Campbell v. Downey Transmission Service Date:, 2013 BCPC 171

Citation: Campbell v. Downey Transmission Service Date: 20130705 2013 BCPC 0171 File No: 21002 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DARRYL CAMPBELL CLAIMANT AND: DOWNEY TRANSMISSION SERVICE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: D. Campbell Appearing for the Defendant: S. Downey Place of Hearing: Abbotsford , B.C. Date of Hearing: June 26, 2013 Date of Judgment: July 5, 2013

Introduction [ 1 ] The Claimant Darryl Campbell brings this claim against the Defendant Downey Transmission Service for return of the sum of $2500 that he paid to the Defendant to repair his transmission. He alleges that the repairs were negligently performed and caused his transmission to break down again. The Defendant denies any negligence in the performance of its repairs.

It attributes the subsequent breakdown of the transmission to the age of the transmission and the manner in which the vehicle was driven. [ 2 ] The Claimant alleges that the Defendant has been negligent from the fact that the second transmission problem happened so soon after the first repairs, and because he had his transmission repaired by another transmission shop and hasn’t had any problems since.

On the latter argument, the Defendant points out that the second mechanic replaced the transmission with a rebuilt one, which would account for why there have not been any recent problems. [ 3 ] A total of five witnesses testified: the Claimant, his mother, the mechanic who replaced his transmission, the owner of the Defendant business and an employee of the Defendant. The evidence of the mechanics was especially helpful. At the conclusion of the trial, decision was reserved in order to allow for a review of the mechanics’ evidence. Following are the reasons for the judgement rendered in this matter.

Burden of Proof [ 4 ] In a civil case in Small Claims Court, the burden of proof rests with the Claimant to prove his case on a balance of probabilities. In this case the Claimant is required to prove that the Defendant was negligent in the manner in which it conducted its repairs to the Claimant’s vehicle.

What this means is that the Claimant must prove that the Defendant failed to perform the repairs to his transmission to the same standard or care that a reasonably prudent transmission repairer would meet under the same circumstances, and that the Claimant has suffered a loss as the result of the Defendant’s failure to meet that standard of care.

Summary of Evidence [ 5 ] The Claimant testified that in late November of 2011 the transmission “broke” on his vehicle, a 2004 Hummer H2. He said that this occurred “November 20 th -ish”, adding “I think it broke on the 18 th “. He brought it to his mechanic. That mechanic was not a transmission specialist. The mechanic’s shop was located next to the Defendant’s shop. The Claimant testified that he “corresponded back and forth” with the Defendant, using the mechanic as a go-between, and a fixed price of $2,500 was agreed on with Sean Downey on behalf of the Defendant.

The price was to include parts, labour and taxes. On Saturday, November 26, 2011 the Claimant went to pick up his vehicle with his mother and he paid the $2,500. When he went to pick up the vehicle Mr. Downey was not present. The Claimant was given his vehicle by Darren Hawes, an employee of the Defendant. [ 6 ] The Claimant said that when he got the vehicle, he called his mechanic and told him that something didn’t feel right about the transmission.

Eleven days later, on December 7, 2011 the Claimant was driving back from Chilliwack and as he approached the Whatcom Road exit on Highway 1, “something blew inside the transmission. He called Mr. Downey and explained what happened. His vehicle was towed to the Defendant’s shop. The transmission was examined by Mr. Downey and the Claimant testified that he was told by Mr. Downey that a pump had blown and the problem was caused by over-revving of the engine and abuse of the vehicle. He testified that he was told by Mr.

Downey that the Defendant would cover the cost of these repairs, but would not be responsible for any further repairs. [ 7 ] The Claimant testified that initially after these repairs, the vehicle ran well, but two and a half to three weeks later, the transmission broke down again. The vehicle was driveable, but only in second and third gear, not in drive. The Claimant called Mr. Downey and brought the vehicle back to Mr. Downey’s shop. He was told by Mr.

