Q.B. A.D. 1990 No. 120 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: CLARENCE GILL and SHIRLEY GILL and FORD MOTOR COMPANY OF CANADA LIMITED and COUNTRY PLAZA MOTORS LTD. DEFENDANTS G. M. Kraus, Q.C. and for the plaintiffs D. J. Brundige K. A. Ready and for the defendant, Ford Motor E. M. Kleisinger Company of Canada Limited JUDGMENT BARCLAY J. March 24, 1994 The plaintiffs Clarence Gill and Shirley Gill("Clarence and Shirley") claim against Ford Motor Company ofCanada Limited ("Ford") for damages from a fire in theirgarage which they allege was caused by combustion of vapoursfrom gasoline leakage from the fuel tube of a new truck theypurchased from Ford.  The action against Country Plaza Motors Ltd. ("Country Plaza") was discontinued. THEORY OF THE PLAINTIFFS The plaintiffs contend that the fire was caused by anelectrostatic discharge through the U-shaped fuel tube in theFord truck which was the subject of recall, along with 48,000others, by Ford. It was submitted that due to extremely cold weather conditions the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. During this static discharge, pin holes would be created and gasoline would then leak out. The vapour from the gasoline, being heavier than air, would settle to the bottom of the garage and would be attracted to the pilot light on the furnace. The vapours would then be ignited by the pilot light. There would then be flashback to the area underneath the truck where the gasoline was pooled. This location at the northwest corner of the garage would be where the fire originated as the combustible material under and near the Ford truck would FACTS Clarence and Shirley Gill are the owners of and reside at home with detached garage in Indian Head, Saskatchewan. The garage was constructed in 1983 and the dimensions are 28' 32'. The floor is cement and has solid wood walk-in door adjacent to the house. The vehicle doors are at the front of the garage as the garage faces the street. They are in separate bays and there is Sears electric garage door opener for each door. The garage is insulated. Located in the garage is gas furnace with pilot light installed on the floor. The garage was used for the storage of vehicles and miscellaneous seasonal goods and equipment, including saddle tanks and snow blowers. On October 14, 1988, Clarence purchased from Country Plaza, new 1989 truck manufactured by Ford (hereinafter referred to as the "Ford truck"). Country Plaza is the Ford dealer in Indian Head. Clarence took delivery of the Ford truck on October 26. The truck was 1989 model F-150 pickup. On January 10, 1989, which was the day of the fire, both Clarence and Shirley were at home with their two young children, Kimberly age and Craig age 2. The weather records reflected that the temperature at Indian Head from January 8, 1989 to January 10, 1989, remained between -28ï¿½ celsius and 35ï¿½ celsius. Both the Ford truck and Bronco II vehicle were stored in the garage. The Bronco was also owned by Clarence. The Ford truck was parked in the north bay of the garage and the Bronco was located in the south bay. Clarence had not driven the Ford truck for two days. However, at about 10:30 a.m. on January 10 he entered the garage through the side door adjacent to the house. That day he drove the Bronco which was usually operated by his wife. After entering the vehicle and starting the Bronco he said he let the motor run for approximately four minutes and in view of the bitterly cold weather, the garage door remained closed. He returned about 20 minutes later and he said he smelled fumes from the vehicle. He did state, however, that when he entered the garage he did not smell any fumes. After he entered the garage he closed the doors and left the building through the side door. At about 2:00 p.m. his daughter came downstairs as the rest of the family were watching television in the basement rumpus room. After she exclaimed that the garage was on fire, the plaintiffs went outside. The Indian Head fire department was already at the scene. At about that time the power went off in the residence and Clarence and Shirley were unable to use the phone. The fire destroyed the garage and its contents, including the Ford truck and the Bronco. Clarence, who farms near Indian Head, had the reputation of being meticulous individual and therefore the Ford truck which had very low mileage, was in immaculate condition as was his garage. In fact, Clarence constructed tin wash tray that was placed under the Ford truck which was used when the truck was being cleaned. In December of 1988, Ford issued recall notice which was sent to all Ford dealers and to all owners of the affected vehicles in the western regions of Canada. The recall notice applied to all 1986, 87, 88 and 89 Ford model 150, 250, 350 trucks and Bronco vehicles, including the Bronco vehicle. These notices stipulated the following as the reasons for recall: The U-shaped fuel tube ("Jumper Tube") connecting the on-frame fuel pump to the fuel filter may develop pin holes. The pin holes can be created during off-road operation in severe winter weather by an electrostatic discharge through the tube and will result in fuel leakage. If this condition occurs fire could result. To prevent this condition the U-shaped fuel tube will be replaced with new part having an insulating sleeve. Ford Motor Company of Canada, Limited (Ford) has determined that certain 1986, 1987, 1988 and 1989 model F-150/250/350 Pickup Truck and Bronco vehicles sold in specific areas of Canada where severe winter weather is experienced contain fuel tube that may develop leak if operated off-road. Clarence said he received the recall notice about two weeks prior to the fire. After he read it he decided that the matter was not urgent as the initial recall notice indicated that it only applied to vehicles operated off-road. As the Ford truck was not driven off-road he did not feel there was any immediate danger, however he said he intended at time convenient to take the Ford truck to Country Plaza to be examined. schematic drawing of the garage and its contents as it appeared immediately after the fire was filed as an exhibit. copy of the drawing is set out hereunder. Clarence confirmed that this drawing accurately depicts the inside of the garage and its contents as they appeared after the fire. The furnace was operational and the pilot light was on. Jack Johnson, resident of Indian Head was on the scene immediately after the fire started. He said the smoke was coming from underneath the Ford truck which was located in the north bay. From there the smoke and flames went up the north wall of the garage. He then said that flames were also coming from underneath the right rear side of the truck. He said it was only matter of minutes before the fire engulfed the building. When he arrived at the scene, the garage door in the north bay was open to distance of approximately 2+ to feet. Gil McDonald from the Provincial Fire Commissioner's Office was qualified as an expert witness as to the cause or origin of fire. He has had extensive experience both in the military and more recently in the Fire Commissioner's Office as fire investigator. He testified that he has investigated more than 130 fires as to their cause or origin and has given expert testimony in the Saskatchewan Courts on previous occasions as to the discipline. His mandate was to assist the R.C.M.P. to determine the cause and origin of the fire. On January 16 he took series of photographs of the garage and contents. These pictures clearly illustrate the damage which occurred and assist in determining where the fire originated. In McDonald's opinion the fire originated about 10 or 12 feet from the northwest corner of the garage where the Ford truck was located. He explained how the gasoline vapours would be ignited by the pilot light and that there would then be flashback to the area underneath the Ford truck where the gasoline was pooled. In other words he agreed with the plaintiffs' theory as to where the fire started. McDonald, Clarence and other witnesses ruled out any other potential cause of the fire, including an electrical malfunction of the garage wiring, the garage heating system and/or an explosion caused by leaking natural gas supply or leaking gasoline supply. This would include gas located in the snow blower, the Kitty Cat snow machine and the saddle tanks which were being stored in the garage. In fact Ford, although it disagreed with the theory of the plaintiffs as to the cause of the fire, never made any alternative submission as to how the fire occurred. However, agree with counsel for Ford that legally they have no obligation to prove anything and that the onus is on the plaintiffs to prove beyond balance of probabilities that the fire occurred in the manner in which they allege. Richard Freeman, the gas inspector from SaskPower attended at the premises on January 18. He examined the furnace, said it was functional and that there were no wiring problems. He said it was "in good condition". The furnace was located on the northeast wall and he observed flash marks running from the area of the furnace down the north wall to distance about halfway when the burn marks moved inward to an area where the Ford truck was located. Murdoch D. MacPherson, professional mechanical engineer with the Regina Engineering firm of Cochrane Walker and member of the Association of Professional Engineers for Saskatchewan, also gave expert testimony on behalf of the plaintiffs. He said that gasoline vapours due to their combustibility may pose hazard. He agreed that gasoline vapours being heavier than air will displace the air and would sink to the bottom of the garage. As to the combustibility of the vapours in the air, he said it would depend on certain concentration which would be 1.4% to 7.6% by volume. This concentration would have to occur before there would be potential for combustion. Within that range it was his opinion that if the gasoline came into contact with the pilot light it would ignite. He said if the gasoline vapours were below that range it would be too