Haley v. Richardson et al.; McRae et al. v. Richardson et al., (1975) 10 N.B.R.(2d) 653 (CA)

• Judge: Hughes, C.J.N.B., Bugold and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 13, 1974
• Jurisdiction: New Brunswick
• Citations: (1975), 10 N.B.R.(2d) 653 (CA)

Haley v. Richardson (1975), 10 N.B.R.(2d) 653 (CA);

    10 R.N.-B.(2e) 653; 4 A.P.R. 653

MLB headnote and full text

Sommaire et texte intégral

Haley v. Richardson et al.

McRae et al. v. Richardson et al.

Indexed As: Haley v. Richardson et al.; McRae et al. v. Richardson et al.

Répertorié: Haley v. Richardson et al.; McRae et al. v. Richardson et al.

New Brunswick Court of Appeal

Hughes, C.J.N.B., Bugold and Ryan, JJ.A.

January 23, 1975.

Summary:

Résumé:

This case arose out of a claim for damages for personal injuries and death arising out of a motor vehicle accident. The plaintiff Haley, while driving on the right-hand side of a rural highway, was struck head-on by the plaintiff McRae. The defendants Richardson and McKinnon were driving in the same direction as the plaintiff Haley and Richardson was overtaking the plaintiff Haley at a point on the road where it was unsafe to do so. The plaintiff McRae drove to the left of the center of the highway in an attempt to avoid the defendant Richardson. The trial court found that the defendants were driving in a reckless manner, at an excessive speed and that the defendant Richardson attempted to overtake the plaintiff Haley at a point where the left-side of the highway was not visible for a sufficient distance to permit passing in safety. The New Brunswick Court of Queen's Bench held that both the defendant drivers were negligent and liable to the plaintiffs Haley and McRae - see 9 N.B.R.(2d) 318.

On appeal to the New Brunswick Court of Appeal the appeal was allowed in part. The Court of Appeal affirmed the trial court judgments against the defendant Richardson in favour of the plaintiff Haley and the plaintiff McRae. The Court of Appeal set aside the trial court judgments against the defendant McKinnon in favour of the plaintiff Haley and the plaintiff McRae. The Court of Appeal stated that there was no evidence to support a finding of negligence against the defendant McKinnon.

The Court of Appeal reviewed in detail the proper method of assessment of damages for the death of a 52 year old husband and father. The Court of Appeal increased the general damage award for damages for death in favour of a wife and two daughters from $23,000.00 to $45,000.00 - see paragraphs 20 to 36.

Torts - Topic 51

Negligence - Causation - General principles - The New Brunswick Court of Appeal stated that in order to attract liability the alleged negligent acts must cause or contribute to the cause of the plaintiff's damages - See paragraph 13.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence of a passenger - Failure of the passenger to use an available seat belt - The New Brunswick Court of Appeal held that the passenger was 20 percent at fault for failing to wear the seat belt - The Court of Appeal held that the evidence established a causal connection between the passenger's failure to wear the seat belt and the passenger's injuries - See paragraphs 18 and 19.

Torts - Topic 6880

Defences - Knowledge - Whether lack of knowledge by a passenger of available seat belts excused the passenger from any negligence for failing to use the seat belts - The New Brunswick Court of Appeal stated that a reasonable person ought to have known of the availability of such equipment and its use - See paragraph 19.

Evidence - Topic 2277

Judicial notice - Money and value of money - Inflation - The New Brunswick Court of Appeal took judicial notice of the fact that the purchasing value of the dollar was decreasing at 10 percent per annum - See paragraph 30.

Damages - Topic 2113

Torts causing death - Method of assessment of the value of the dependency - Upward adjustment for future income tax payable by the dependents - The New Brunswick Court of Appeal stated that an upward adjustment must be made in determining the value of the dependency to compensate for income tax which will be imposed on interest derived from any capital sum awarded for the pecuniary loss suffered by the dependents - See paragraphs 24 to 26.

Damages - Topic 2252

Torts causing death - Calculation of the value of particular dependencies - Wife and children dependent upon a husband and father - The New Brunswick Court of Appeal reviewed in detail the proper method of calculating the pecuniary value of such a dependency - See paragraphs 24 to 32.

Damages - Topic 2117

Torts causing death - Method of assessment of the value of the dependency - Contingencies - The New Brunswick Court of Appeal stated that contingencies may either increase or decrease the value of the dependency - See paragraph 34.

Damages - Topic 2112

Torts causing death - Method of assessment of the value of the dependency - The multiplier - 52 year old self-employed businessman with a life expectancy of 22 years - The New Brunswick Court of Appeal stated that in view of the deceased's good health and non-hazardous occupation a proper multiplier was 16 years - See paragraph 27.

Damages - Topic 2114

Torts causing death - Method of assessment of the value of the dependency - Deflation or inflation in the value of money - The New Brunswick Court of Appeal stated that an assessment of damages for death should leave out of account the risk of inflation or deflation in the future - See paragraph 30.

Damages - Topic 2110

Torts causing death - Method of assessment of the value of the dependency - The New Brunswick Court of Appeal stated that a 6 percent interest rate was a proper rate to use to calculate the present value of future annual payments - The Court of Appeal stated that 6 percent was a normal rate of interest in times of stable currency - See paragraph 31.

Damage Awards - Topic 81

Fatal accidents - General damages for the death of a 52 year old father and husband - The deceased earned approximately $9,000.00 per annum as the proprietor of a menswear business - The New Brunswick Court of Appeal awarded $45,000.00 general damages for death for the benefit of the wife ($39,000.00), a daughter, age 16 ($3,000.00) and a daughter, age 18 ($3,000.00) - See paragraphs 20 to 36.

Cases Noticed:

MacKenzie v. Robars et al., [1953] 1 D.L.R. 449 (S.C.C.), folld. [para. 13].

Heppell v. Irving Oil Co. Ltd. et al. (1974), 6 N.B.R.(2d) 327; 40 D.L.R.(3d) 476, folld. [para. 18].

Allain v. Dunn (1965), 45 M.P.R. 89, folld. [para. 21].

Mallett v. McMonagle, [1969] 2 All E.R. 178 (H.L.), folld. [para. 30].

Counsel:

G. Melvin Turner, for the defendant appellant, Michael McKinnon;

D.M. Gillis, Q.C., for the plaintiff appellant, Kathleen E. Haley;

J.W. Turner and Leycester D'Arcy, Q.C., for the defendants respondents, Lorne Richardson and Dorothy Richardson;

John R. Barry, for the plaintiff respondent, Donald Edward McRae.

This appeal was heard by the Appeal Division on September 13, 1974. Judgment was delivered by the Appeal Division on January 23, 1975.

The judgment of the Appeal Division was delivered by Hughes, C.J.N.B.