Shane Welker - v. -, 2010 SKPC 168

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2010 SKPC 168 Date: November 30, 2010 File: Claim No. 124/10 Location: Melville _____________________________________________________________________________ Between: Shane Welker - and - Trevor Dubeil Douglas Ottenbreit For the Plaintiff Laurie Chambers For the Defendant _____________________________________________________________________________ JUDGMENT BRENT KLAUSE , J _____________________________________________________________________________ [ 1 ] The Plaintiff’s claim is for damages in the amount of $10,000.00 plus interest and the costs of the action.

The trial of this matter was heard at Melville, Saskatchewan on November 15, 2010.

[ 2 ] The Plaintiff called himself as his only witness. In November of 2006, the Plaintiff purchased a 1998 Chevrolet 4 x 4 truck from the Defendant for the sum of $10,500.00. He was shown the truck by the Defendant at a parking lot in Regina and was very impressed with what he saw and bought it on the spot as the truck in his opinion was in excellent condition and perfect for the business he had in mind. [ 3 ] At the time there was conversation about the origin of the truck.

The Plaintiff maintains that the Defendant told him that the only damage or work done to the truck was “the front clip” which in the Plaintiff’s experience meant that perhaps the bumpers or fenders or hood had been repaired or replaced. He maintains at no time did the Defendant advise him that the truck was essentially a compilation of two trucks with the power train originating from one vehicle and the cab and box originating from another. He indicated that if he had known this, he would not have purchased the vehicle.

At the time of purchase, the odometer read 198,000 kilometres and he assumed that this meant that the entire vehicle had 198,000 kilometres accrued to it. [ 4 ] For the next two years, the Plaintiff repaired and enhanced the vehicle to the extent of approximately $18,053.00 largely to adapt it to the specific needs of his business which was running a bobcat with a trailer and during that time put approximately a further 55,000 kilometres on the vehicle. [ 5 ] On September 23, 2008, while operating the motor vehicle, the Plaintiff struck a cow and the vehicle was totalled by SGI.

During the course of their investigations, SGI advised him that in fact the vehicle had 298,000 kilometres at the time he purchased the vehicle from the Defendant. When the vehicle was totalled, SGI assessed a settlement value of $10,300.00 based, according to the Plaintiff, on the high mileage of the vehicle noted in its records while still owned by the Defendant. The Adjuster for SGI was not called as a witness on behalf of the Plaintiff. [ 6 ] The Plaintiff proceeded through the settlement process with SGI but was unable to convince his adjusters that the vehicle was worth more.

As a result, he brings this lawsuit in an attempt to make up the difference of $18,233.00 although his Statement of Claim indicated that he would settle for $10,000.00. [ 7 ] The Defendant testified on his own behalf and in addition, the Court heard via telephone evidence from Regina, from a witness with many years experience in the automobile adjusting business. The Defendant’s evidence essentially paralleled that of the Plaintiff’s with the exception that he testified that he advised the Plaintiff that the vehicle that the Plaintiff bought was in effect a combination of two vehicles which he had put together.

He maintains that the drive train of the Chevrolet which includes the engine, transmission, axles, etc. did have 198,000 kilometres at the time of the sale although the cab and box did have 298,000 kilometres. He advises that vehicles essentially have several metal plates indicating the serial number of the vehicle and that if a buyer is concerned, then all the buyer has to do is check that all the plates match up. This is easily done according to the Defendant by an average purchaser and certainly by any car dealership.

It was his position that the most important component of the vehicle is in fact the “drive train” and that the Plaintiff purchased a vehicle with a drive train that had 198,000 kilometres on it; that although the box and cab had more kilometres on it, that would not significantly alter the sale price as he had totally restored and painted those components; that he had advised the Plaintiff that the box and cab were from a different vehicle and that the vehicle that he sold the Plaintiff was good value for the money.

He also denies any suggestion of any tampering with the odometer, which would be a criminal offence. [ 8 ] The expert witness called by the Defence was Graham Wallace who has many years in the business of car dealing, and appraising.

It was his evidence which I have no difficulty in accepting and do accept, that given the number of kilometres that the Plaintiff put on the vehicle while he owned it, that the price offered by SGI was a fair settlement and that it would not really have mattered much in the final settlement given the number of kilometres that the vehicle originally had on it, i.e. 198,000. [ 9 ] The evidence of the two principals is nearly identical and the only material discrepancy is what was disclosed on the date of the purchase.

In my opinion, the Plaintiff has not established on a balance of probabilities that the Defendant deliberately or intentionally set out to deceive him. The Defendant testified that he did tell the Plaintiff of the mixed origin of the truck and I accept that he did so. At any rate, the evidence discloses and common sense dictates, that the most material part of a motor vehicle and the part that is most subject to wear and deterioration is the “drive train”, not the cab or box which are essentially non-mechanical in nature and not subject to significant deterioration unless physically damaged by a collision.

I accept the Defendant’s evidence that the drive train in the vehicle sold by the Defendant to the Plaintiff had on it 198,000 kilometres.

[10] The argument for the Plaintiff is that he was materially deceived about the number of kilometres on the vehicle when hepurchased it: that he might not have bought it had he known of this; that he would not have spent over $18,000.00 improving andrepairing it had he known this and that because SGI has declined to pay him out what he thinks the vehicle was worth on the date of thecollision, that he deserves to be compensated by the Defendant. [11] The argument for the Defence is that the correct amount of mileage on the drive train was in fact disclosed; even if it was not,it was not an overt deception as the Plaintiff/Purchaser could easily have ascertained from the various serial plate numbers on the vehiclethe exact number of kilometres on the drive train and on the box/cab; that there were no warranties either express or implied; that therewas no duty on the Defendant to disclose that the vehicle was a combination of two vehicles and he could have gone to any number ofonline or other agencies to obtain a history of the vehicle.

It is the Defendant’s opinion that this was a rushed decision to buy on the partof the Plaintiff and he has to live with that decision and that considering the age of the truck when he bought it, the number of kilometreshe put on it himself, and that he drove it for two years, that he has received fair value from both the Defendant and SGI. [12] The Defendant has provided and relies on the case of Frey v. Sarvajc, 2000 SKQB 281 , [2000] S.J. No. 382; 2000SKQB 281; [2000] 8 W.W.R. 74, a decision of Wilkinson J.

I am bound by that decision and it is completely impossible in my opinionto distinguish it from the facts of the case before me. In addition, it is well written and well reasoned. [13] It necessarily follows then that in my opinion, the Plaintiff has suffered no loss here that is directly or indirectly attributable tothe actions of the Defendant. The vehicle he purchased was ten years old when he purchased it; he believed it to have 198,000kilometres on it at the time and although he spent another $18,000.00 on the vehicle, he did drive it for two more years and 55,000kilometres.

He has received fair value from the Defendant and in my opinion, and supported by the expert witness of the Defence, hasreceived a fair settlement from SGI given the age and mileage of the truck. [14] The Plaintiff’s action is therefore dismissed. [15] Dated at the City of Yorkton in the Province of Saskatchewan this 30th day of November, 2010. Brent Klause, J