Case - Clark Wilson LLP

Kruger Products Limited v. First Choice Logistics Inc. Page 12
camera had been shut off, being “sucked back onto the radiator screen.” He also
confirmed that the cooling fan had been operating at maximum speed during the test
and that accordingly, he had not made any observations “as to how burning paper
debris and burning embers would move around in the engine compartment if the
engine and the cooling fan were being operated at less than maximum speed.”
Further, the engine had not been under load when the tests were carried out, nor
had the Forklift been driven around “in piles of paper debris to see what would
happen”. Significantly, the radiator had been cleaned out before each test. Counsel
for the defendants successfully objected to counsel’s question to Dr. Colwell:
I suggest to you, Doctor, that given these variables, you would have been
surprised if you had seen fire propagate outside the lift truck?
2013 BCCA 3 (CanLII)
This witness, not having been called to provide expert evidence, was not asked to
comment on the “exhaust pipe” theory ultimately adopted by the trial judge.
[24] The trial judge said he accepted Dr. Colwell’s evidence. In his analysis:
... I accept the evidence of Jeff Colwell, a professional engineer, that paper,
once inside the body of a forklift, is drawn upwards towards the radiator with
significant force so that the paper cannot get past the radiator and outside the
vehicle unless manually forced past the radiator. I also take into account that
there was no evidence of fire damage within the body of the Forklift after the
Fire. I find that it would not have been possible for paper to be drawn into the
Forklift, ignited and then expelled from the Forklift. [At para. 55; emphasis
added.]
For the same reason, he also rejected the defendants’ submission that the Toyota
third parties were responsible for the fire ‒ although it was not necessary for the
Court to decide the point. The judge rejected the notion that paper had been:
... drawn into the body of the Forklift as a result of the negative air pressure
created by the exhaust fan and that, after coming into contact with an
exposed portion of the exhaust pipe, caught fire and escaped from the body
of the Forklift. I am satisfied that this theory is disproven on the evidence due
primarily to the inability of paper to escape once it has entered the body of
the Forklift and the inability of ignited paper to move past the radiator fan to
outside of the Forklift. [At para. 55; emphasis added.]