Ducharme and Holben v. Davies and Rogoschewsky, (1983) 29 Sask.R. 54 (CA)

• Judge: Brownridge, MacDonald and Cameron, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 24, 1983
• Jurisdiction: Saskatchewan
• Citations: (1983), 29 Sask.R. 54 (CA);1983 CanLII 2310 (BS SC);1983 CanLII 2310 (SK CA);[1984] 1 WWR 699;29 Sask R 54

Ducharme v. Davies (1983), 29 Sask.R. 54 (CA)

MLB headnote and full text

Ducharme, Ducharme, Ducharme and Holben v. Davies and Rogoschewsky

(No. 7743)

Indexed As: Ducharme and Holben v. Davies and Rogoschewsky

Saskatchewan Court of Appeal

Brownridge, MacDonald and Cameron, JJ.A.

November 24, 1983.

Summary:

The plaintiffs sued the defendants for damages for personal injuries suffered in a motor vehicle accident. A car in which the plaintiffs were riding collided with a truck driven by the defendant Davies and owned by the defendant Rogoschewsky. The Saskatchewan Court of Queen's Bench, in a decision reported in (1981), 12 Sask.R. 137, allowed the plaintiffs' action, but held that the adult plaintiffs were contributorily negligent in failing to wear their seat belts and reduced their general damages by 15%. The court refused to reduce the infant plaintiff's damages for her failure to wear a seat belt. The defendants appealed.

The Saskatchewan Court of Appeal dismissed the appeal, but varied the judgment to reduce the adult plaintiffs' special damages by 15%.

Brownridge, J.A., dissenting in part, would have allowed the appeal respecting the infant plaintiff's damages and reduced her damages by 25%. Brownridge, J.A., would also have reduced the plaintiffs' costs by 15%.

Practice - Topic 1302

Pleadings - Purpose of - The Saskatchewan Court of Appeal set out the function of pleadings - See paragraph 64.

Torts - Topic 341

Negligence - Motor vehicle - Passengers - Contributory negligence of passenger's driver - Contribution with another driver - The defendant in a negligence action for damages caused to an infant plaintiff pleaded contributory negligence on the part of the plaintiff driver because the infant was not wearing a seat belt - The defendant failed to plead that the plaintiff was a joint tortfeasor in respect of her alleged negligence in failing to secure the infant, or that the defendant was entitled to contribution or indemnity or have the infant's damages apportioned between them - The Saskatchewan Court of Appeal held that the defendant could not now raise a claim for contribution or apportionment - See paragraphs 36 to 46, 52 to 64.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence of driver or passenger - Failure to use safety equipment - The Saskatchewan Court of Appeal affirmed that the damages awarded to an injured driver and passenger should be reduced by 15% for their failure to wear seat belts, where their injuries would have been less severe had the seat belts been worn - See paragraphs 50, 69.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence of driver or passenger - Failure to use safety equipment - Infants - The plaintiff driver of a car failed to properly secure her three year old child in a seat belt or child restraint system and allowed her to remain unprotected and unsecured on top of a picnic cooler in the back seat - The child was injured in an accident caused solely by the defendant driver - The Saskatchewan Court of Appeal affirmed that the child's damages against the defendant should not be reduced for contributory negligence, because (1) the child was incapable of contributory negligence and (2) even if the plaintiff was negligent in breaching her duty to the child, her negligence could not be imputed to the child - See paragraphs 18 to 46, 52.

Torts - Topic 411

Negligence - Motor vehicle - Rules of the road - Making turns - Left turns - A driver pulled out into the left or passing lane to pass the truck ahead of her - The truck then crossed into the left lane in anticipation of making a left turn onto a side road - A collision occurred - The Saskatchewan Court of Appeal affirmed that the truck driver was negligent and solely at fault in failing to signal his turn until he had started to turn and his left front wheel was over the centre line, and in failing to check over his shoulder until after the turn was commenced - See paragraphs 8 to 16, 50.

Torts - Topic 6607

Defences - Contributory negligence - General - Contributory v. concurrent negligence - The Saskatchewan Court of Appeal distinguished contributory and concurrent negligence - See paragraph 63.

