Chae v. Min et al., (2001) 305 A.R. 207 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 19, 2001
• Citations: (2001), 305 A.R. 207 (QB);2001 ABQB 1071

Chae v. Min (2001), 305 A.R. 207 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JA.005

Yune Gi Chae and Myung Soon Chae (plaintiffs) v. Doo Kie Min and Choong Keun Oh (defendants)

(Action No. 9903 07052; 2001 ABQB 1071)

Indexed As: Chae v. Min et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

December 17, 2001.

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 held that Chae was 75% liable for his injuries. Min was 25% liable.

Editor's note: for a related decision see (2001), 305 A.R. 220.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - General - Contributory negligence of driver or passenger - Failure to use safety equipment - Seat belts - Chae was a front seat passenger in a vehicle that failed to negotiate a curve and hit a ditch - His injuries included a closed head brain injury - He sued the driver and the vehicle owner - Chae had not been wearing a seat belt even though he, the driver and the owner had been drinking; he was not familiar with the driver's driving habits; and they were travelling on an unlit rural road with curves - The Alberta Court of Queen's Bench held that Chae was 75% responsible for his injuries because he failed to wear his seat belt - His injuries would have been reduced by 98% of what he claimed if he had been wearing his seat belt - However, it was not appropriate to reduce Chae's claim in that proportion because the driver had been negligent and caused the accident - The driver was 25% liable.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - General - Contributory negligence of driver or passenger - Failure to use safety equipment - Seat belts - The Alberta Court of Queen's Bench stated that "It is not the law in Canada that a plaintiff who does not wear a seat belt should be held to a maximum of 25% of contributory negligence for injuries suffered because the seat belt was not worn. Each case depends on its own facts. Where evidence can be easily obtained concerning the facts of the accident, and the facts surrounding seat belt use, the court should embark on an inquiry about all the circumstances of the accident and determine the plaintiff's actual contributory negligence on the basis of all available evidence." - See paragraph 4.

Torts - Topic 6603

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

Torts - Topic 6630

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

Cases Noticed:

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37; [1994] 5 W.W.R. 1, consd. [paras. 7, 19].

Stewart v. Pettie et al. (1991), 2 Alta. L.R.(3d) 97 (Q.B.), refd to. [para. 7].

Stewart v. Pettie et al. (1993), 141 A.R. 4; 46 W.A.C. 4; 10 Alta. L.R.(3d) 113 (C.A.), refd to. [para. 7].

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241; [1995] 3 W.W.R. 1, refd to. [para. 7].

Haydu v. Calgary (City) and Santo (1991), 116 A.R. 161 (Q.B.), refd to. [para. 8].

Jivraj et al. v. Fischer (1992), 124 A.R. 81 (Q.B.), refd to. [paras. 8, 35].

Korpela v. March (1993), 138 A.R. 179; 9 Alta. L.R.(3d) 117 (Q.B.), refd to. [para. 8].

Regehr v. Nagle (1993), 138 A.R. 229; 8 Alta. L.R.(3d) 116 (Q.B.), refd to. [para. 8].

Langshaw v. Hui and Ma (1994), 159 A.R. 106 (Q.B.), refd to. [para. 8].

Froom v. Butcher, [1975] 3 All E.R. 520 (C.A.), consd. [paras. 9, 24].

Platform Home Loans Ltd. v. Oyston Shipways Ltd. et al. (1999), 240 N.R. 332 (H.L.), refd to. [para. 9].

Jones v. Wilkins, [2000] E.W.J. No. 6965, consd. [paras. 9, 28].

Hogg v. Carrigan, [2001] Scot.J. No. 3, refd to. [paras. 9, 30].

Fowler et al. v. Schneider National Carriers Ltd. et al. (2001), 193 N.S.R.(2d) 206; 602 A.P.R. 206 (C.A.), refd to. [para. 9].

Chamberland and Chamberland v. Fleming and Brost (1984), 54 A.R. 291; 29 C.C.L.T. 213 (Q.B.), refd to. [paras. 9, 36].

Eberle v. Bonsor and Bonsor, [1989] 5 W.W.R. 241; 77 Sask.R. 85 (Q.B.), refd to. [paras. 9, 35].

Pelletier et al. v. Olson et al. (1987), 59 Sask.R. 212 (Q.B.), refd to. [paras. 9, 35].

McLaughlin v. Long, [1927] S.C.R. 303, refd to. [para. 9].

Philip v. Hironaka (1997), 210 A.R. 1 (Q.B.), refd to. [para. 34].

Statutes Noticed:

Contributory Negligence Act, generally [para. 9, Appendix A].

Authors and Works Noticed:

Williams, Glanville L., Joint Torts and Contributory Negligence (1951), pp. 262 to 269, 278 to 280 [para. 9].

Klar, Lewis N., Tort Law (2nd Ed. 1996), pp. 364, 378 to 381 [para. 9].

Counsel:

Darrell E. Elgert and Paul Kraus (Barry Elgert Kraus & Peddie), for the plaintiffs;

David Syme, Q.C. (Brownlee Fryett), for the defendants.

This matter was heard on November 19, 2001, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 17, 2001.