This Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims. Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients.
Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, finding a motorist was not negligent for having a faulty emergency brake which led to a pedestrian collision.
In the recent case (Little v. Einarsen) the Plaintiff pedestrian was struck by an unoccupied vehicle which “rolled downhill from where it had been parked“.
He sued the vehicle owner alleging negligence. The Court dismissed the lawsuit finding that the vehicle likely rolled because its emergency brake failed and the owner did not know, nor ought to have known, that the defect existed. In dismissing the claim Mr. Justice Smith provided the following reasons:
 The uncontradicted evidence is that Ms. Einarsen’s car rolled downhill from where it was parked while its emergency brake was engaged. The fact that the emergency brake failed to perform its principle function leads to the obvious inference that it was in some way defective. The inference is further supported by admissible business records from the repair shop that indicate the emergency brake was repaired or adjusted within days or, at most, a few weeks after the accident.
 In the absence of any direct or circumstantial evidence pointing to any other cause, it must be concluded that the accident would not likely have occurred if the emergency brake had been functioning properly. Putting it in slightly different terms, the accident, on the balance of probabilities, would not have occurred but for the failure of the emergency brake to perform its intended function.
 Whether Ms. Einarsen can be held at fault for that failure depends on whether it was foreseeable—whether she knew or ought to have known about a defect or inadequacy that might cause the emergency brake to fail.
 An owner of a vehicle owes a duty not to use it or permit it to be used if he or she knows or ought to have known that it is defective in any way that might cause an accident. The court will find that an owner ought to have known about a defect that would have been detected by the exercise of ordinary care, caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998 CarswellBC 3834 (S.C.) at para. 81.
 In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:
 ….However, an owner is not liable for all consequences that may flow from an accident that happens as a result of a mechanical defect in a vehicle. Liability only occurs for those defects that went uncorrected, when either the owner knew, or should have known by the exercise of reasonable care, of their existence.
 There is no evidence that the emergency brake had failed in the past or of any defect of which Ms. Einarsen knew or should have known. Arguably, the age of the car heightened Ms. Einarsen’s duty to be satisfied that all components were in good working order. I find that, by having the vehicle inspected only two months before the accident, she had done what was reasonable to comply with that duty.
 There is no evidence that the mechanics who performed that inspection failed to notice or repair a problem with the emergency brake or that Ms. Einarsen had any reason to believe they had. There is no evidence of any problem with the emergency brake that became apparent between the dates of the inspection and the accident.
 In short, while Mr. Little clearly suffered injuries, he has failed to meet the burden of proving that they were caused by anything Ms. Einarsen did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill. In view of that failure to prove liability and a resulting entitlement to damages, it is not necessary to comment upon or attempt to resolve the many issues about the nature and extent of Mr. Little’s injuries.
 The action must be dismissed with costs.