Torts - Topic 7378

Joint and concurrent tortfeasors - Contribution between tortfeasors - Claim for - Requirement of pleading - The defendant in a negligence action for damages caused to an infant plaintiff pleaded contributory negligence on the part of the plaintiff driver because the infant was not wearing a seat belt - The defendant failed to plead that the plaintiff was a joint tortfeasor in respect of her alleged negligence in failing to secure the infant, or that the defendant was entitled to contribution or indemnity or have the infant's damages apportioned between them - The Saskatchewan Court of Appeal held that the defendant could not now raise a claim for contribution or apportionment - See paragraphs 36 to 46, 52 to 64.

Cases Noticed:

Johnny's Taxi v. Ostoforoff (1962), 33 D.L.R.(2d) 85, refd to. [para. 16].

Berry v. Sparks (1956), 1 D.L.R.(2d) 583, refd to. [para. 16].

Kaplan v. Canada Safeway Ltd. (1968), 68 D.L.R.(2d) 627, appld. [para. 17].

Oliver v. Birmingham & Midland Motor Omnibus Co. Ltd., [1933] 1 K.B. 35, appld. [para. 17].

Hudson's Bay Co. v. Wyrzykowski, [1938] 3 D.L.R. 13 (S.C.C.), appld. [paras. 17, 52].

Arnold v. Teno (1976), 11 O.R.(2d) 585, revsd. [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609, consd. [paras. 22 and 23].

McCallion v. Dodd et al., [1966] N.Z.L.R. 710, refd to. [para. 24].

Gambino v. DiLeo (1971), 2 O.R. 131; 17 D.L.R.(3d) 167, consd. [para. 25].

Peter et al. v. Anchor Transit Ltd. et al. (1980), 100 D.L.R.(3d) 37, not appld. [paras. 26, 60].

Scott and Clark v. Welcher, [1946] 3 W.W.R. 401 (Sask. C.A.), consd. [para. 28].

Carnegie, Carnegie and Carnegie v. Carrington (1958-59), 27 W.W.R.(N.S.) 543, consd. [para. 29].

Yuan et al. v. Farstad et al. (1967), 66 D.L.R.(2d) 295, consd. [para. 33].

Froom v. Dutcher, [1976] Q.B. 286; [1975] 3 All E.R. 520, refd to. [para. 34].

Ohlheiser and Ohlheiser v. Cummings [1979] 6 W.W.R. 282; 4 Sask.R. 402 (Sask. Q.B.), consd. [para. 35].

Gagnon v. Beaulieu, [1977] 1 W.W.R. 702, refd to. [para. 35].

Holstein v. Berzolla, [1981] 4 W.W.R. 159; 10 Sask.R. 242 (Sask. Q.B.), consd. [para. 35].

Genik v. Ewanylo, [1980] 6 W.W.R. 158; 3 Man.R.(2d) 317 (Man. C.A.), refd to. [para. 35].

Sample v. Klassen, [1971] 2 W.W.R. 203; 18 D.L.R.(3d) 75 (Man. Q.B.), not appld. [para. 44].

Dominion Chain Co. Ltd. v. Eastern Construction Co. Ltd. (1974), 3 O.R.(2d) 481, not appld. [para. 44].

Sgro v. Verbeek (1980), 111 D.L.R.(3d) 479 (Ont. H.C.), not appld. [para. 44].

Oliver v. Birmingham Omnibus Co., [1933] 1 K.B. 35, refd to. [para. 53].

Howell v. Stagg, [1937] 2 W.W.R. 331 (Sask. C.A.), appld. [para. 59].

Assie v. Sask. Tel. (1978), 9 C.P.C. 298 (Sask. C.A.), appld. [para. 59].

David Spencer Ltd. v. Field et al., [1939] S.C.R. 36, appld. [para. 59].

Statutes Noticed:

Vehicles Act, R.S.S. 1978, c. V-3, sect. 178(2) [para. 19].

Contributory Negligence Act, R.S.S. 1978, c. C-31, sect. 8 [paras. 20 to 21, 28, 32, 41, 46, 68].

Authors and Works Noticed:

Fleming, The Law of Torts (5th Ed.), p. 276 [para. 53].

Williston and Rolls, The Law of Civil Procedure, vol. 2, pp. 636 [para. 64]; 651, 654, 677 [para. 65].

Counsel:

A. Fox, for the appellants;

R. Ottenbreit, for the respondents.

This appeal was heard before Brownridge, MacDonald and Cameron, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered at Regina, Saskatchewan, on November 24, 1983, when the following opinions were filed:

Brownridge, J.A., dissenting in part - Paragraphs 1 to 49;

Cameron, J.A. - Paragraphs 59 to 69.

MacDonald, J.A., concurred with Cameron, J.A.