Burtt v. Davis and Atmus Equipment Ltd., (1976) 14 N.B.R.(2d) 541 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 17, 1975
• Jurisdiction: New Brunswick
• Citations: (1976), 14 N.B.R.(2d) 541 (QB)

Burtt v. Davis (1976), 14 N.B.R.(2d) 541 (QB);

    14 R.N.-B.(2e) 541; 15 A.P.R. 541

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Burtt v. Davis and Atmus Equipment Limited

Indexed As: Burtt v. Davis and Atmus Equipment Ltd.

Répertorié: Burtt v. Davis and Atmus Equipment Ltd.

New Brunswick Court of Queen's Bench

Stratton, J.

May 18, 1976.

Summary:

Résumé:

This case arose out of the plaintiff's claim in negligence against the defendants for damages arising out of a rear-end motor vehicle collision. The plaintiff's vehicle was struck in the rear by a vehicle driven by the defendant driver and the plaintiff suffered a hyperextension injury to his neck. The plaintiff brought an action against the defendants for damages. The New Brunswick Court of Queen's Bench allowed the action and found the defendants wholly at fault.

The Court of Queen's Bench held that, because the evidence was not sufficient to establish whether the plaintiff would have been less or more severely hurt if he had worn a safety harness, the plaintiff was not contributorily negligent for failing to wear a seat belt - see paragraphs 2 to 4.

Damage Awards - Topic 178

Personal injuries and death - Neck injuries - Mild hyperextension injury to cervical spine, which subsequently became more severe which resulted in numbness in arm and hand - Work as a draftsman aggravated the injury - No permanent disability - 26 year old male draftsman - The New Brunswick Court of Queen's Bench awarded the plaintiff $4,000.00 general damages for personal injuries - See paragraphs 5 to 8.

Torts - Topic 346

Defences - Contributory negligence - Failure to wear safety harness in motor vehicle - Seat belt and harness - The New Brunswick Court of Queen's Bench stated that to constitute contributory negligence it must be shown that the injuries sustained by a person who has failed to use an available seat belt would have been less severe had the seat belt been used - The Court of Queen's Bench found that the evidence was not sufficient to establish whether the plaintiff would have been less or more severely hurt if he had worn a safety harness - The Court of Queen's Bench held that the plaintiff was not contributorily negligent - See paragraphs 2 to 4.

Cases Noticed:

Heppell v. Irving Oil Co. Ltd. (1973), 6 N.B.R.(2d) 327 (N.B.C.A.), appld. [para. 3].

Haley v. Richardson et al. (1975), 10 N.B.R.(2d) 653 (N.B.C.A.), appld. [para. 3].

Matheson v. Malcolm (1975), 9 N.B.R.(2d) 103, refd to. [para. 7].

Mason v. Duncan (1975), 9 N.B.R.(2d) 179, refd to. [para. 7].

Vautour v. Lawson (1975), 10 N.B.R.(2d) 198, refd to. [para. 7].

Cote v. Maltais (1975), 11 N.B.R.(2d) 314, refd to. [para. 7].

Spencer v. M & D Transfer Ltd. et al. (1975), 11 N.B.R.(2d) 616, refd to. [para. 7].

Turbide v. McIntyre (1975), 11 N.B.R.(2d) 559, refd to. [para. 7].

MacDonald v. Metrocan Leasing Ltd. & Hopkins (1975), 12 N.B.R.(2d) 230, refd to. [para. 7].

Cote v. Kirouac (1976), 12 N.B.R.(2d) 535, refd to. [para. 7].

Statutes Noticed:

Contributory Negligence Act, R.S.N.B. 1973, c. C-19.

Counsel:

Robert L. Kenny, for the plaintiff;

Michael E. Bowlin, for the defendants.

This case was heard on May 17, 1975, at Fredericton, N. B., before Stratton, J., of the New Brunswick Supreme Court, Queen's Bench Division. On May 18, 1976, Stratton, J., delivered the following judgment: