Georgyev and V. Georgyev Counsel for the Defendant: K. Dhahan Place of Hearing: Prince George , B.C. Dates of Hearing: April 16 & July 16, 2019 Date of Judgment: October 18, 2019 A Corrigendum was released by the Court on November 12, 2019.

The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] This is a claim by Petar and Vasil Georgyev against 659861 B.C. Ltd. doing business as Great Canadian Oil Change, a company which provides oil changes and other mechanical services for motor vehicles in Prince George, B.C. (“GCOC”). [ 2 ] The claimants allege the defendant was negligent in performing an oil change on their 2012 Subaru Impreza on September 28, 2017.

Specifically, they claim the defendant failed to properly replace the oil drain plug after the oil change, resulting in the plug falling out and significant engine damage arising from the rapid loss of the oil. They seek damages relating to repairing the engine in the amount of $9,520.03, being $9,427.63 in repair costs and $92.40 in towing fees.

[ 3 ] The defendant denies it was negligent in performing the oil change and asserts its actions did not cause the drain plug to eject. The defendant further argues that the claimant, Vasil Georgyev, contributed to the engine damage by continuing to drive the Impreza after the vehicle’s oil warning lights activated in connection with the oil loss. Facts [ 4 ] Petar Georgyev is the owner of the 2012 Subaru which is the subject of the claim, however, his son Vasil regularly drove the vehicle.

Vasil Georgyev testified he took good care of the vehicle and obtained regular vehicle maintenance services from the Subaru dealership and oil changes from the defendant. He preferred to have GCOC perform oil changes because it was more convenient than the Subaru dealership, as he could be “in and done in ten minutes” at GCOC. [ 5 ] It is uncontested that on September 28, 2017, Vasil Georgyev took his vehicle to GCOC for an oil change. GCOC’s mechanic removed the oil drain plug, drained the old oil, and then reinserted the plug to secure the new oil.

Vasil Georgyev paid $44.78 for this service. [ 6 ] Vasil Georgyev testified he drove the vehicle after the oil change for approximately 623 km, primarily to run errands and commute to and from school. Twelve days later on October 10, 2017, he was driving the Impreza from university to a local restaurant when he noticed the “check oil” warning light ignite on his dashboard. He immediately started driving back home but the car stalled after around a minute of driving. When he got out of the car he noticed a large oil slick on the ground which he photographed.

A tow truck was called and the vehicle was towed to the Subaru dealership. [ 7 ] Justin Young was adduced by the claimants as an expert in auto mechanics, and particularly oil change practices and the effects of oil deprivation on Subaru engines. He is a technician for the Prince George Subaru dealership where he has worked for nine years. He has 15 years’ experience in auto mechanics and has performed hundreds of oil changes. For the last five years he has been an apprentice auto mechanic, the completion of which will qualify him as a certified mechanic.

He works with Subaru engines every day. [ 8 ] Justin Young testified that in October 2017, the claimant’s Subaru was towed to the Subaru dealership. He knows the claimants as clients of the dealership. The car was placed on a hoist to investigate the cause of the stall. Mr. Young immediately observed there was no drain plug in the vehicle and all of the oil had drained out. He put in a new drain plug which he was able to insert without difficulty. [ 9 ] Mr.

Young testified there were two potential causes for the drain plug to be (unintentionally) absent: it had fallen out as a result of not being properly tightened, or, it had been knocked out by striking debris or the road. As Mr. Young observed no damage to the oil pan or structures where the drain plug is situated, it was his opinion the drain plug was not knocked out and the most likely cause was improper tightening when the plug was last inserted.

The claimants say the last party to insert the drain plug was GCOC on September 28, 2017. [ 10 ] The loss of the drain plug allowed oil to effectively pour out of the bottom of the vehicle while the engine was still running, causing significant engine damage which cost $9,427.63 to repair. [ 11 ] In cross-examination Mr. Young explained that the “check engine oil” light in a Subaru vehicle indicates low oil pressure. It was his view that by the time that light comes on while driving it is “too late,” however, there is a “chance” of avoiding engine damage if the driver turns off the car immediately.

It was his experience it was “not good” when that warning light came on in those situations. He agreed it was possible that driving the vehicle for a minute after the warning light came on could have caused the damage to the engine. [ 12 ] Mr. Young agreed a drain plug could be dislodged if the bottom of the vehicle struck debris or bottomed out. He stated that the claimant’s vehicle, although a sports model, was not particularly low to the ground such that it would be more susceptible to bottoming out.

