Genik v. Ewanylo, (1980) 3 Man.R.(2d) 317 (CA)

• Judge: Freedman, C.J.M., Monnin and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 08, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 3 Man.R.(2d) 317 (CA)

Genik v. Ewanylo (1980), 3 Man.R.(2d) 317 (CA)

MLB headnote and full text

Genik v. Ewanylo

Indexed As: Genik v. Ewanylo

Manitoba Court of Appeal

Freedman, C.J.M., Monnin and Huband, JJ.A.

May 8, 1980.

Summary:

This case arose out of the plaintiff's action against the defendant for damages arising out of a motor vehicle accident. The plaintiff woman was a passenger of the defendant elderly man on a long automobile trip. For an undetermined reason the defendant drove off a straight, clear highway in daylight. He testified that he was not tired, had not been drinking and was proceeding at a reasonable speed.

The Manitoba Court of Queen's Bench allowed the plaintiff's action, found the defendant grossly negligent and held that the plaintiff was not contributorily negligent for failing to use available seat belts. The defendant appealed.

The Manitoba Court of Appeal dismissed the appeal. The Court of Appeal thoroughly discussed the issue of the contributorily negligence of passengers for failure to use available safety equipment and held that in the circumstances the plaintiff was not contributorily negligent - see paragraphs 1 to 5 and 26 to 72.

Monnin, J.A., dissenting, would have allowed the appeal and was of the opinion that the defendant was not grossly negligent - see paragraphs 6 to 25.

Practice - Topic 8800

Appeals - Duty of appeal court regarding fact findings of trial judge - Gross negligence - The Manitoba Court of Appeal stated that an appeal court should be slow to interfere with the findings of a trial judge on the issue of gross negligence - See paragraphs 8 and 32 to 33.

Practice - Topic 8807

Appeals - Duty of appeal court regarding inferences from truthful evidence - The Manitoba Court of Appeal stated that an appeal court is in as good a position as a trial judge to draw inferences from evidence - See paragraphs 31 to 33 and 38.

Torts - Topic 166

Negligence - Evidence - Res ipsa loquitur - Inference of gross negligence - The Manitoba Court of Appeal held that the maxim res ipsa loquitur was applicable to the proof of gross negligence - See paragraphs 10 and 29 to 30.

Torts - Topic 328

Negligence - Motor vehicle - Passengers - Gratuitous passengers - Gross negligence - What constitutes - The defendant elderly man drove off a clear, straight highway in daylight for an undetermined reason - He testified that he was not sleepy, had not been drinking and was proceeding at a reasonable speed - The Manitoba Court of Appeal affirmed the finding of the trial judge that the defendant was grossly negligent - See paragraphs 3 and 29 to 39.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence - Failure to use available safety equipment - Seat belts - The plaintiff woman did not use available seat and shoulder belts on a long trip with the defendant elderly man - The defendant was a careful driver and road and weather conditions were good - For an undetermined reason the defendant drove off the highway and the plaintiff was injured - The Manitoba Court of Appeal held that the plaintiff was not contributorily negligent in the circumstances for failing to use the available safety harness - See paragraphs 1 to 5 and 40 to 42.

Cases Noticed:

Burke v. Perry, [1963] S.C.R. 329, appld. [para. 8].

Semeniuk v. Scoyoc, [1955] 4 D.L.R. 780, appld. [para. 83].

Jackson v. Millar, [1976] 1 S.C.R. 225; 4 N.R. 17, appld. [para. 8].

McCulloch v. Murray, [1942] S.C.R. 141, appld. [para. 13].

Froom v. Butcher, [1976] Q.B.C. 286, consd. [paras. 20, 60].

Yuan v. Farstad (1967), 62 W.W.R.(N.S.) 645, consd. [para. 21].

Gagnon v. Beaulieu, [1977] 1 W.W.R. 702, consd. [para. 21].

Ohlheiser v. Cummings, [1979] 6 W.W.R. 282, consd. [paras. 21, 55].

Walker v. Coates, [1968] S.C.R. 599, appld. [para. 29].

Semeniuk v. Scoyoc, [1955] 4 D.L.R. 780, appld. [para. 31].

Burke v. Perry, [1963] S.C.R. 329, appld. [para. 32].

Ulveland v. Marini, [1977] 4 C.C.L.T. 102, consd. [para. 44].

Yuan v. Farstad (1968), 62 W.W.R.(N.S.) 645, consd. [para. 48].

Jackson v. Millar, [1972] 2 O.R. 197, consd. [para. 49].

Rigler v. Miller (1972), 26 D.L.R.(3d) 366, consd. [para. 50].

Heppell v. Irving Oil Co. Ltd. (1973), 40 D.L.R.(3d) 476; 6 N.B.R.(2d) 327, consd. [para. 51].

Beaver v. Crowe (1975), 49 D.L.R.(3d) 114; 18 N.S.R.(2d) 562; 20 A.P.R. 562, consd. [para. 52].

Gagnon v. Beaulieu, [1977] 1 W.W.R. 702, consd. [para. 53].

MacDonnell v. Kaiser (1968), 68 D.L.R.(2d) 104; 3 N.S.R. 1965-69 613, consd. [para. 56].

Van Spronsen v. Gawor (1971), 19 D.L.R.(3d) 53, consd. [para. 57].

Anders v. Sim (1970), 73 W.W.R.(N.S.) 263, consd. [para. 57].

Hunt v. Schwanke, [1972] 2 W.W.R. 541, consd. [para. 57].

Reineke v. Weisgerber (1974), 46 D.L.R.(3d) 239, consd. [para. 58].

Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608, consd. [para. 66].

O'Connell v. Jackson, [1972] 1 Q.B. 270, consd. [para. 67].

Authors and Works Noticed:

Charlesworth on Negligence (6th Ed.), para. 1181 [para. 46].

Counsel:

A.K. Twaddle, Q.C. and E.R. Dawson, for the defendant/appellant;

R.K. Vohora and A.H. Dalmyn, for the plaintiff/respondent.

This case was heard on March 18, 1980, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MONNIN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On May 8, 1980, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FREEDMAN, C.J.M. - see paragraphs 1 to 5;

MONNIN, J.A., dissenting - see paragraphs 6 to 25;

HUBAND, J.A. - see paragraphs 26 to 72.