Dubé v. Labar, (1986) 68 N.R. 91 (SCC)

• Judge: Estey, McIntyre, Chouinard, Wilson and Le Dain, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 01, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 68 N.R. 91 (SCC);42 MVR 1;27 DLR (4th) 653;[1986] 3 WWR 750;[1986] 1 SCR 649;68 NR 91;[1986] SCJ No 29 (QL);36 CCLT 105;1986 CanLII 67 (SCC);2 BCLR (2d) 273;1 YR 81

Dubé v. Labar (1986), 68 N.R. 91 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Dube v. Labar

(No. 17672)

Indexed As: Dubé v. Labar

Supreme Court of Canada

Estey, McIntyre, Chouinard, Wilson and Le Dain, JJ.

May 1, 1986.

Summary:

A motor vehicle passenger sued the driver of the vehicle for damages for personal injuries suffered when the car overturned. Both parties had been drinking before the accident. The driver pleaded both contributory negligence and volenti non fit injuria by the passenger. The trial was held before a jury. The jury was asked to answer a number of specific questions. The jury determined that the volenti defence applied to the passenger's conduct, because he willingly agreed to ride in the vehicle, knowing that the driver was impaired. Accordingly, the passenger's action was dismissed. The passenger appealed.

The Yukon Court of Appeal dismissed the appeal. The passenger appealed.

The Supreme Court of Canada discussed the defence of volenti as applied to an impaired driver-willing passenger situation. The Supreme Court examined the trial judge's jury charge respecting both defences, and held that it was confusing or misleading. However, the Supreme Court refused to interfere with the jury's decision, because the jury gave clear answers to the questions put to them and because the jury verdict was not unreasonable. Accordingly, the Supreme Court dismissed the passenger's appeal.

Wilson, J., concurring in the result, would have dismissed the appeal because the jury charge was adequate and because the jury's decision should not be interfered with.

Practice - Topic 5182

Juries and jury trials - Verdicts - Setting aside jury verdict - The Supreme Court of Canada discussed the role of a court of appeal respecting a jury verdict in civil proceedings and the paramount principle that the court has a duty to sustain the jury's decision as long as it is reasonable - The Supreme Court refused to disturb a jury's finding, despite possible confusion in the jury charge, where any confusion was overcome by the clear answers given by the jury to the questions put to them, and where their decision, although not one which every jury would have reached, was not unreasonable - See paragraphs 14 to 17.

Practice - Topic 5198

Juries and jury trials - Jury charge - Respecting defences - Volenti non fit injuria - In a civil negligence case, a passenger sued his driver for damages - The driver pleaded volenti and contributory negligence by the passenger - The Supreme Court of Canada examined the jury charge on these defences and found it misleading or confusing - The Court set out the proper way to charge the jury on volens, including the effect of its acceptance and its relationship with contributory negligence - See paragraphs 10 to 14.

Practice - Topic 8821

Appeals - Duty of appellate court re findings of liability by jury - The Supreme Court of Canada discussed the role of a court of appeal respecting a jury verdict in civil proceedings and the paramount principle that the court has a duty to sustain the jury's decision as long as it is reasonable - The Supreme Court refused to disturb a jury's finding, despite possible confusion in the jury charge, where any confusion was overcome by the clear answers given by the jury to the questions put to them, and where their decision, although not one which every jury would have reached, was not unreasonable - See paragraphs 14 to 17.

Torts - Topic 6725

Defences - Consent - Assumption of risk - General - The Supreme Court of Canada held that "volenti will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant's part. The acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise, ..., only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to." - See paragraph 6.

Torts - Topic 6726

Defences - Consent - Assumption of risk - Implied consent - Motor vehicle passenger - The Supreme Court of Canada held that the volenti defence is available to a case of negligence on a highway, where a passenger willingly rides in a vehicle driven by a driver known to be impaired - The Court held, however, that the defence will only be made out in unusual circumstances - Only rarely will a passenger genuinely consent to accept the risk of the defendant driver's negligence - The passenger must not only have knowledge of the risk of harm, but there must be express or implied acceptance of the risk without recourse to law by the passenger, along with an inference that the driver took no responsibility for the passenger's safety - See paragraphs 5 to 9.

Cases Noticed:

Car & General Insurance Corp. v. Seymour et al., [1956] S.C.R. 322, consd. [para. 5].

Miller v. Decker et al., [1957] S.C.R. 624, consd. [para. 5].

Lehnert v. Stein, [1963] S.C.R. 38, consd. [paras. 5, 22].

Eid v. Dumas, [1969] S.C.R. 668; 1 N.B.R.(2d) 445, consd. [para. 5].

Jamieson v. Harris (1905), 35 S.C.R. 625, refd to. [para. 15].

McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; 26 N.R. 242, refd to. [para. 15].

Grinnell Co. v. Warren, [1937] S.C.R. 353, refd to. [para. 15].

Pronek v. Winnipeg, Selkirk and Lake Winnipeg Railway Company, [1933] A.C. 61, refd to. [para. 15].

Olmstead v. Vancouver-Fraser Park District, [1975] 2 S.C.R. 831; 3 N.R. 326, refd to. [para. 16].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 16].

Scotland v. Canadian Cartridge Company (1919), 59 S.C.R. 471, refd to. [para. 16].

Statutes Noticed:

Contributory Negligence Ordinance, R.O.Y.T., c. C-14, generally [para. 12].

Authors and Works Noticed:

Williams, Glanville, Joint Torts and Contributory Negligence (1951), pp. 307 [para. 7]; 308 [paras. 7, 12].

Salmond and Heuston on the Law of Torts (18th Ed. 1981), pp. 472-473 [para. 12].

Counsel:

Brian Crane, Q.C., and R. Lunau, for the appellant;

D. O'Connor, Q.C., and T. Preston, Q.C., for the respondent.

This appeal was heard before Estey, McIntyre, Chouinard, Wilson and Le Dain, JJ., of the Supreme Court of Canada on January 31, 1985.

The decision of the Supreme Court was delivered on May 1, 1986, where the following opinions were filed:

Estey, J. - see paragraphs 1 to 18;

Wilson, J. - see paragraphs 19 to 26.

McIntyre, Chouinard and Le Dain, JJ., concurred with Estey, J.