He also was of the firm view that the drain plug was not dislodged from the bottom of the vehicle from striking something because there was no damage indicative of that event. He explained there is a plastic oil pan that goes under the engine and it would have been damaged if the car had struck its bottom hard enough to knock out the drain plug. It was his opinion at the time that the drain plug had fallen out from failing to be properly tightened. [ 13 ] It was also Mr. Young’s opinion it was possible to drive the vehicle 623 km before the drain plug fell out.

He explained it would take a while for the vibration of driving to work the drain plug loose to the point where it started leaking oil. The vehicle would not have leaked oil right away and a slow leak would have developed as the drain plug loosened, finally falling out completely. [ 14 ] Mr. Young confirmed he was familiar with the Impreza as it had been in his shop several times before October 10, 2017, and was running fine.

He agreed there could have been pre-existing engine issues with the vehicle he was unaware of but he had not observed that when he worked on the vehicle in the past. [ 15 ] Vasil Georgyev testified he noticed no mechanical issues with his vehicle before the event on October 10, 2017. After the oil change he did not drive the vehicle off-road and it did not bottom out at any point. No one drove the vehicle but him. On the day of the oil loss, he was driving city roads at around 50 km/hr and did not experience anything striking the bottom of his car.

He denied his car was especially low to the ground and described that distance as “normal”, and likened the Impreza’s clearance to that of a Honda Civic. Vasil Georgyev admitted he had not seen any oil leaking from the car before October 10, 2017, but qualified he was not under the car at any point to be in a position to observe if leaking was occurring. [ 16 ] Vasil Georgyev admitted that after this event he continued to retain GCOC to perform oil changes on the vehicle, but explained it was because he understood from his friends that GCOC was taking greater care with its oil changes following this incident.

Accordingly, he had confidence in GCOC’s workmanship in these circumstances. [ 17 ] Vasil Georgyev did not check the oil levels in his car after the oil change on September 28, 2017. He admits he did not see the undercarriage of the Impreza after the incident as his father, Petar, dealt with the car after it was towed to the Subaru dealership. He did

not take any pictures of the undercarriage. He never found the missing drain plug. [ 18 ] Petar Georgyev testified that a few days before October 10, 2017, he noticed a growing pool of oil in his garage where the Impreza and his wife’s car were usually parked. He checked the oil dipstick level of the Impreza and found it to be in the middle, while his wife’s car showed low oil levels. He assumed the oil pool was originating from his wife’s car based on their respective oil levels as he could not get under the cars to visually confirm if either was leaking oil.

He scheduled his wife’s car for an oil change at Subaru for the following Monday, which coincidentally turned out to be the same day as the Impreza’s sudden oil loss. [ 19 ] Petar Georgyev confirmed his son, Vasil, was the only one driving the Impreza after the oil change at GCOC. He also confirmed that the Impreza was not especially low to the ground, stating it had the same clearance as his wife’s Subaru Legacy and less clearance than his BMW. When his son contacted him about the oil loss, the Impreza was towed to the Subaru dealership and he dealt with the repairs.

I infer that it was Petar Georgyev who authorized and paid Subaru to conduct the repairs. [ 20 ] Petar Georgyev filed the claim October 13, 2017. He says that on the advice of a lawyer he did not contact the defendant to inspect the vehicle before the repairs were done by Subaru. He says he was initially told that the corporate defendant was an organization based in Chilliwack (against whom the claim was originally filed), and he later learned the current corporate defendant operated the GCOC. [ 21 ] The Defendant adduced Chris Meyer as an expert in oil changes and related oil parts.

He was also the mechanic who performed the oil change on the Impreza on September 28, 2017. Mr. Meyer has performed around 80,000 oil changes between 2008 and 2017, but has no certifications. He has experience dealing with drain plug issues in the course of his employment. He ceased working at GCOC in November, 2017. He currently works as a welding inspector. [ 22 ] Mr. Meyer has seen drain plug issues on around 100 occasions, which includes loose plugs, threading and gasket issues. He testified as to the procedure for oil changes at GCOC at the time of the relevant event.