lean to burn and if they were above 7.6% the mixture would be too rich. It was also his opinion that it would take several gallons of gas to produce sufficient vapours to cause combustibility. Keith J. Fowler of Edmonton, who established Western Canadian Mechanical Investigators in 1986 was qualified to give expert testimony regarding the cause of vehicle fires. Although Fowler is not professional engineer, he has had extensive experience in fire investigation. He said he has investigated over 700 fires by trucks and cars to determine the cause and origin of the fire. Prior to his association with Western Canadian Mechanical Investigators he had 16 years experience in the automotive industry. During that period he was employed as service manager for Ford and then for General Motors. His qualifications included certification as mechanic engineering technologist and he is licensed as mechanic and as an insurance adjuster. was impressed with his testimony and he was of great assistance to the Court. After reviewing the circumstances surrounding the recall notice issued by Ford which delineates the inadequacies of the fuel system which, according to Ford's own admission, could result in fuel leakages and thereby cause fire, he offered an opinion as to the cause of the fire. He testified that the fire was caused by gasoline leakage from the U-shaped fuel tube. He agreed with the theory of the plaintiffs that as result of the extreme temperatures the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. As result, pin holes were created causing gasoline leakage. He said that the fuel leakage would likely collect in the tin pan located under the Ford truck. The vapours would then be drawn to the pilot light in the furnace where ignition would occur and then flash back to the northwest corner of the garage where the Ford truck and the pool of gasoline were located. The fire would start in that location as the combustible material under the truck would ignite. Once the fuel line melted, the vapour pressure would increase and more fuel would be added to the fire. By that time full fire could be raging. According to Fowler, leakage of one to two gallons would be sufficient to produce sufficient vapours to cause combustibility. The Ford truck had two tanks with capacity of 15 gallons per tank. Clarence testified that both tanks were full. He also stated that in his opinion the conditions described in the recall notices of Ford outlined the precise problem with the Ford truck. This delineated the inadequacies of the fuel system which caused the fire. The last witness called by the plaintiffs was Sergeant Bill Blanchard, 25 year veteran with the R.C.M.P. He attended at the scene on the day of the fire. He also stated that the origin of the fire was in the area where the Ford truck was parked, namely the northwest corner of the garage. He categorically ruled out arson as the cause. RECALL NOTICE The plaintiffs contend that the circumstances surrounding the recall notices assist them in establishing their theory as to how the fire occurred and agree. This notice was sent out to 48,000 owners. The initial recall notice which reviewed earlier reflects that due to severe winter weather the fuel line may develop pin holes which would result in fuel leakage that could cause fire. As early as November 23, 1988, the Field Review Committee of Ford reported that total of 36 reports of pin hole leaks in the jumper tube had been received and of those reports, 14 were alleged to have resulted in fire. Their report of November 23, 1988, reads in part as follows: total of 36 reports of pin hole leaks in the jumper tube have been received, all involving vehicles operated in oil field exploration service or, other off-road applications in the Western and Midwestern Sales Regions of Canada. Of these reports, 14 were alleged to have resulted in fire. There are no known reports of this condition involving other vehicles operated elsewhere in Canada or the U.S., and check of service parts sales indicates no abnormal sales trends other than in the subject sales regions during the winter months. The U-shaped jumper tube involved in this concern was installed on certain 1986 through current production 1989-model F-Series pickup truck and Bronco vehicles equipped with EFI engines. NAVIS records indicate that approximately 45,000 of these vehicles were sold in the Western and Midwestern Sales Regions of Canada. The Field Campaign Review Committee recommends that these vehicles be recalled for dealer installation of new fuel line that is sleeved with material having properties of an electrostatic insulator. This fuel line is to be incorporated in production approximately December 11, 1988, for all F-Series light trucks and Broncos equipped with EFI engines. In March of 1990 new recall notice was sent as the repairs specified in the initial notice were not effective. This replacement notice reads in part as follows: SPECIAL NOTE: Safety Recall 89S76 supersedes and replaces Safety Recall 88S57. If you are presented with vehicle