Dunnett v. Mills et al., [2004] N.B.R.(2d) (Supp.) No. 20 (TD)

• Judge: Riordon, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 23, 2003
• Jurisdiction: New Brunswick
• Citations: [2004] N.B.R.(2d) (Supp.) No. 20 (TD);2004 NBQB 136

Dunnett v. Mills, [2004] N.B.R.(2d) (Supp.) No. 20 (TD)

MLB headnote and full text

Sommaire et texte intégral

[English language version only]

[Version en langue anglaise seulement]

Temp. Cite: [2004] N.B.R.(2d) (Supp.) TBEd. AP.006

Renvoi temp.: [2004] N.B.R.(2d) (Supp.) TBEd. AP.006

Robert Dunnett (plaintiff) v. Kenneth Mills and Clarence O'Donnell (defendants)

(N/C/35/91; 2004 NBQB 136; 2004 NBBR 136)

Indexed As: Dunnett v. Mills et al.

Répertorié: Dunnett v. Mills et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Riordon, J.

March 31, 2004.

Summary:

Résumé:

The plaintiff was injured in a single motor vehicle accident. He sued Mills, the driver of the vehicle. Mills' liability was not con­tested. The plaintiff also sued O'Donnell, believing that he was the owner of the vehicle.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the plaintiff's action against Mills. The court dismissed the claim against O'Donnell, holding that he was not the owner of the vehicle. The court held that the plaintiff was contributory negligent for failing to wear a seat belt. The court assessed the plaintiff's damages.

Damage Awards - Topic 125

Injury and death - Leg injuries - Ankle - In 1989, the plaintiff, aged 25 at the time, suffered a fractured ankle bone (the talus) in a single vehicle accident - The plaintiff developed necrosis in the talus due to poor blood supply and degenerative arthritis in his ankle - The plaintiff claimed that he sometimes suffered pain in the ankle three to five days per week - He had limited function of the ankle joint - He had not worked since 1993 - He had to stop a lot of pre-accident leisure activities such as hockey and baseball - He walked with a limp - An orthopaedic surgeon recom­mended an ankle fusion which he believed would improve the plaintiff's quality of life and ability to work - The accused, now aged 39, had a wife and two children - The New Brunswick Court of Queen's Bench, Trial Division, held that the appro­priate general damages award was $60,000 but reduced it by 15% for contributory negli­gence - See paragraphs 72 to 118.

Damages - Topic 1411

Special damages - Loss of wages - Mitiga­tion - The plaintiff fractured a bone in his right ankle in a motor vehicle accident in 1989 - At the time of the accident the plaintiff was working as a bartender - Following the accident he continued to work as a bartender and then worked in his family's scrap metal business - He stopped working in 1993 and was on social assist­ance from that time - The New Brunswick Court of Queen's Bench, Trial Division, limited the plaintiff's claim for past loss of income to two years because of a failure to mitigate - The plaintiff failed to take any action to upgrade his education or to retrain - The evidence indicated that he could do sedentary type work - See para­graphs 119 to 121.

Interest - Topic 5146

Interest as damages (prejudgment interest) - Torts - Delay - Effect of - The plaintiff was injured in a single motor vehicle accident in 1989 - Mills was the driver of the vehicle - The plaintiff filed a statement of claim in 1991 - He was unable to serve Mills until 1996 because his whereabouts were unknown - He had been granted several extensions of time to effect service on Mills - The office of the Attorney General filed a statement of defence on behalf of Mills - In 2003, the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, granted the plaintiff judgment against Mills - The court held that the plaintiff was only entitled to pre-judgment interest for five years - Although the litigation had been commenced 13 years ago, allowing interest for that long was not justified and would not be fair - See paragraph 127.