A large ramp separated two working areas above and below. There was a mechanic who worked upstairs on the top of the vehicle and a mechanic working downstairs underneath the vehicle. Vehicles would line up to access the working ramp. A vehicle would then drive on to the ramp to the working area. The hood would be opened and the up and down mechanics would communicate with each other.

The down mechanic would take out the drain plug and drain the oil while the up mechanic checked other fluid levels and changed the filter. [ 23 ] After the oil drained the down mechanic would replace the drain plug and the up mechanic would pour in new oil. Other service items would be attended to. The vehicle would be turned on and off, the oil levels checked and all caps double checked for tightness. The down mechanic would tighten the drain plug with a torque wrench.

He would then call for a tap check and a supervisor would again check all caps - including the drain plug - for tightness, as well as the oil dipstick for oil levels. Tamper seal would be applied to the sealed caps. Tamper seal is a paste which can indicate if someone has broken the seal of the drain plug or oil filter. [ 24 ] Mr. Meyer said drain plugs were tightened with a torque wrench, which involved tightening the plug until the mechanic heard one “click” of the wrench. [ 25 ] Mr.

Meyer did not specifically recall working on the claimant’s vehicle, but believes he conformed to his usual standard practice when he performed the oil change on September 28, 2017. As the “down” mechanic, he was the one responsible for re-installing and tightening the drain plug. He believes the Impreza was lower to the ground than regular cars. As he had no specific recollection of this vehicle, I prefer the evidence of Mr. Young and the claimants who are much more familiar with the vehicle with respect to its clearance height. [ 26 ] Mr.

Meyer testified that if a drain plug is overtightened the threads can be stripped or the gasket can be crushed, causing an oil leak. If the plug is too loose the vehicle will leak oil. Mr. Meyer said that he would expect a leak arising from a loose drain plug to be noticeable within 10-15 minutes. He has never seen a scenario where an improperly tightened drain plug fell out without any signs of oil leakage beforehand, but acknowledged it was “not against the laws of physics.” Mr. Meyer thought it extremely unlikely a drain plug would fall out after the car had been driven 623 km.

He would expect to see signs of an oil leak in the driveway and the low oil light to come on before it fell out. [ 27 ] Mr. Meyer says he has never seen a drain plug fall out from an oil change. When asked how a drain plug could come out, he said he would have to speculate, but envisioned situations where either it was taken out by hand or “smashed” by going off road or hitting a large rock on the road. [ 28 ] Mr.

Meyer’s opinion was that if a driver sees a “check oil” light come on when driving they should stop driving immediately, as failure to do so could cause the engine to “blow up.” [ 29 ] In cross-examination Mr. Meyer said he did not hear about what happened to the Impreza at the relevant time, and only learned of the complaint when Troy White called him several months before this trial. [ 30 ] Troy White owns the GCOC franchise which performed the oil change on the Impreza.

He gave evidence about the oil change procedures utilized at the shop, however, he ultimately acknowledged he was not on site in 2017 when the Impreza was serviced. Mr. White qualified that in attesting to the defendant’s oil change procedures during the relevant time period, his knowledge was based on the franchise shop policy manual. [ 31 ] Mr. White’s evidence about tightening the drain plug was somewhat inconsistent with Mr. Meyer’s. According to Mr. White, in addition to using torque wrenches, “a lot of times” drain plugs were tightened using a hand wrench with two fingers as a means to govern pressure.

The choice of wrench depended on the design of the vehicle and accessibility of the drain plug. [ 32 ] Mr. White says the claimants did not contact him about the issues with the Subaru before any work was done and he was not given an opportunity to inspect it. The proceedings were complicated by the fact that the claimants initially sued the incorrect corporate defendant, then amended their claim, the defendant failed to reply and default judgement was obtained which was later set aside and set

for this trial. Assessment of Expert Evidence [33] The defendant argues Mr. Young is not an independent expert because he works at the Subaru dealership where the claimantscontinue to have a business relationship by virtue of having their vehicles serviced there. I do not find that argument compelling. I acceptthe evidence of Mr. Young and the claimants that they have no personal relationship. Vasil Georgyev testified that he only takes his carinto Subaru around once every six months, and often another mechanic works on it. It was not suggested to Mr.

