Case - Clark Wilson LLP

More documents

Recommendations

Info

Kruger Products Limited v. First Choice Logistics Inc. Page 10 exhaust system and the burning paper is sufficient to allow me to come to the conclusion that the Fire was caused when paper came into contact with the unwrapped exhaust of the Forklift. An inspection of the Forklift following the Fire disclosed no evidence of fire within the Forklift. I find this to be further evidence that the Fire was caused by paper coming into contact with an external part of the Forklift. I find that the unprotected exhaust of the Forklift came into contact with paper debris, either in the location where Mr. Bodnar had deposited a parent roll or in the aisle as he moved the Forklift back to that part of the Warehouse where he was to pick up another parent roll. I find that the heat of the unprotected exhaust of the Forklift caused the paper which was in the aisle or which had been blown into the aisle from debris at the foot of a stack of parent rolls to ignite, the ignited paper landed at the base of a stack of parent rolls, the paper transferred the flame to the parent rolls, and the fire spread from there [At paras. 51-2; emphasis added.]. 2013 BCCA 3 (CanLII) The Court did not make any finding of gross negligence on the part of the defendants. [20] Beginning at para. 53, the Court also considered whether there were other possible causes of the fire. Most notably, FCL had adduced into evidence a report prepared by a professional engineer, Mr. West, of Baker Materials Engineering, who was instructed to assume inter alia that an examination of the Forklift did not reveal any possible source of ignition other than one “associated with the exhaust system.” He carried out certain tests on the overflow tube from the radiator reservoir of the Forklift. The tube was found charred and partly melted “where it passed adjacent to the exhaust pipe on the left side of the [Forklift].” The tests indicated that the temperature of the exhaust pipe in the Forklift during operation was “certainly sufficient to ignite paper” and that a molten or charred piece of the overflow tube could also have achieved temperatures sufficient to ignite paper. Mr. West concluded: We also understand that the fire started at approximately 10:30 a.m. and that forklift 1478 had operated as a replacement for FCL’s own unit for a period of four or five days before the fire occurred. The extended period of operation of the forklift before the fire indicates that either the overflow tube fell into contact with the exhaust pipe very shortly before the fire occurred, or the contact was intermittent over the time that the forklift was used before the fire. Our tests showed that the tube melted and charred within minutes of contact with a hot exhaust pipe. If the contact had been intermittent, this could then present an opportunity for fragments of toilet paper product to attach to the melted portion of the tube
Kruger Products Limited v. First Choice Logistics Inc. Page 11 after it separated or moved away from the exhaust pipe. When the tube next moved into contact with the exhaust pipe, these tissue fragments could be ignited as a result of contact with the exhaust pipe. Hence, contact between the overflow tube and the exhaust pipe also presents itself as a potential cause of ignition of the streamer observed by witness Nijjar. [Emphasis added.]] [21] The trial judge rejected this theory, however, noting that: There was no evidence as to when the overflow hose in the Forklift had been installed. I cannot conclude that the plastic radiator coolant overflow hose melted at the Warehouse where the Forklift had been used for less than a day and a half or that the alleged faulty installation caused or contributed to causing the Fire. No theory was presented how paper two to three feet long might have come in contact with the plastic radiator coolant overflow hose, been ignited, and then expelled from the Forklift in order that it would be streaming behind the Forklift. [At para. 53.] 2013 BCCA 3 (CanLII) [22] The defendants also adduced evidence from an engineer, Dr. Colwell, who had conducted (and videotaped) certain tests in relation to the airflow characteristics of the Forklift. The purpose of the tests was “to evaluate whether ‘burning embers’ of paper could pass through the radiator, past the fan, past the exit grill and then ignite a strip of paper or streamer caught on the exit grill.” He described the test and the results thereof in his report as follows: With the engine running at full rpm, the paper samples were placed at locations that provided the best opportunity for them to flow around the radiator and come into contact with the radiator grill at the rear of the lift truck. These locations included above and below the exhaust pipe as it passed the right side of the radiator (on the right side of the lift truck) and underneath the radiator near the fan drive belt. Results of the testing, summarized in Table 1, demonstrated that none of the tissue samples were able to get past the radiator intact. The only piece that made it past the radiator was manipulated such that a portion of the paper was pushed completely underneath the radiator and then released. It was drawn out of the engine compartment and chopped up by the fan such that only confetti-sized paper exited the lift truck. Samples released near the exhaust pipe which passes around the right side of the radiator were drawn forward, not rearward, and did not exit the engine compartment. [Emphasis added.] [23] In cross-examination, Dr. Colwell acknowledged that in one or two of his tests, the video showed a piece of paper being released, moving forward in the engine compartment, becoming entangled in a “structure” there and, after the
Page 1 and 2: COURT OF APPEAL FOR BRITISH COLUMBI
Page 3 and 4: Kruger Products Limited v. First Ch
Page 9: Kruger Products Limited v. First Ch
Page 31: Kruger Products Limited v. First Ch

Case - Clark Wilson LLP

Create successful ePaper yourself

Delete template?

Save as template?