Burry v. Chaytor, (1973) 4 Nfld. & P.E.I.R. 414 (NFSC)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 28, 1973
• Jurisdiction: Newfoundland and Labrador
• Citations: (1973), 4 Nfld. & P.E.I.R. 414 (NFSC)

Burry v. Chaytor (1973), 4 Nfld. & P.E.I.R. 414 (NFSC)

MLB headnote and full text

Burry v. Chaytor

Indexed As: Burry v. Chaytor

Newfoundland Supreme Court

At Trial

Puddester, J.

May 28, 1973.

Summary:

This action arose out of the plaintiff's claim for damages for personal injuries resulting from a motor vehicle accident. The plaintiff was a gratuitous passenger in a motor vehicle driven by the defendant which collided with a locomotive at a crossing. The defendant's vehicle stopped before the crossing to pick up the plaintiff and then proceeded slowly across the crossing into the path of the locomotive. Neither the plaintiff nor the defendant could remember the accident. The plaintiff brought an action in negligence against the defendant driver for damages for personal injuries.

The Supreme Court allowed the action and found the defendant grossly negligent. The Supreme Court stated that, since the plaintiff was a gratuitous passenger, the plaintiff was required to prove pursuant to section 220 of the Highway Traffic Act that the Defendant was grossly negligent. The Supreme Court held that the principle of res ipsa loquitur was applicable to prove gross negligence. The Supreme Court inferred from the circumstances of the accident that the defendant was grossly negligent.

Torts - Topic 166

Negligence - Burden of proof - Res ipsa loquitur - Gross negligence - Newfoundland Supreme Court held that the principle of res ipsa loquitur was applicable to prove gross negligence of a motor vehicle driver Supreme Court inferred from the circumstances of an unexplained motor vehicle accident that the driver was grossly negligent - Paragraphs 16 to 27.

Torts - Topic 328

Negligence - Motor vehicle - Gratuitous passengers - Gross negligence - Motor vehicle stopped before railway crossing and unexplainedly drove slowly across the crossing into the path of a locomotive which had all its warning signals operating - Driver and passenger could not remember the accident - Newfoundland Supreme Court inferred from the circumstances of the accident that the driver was grossly negligent.

Torts - Topic 329

Negligence - Motor vehicle - Gratuitous passengers - Definition of "wilful or wanton misconduct or gross negligence" in section 220 of Newfoundland Highway Traffic Act - Newfoundland Supreme Court held term "wilful or wanton misconduct" denotes something subjective on the part of the driver; whereas "gross negligence" may be found entirely apart from what the driver thought or intended - Paragraph 15.

Cases Noticed:

McCulloch v. Murray, [1942] 2 D.L.R. 179, appld.

Drake v. Power (1960), 46 M.P.R. 91, appld.

Studer v. Cowper, [1951] S.C.R. 450, appld.

Walker v. Coates et al., [1968] S.C.R. 599, appld.

Priestly v. Gilbert (1972), 28 D.L.R.(3d) 553, refd to.

Van der Zouwen v. Kosiak, [1972] 2 W.W.R. 225, folld.

Kozack v. Richter, [1971] 1 W.W.R. 508, refd to.

Doxator v. Burch, [1972] 1 O.R. 321; 29 D.L.R.(3d) 542, refd to.

McDonald v. Little (1970), 14 D.L.R.(3d) 114, refd to.

Stevens v. Hoeberg (1972), 2 D.L.R.(3d) 673, refd to.

Kerr v. Cummings, [1952] 2 D.L.R. 846 (B.C.C.A.); [1953] 2 D.L.R. 1 (S.C.C.), dist.

Scott v. London and St. Katherine Docks Co., 159 E.R. 665, appld.

Ballard v. North British Railway Company, [1923] S.C. (H.L.) 43, refd to.

The Kite, [1933] P. 154, refd to.

Statutes Noticed:

Highway Traffic Act, S. Nfld. 1962, c. 82, sect. 220.

Counsel:

Francis Fowler, for the plaintiff;

William E. Wells, for the defendant.