Young that his economicinterests are somehow aligned with the claimants and no evidence was adduced in that regard. At best, as an employee of the dealership,Mr. Young indirectly benefits from the business generated by a retail customer who occasionally contributes to the revenues of thebusiness. I find that economic relationship sufficiently remote as to have no effect on my assessment of Mr. Young’s independence. [34] Further, I found Mr. Young to be balanced and objective in his evidence. He did not act as an advocate for the claimants.

Heagreed it was possible that driving the car for a minute after the oil warning light came on could have caused the damage. Heacknowledged there could have been pre-existing engine issues he was unaware of. He formed his opinion as to the cause of the missingdrain plug by inspecting the engine and absence of damage independently of any information conveyed to him by the claimants. Headmitted he could not say if the drain plug had been tampered with prior to the event.

At no time did he identify the defendant as theparty responsible for the cause of the missing drain plug, other than to the extent he identified the improperly tightened drain plug couldhave occurred at the last oil change. [35] It was suggested I should put little weight on Mr. Young’s evidence because he claims to remember the state of the oil pan butcannot remember whether or not he saw tamper seal. Mr.

Young said he does not recall seeing any tamper seal paint on the car but fairlyacknowledged it could have been there. [36] The defendant never established that the presence or absence of tamper seal would have been of such import to Mr. Youngwhen he inspected and repaired the vehicle that the Court would expect him to have a recollection about that if he were testifyingtruthfully. By contrast, it was established why Mr. Young would remember the state of the oil pan because he made a special point ofinspecting the oil pan for damage. As such, I cannot draw any inferences about Mr.

Young’s inability to attest to a firm recollectionabout tamper seal. [37] I am satisfied Mr. Young provided his expert opinion objectively without bias and was not acting as an advocate for theclaimants. [38] By contrast, I find the defendant’s expert, Mr. Meyer, was far less independent. Mr. Meyer was the very person alleged to havenegligently re-installed the drain plug and caused the damage. I do not agree with the defendant’s submission that the fact of Mr.Meyer’s new employment and severed economic relationship with the defendant acts to neutralize his clear conflict of interest.

Whetherconsciously or subconsciously, an expert who is alleged to have acted negligently will be more inclined to form an opinion whichabsolves him or her of any wrongdoing. [39] I prefer the evidence of Mr. Young to Mr. Meyer. Mr. Young was more independent than Mr. Meyer. Mr. Meyer had nospecific recollection of working on the vehicle while Mr. Young was charged with the inspection, diagnosis and repair of the vehicle.While Mr. Meyer can speak to his process and expertise in performing oil changes, Mr. Young is experienced working with Subaruvehicles and repairing them. While Mr.

Meyer may have been informed about the presence of complaints concerning damage alleged tohave occurred during an oil change, he was not in the business of repairing such damage. Mr. Meyer did not provide any plausibleexplanation for how a drain plug could become dislodged in a Subaru Impreza without damaging the vehicle’s surroundingundercarriage structure. Inability to Inspect [40] The defendant complains it was not given an opportunity to inspect the damage to the Impreza before the engine was repaired atSubaru.

The defendant also argues the claimants ought to have photographed the drain plug area prior to repairs. [41] In my view an opportunity to inspect and the presence or absence of photographs is not directly relevant to an assessment ofwhether or not GCOC was negligent in installing the drain plug. Those matters primarily relate to the claimants’ ability to meet theirevidentiary burden and any adverse inferences I may draw. [42] With respect to the evidentiary burden, it was not seriously suggested that something other than oil loss caused the enginedamage. Mr.

Young’s credibility was not seriously challenged with respect to his evidence that he searched for and found no evidence ofdamage to the oil pan or surrounding structures. It is unlikely the defendant’s inspection and photographs would have contradicted thoseobservations. [43] With respect to adverse inferences, I accept Petar Georgyev’s explanation that he had the engine repaired without inviting thedefendant to inspect it first because he was acting on the advice of a lawyer. Mr. Georgyev was otherwise self-represented in theseproceedings.

In these circumstances, and without commenting on the propriety of that legal advice, I do not draw any adverse inferencesagainst Mr. Georgyev’s decision to proceed with repairs without inviting the defendant to inspect the damage. [44] The defendant argues a further purpose of an inspection or photographs would have been to detect the presence or absence oftamper seal on the area of the drain plug, as the presence of tamper seal would support the defendant’s assertion it followed properprotocols when replacing the drain plug during the oil change. In this regard the defendant relies on the decision of Kang v.

