Fredericks v. MacDougall Estate et al., 2002 NBCA 51

• Judge: Drapeau, Deschênes and Robertson, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 24, 2002
• Jurisdiction: New Brunswick
• Citations: 2002 NBCA 51;(2002), 251 N.B.R.(2d) 212 (CA)

Fredericks v. MacDougall Estate (2002), 251 N.B.R.(2d) 212 (CA);

    251 R.N.-B.(2e) 212; 654 A.P.R. 212

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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: [2002] N.B.R.(2d) TBEd. JL.001

Janet Leigh Fredericks and Darren Fredericks (plaintiffs/appellants) v. Howard A. Spalding, Q.C., as Litigation Administrator for the Estate of Stewart MacDougall, deceased, and William J. Feeney and Walter S. Feeney and W.J. Feeney & Sons (defendants/respondents)

(186/01/CA; 2002 NBCA 51)

Indexed As: Fredericks v. MacDougall Estate et al.

New Brunswick Court of Appeal

Drapeau, Deschênes and Robertson, JJ.A.

June 24, 2002.

Summary:

Fredericks was involved in a head-on col­lision with MacDougall. Both had been trying to pass tractor-trailers which were in front of them. Fredericks was badly hurt and MacDougall was killed. Fredericks sued MacDougall's estate et al. The drivers and owners of the tractor-trailers were added as third parties. The only issue was liability.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 244 N.B.R.(2d) 171; 634 A.P.R. 171, held that the conduct of MacDougall and Freder­icks contributed equally to the cause of the accident. Fredericks appealed. The MacDougall estate cross-appealed.

The New Brunswick Court of Appeal dismissed the appeal and cross-appeal.

Torts - Topic 376

Negligence - Motor vehicle - Standard of care of driver - Keeping a proper lookout - Fredericks was involved in a head-on collision with MacDougall - Both had been trying to pass tractor-trailers - Fredericks was badly hurt - MacDougall was killed - There were three lanes - Vehicles travel­ling east, as MacDougall was, could pass using the centre lane - A sign advised motorists to yield the centre lane to oppos­ing traffic - This eastbound passing lane continued for 776 m then the highway markings changed, indicating that east­bound motorists could no longer use the centre lane to pass (but westbound motor­ists could) - MacDougall continued in the centre lane for 85 m beyond where his passing lane ended - Fredericks, who was westbound, allegedly pulled out to look, saw nothing, pulled back into her lane, then pulled out again, accelerated and collided with MacDougall - Fredericks argued that, even if MacDougall was al­ready in the centre lane when Fredericks pulled out, the accident was still entirely MacDougall's fault because he no longer had a right to be in that lane - The trial judge held that MacDougall and Fredericks were equally at fault - Fredericks should have been aware that MacDougall was in the centre lane - She had a sufficient op­portunity to avoid the accident by not pulling out to pass when she did - MacDougall was negligent in attempting to pass two tractor-trailers given his limited right to use the centre lane - The New Brunswick Court of Appeal dismissed Fredericks' appeal and the MacDougall estate's cross-appeal.

Torts - Topic 405

Negligence - Motor vehicle - Rules of the road - Passing - General - [See Torts - Topic 376 ].

Cases Noticed:

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

Doyle v. Grant (1999), 211 N.B.R.(2d) 195; 539 A.P.R. 195 (C.A.), refd to. [para. 3].

Teed v. Langlais (1999), 218 N.B.R.(2d) 318; 558 A.P.R. 318 (C.A.), refd to. [para. 3].

Savoie v. Bas-Caraquet (Village) (1999), 219 N.B.R.(2d) 397; 561 A.P.R. 397 (C.A.), refd to. [para. 3].

Lajoie et al. v. Morin (1999), 220 N.B.R.(2d) 60; 565 A.P.R. 60 (C.A.), refd to. [para. 3].

Godin v. Premier Salon International Inc. et al. (2000), 227 N.B.R.(2d) 195; 583 A.P.R. 195 (C.A.), leave to appeal de­nied (2001), 240 N.B.R.(2d) 202; 622 A.P.R. 202; 270 N.R. 195 (S.C.C.), refd to. [para. 3].

McAllister v. Wal-Mart Canada Inc. (2000), 228 N.B.R.(2d) 230; 588 A.P.R. 230 (C.A.), refd to. [para. 3].

Gamblin v. O'Donnell et al. (2001), 244 N.B.R.(2d) 102; 634 A.P.R. 102; 207 D.L.R.(4th) 469 (C.A.), refd to. [para. 3].

Day & Ross Inc. v. Randall et al. (2001), 236 N.B.R.(2d) 317; 611 A.P.R. 317 (C.A.), refd to. [para. 3].

Chuchmuch et al. v. Perry (2001), 236 N.B.R.(2d) 237; 611 A.P.R. 237 (C.A.), refd to. [para. 3].

Ross v. New Brunswick Teachers' As­sociation et al. (2001), 238 N.B.R.(2d) 112; 617 A.P.R. 112 (C.A.), refd to. [para. 3].

Comeau v. Ouellette, [2001] N.B.R.(2d) (Supp.) No. 38 (C.A.), refd to. [para. 3].

Comeau v. Saint John Regional Hospital et al. (2001), 244 N.B.R.(2d) 201; 634 A.P.R. 201 (C.A.), refd to. [para. 3].

Robichaud v. Savoie et al., [2001] N.B.R.(2d) Uned. 46 (C.A.), refd to. [para. 3].

Brunswick Data Inc. v. New Brunswick, [2001] N.B.R.(2d) Uned. 55 (C.A.), refd to. [para. 3].

Counsel:

Robert L. Kenny, Q.C., for the appellants;

John D. Harper, for the respondents.

This appeal was heard on June 24, 2002, before Drapeau, Deschênes and Robertson, JJ.A., of the New Brunswick Court of Ap­peal, who delivered the following judg­ment orally on that date.