Fudge et al. v. Sparkes, (1973) 4 Nfld. & P.E.I.R. 431 (NFSC)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 14, 1973
• Jurisdiction: Newfoundland and Labrador
• Citations: (1973), 4 Nfld. & P.E.I.R. 431 (NFSC)

Fudge v. Sparkes (1973), 4 Nfld. & P.E.I.R. 431 (NFSC)

MLB headnote and full text

Fudge et al. v. Sparkes

Indexed As: Fudge et al. v. Sparkes

Newfoundland Supreme Court

At Trial

Puddester, J.

May 14, 1973.

Summary:

This action arose out of the plaintiffs' claim for damages for wrongful death resulting from a motor vehicle accident. The deceased was one of three gratuitous passengers in a motor vehicle driven by the defendant which left the highway, fatally injuring the deceased. The plaintiffs brought an action in negligence against the defendant driver for damages for the death of the deceased, who was the father and husband of the plaintiffs. The defendant driver did not testify or call evidence and the other passengers could not explain how the accident occurred. The only evidence was that there were two furrows on the left side of the dirt road made by a motor vehicle out of control and that the driver's demolished motor vehicle was found 60 feet in the woods beside the road. The Supreme Court allowed the action and found the defendant liable.

The Supreme Court stated that, since the deceased was a gratuitous passenger, the plaintiffs were required to prove pursuant to section 220 of the Highway Traffic Act that the defendant was grossly negligent. The Supreme Court held that the principle of res ipsa loquitur was applicable to prove gross negligence. The Supreme Court inferred from the circumstances of the accident that the defendant was grossly negligent.

The Supreme Court stated that the defendant presumably could have explained how the accident occurred. The Supreme Court inferred from the fact that the defendant called no evidence that he could not show that he was not driving in a grossly negligent manner.

Evidence - Topic 2401

Special modes of proof - Presumptions - Failure to call evidence - Defendant driver in an unexplained motor vehicle accident did not testify or call evidence - Newfoundland Supreme Court inferred that defendant did not offer any evidence because he could not show that he was not driving in a grossly negligent manner - Supreme Court inferred from circumstances of accident that driver was grossly negligent - Paragraph 29.

Torts - Topic 166

Negligence - Burden of proof - Res ipsa loquitur gross negligence - Newfoundland Supreme Court held that the principle of res ipsa loquitur was applicable to prove gross negligence of a motor vehicle driver - Supreme Court inferred from the circumstances of an unexplained motor vehicle accident that the driver was grossly negligent - Paragraphs 24 to 30.

Torts - Topic 328

Negligence - Motor vehicle - Gratuitous passengers - Gross negligence - Motor vehicle unexplainedly left wrong side of highway and was totally demolished after crashing through 60 feet of woods - Newfoundland Supreme Court inferred from the circumstances of the accident that the driver was grossly negligent - Paragraphs 21 to 28.

Torts - Topic 329

Negligence - Motor vehicle - Gratuitous passengers - Definition of "wilful or wanton misconduct or gross negligence" in section 220 of Newfoundland Highway Traffic Act - Newfoundland Supreme Court held term "wilful or wanton misconduct" denotes something subjective on the part of the driver; whereas "gross negligence" may be found entirely apart from what the driver thought or intended - Paragraph 22.

Cases Noticed:

McCulloch v. Murray, [1942] 2 D.L.R. 179, appld.

Drake v. Power (1960), 46 M.P.R. 91, appld.

Studer v. Cowper, [1951] S.C.R. 450, appld.

Walker v. Coates et al., [1968] S.C.R. 599, appld.

Parent v. LaPointe, [1952] 1 S.C.R. 376, refd to.

Doxtator et al. v. Burch et al., [1972] 1 O.R. 321, folld.

Statutes Noticed:

Highway Traffic Act, S. Nfld. 1962, c. 82, sect. 220.

Counsel:

David Sparkes, for the plaintiffs;

Raymond Halley, for the defendants.