Cherrey v. Steinke, LaFreniere and Manitoba Public Insurance Corp., (1980) 7 Man.R.(2d) 439 (CA)

• Judge: Matas, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 15, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 7 Man.R.(2d) 439 (CA)

Cherrey v. Steinke (1980), 7 Man.R.(2d) 439 (CA)

MLB headnote and full text

Cherrey v. Steinke and LaFreniere and Manitoba Public Insurance Corporation (third party)

Indexed As: Cherrey v. Steinke, LaFreniere and Manitoba Public Insurance Corp.

Manitoba Court of Appeal

Matas, O'Sullivan and Huband, JJ.A.

May 15, 1980.

Summary:

This case arose out of the plaintiff passenger's action against his driver and the owner of the motor vehicle for damages arising out of a motor vehicle accident. The passenger encouraged his driver to run from the police, when both were in an intoxicated condition, and an accident resulted.

The Manitoba Court of Queen's Bench in a judgment unreported in this series of reports dismissed the plaintiff's action on the basis of volenti non fit injuria. The plaintiff appealed.

The Manitoba Court of Appeal dismissed the appeal - see paragraphs 1 to 19.

O'Sullivan, J.A., dissenting, would have allowed the appeal and awarded the plaintiff one half of his damages - see paragraphs 20 to 29.

Torts - Topic 6726

Defences - Consent - Assumption of risk - Implied consent - Motor vehicle passenger - Volenti non fit injuria - The driver and a passenger of a motor vehicle were on an all night drinking spree - When they encountered a police vehicle, the passenger encouraged the driver to run and kept encouraging the driver during the chase until an accident occurred - The Manitoba Court of Appeal discussed and applied volenti non fit injuria and held that the passenger agreed to assume the risk of the driver's driving - See paragraphs 1 to 19.

Cases Noticed:

Car and General Insurance Corporation Limited v. Seymour et al., [1956] S.C.R. 322, appld. [para. 16].

Miller v. Decker, [1957] S.C.R. 624, appld. [para. 16].

Lehnert v. Stein, [1963] S.C.R. 38, appld. [paras. 16, 27].

Eid v. Dumas, [1969] S.C.R. 668; 1 N.B.R.(2d) 445; 5 D.L.R.(3d) 561, appld. [para. 16].

Crossan v. Gillis et al. (1979), 30 N.S.R.(2d) 121; 49 A.P.R. 121; 7 C.C.L.T. 269 (N.S.C.A.), refd to. [para. 17].

Henderson et al. v. Pearson Forest Products Ltd. et al. (1980), 10 C.C.L.T. 209 (Ont. H.C.), refd to. [para. 17].

Liverpool C.C. v. Irvin, [1975] 3 All E.R. 658, affd. [1976] 2 All E.R. 39, consd. [para. 22].

Authors and Works Noticed:

Fleming, The Law of Torts (5th Ed.), c. 12 [para. 16].

Klar, Studies in Canadian Tort Law (1977), pp. 119-127 [para. 16].

Linden, Canadian Tort Law, pp. 432-439 [para. 16].

Waddams, The Law of Contracts (1977), p. 307 [para. 26].

Williams On Joint Torts and Contributory Negligence (1951) [para. 16].

Counsel:

R.J. Handlon, for plaintiff/appellant;

H. Glinter, for defendant/respondent (H.G. Steinke);

W.P. Narvey, for defendant/respondent (K. LaFreniere).

This case was heard on March 11, 1980, at Winnipeg, Manitoba, before MATAS, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On May 15, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MATAS, J.A. - see paragraphs 1 to 19;

O'SULLIVAN, J.A., dissenting - see paragraphs 20 to 29.

HUBAND, J.A., concurred with MATAS, J.A.