Sam PetrellaHaulage, (ONSC) where a claimant made a similar claim for damage arising from an oil drain plug falling out. Thedefendant’s inspection showed the presence of marking spray that the defendant typically affixed after a drain plug had been installedfollowing an oil change. The trial judge relied, in part, on the standard procedure adduced by the defendant and the presence of themarking spray in finding the claim of negligence had been rebutted.

[45] In my view, trial judge’s findings in Kang were factual determinations based on the evidence before him or her. In this case,while the absence of tamper seal may have supported the claim of negligence, its presence would not necessarily have rebutted it. Wherethe allegation is that the drain plug was installed but not sufficiently tightened, the fact the mechanic sprayed tamper seal over the plug isof little assistance in determining whether that mechanic used enough torque to fully secure the plug before it was sprayed.

Continued Business with the Defendant [46] The defendant argues I ought to draw a negative inference from the fact Vasil Georgyev continued to get oil changes at GCOCafter this incident. I accept Mr. Georgyev’s evidence that the GCOC is convenient for him and he was satisfied the GCOC was beingextra careful in performing oil changes after this incident. It was Petar Georgyev who dealt with the repairs to the vehicle. I draw noadverse inferences from Vasil Georgyev’s continued use of GCOC after these events. Findings on Liability [47] The defendant has provided the decision of 1089442 Ontario Ltd. v.

SMK Speedy, 2001 BCPC 127 , 2001 BCPC 0127as a guide to determining liability in these circumstances. In that case the vehicle, a rental, was given an oil change at the defendant’sshop. It was rented around 20-25 times and driven 4000 km when there was a sudden loss of oil. The claimant rental agency had checkedthe vehicle before each rental and observed no oil leaks. The renter told the claimant rental agency after he saw the “check oil level” lightcome on, he pulled over and added oil then continued to drive the vehicle until it stalled. The vehicle was towed to a local dealership forrepairs.

The dealership told the claimant the oil filter was loose, causing the loss of oil and subsequent engine failure. The dealership hadtightened the oil filter before the defendant had a chance to inspect it. [48] There were many material facts in 1089442 Ontario Ltd. distinguishable from the case at bar. In that case the expert opinionrelied on by the claimant was based on facts not in evidence as the claimant failed to call the mechanics from the dealership upon whoseinformation the expert’s opinion was based.

The vehicle had been rented 20-25 times and was driven 4000 km after the oil change beforethe oil loss event. The trial judge found a loose oil filter would have leaked right away, yet the claimant admitted it regularly checked oillevels before each rental and had not seen evidence of any leak prior to the oil loss event. [49] The defendant also relies on the decision of Kang v. Sam Petrella Haulage, (ONSC). In that case theclaimant had purchased a used commercial truck with 657,000 km on an “as is” basis without performing a mechanical inspection orobtaining a service history.

The claimant had the oil in the vehicle changed at the defendant’s company shortly after purchase. A fewdays after the oil change, being 12 days from the date of purchase, the vehicle’s engine ran out of oil and was damaged during a trip fromthe U.S. The claimant alleged the oil loss was due to a loose oil pan plug while the defendant said the damage was due to wear and tearunrelated to the drain plug. [50] The driver attested that as soon as the “check engine” light came on he attempted to pull over as soon as it was safe, but theengine stalled in the interim.

The tow truck driver explained the oil pan plug was missing and noticed a large pool of oil under thevehicle. The vehicle had been driven 3,716 km since the defendant’s oil change. The vehicle was driveable after the oil plug and oil wasreplaced, but noisy.

Upon returning to Canada the claimant had the vehicle inspected which identified the presence of debris and damageto parts of the engine which cost $17,000 to repair. [51] In Kang the defendant’s expert attested to special threading properties of the oil pan plug and washer itself, the recordings onthe commercial vehicle’s “black box,” the actual items of damage repaired and evidence of a potential pre-existing engine problem. Theclaimant also performed daily commercial vehicle checks before the incident and observed no oil leaks.

It was the expert’s view it was atemperature related problem, not oil loss, which likely caused the engine damage repaired. [52] Of note, in Kang the trial judge found the passage of five days from the time of the oil change until the oil loss event did notpreclude the possibility that the drain plug fell out due to improper tightening, and that was a reasonable inference to draw.

However, thetrial judge was satisfied on the evidence of the defendant as to its double and triple-check procedures, including evidence of thecontinued presence of spray paint affixed by the defendant to indicate the drain plug had been tightened, rebutted the claim ofnegligence. [53] In all of the circumstances the trial judge was not satisfied that the engine damage repaired did not relate to a pre-existing issueand therefore was not satisfied the damage was the result of the oil loss.

That is factually distinctive from the case at bar where, as I find,damage to the Impreza’s engine was the direct consequence of the engine operating without oil following the massive loss of oil. [54] The invoice submitted by the Claimant as proof of damages lists the repairs done to the Impreza’s engine but makes noreference to the oil drain pan. The Defendant argues I should draw a negative inference from that absence, but I find the oppositeinference is more compelling: the invoice makes no reference to the oil drain pan because it was intact, undamaged, and needed no repairor replacement.

In short, it is not mentioned in the invoice because it was not something the shop fixed. The absence of reference to theoil drain pan on the invoice corroborated Mr. Young’s evidence that it was undamaged (and therefore not subjected to a strong force likebottoming out). [55] I am satisfied that it would have been difficult, if not impossible, for the claimants or some other third party to remove the drainplug without raising the vehicle to provide access, an action unlikely to have gone unnoticed by the claimants.

There is no basis tobelieve the claimants had any motivation to sabotage their own vehicle. [56] I am satisfied on the evidence of Mr. Young that the threads of the drain plug opening were intact and not damaged, such thatthe drain plug was not cross threaded.

I am further satisfied that overtightening and cross threading may have contributed to an oil leakbut would not have caused the plug to fall out. [57] While the defendant continuously suggested the Impreza was “low to the ground”, no technical evidence was adduced settingout the vehicle’s actual clearance, how that clearance compared to other vehicles, what clearance was safe for Prince George roads, andwhether Imprezas were generally susceptible to undercarriage strikes. In other words, there was no evidence tying the assertion the

Impreza was “low to the ground” to the likelihood the drain plug fell out from being struck as opposed to being loose. [ 58 ] I am also satisfied there was no indication of damage to any other part of the undercarriage, oil pan or surrounding area consistent with the drain plug having become dislodged due to bottoming out or striking debris in the roadway.

I find it highly unlikely the bottom of the car could have struck a surface or object with such force that it dislodged the drain plug without also damaging the threads to the plug opening or causing damage to any other part of the undercarriage which sits adjacent or lower to the ground than the drain plug. [ 59 ] Mr. Young and Mr. Meyer testified that if the drain plug was loose they would expect evidence of oil leaking prior to the plug falling out.

I accept the evidence of Petar Georgyev that he saw an oil leak in his garage a few days before October 10, 2017, but believed the leak was originating from his wife’s car because the Impreza’s oil level showed as normal. The invoice adduced in evidence from the engine repair notes Mr. Georgyev made this same complaint at the relevant time. [ 60 ] In all of the circumstances and based on the totality of the evidence, I find the cause of the engine damage was the sudden loss of oil from the engine due to the drain plug falling out.

The drain plug fell out as a consequence of the defendant failing to properly tighten the drain plug during the September 28, 2017 oil change, causing the plug to eventually work its way loose from the vibration of driving and fall out. I find it was reasonably foreseeable to the defendant that failing to properly tighten the drain plug could cause it to come loose and/or fall out, as evidenced by the special procedures put in place such as using tamper seal, torque clicks, and double checks to prevent against that eventuality.

It was reasonably foreseeable to the defendant that failure to tighten a drain plug properly could lead to major engine damage. Contributory Negligence [ 61 ] In order to be liable for the damages claimed, the onus is on the claimant to show that “but for” the improper installation of the drain plug, the damage would not have occurred. [ 62 ] The Defendant submits that even if it failed to properly tighten the drain plug, the claimants are liable for the engine damage because Vasil Georgyev continued to drive the vehicle after the low oil engine light alerted him to the oil loss.

Effectively the defendant argues the claimants fail the “but for” test because the intervening acts of the claimant – continuing to operate the engine after he had been alerted to the oil loss – caused or contributed to the engine damage. [ 63 ] The claimants’ reply that by the time the oil light came on the engine damage would have already occurred, so Vasil Georgyev was not contributorily negligent. They suggest that for most people, a low oil light is not an urgent emergency requiring the vehicle be immediately stopped and towed.

