Chae v. Min et al., (2005) 367 A.R. 161 (CA)

• Judge: Fraser, C.J.A., Russell and Paperny, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 10, 2005
• Citations: (2005), 367 A.R. 161 (CA);2005 ABCA 174

Chae v. Min (2005), 367 A.R. 161 (CA);

    346 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. MY.107

Yune Gi Chae (appellant/plaintiff) v. Myung Soon Chae (not a party to the appeal/plaintiff) and Doo Kie Min and Choong Keun Oh (respondents/defendants)

(0203-0107-AC; 2005 ABCA 174)

Indexed As: Chae v. Min et al.

Alberta Court of Appeal

Fraser, C.J.A., Russell and Paperny, JJ.A.

May 10, 2005.

Summary:

Chae was a passenger in a vehicle involved in a single vehicle accident. He and his wife sued the driver, Min, and the vehicle owner, Oh. Min and Chae argued that Chae was contributorily negligent for failing to wear a seat belt.

The Alberta Court of Queen's Bench, in a decision reported at 305 A.R. 207, held that Chae was 75% liable for his injuries. Min was 25% liable.

The Alberta Court of Queen's Bench, in a decision reported at 305 A.R. 220 assessed damages. Chae appealed the finding of contributory negligence and the assessment of damages.

The Alberta Court of Appeal allowed the appeal respecting liability and apportioned liability 75% against Min and 25% against Chae. The court dismissed the appeal respecting damages.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - General - Contributory negligence of driver or passenger - Failure to use safety equipment - Seat belts - Chae, Min and Oh drank two jugs of beer at a lounge - They left in Oh's vehicle, with Min driving - Min failed to negotiate a curve on an unlit rural road and hit a ditch - It was estimated that the vehicle left the highway at a speed between 65-78 kph - The speed limit was 50 kph - Chae sued for damages - The trial judge held that Chae was 75% responsible for his injuries because he failed to wear a seat belt - Min was 25% liable - The Alberta Court of Appeal allowed an appeal - In apportioning liability under the Contributory Negligence Act, the trial judge should have characterized to what extent each of the parties' conduct departed from the standard of care, i.e., compared relative blameworthiness - By focusing almost entirely on Chae's conduct relative to the cause of his injuries, the trial judge overlooked Min's numerous and serious breaches (drinking and driving, speeding and driving with undue care in circumstance in which he was unfamiliar with the road and had limited visibility) - Min's conduct was a greater departure from the standard of care - The court apportioned liability 75% against Min and 25% against Chae - See paragraphs 1 to 12.

Torts - Topic 390

Negligence - Motor vehicle - Standard of care of driver - Driving when ability to drive impaired - [See Torts - Topic 346 ].

Torts - Topic 393

Negligence - Motor vehicle - Standard of care of driver - Circumstances requiring caution or extreme caution - [See Torts - Topic 346 ].

Torts - Topic 394.1

Negligence - Motor vehicle - Standard of care of driver - On curves - [See Torts - Topic 346 ].

Torts - Topic 451

Negligence - Motor vehicle - Speed - Excessive speed - [See Torts - Topic 346 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - [See Torts - Topic 346 ].

Torts - Topic 6630

Defences - Contributory negligence - Particular cases - Failure to use safety equipment (incl. seat belts) - [See Torts - Topic 346 ].

Cases Noticed:

Heller v. Martens et al. (2002), 303 A.R. 84; 273 W.A.C. 84; 2002 ABCA 122, refd to. [para. 8].

Counsel:

D.E. Elgert, for the appellant;

D.R. Syme, Q.C., for the respondents.

This appeal was heard on May 10, 2005, by Fraser, C.J.A., Russell and Paperny, JJ.A., of the Alberta Court of Appeal. Paperny, J.A., delivered the following memorandum of judgment orally for the court on the same day.