Downey that the Defendant would not cover the cost of fixing the transmission and that it would be “a thousand dollar fix for me.” The Claimant testified that he told Mr. Downey that he thought this repair should be covered by warranty, but Mr. Downey told him that the damage was caused by driver abuse, something which the Defendant was not responsible for. [ 8 ] The Claimant took the vehicle to Bob’s Driveline Service Ltd., another transmission repair shop, located in Aldergrove, B.C. This company repaired the transmission at a cost of $3,526.92.

Since the vehicle was repaired by Bob’s Driveline Service Ltd. the Claimant has not had any problems with the transmission. [ 9 ] Bob Schroeder of Bob’s Driveline Service Ltd. testified that the vehicle came into his shop on February 9, 2012. According to his invoice it came in with 202,331 kilometres on the odometer. He testified that the transmission was found to be in very bad shape when he took a look at it. He had disassembled it and found a burnt 24 band, clutches which were overheated and burnt, and damage to the reverse input drum.

The forward sprag fell apart and the transmission case appeared to have some damage inside from a previous repair. All the clutches that were inside were burnt and one band was burnt, so there was complete failure inside. His concern was whether or not the vehicle had a transmission oil cooler flush done during the previous repairs. He could not tell if this had or had not been done.

He testified that this was important because otherwise the contamination from the previous transmission failure goes through the transmission oil cooler and through the lube circuit and goes back through the transmission and it may result in plugged solenoids or hanging shift valves. He noted that the Defendant’s first invoice had nothing on it about flushing the transmission oil cooler, but this does appear on the second invoice supplied by the Defendant.

If this was not done, in his words “you’re setting yourself up for failure” because the contamination from the old failure will “cause havoc.” He testified that he had no way of telling from his examination whether or not the Defendant had flushed the cooler lines because once the transmission has failed inside, it is contaminated again. [ 10 ] Mr. Schroeder identified the cause of the most recent breakdown of the transmission as “a pressure issue” which is usually the cause of multiple clutch and band failure.

The transmission is not creating enough pressure internally on clutches and bands to apply them so that the gear change takes place properly. Without enough pressure it is only a matter of time before the transmission is burned

up inside, which is what he believes happened here. If the pressure is low, this problem can occur over a short period of time, in days, weeks or months. [ 11 ] Mr. Schroeder testified that it is unlikely that this problem was caused by erratic driving because, in the case of erratic driving, one element might be affected, but in this case there are so many elements that are burnt up, that he concludes that this failure was caused by a pressure problem. He also testified that this vehicle is equipped with a “rev limiter” so that it can not be over-revved.

It will only rev to a certain limit before the fuel injectors will cut out. This is pre-set at the factory. [ 12 ] Mr. Schroeder noted that the snap ring on the reverse input drum that holds the return spring assembly into position was dislodged. This was caused because the transmission had over-stroked itself inside because the clutches were burnt in it. That damaged the drum that it runs on. All of this damage suggests a pressure related problem. [ 13 ] The transmission in this vehicle is electronically controlled so, in the opinion of Mr.

Schroeder, the pressure problem was not caused by contamination in the cooler lines. He testified “you could have as much as - a bad computer can cause the low pressure, you can have a bad solenoid to do it, you can have an inferior pressure regulator valve, that can do it, or if it’s got leakage, the pressures are too low on it, springs are not correct calibrated and the pressure will be low on the unit.” This is an important part of the evidence because, in this portion of his evidence, Mr.

Schroeder testified that there are a number of potential causes for the pressure problem other than negligence on the part of the Defendant, including part failure (e.g. the computer, solenoid or pressure regulator valve), which would be something that the Defendant would have no control over. [ 14 ] The Claimant noted that some of the parts appearing on an invoice supplied by the Defendant were actually parts for a Chrysler vehicle. Mr. Schroeder testified that these parts would not fit on a Hummer. Mr.