that does not have 88S57 completed, do not perform that recall on it; instead perform Safety Recall 89S76 on that vehicle. AFFECTED VEHICLES: All 1986 1/2, 1987, 1988 and 1989 Model Year gasoline powered F-Series Pickup Trucks including Chassis Cabs, and Bronco vehicles with EFI engines sold or operated in Mid-West and Western Regions and the Yukon Territory. Vehicles involved were produced from February 1, 1986, through to the end of the 1989 model year. REASON FOR RECALL Field investigation has determined that repairs specified in Recall 88S57 were not completely effective in preventing the condition of pinhole leaks forming in the U-shaped fuel tube ("Jumper Tube") connecting the on-frame fuel pump to the fuel CORRECTION To prevent this condition from re-occurring, the U-shaped fuel tube, the frame mounted filter and the fuel delivery tube from the filter to the engine will be replaced with steel braided electrically conductive fuel line from the high pressure frame-mounted fuel pump to the engine. fuel filter cartridge will also be installed in the fuel reservoir. CAUTION: Fuel supply lines on 4.9L EFI, 5.0L EFI, 5.8L EFI and 7.5L EFI engines will remain pressurized for some period of time after the engine is shut off. This pressure must be relieved before servicing of the fuel system. The subsequent recall notice deleted any reference to off-road driving. However, the amended notice would not have been sent out until after the fire. Trevor Geen Williams, the quality engineer for Ford, was examined for discovery as its proper officer and his answers with respect to the recall notice sent to 48,000 owners is telling. They read as follows: 391QAll right. Would you look at the Recall Notice to the owner and to the dealer in December of 1988, P-1 and P-9. The information from Ford states among other things that "If this condition occurs fire could result." Have read that 392 QOkay. Has Ford ever tested such vehicle in these circumstances to see if fire could result? AI believe the answer would be, yes. 393 QAll right. And have you available the report with respect to such test and would you produce that to us? AI Ford of Canada does not have copy of such test information. That information the testing would have been done by Ford Motor Company in the United States. 395 QWhat is the date of such test? AI believe that the testing that you would be referring to would have been done in the months prior to the release of the recall, but at some point in time after. 399 QDid the test show that fire could result as indicated in the Recall Notice? AI don't know what the actual results of the test were, other than to say that the test would, more than likely, have produced situation where there was still leakage. 400 QFrom that test, Ford concluded that this condition could result in fire? AIf you have fuel leakage you could have fire. 401 QAnd was it as result of that test that Ford made the statement in the Recall Notice that "this condition could result in fire"? AI couldn't definitively say that that was the case. Obviously as we've previously admitted, there were 14 cases known to us where there were vehicle fires. Certainly if you have situation that can create fuel leakage, then, there's obviously the risk of fire. 402 QAnd in addition to that Ford had done its own testing. ATo determine whether or not condition existed that would produce fuel leakage. 403 QYes. And that condition, that is fuel leakage, was present in the testing? Yes. Michael J. Harrigan testified on behalf of Ford. He was their only witness. Harrigan is graduate engineer. He received his Bachelor of Science in Mechanical Engineering from Loyola University and his Master of Science from Stanford University in Palto Alto, California. He resides in Michigan and is presently employed by Ford as senior engineering specialist with respect to fuel systems. He has been an employee of Ford since 1974. He was qualified as an expert witness. He disagreed with the theory of the plaintiffs' as to the cause of the fire. He said that the Ford injection fuel system has check valve which would prevent fuel leakage if the fuel liner were cut. However, in cross-examination he conceded that the following statement in his written report was incorrect. That statement reads: The path through the pump alone might prevent siphoning. In addition, for there to be any siphoning action at all, the outlet point where the line is cut or burned open has to be below the height of the pump inlet inside the fuel tank. In worst case scenario, it was his opinion that if any charge ever existed on the Ford truck fuel system it would be completely dissipated in less than an hour. He said as the Ford truck had not been driven on the day of the fire one must conclude that there could not have been any significant static electric charge in the fuel system at the time the fire started unless the fuel pumps had been energized. There is tiny steel ball in the safety valve and according to Harrigan it would take two P.S.I. (pounds per square inch) to unseat it to permit siphoning. Harrigan concluded by stating that it is highly unlikely that an electrostatic discharge from the fuel line could have ignited leaking fuel. He also stated that he could offer no alternative theory as to why the subject fire REBUTTAL Fowler and MacPherson were recalled in rebuttal. Fowler had purchased replacement fuel pump from Ford dealer similar to the one used in the 1989 Ford truck. He conducted certain tests with the pump and in the tests he performed he said it took one P.S.I. pressure to unseat the check valve and not two P.S.I. as stated by Harrigan. He also conducted drip test for gasoline. He filled four litre plastic container with gasoline and then pricked it with straight pin. In period of seven minutes 3/4 of an imperial ounce collected in the measuring cup. MacPherson also examined the fuel pump. He said there was small spring in the check valve which is lighter than most ball point pens. This spring is attached to small plastic ball. MacPherson testified that he did not have confidence that the check value would stop any siphoning of gas. In other words the fuel pump would only be slight impediment to the fuel flow. He also said that if there was pin prick in the fuel line, approximately five ounces of fuel would leak in minutes or nine imperial gallons in period of 24 hours. CONCLUSION I accept the expert testimony of the plaintiffs andin particular Fowler and MacPherson in preference to Harrigan. Not only did Harrigan appear uncomfortable on the stand, he conceded that he made major error in his report. It is also significant that Ford never called any independent witnesses on their behalf and their only witness was an employee of Ford. The evidence taken as whole leads only to one conclusion and that is that the plaintiffs' theory as to how the fire started is accurate. I am satisfied that theplaintiffs have proven beyond a balance of probabilities thatthe fire was caused by an electric static discharge throughthe U-shaped fuel tube in the Ford truck. Due to extreme weather conditions the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. During this static discharge, pin holes would be created and gasoline would then leak out. The vapours from the gasoline, being heavier than air, would settle to the bottom of the garage and would be attracted to the pilot light on the furnace. The pilot light would cause the vapours to ignite and there then would be flashback to the area underneath the Ford truck where the gasoline was pooled. This would likely be in the wash tray which was located under the vehicle and which Clarence used to wash his truck. Furthermore, the recall notice delineated the problem with the fuel system which is consistent with the plaintiffs' theory as to how the fire occurred. In view of the above further find that the fire and damage were caused solely by the negligence of Ford, the particulars thereof include: 1. In manufacturing the Ford truck with defective fuel tube, when Ford knew or ought to have known that it was unfit and dangerous, by reason of the defective fuel tube which was subject to leaking; 2. In manufacturing the Ford truck without ascertaining or ensuring whether by testing, inspection or otherwise, that the fuel tube was and would remain safe and sound and suitable for the purpose for which it was intended that is, maintaining the gas therein without leakage; 3. In failing to take any reasonable or effective precautions in the manufacture or installation of the fuel tube, when Ford intended that it would be used as part of the construction of the Ford truck; and 4. In failing to ensure that the fuel tube would not DAMAGES The parties agreed that the amount of damages would be in the sum of $90,402.50. The plaintiffs shall havejudgment in that amount together with prejudgment interest inaccordnce with The Pre-Judgment Interest Act, S.S. 1984-85-86,c. P-22.2 to be calculated from the date of fire, namelyJanuary 10, 1989. In addition the plaintiffs shall have their costs to
The Plaintiff's 1989 Ford F150 1/2 ton truck caught fire and burned in his garage. This model of truck was subject to a recall by Ford to correct a fuel line defect. The Plaintiff called several expert witnesses who testified that, in their opinion, the leaking fuel line was the cause of the fire. Ford called one witness who was the designer of of the truck's fuel system and a Ford employee. He testified that the defective fuel line could not have leaked sufficient fuel to cause the fire. He also admitted, however, that his prior written report contained errors. Rebuttal evidence called by the Plaintiff indicated that the check valve in the fuel pump designed to prevent siphoning from the fuel tank in the event of a leaking fuel line did not operate as the Ford witness had testified. HELD: Judgment for the Plaintiff. The Plaintiff had proved on a balance of probabilities that the leaking fuel line was the cause of the fire. The Plaintiff's experts' evidence was accepted over that of the Ford expert. No independent experts had been called by Ford.