Burry v. Murphy et al., (2015) 373 Nfld. & P.E.I.R. 108 (NLTD(G))

• Judge: Marshall, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 19, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 373 Nfld. & P.E.I.R. 108 (NLTD(G))

Burry v. Murphy (2015), 373 Nfld. & P.E.I.R. 108 (NLTD(G));

    1161 A.P.R. 108

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. OC.019

Rodney Burry (plaintiff) v. Melissa Murphy (first defendant) and Richard Canning (second defendant)

(201201G2095; 2015 NLTD(G) 135)

Indexed As: Burry v. Murphy et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Marshall, J.

October 6, 2015.

Summary:

A motor vehicle accident (rear-end collision) occurred near an intersection. The plaintiff (Burry)'s vehicle struck the rear of the defendant Canning vehicle and, in turn, the Canning vehicle rear-ended another vehicle. Burry sued for the damages he sustained. He claimed that Canning caused the accident by having suddenly pulled into the lane in front of his vehicle, such that he was unable to stop in time to avoid the collision. Canning denied that there was an unsafe lane change, and asserted that the accident was a typical rear-end collision.

The Newfoundland and Labrador Supreme Court, Trial Division (General), determined that Burry was liable for the accident, and dismissed the action.

Torts - Topic 395

Negligence - Motor vehicle - Standard of care of driver - Duty to pay attention - [See Torts - Topic 448 ].

Torts - Topic 399

Negligence - Motor vehicle - Standard of care of driver - Of vehicle following another - [See Torts - Topic 448 ].

Torts - Topic 427

Negligence - Motor vehicle - Rules of the road - Overtaking - Duty of overtaking driver - [See Torts - Topic 448 ].

Torts - Topic 448

Negligence - Motor vehicle - Rules of the road - Changing lanes - The plaintiff's vehicle struck the rear of the defendant's vehicle near an intersection - The plaintiff claimed that the defendant caused the accident by having suddenly pulled into the lane in front of his vehicle - The defendant denied that he had made an unsafe lane change, and asserted that the accident was a typical rear-end collision - The issue of liability turned on an assessment of credibility - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the plaintiff was liable for the accident - The evidence was examined in light of the defendant's duty to change lanes safely as described in the Highway Traffic Act - The plaintiff's evidence was not as reliable as the defendant's evidence - The number and nature of the inconsistencies in the plaintiff's evidence brought into question his ability to observe and accurately recall details, including the lane in which the accident occurred, a significant material fact - The Court accepted the defendant's evidence and concluded that this was a typical rear-end collision - The defendant's vehicle was stopped when the plaintiff's vehicle rear-ended it - The plaintiff was driving without due care and attention contrary to s. 110(1) of the Highway Traffic Act - The onus was on the plaintiff to rebut the inference of negligence - He had not rebutted that presumption, on the balance of probabilities.

Torts - Topic 557

Negligence - Motor vehicle - Evidence and burden of proof - Rear end collisions - [See Torts - Topic 448 ].

Cases Noticed:

Ryall v. Coombs (1995), 131 Nfld. & P.E.I.R. 299; 408 A.P.R. 299 (Nfld. T.D.), refd to. [para. 9].

Bradshaw v. Stenner, [2010] B.C.T.C. Uned. 1398; 2010 BCSC 1398, refd to. [para. 32].

Statutes Noticed:

Highway Traffic Act, R.S.N. 1990, c. H-3, sect. 96(1), sect. 101(a) [para. 11]; sect. 103(1) [para. 12]; sect. 110(1), sect. 117(3)[para. 11].

Counsel:

D. Bradford L. Wicks, Q.C., and Sophie St. Croix, for the plaintiff;

Glen Noel and Megan Alexander, for the defendants.

This action was heard on October 21-22, 2014, and March 19, 2015, at St. John's, NL, before Marshall, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General). The Court delivered the following judgment and reasons, dated October 6, 2015.