Downey testified that the invoice referred to reflects parts order for multiple jobs and does not represent parts used solely for the repairs to the Claimant’s vehicle, nor parts that he was charged for. [ 15 ] The Claimant asked Mr. Schroeder what would cause the front pump to fail. Mr. Schroeder ruled out over-revving as a possible cause. He said the problem might be cause by the torque converter that the Defendant replaced because of excessive run out on the hub that goes into the pump. This can damage the pump rotor and destroy it inside.

The problem can also be cause by a variation in pressures on the pump because it has a spring system on a slide and that spring is sensitive to pressure. If the pressures are varying, this can cause internal oscillation resulting in damage to the rotor inside the pump. Once the pump starts to deteriorate, then a pressure loss will result. The pump is what causes the pressure and once there is pressure loss, internal damage results. [ 16 ] Mr.

Schroeder testified that when he worked on this transmission, he made sure it was clean when he flushed it out, he gave it a complete scan and a road test and the “adapts” on the transmission were reset so the computer could adjust. At the conclusion of his examination in chief, Mr. Schroeder was asked if, based on his examination of the transmission and his review of the Defendant’s invoices, there was anything about the work the Defendant did that he was critical of.

He gave this response: “By the time we got [the transmission] it was such a mess inside that we actually didn’t rebuild that transmission, we exchanged one in that we had already rebuilt to put in there and as far as I know it’s still in the truck working fine. But anyway, it had been apart before, we know that for sure, and what we recorded on it was all the damage to the different elements that we talked about, which is usually a pressure related problem. I know the oil pump had broke on it once, I think the second time it went back or the very first time I guess the pump was broken on it.

Any way, yeah, it’s just that once you get a unit in like that it’s all burned up and damaged inside, it’s really hard to say was it because of a bad build or is it because of an issue outside the transmission which can be pressure related from the computer, there’s all these things that come into play. Or is it bad driving? But as far as when you get bad driving, it’s usually not going to affect everything in the transmission.

If a guy is, you know, doing burnouts, stuff like that, he’s going to damage a certain part that he’s putting all the stress on at that time at the gear that it’s in, not the rest of the gears and all of them. So everything kind of came into play on this one.” [ 17 ] Mr. Schroeder went on to say that he could not be sure if the pressure in the transmission was properly checked when the vehicle was released by the Defendant. [ 18 ] Sean Downey, the principal of the Defendant, testified that the Claimant brought his 2004 Hummer H2 to his shop from a neighbouring shop and asked if he could repair the transmission.

Initially the mechanic served as an intermediary between the Claimant and Mr. Downey. The mechanic asked Mr. Downey to keep the costs down because there were other mechanical issues with the vehicle and the mechanic believed that the Claimant was going to sell it. Mr. Downey said that he “did the repairs with economy in mind”. [ 19 ] Mr. Downey testified that at the conclusion of the work, the vehicle had the proper shift points and pressures, which were checked with a gage. He did the reset required by the computer and took the vehicle for a road test. The vehicle was picked up on November 26 th . Mr.

Downey was not present when this was done. [ 20 ] There was an issue raised about whether or not the Claimant had spun his tires when leaving after picking up the vehicle and a number of witnesses gave evidence about whether this did or didn’t happen. Based on the evidence nothing turns on this. From the evidence of Mr. Schroeder this was not the cause of the transmission failure repaired by Mr.

Schroeder and further consideration of whether or not this happened is unwarranted. [ 21 ] On December 7, 2011 the Defendant received a call from the Claimant about a transmission problem experienced on the Number 1 Highway. Mr. Downey arranged to have the vehicle towed to his shop at his expense. He took the transmission out of the vehicle, disassembled it and found a lot of damage inside. He replaced the pump, the torque converter and a lot of other internal components. After reassembling it he tested the pressures and found them to be good.

He took the vehicle for a road test before returning it to the Claimant. [ 22 ] Mr. Downey testified that in February of 2012 he came to work and the Claimant’s vehicle was there once again with a

complaint about the transmission. It was his opinion that the forward sprag had been flipped or broken. He believed that this was due to abuse in the way it had been driven. He told the Claimant that he would repair the transmission at a cost of $1,000. The Claimant decided to take his vehicle elsewhere and that was the last Mr. Downey saw of the vehicle. [ 23 ] Mr. Downey made it clear that he did not rebuild the transmission, he repaired it. The distinction is that in a rebuild, all wearable parts are replaced.

This was not done because his estimate for a rebuild was more than what he was told by the mechanic that the Claimant wanted to pay. In a repair, all broken parts are replaced and any parts necessary to make the vehicle operational are installed. He testified that he flushed the transmission lines using a hot flush machine with two sets of filters. The transmission was clean after the repairs were done. He pressure tested the transmission both times and found the line pressure to be stable and well within the specifications.

In his opinion the problem was attributed to what he called “hard launch” or driver abuse. That conclusion was based on one report he had heard of the Claimant’s bad driving. [ 24 ] Mr. Downey did not give any warranty of any sort on the work. His employee Darren Hawes had made the statement “we stand behind our work” when asked by the Claimant’s mother about a warranty, but nothing more specific. The Claimant’s mother also testified that Mr. Hawes had said this. Mr Downey was asked why the damage had no connection with his workmanship.

He testified that this particular model of transmission is not designed to withstand abuse. It is his belief that the sprag failed and debris got into the clutches in the transmission, causing them to burn. More damage occurred after that initial failure because the vehicle was still driven by the Claimant. Analysis [ 25 ] In order to succeed in this claim, the Claimant must prove on a balance of probabilities that the damages to his vehicle were caused by the negligence of the Defendant.

He must show that the Defendant failed to meet the standard of care required of a reasonably prudent mechanic who was repairing the transmission of a 2004 vehicle in 2011, a vehicle which had been driven for around 200,000 kilometres.

This standard does not require perfection, nor is it a guarantee against any future problems. [ 26 ] In this case, the difficulty in determining whether or not the transmission problems experienced in February of 2012 were caused by the Defendant’s negligence is that, according to the evidence of both of the witnesses who are knowledgeable in transmission repair, the cause of the damage can not be identified. According to the evidence of Mr. Schroeder, there are a number potential causes.

These potential causes include ones which would be attributable to the Defendant’s negligence, things over which the Defendant would have no control, such as: 1. A bad computer 2. A bad solenoid 3. An inferior pressure regulator valve 4. Springs that are not correct calibrated [ 27 ] Mr. Downey would add to that list driver abuse, something for which he says that this model of transmission is especially susceptible. Identifying the cause of the transmission failure and attributing that cause to something that the Defendant did wrong are both necessary and crucial in order for the Claimant to succeed in his claim.

In this case it is not possible to do either of those things. As Mr. Schroeder testified when asked what the Defendant had done wrong, “it’s really hard to say; was it because of a bad build or is it because of an issue outside the transmission?” There is no clear evidence of what caused the most recent transmission failure or how, if at all, the Defendant was negligent. Speculation or suspicions are not the same as proof. In the absence of any evidence of negligence causing the damage, the Claimant has failed to prove his claim.

Order [ 28 ] For the foregoing reasons, the Claimant’s claim against the Defendant is dismissed. [ 29 ] The Defendant is entitled to costs from the Claimant for his filing fee of $26. If the Defendant made any offer to settle in compliance with Rule 10.1 of the Small Claims Rules , the Defendant is entitled to those costs as well. If the Defendant can prove compliance with Rule 10.1(1) he is also entitled to costs in an amount equal to 20% of the amount of the offer to settle.

Dated at the City of Abbotsford, in the Province of British Columbia this 5 th day of July, 2013. __________________________________ (The Honourable Judge K. D. Skilnick)