Torts - Topic 307

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Meaning of "owner" - Dunnett was injured in a single motor vehicle accident - Mills was the driver of the vehicle - Action Motors Ltd. was the registered owner of the vehicle - The New Brunswick Court of Queen's Bench, Trial Division, held that notwithstanding that Action Motors was the registered owner of the vehicle, Mills was the legal owner of the vehicle at the time of the accident - Action Motors had acquired the vehicle with the intention of selling it to Mills - Mills had purchased the vehicle, it was delivered to him and the purchase price was to be paid over a period of time - Mills had exclusive possession of the vehicle and control over it for over a month before the accident - See paragraphs 11 to 71.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - General - Contributory negligence of driver or passenger - Failure to use safety equip­ment - Seat belts - The plaintiff was a passenger in the back seat of a motor vehicle driven by Mills - The plaintiff was not wearing a seat belt - Mills lost control of the vehicle - The vehicle left the road and hit a telephone pole - The plaintiff was ejected from the vehicle and, upon impact, suffered significant injuries - A passenger in the front seat was wearing her seat belt and suffered only minor injuries - The New Brunswick Court of Queen's Bench, Trial Division, awarded the plaintiff judg­ment against Mills - However, the court held that the plaintiff was 15% contributorily negligent for not wearing his seat belt - See paragraphs 129 and 130.

Torts - Topic 6630

Defences - Contributory negligence - Par­ticular cases - Failure to use safety equip­ment - Seat belts - [See Torts - Topic 346 ].

Délits civils - Cote 307

Négligence - Véhicule à moteur - Respon­sabilité du propriétaire pour la négligence du conducteur du véhicle du propriétaire - "Propriétaire", signification - [Voir Torts - Topic 307 ].

Délits civils - Cote 346

Négligence - Véhicule à moteur - Pas­sagers - Généralités - Négligence con­tributive du conducteur ou du passager - Omission d'utiliser l'équipement de sé­curité - Ceintures de sécurité - [Voir Torts - Topic 346 ].

Délits civils - Cote 6630

Défenses - Négligence contributive - Cas particuliers - Omission d'utiliser l'équipement de sé­curité - Ceintures de sécurité - [Voir Torts - Topic 6630 ].

Dommages-intérêts - Cote 1411

Dommages-intérêts particuliers - Perte de salaire - Limitation - [Voir Damages - Topic 1411 ].

Évaluation des dommages-intérêts - Cote 125

Blessures et décès - Blessures à la jambe - Cheville - [Voir Damage awards - Topic 125 ].

Intérêts - Cote 5146

Intérêts accordés à titre de dommages-intérêts (intérêts avant jugement) - Délits civils - Retard - Effet du retard - [Voir Interest - Topic 5146 ].

Cases Noticed:

Lelarge, Cameron and DoCameron v. Blakney, Blakney and Gajowiak (1978), 23 N.B.R.(2d) 669; 44 A.P.R. 669; 92 D.L.R.(3d) 440 (C.A.), refd to. [para. 51].

Thériault v. Aubin and Ouellette (1991), 121 N.B.R.(2d) 235; 304 A.P.R. 235 (C.A.), refd to. [para. 52].

Hansen v. Hartsell and McVicar (1997), 185 N.B.R.(2d) 317; 472 A.P.R. 317 (C.A.), refd to. [para. 54].

Lee v. Hunter (1998), 84 O.T.C. 376 (Gen. Div.), refd to. [para. 113].

Cann v. Foster et al., [1998] B.C.T.C. Uned. 606 (S.C.), refd to. [para. 114].

Trask v. Pomeroy Enterprises Ltd. et al., [1998] B.C.T.C. Uned. H35 (S.C.), refd to. [para. 115].

Meise v. Whiting, [2002] B.C.T.C. 352 (S.C.), refd to. [para. 116].

Lewis v. MacWilliam (1999), 208 N.B.R.(2d) 359; 531 A.P.R. 359 (T.D.), refd to. [para. 117].

Campbell-MacIsaac v. Deveaux (2003), 214 N.S.R.(2d) 129; 671 A.P.R. 129 (S.C.), refd to. [para. 117].

McIllwraith and Shipley v. Melles (1979), 27 N.B.R.(2d) 388; 60 A.P.R. 388 (T.D.), refd to. [para. 129].

Dore v. Clark (1988), 92 N.B.R.(2d) 210; 236 A.P.R. 210 (C.A.), refd to. [para. 129].

Counsel:

John P. Barry, Q.C., and Colin D. Feltham (Barry, Spalding, Richard), for the plain­tiff;

Gabriel Bourgeois, Q.C. (Attorney Gen­eral), for the defendant, Kenneth Mills and the Unsatisfied Judgment Fund;

Steven R. Barnett (Foster & Company), for the defendant, Clarence O'Donnell.

This matter was heard on January 8, 9, and May 23, 2003, by Riordon, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on March 31, 2004.