Eid Estate v. Dumas, [1968] N.B. Law News No. 52 (CA)

JudgeBridges, C.J.N.B., Limerick and Ritchie, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateMay 08, 1968
JurisdictionNew Brunswick
Citations[1968] N.B. Law News No. 52 (CA)

Eid Estate v. Dumas, [1968] N.B. Law News No. 52 (CA)

MLB Law News

Estate of Ole Eid v. Dumas

Indexed As: Eid Estate v. Dumas

New Brunswick Supreme Court

Appeal Division

Bridges, C.J.N.B., Limerick and Ritchie, JJ.A.

May 8, 1968.

Summary:

Torts - Consent to Risk - Gross Negligence - Motor Vehicle Act, sec. 242 - Appeal dismissed with costs from trial court judgment which found the driver defendant/respondent grossly negligent but held that deceased passenger impliedly agreed to "exempt the defendant from liability for any damage suffered from him, occasioned by his falling asleep on the way".

Appeal court affirmed trial court judgment that the deceased by his consent agreed to assume all risk of injury and stated:

"The present is not a case where a driver has casually offered a person gratuitous transportation, but one where the passenger was wholly responsible for the drive having been taken, the places they went and the length of time they stayed. From these and other circumstances in the case such as the favour the defendant had done the deceased in driving him to the dance, the knowledge of the latter of the long hours and how hard the defendant had worked in the mine the previous day and that he was being kept up to an unreasonable hour when he had to report for work in the mine at 8:00 a.m., I think the inference should be drawn that the deceased by his conduct agreed to assume all risk of injury from the defendant's driving as they were returning to the mine and that the defendant drove with that understanding.

"When the deceased suggested the visit to the Hogan home as he and the defendant were leaving the Legion Hall after the dance, I do not doubt, if the latter had then asked him to assume all risk of injury which might arise from his driving in returning to the mine, the deceased would without hesitation have agreed to do so. No reasonable and fair-minded man, in the position of the deceased, would have done otherwise. In my opinion, the defence of volenti non fit injuria applies. It is unnecessary to consider the question of contributory negligence on the part of the deceased."

Limerick, J., dissenting in part, held that the deceased passenger did not agree to assume all risk of injury, stated ---

"While it might be argued that a passenger should realize a driver of a car commencing a long drive late at night might become sleepy, I cannot concur in the assumption that he should further assume the driver would become grossly negligent by continuing to drive after becoming aware he was sleepy."

Limerick, J., referred to Thomas v. Quattermain (1887) 18 Q.B.D. 685 at 696 and Yarmouth v. France (1887) 19 Q.B.D. 647 at 660 and stated,

"Knowledge of the possibility of a risk is not in itself sufficient, such knowledge must be coupled with a full comprehension of the danger involved and an agreement, expressed or implied, from the circumstances and conduct of the plaintiff to voluntarily accept that risk."

Limerick, J., referred to Car and General Insurance Co. Ltd. v. Seymour and Maloney, 1956 S.C.R. 322 at 328 and stated,

"If a passenger accepting a drive with a driver known to be under the influence of alcohol is not thereby "volens" clearly a passenger driving at night with a driver who might possibly become sleepy cannot be held "volens"."

However, Limerick, J., also dismissed the appeal by finding that the defendant/respondent was not grossly negligent stating that the defendant/respondent was not aware and had no warning that he was sleepy and he stated:

"If the passenger be not "volens" because he accepts a drive lat at night knowing of the possibility of a driver becoming sleepy then a fortiori the driver is not negligent in driving at night in the absence of an awareness of being sleepy.

"There must be an act or omission on the part of the driver indicative of more than a casual or inadvertent nature; there must be evidence of conduct indicative of the awareness of the reasonable likelihood of the danger or of facts from which the driver should have been so aware. The bare possibility of danger only is not sufficient to constitute gross negligence, for every driver is or should be aware of the possibility of danger every time he puts his car in motion, indeed, even when he leaves it stationary at the curb.

"Gross negligence can only be determined on the facts applicable in each individual case. See Studer v. Cowper, 1951 S.C.R. 450 at 463."

See N.B. Law News, January 1, 1968, issue - #68-6 for Summary of Trial Court Judgment.

Counsel:

Patrick A.A. Ryan, for the appellant;

J. Turney Jones, for the respondent.

This appeal was heard before Bridges, C.J.N.B., Limerick and Ritchie, JJ.A., of the New Brunswick Supreme Court, Appeal Division, who delivered the following decision on May 8, 1968.

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