Arsenault v. Léger, (2003) 272 N.B.R.(2d) 8 (TD)

• Judge: Rideout, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: December 29, 2003
• Jurisdiction: New Brunswick
• Citations: (2003), 272 N.B.R.(2d) 8 (TD);2003 NBQB 459

Arsenault v. Léger (2003), 272 N.B.R.(2d) 8 (TD);

    272 R.N.-B.(2e) 8; 715 A.P.R. 8

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.B.R.(2d) TBEd. JA.030

Phil Arsenault (plaintiff) v. Colleen Léger and Timothy Léger (defendants)

(M/C/0548/00; 2003 NBQB 459)

Indexed As: Arsenault v. Léger

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

December 29, 2003.

Summary:

The plaintiff sued the defendants for dam­ages resulting from a two vehicle collision in a shopping mall parking lot.

The New Brunswick Court of Queen's Bench, Trial Division, apportioned liability 50/50. The court assessed the plaintiff's damages, including $35,000 for general damages.

Damage Awards - Topic 71

Injury and death - Body injuries - Back - Sprains, tears and soft tissue injuries - The plaintiff sued the defendants for damages resulting from a two vehicle collision in a shopping mall parking lot - The New Brunswick Court of Queen's Bench, Trial Division, found that the accident caused the plaintiff soft tissue injuries to his neck and lower back - The court found that the injury also precipitated migraine head­aches, although the evidence suggested that the headaches had now reduced in frequen­cy - The court assessed the plaintiff's general damages at $35,000 - See para­graphs 35 to 45.

Damage Awards - Topic 108

Injury and death - Head injuries - Head­aches - [See Damage Awards - Topic 71 ].

Damage Awards - Topic 179

Injury and death - Neck injuries - Soft tissue injuries - [See Damage Awards - Topic 71 ].

Torts - Topic 418

Negligence - Motor vehicle - Rules of the road - Right of way - Duty to yield - The plaintiff sued the defendants for damages resulting from a two vehicle collision in a shopping mall parking lot - The New Brunswick Court of Queen's Bench, Trial Division, apportioned liability 50/50 - The plaintiff was driving too fast in a crowded parking lot and his speed was a major contributor to the accident - The plaintiff, as the dominant driver, was entitled to assume that he would be given the right-of-way - The defendant driver, being the servient driver, was unsure if she stopped before proceeding into the intersection even though her passengers said she did - Further, it was not clear how far she pro­ceeded into the intersection - See para­graphs 28 to 34.

Torts - Topic 578

Negligence - Motor vehicle - Off highway accidents and traffic rules - Parking lots - The New Brunswick Court of Queen's Bench, Trial Division, stated that "While authorities to the contrary can be found, I believe it is now well established law that as a general principle, the 'Rules of the Road' are applicable to a shopping mall parking lot." - See paragraph 29.

Torts - Topic 578

Negligence - Motor vehicle - Off highway accidents and traffic rules - Parking lots - [See Torts - Topic 418 ].

Cases Noticed:

Patterson v. MacKenzie (1972), 5 N.B.R.(2d) 176 (C.A.), refd to. [para. 29].

James v. Verma (1975), 14 N.S.R.(2d) 142; 11 A.P.R. 142 (T.D.), folld. [para. 29].

LeBlanc v. LeBlanc, [1998] N.B.R.(2d) (Supp.) No. 19 (T.D.), refd to. [para. 33].

Holty v. Stafford, [1999] N.B.J. No. 55, refd to. [para. 33].

Perchotte v. Blackmon (2001), 157 Man.R.(2d) 64 (Q.B.), refd to. [para. 33].

Counsel:

Stephen P. Gallagher, on behalf of the plaintiff;

Bruce D. Grant, on behalf of the defen­dants.

This action was heard on December 2 and 18, 2003, by Rideout, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Moncton, who delivered the following decision on Decem­ber 29, 2003.