Most people would interpret the appearance of that warning light as a sign they should go home and have their oil level checked or take their vehicle in for an oil change. [ 64 ] While the claimants’ description of how most drivers would casually react to the appearance of a “check oil” light may be attractive, it stands in contradiction to Mr. Young’s and Mr. Meyer’s mutual opinion that in fact the appearance of such a light constitutes an emergency. It was Mr. Young’s view that things were already “not good” with a vehicle by the time the oil warning light came on. I infer from the evidence of Mr. Meyer and Mr.

Young that when the “check oil” warning light appears, a driver should stop operating their vehicle immediately to avoid engine damage. [ 65 ] Regardless of how most drivers may behave, it is the responsibility of the individual driver to familiarize him or herself with a vehicle’s warning lights and respond appropriately in accordance with the manufacturer’s recommendations when a warning light appears. [ 66 ] Mr. Young acknowledged it was possible engine damage could have been avoided by pulling over and stopping the car immediately. Mr. Meyer was of the same view.

There is no suggestion Vasil Georgyev was in an emergent or unsafe environment which required him to continue driving after the light came on. He decided to deal with the warning light by attempting to drive home. The engine may have already been irreparably damaged by the time the warning light ignited, however, I find it is also possible the engine may have been salvageable or less damaged if Mr.

Georgyev had pulled over and stopped right away. [ 67 ] In all of the circumstances I find Vasil Georgyev’s actions in continuing to drive the vehicle after the oil warning light came on contributed to the engine damage. I assess his liability at one third or 33.33%. Conclusion [ 68 ] I find the Defendants caused the catastrophic oil loss from the engine by negligently failing to properly tighten the drain plug, and find the claimant, Vasil Georgyev, negligently contributed to the engine damage by continuing to operate the vehicle after the check oil warning light came on.

Damages are assessed against the defendant in the amount of 66.66% of the claim (0.666*$9,520.03 = $6,346.05), plus court related costs (corporate search fees of $22.84, filing fees of $156, and service fees of $80), for total damages payable by the defendant to the claimants in the amount of $6,604.89. __________________________ The Honourable Judge C. Malfair Province of British Columbia CORRIGENDUM - Released November 12, 2019

In the Reasons for Judgment dated October 18, 2019, the following changes have been made: [1] In paragraph [2] it states: The claimants allege the defendant was negligent in performing an oil change on their 2012 Subaru Impreza on September 28, 2018. It should read: The claimants allege the defendant was negligent in performing an oil change on their 2012 Subaru Impreza on September 28, 2017 . [2] In paragraph [8] it states: Justin Young testified that in October 2018.

It should read: Justin Young testified that in October 2017 . [3] In paragraph [12] it states: He explained there is a plastic oil pan the goes under the engine and it would have been damaged if the car had struck its bottom hard enough to knock out the drain plug. It should read: He explained there is a plastic oil pan that goes under the engine and it would have been damaged if the car had struck its bottom hard enough to knock out the drain plug. [4] In paragraph [26] it states: If the plug it is too loose the vehicle will leak oil.

It should read: If the plug is too loose the vehicle will leak oil. [5] In paragraph [31] it states: Mr. White’s evidence about tightening the drain plug was somewhat inconsistent Mr. Meyer’s. It should read: Mr. White’s evidence about tightening the drain plug was somewhat inconsistent with Mr. Meyer’s. [6] In paragraph [48] it states: The vehicle had been rented 20-25 times and drive 4000 km after the oil change before the oil loss event.

It should read: The vehicle had been rented 20-25 times and was driven 4000 km after the oil change before the oil loss event. [7] In paragraph [48] it states: The trial judge found a loose oil filter would have leaked right away, yet claimant admitted it regularly checked oil levels before each rental and had not seen evidence of any leak prior to the oil loss event.

It should read: The trial judge found a loose oil filter would have leaked right away, yet the claimant admitted it regularly checked oil levels before each rental and had not seen evidence of any leak prior to the oil loss event. [8] In paragraph [53] it states: That is factually distinctive from the case at bar where, as I have found, damage to the Impreza’ engine was the direct consequence of the engine operating without oil following the massive loss of oil.

It should read: That is factually distinctive from the case at bar where, as I find , damage to the Impreza’s engine was the direct consequence of the engine operating without oil following the massive loss of oil. ___________________________ The Honourable Judge C. Malfair Province of British Columbia