Day & Ross Inc. v. Randall et al., 2001 NBCA 39

• Judge: Rice, Drapeau and Robertson, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 14, 2001
• Jurisdiction: New Brunswick
• Citations: 2001 NBCA 39;(2001), 236 N.B.R.(2d) 317 (CA);236 NBR (2d) 317

Day & Ross v. Randall (2001), 236 N.B.R.(2d) 317 (CA);

    236 R.N.-B.(2e) 317; 611 A.P.R. 317

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2001] N.B.R.(2d) TBEd. AP.026

Day & Ross Inc. (appellant/plaintiff) v. John Randall and Joël Gagnon, in the capacity as Liquidator of the Estate of Jean-Claude Gagnon, Deceased (respondents/defendants)

(99/2000/CA; 2001 NBCA 39)

Indexed As: Day & Ross Inc. v. Randall et al.

New Brunswick Court of Appeal

Rice, Drapeau and Robertson, JJ.A.

April 17, 2001.

Summary:

Two passenger vehicles and a tractor-trailer owned by Day & Ross Inc. were involved in a fatal accident with a moose. Day & Ross sued the other two drivers for the cost of repairs to the tractor-trailer (ap­proximately $50,000).

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [2000] N.B.R. (Supp.) No. 67, found that the moose was the sole cause of the acci­dent and dismissed the action. Day & Ross ap­pealed.

The New Brunswick Court of Appeal dismissed the appeal.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - A minivan driven by Randall was travelling 15 km/h over the speed limit when it struck a moose and pushed it into the path of an oncoming car, causing that car to cross the centre line and strike an oncoming tractor-trailer owned by Day & Ross Inc. - Day & Ross sued the other two drivers - The trial judge held that Randall's speed was not a proximate cause of the collision, contrary to the opinion of an expert witness - Day & Ross appealed - The New Brunswick Court of Appeal dismissed the appeal - The court stated that "the question whether Mr. Randall's speed contributed to the accident is one of fact. In determining that question, [the court] was not bound to adopt the opinion of Mr. Foley, or of any other accident reconstruction expert for that matter. After all, an expert's opinion is only as reliable as the assumptions upon which it is founded" - See paragraph 18.

Torts - Topic 253

Negligence - Animals - On highway - Moose - A minivan struck a moose and pushed it into the path of an oncoming car - The car struck the moose and crossed the centre line of the highway, where the car was hit by an oncoming tractor-trailer owned by Day & Ross Inc. - Day & Ross sued the other two drivers for the cost of repairs to the tractor-trailer - The trial judge held that the accident was solely caused by the moose and dismissed the action - Day & Ross appealed, submitting that the driver who initially struck the moose (Randall) was admittedly driving over the speed limit and the other vehicle (driven by Gagnon) was in the wrong lane when the collision with the tractor-trailer occurred - The New Brunswick Court of Appeal dismissed the appeal - There was evidence to support the trial judge's con­clusion that Randall's speed was not a proximate cause of the accident and Gagnon's vehicle had crossed the centre line without negligence on his part.

Torts - Topic 464

Negligence - Motor vehicle - Speed - Where reduced speed required - Pedes­trians and animals - A minivan was travel­ling at 105 km/h in a 90 km/h zone at night when it struck a moose and pushed it into the path of an oncoming car - The car struck the moose and crossed the centre line of the highway, where the car struck an oncoming tractor-trailer owned by Day & Ross Inc. - Day & Ross sued the other two drivers for the cost of repairs to the tractor-trailer - The trial judge held that the driver's speed in the minivan was not a proximate cause of the collision - Day & Ross appealed and argued, inter alia, that the minivan driver's breach of the Motor Vehicle Act should give rise to civil liabil­ity in negligence - The New Bruns­wick Court of Appeal rejected the argu­ment and dismissed the appeal - See para­graphs 9 to 19.

Torts - Topic 561

Negligence - Motor vehicle - Evidence and burden of proof - Accident reconstruction by expert - [See Evidence - Topic 7002 ].

Torts - Topic 564

Negligence - Motor vehicle - Evidence and burden of proof - Vehicle crossing centre line - [See Torts - Topic 253 ].

Cases Noticed:

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 13].

Luck v. Toronto Railway Co. (1920), 58 D.L.R. 145 (Ont. C.A.), refd to. [para. 14].

Landry and Arseneau v. Dixon and Dixon Drilling Ltd. (1975), 13 N.B.R.(2d) 461; 13 A.P.R. 461 (Q.B.), refd to. [para. 14].

Nadeau v. Albert (1974), 9 N.B.R.(2d) 688; 1 A.P.R. 688 (C.A.), refd to. [para. 14].

Bridges v. Hunter (1977), 17 N.B.R.(2d) 451; 23 A.P.R. 451 (C.A.), refd to. [para. 14].

Jones v. Richard (2000), 226 N.B.R.(2d) 207; 579 A.P.R. 207 (C.A.), refd to. [para. 14].

Couturier v. Rud, [1990] B.C.J. No. 150 (C.A.), refd to. [para. 16].

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), refd to. [para. 17].

Dunbar v. Grady (1957), 41 M.P.R. 233 (N.B.C.A.), refd to. [para. 21].

Caissie v. Donelle (1957), 41 M.P.R. 281 (N.B.C.A.), refd to. [para. 21].

Beers et al. v. Lutes et al. (1957), 42 M.P.R. 149 (N.B.C.A.), refd to. [para. 21].

Goguen and Depres v. Superior Service Leasing Ltd. and Kenney (1976), 13 N.B.R.(2d) 670; 13 A.P.R. 670 (C.A.), refd to. [para. 21].

Jordan v. Coleman et al., [1976] 1 S.C.R. 126; 3 N.R. 502, refd to. [para. 21].

Landry et al. v. Doucet (1989), 95 N.B.R.(2d) 228; 241 A.P.R. 228 (C.A.), refd to. [para. 21].

Boutcher and Canada (Attorney General) v. Stewart and Stewart (1989), 99 N.B.R.(2d) 30; 250 A.P.R. 30 (C.A.), refd to. [para. 21].

Doyle v. Grant (1999), 211 N.B.R.(2d) 195; 539 A.P.R. 195 (C.A.), refd to. [para. 21].

Pelletier v. St-Onge (2001), 236 N.B.R.(2d) 128; 236 R.N.-B.(2e) 128; 611 A.P.R. 128 (C.A.), refd to. [para. 21].

Counsel:

Howard A. Spalding, Q.C., for the appel­lant;

Barry R. Morrison, Q.C., for the respon­dent, Joël Gagnon;

Mark A. Canty, for the respondent, John Randall.

This appeal was heard on February 14, 2001, by Rice, Drapeau and Robertson, JJ.A., of the New Brunswick Court of Ap­peal. Drapeau, J.A., delivered the follow­ing decision for the court on April 17, 2001.