Lelarge, Cameron and Cameron v. Blakney, Blakney and Gajowiak, (1978) 21 N.B.R.(2d) 100 (QB)

• Judge: Dickson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 24, 1978
• Jurisdiction: New Brunswick
• Citations: (1978), 21 N.B.R.(2d) 100 (QB)

Lelarge v. Blakney (1978), 21 N.B.R.(2d) 100 (QB);

    21 R.N.-B.(2e) 100; 37 A.P.R. 100

MLB headnote and full text

Sommaire et texte intégral

Lelarge, Cameron and Cameron v. Blakney, Blakney and Gajowiak

Indexed As: Lelarge, Cameron and Cameron v. Blakney, Blakney and Gajowiak

Répertorié: Lelarge, Cameron and Cameron v. Blakney, Blakney and Gajowiak

New Brunswick Court of Queen's Bench

Dickson, J.

January 24, 1978.

Summary:

Résumé:

This case arose out of the plaintiffs' claim in negligence in damages arising out of a motor vehicle collision. The plaintiff girl was a passenger in a motor vehicle, whose driver drove on the wrong side of the highway on a long straight stretch and struck an oncoming vehicle. The plaintiff girl was injured. The driver of the other vehicle was injured and his wife was killed. The plaintiff brought an action against both drivers in negligence for damages for personal injuries. The driver of the other vehicle brought an action against the plaintiff's driver in negligence for damages.

The New Brunswick Court of Queen's Bench, held that the plaintiff's driver was wholly at fault and grossly negligent in driving on the wrong side of the highway. See paragraphs 5 to 15. The New Brunswick Court of Queen's Bench held the plaintiff's driver liable in damages to the plaintiff and the driver of the other vehicle.

Damage Awards - Topic 74

Personal injuries and death - Body injuries - Lacerations and bruises - Severe laceration to elbow and lacerations to forehead and cheek - Bruising of groin muscles from seat belt - 25 year old married man - The New Brunswick Court of Queen's Bench, awarded $5,000.00 general damages for personal injuries - See paragraph 29.

Damage Awards - Topic 84

Personal injuries and death - Fatal accidents - Death of mother and wife, aged 22, leaving surviving her husband, aged 25, and a daughter, aged 4 - The woman earned a net income of $130.00 to $150.00 per week - The New Brunswick Court of Queen's Bench, awarded general damages for death of $25,000.00 to the husband and $5,000.00 to the daughter - See paragraphs 32 to 36.

Damage Awards - Topic 150

Personal injuries and death - Multiple injuries - Fracture of pelvis, foot and cheek and comminuted fracture of femur - 1/2 cm. shortening of leg - 15" scar on leg - Occasional low back pain - Discomfort in foot and jaw - 16 year old female clerk with high school education - The New Brunswick Court of Queen's Bench, awarded $10,000.00 general damages for personal injuries - See paragraphs 22 to 26.

Damage Awards - Topic 580

Torts affecting third parties - General damages for personal care of injured person - The New Brunswick Court of Queen's Bench, awarded a mother general damages for caring for her injured daughter - See paragraph 28.

Damages - Topic 1266

Losses by third parties - Recoverable losses - Mental shock - A husband was the driver of a vehicle in an accident resulting in the death of his wife, who was his passenger - The husband was hurt and also suffered severe depression from the death of his wife - The New Brunswick Court of Queen's Bench, held that the husband could recover damages for shock for the death of his wife, where he was present when she was killed - See paragraphs 29, 37.

Damages - Topic 1266

Losses by third parties - Recoverable losses - Mental shock - The New Brunswick Court of Queen's Bench, held that the parents of an injured 16 year old girl could not recover general damages for shock and upset from the injuries to the girl, where they were not present at the accident - See paragraph 28.

Damages - Topic 1288

Losses by third parties - Recoverable losses - General damages for personal care of injured person - The New Brunswick Court of Queen's Bench, awarded a mother general damages for caring for her injured daughter - See paragraph 28.

Torts - Topic 307

Negligence - Motor vehicle - Statutory liability of owner for negligence of driver of owner's vehicle - What constitutes an owner - Motor Vehicle Act, R.S.N.B. 1973, c. M-17, s. 267(1) - A father was the registered owner of a vehicle purchased and driven by his son, who lived and worked on the family farm - The New Brunswick Court of Queen's Bench, held the father vicariously liable (as the owner of the vehicle) for the negligence of his son - The Court of Queen's Bench held that the father held himself out as the owner by registering it in his name and could have removed the vehicle from the road by cancelling the registration at any time - See paragraphs 16 to 18.

Torts - Topic 328

Negligence - Motor vehicle - Passengers - Gratuitous passengers - What constitutes gross negligence - The defendant driver of the plaintiff passenger drove on the wrong side of the Trans-Canada highway on a long straight stretch and struck an oncoming vehicle - The New Brunswick Court of Queen's Bench, held that the driver was grossly negligent and liable in damages to his gratuitous passenger - See paragraphs 5 to 15.

Torts - Topic 346

Negligence - Motor vehicle - Passengers - Contributory negligence of passenger - Failure to use safety equipment - The New Brunswick Court of Queen's Bench, refused to reduce the damages to injured persons for their failure to use available seat belts, where it was not proved that use of the seat belts would probably have reduced their injuries - See paragraphs 38 to 41.

Torts - Topic 6726

Defences - Consent - Assumption of risk - Volenti non fit injuria - Implied consent - Motor vehicle passenger - The plaintiff 16 year old girl was injured as a passenger in the front seat of a motor vehicle whose driver drove on the wrong side of the road and struck another vehicle - The New Brunswick Court of Queen's Bench, dismissed the driver's plea of volenti non fit injuria by the passenger and found that there was no evidence that the passenger had been put on her guard by undue lack of care by the driver before the accident - See paragraph 21.

Torts - Topic 8910

Duty of care - Control of conduct by others - Permitting use of a vehicle by an incompetent person - The registered owner of a motor vehicle permitted his 16 year old son to drive the vehicle, notwithstanding that the son had motor vehicle offence convictions, an accident and a breathalyzer suspension of his driver's license, which the father helped get reinstated - The New Brunswick Court of Queen's Bench, held that the father was liable for the negligence of his son in causing an accident, because he permitted his son to drive the vehicle when he knew he was incompetent - See paragraphs 19 to 20.

Cases Noticed:

Hayduk v. Pidoborozny (1973), 29 D.L.R.(3d) 8 (S.C.C.), appld. [para. 18].

Babineau et al. v. MacDonald (1975), 10 N.B.R.(2d) 715; 4 A.P.R. 715, consd. [para. 34].

Heppell v. Irving Oil Co. Ltd., 6 N.B.R.(2d) 327, appld. [para. 39].

Haley v. Richardson (1974), 9 N.B.R.(2d) 318; 1 A.P.R. 318, appld. [para. 39].

MacDonald v. Hub Meat Packers Ltd. (1977), 18 N.B.R.(2d) 123; 26 A.P.R. 123, ref'd to. [para. 39].

Statutes Noticed:

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 267(1) [para. 16].

Counsel:

William McNichol and Scott McGregor, for the plaintiffs, Lelarge and Cameron in the first action;

David T. Hashey and Michael Bowlin, for the defendants, Blakney in both actions;

Neil McKelvey, Q.C., and A.G. Warwick Gilbert, for the defendant, Gajowiak in the first action and the plaintiff, Gajowiak in the second action.

This case was heard on August 16, 17 and 18, 1977, at Moncton, N.B., before DICKSON, J., of the New Brunswick Supreme Court, Queen's Bench Division.

On January 24, 1978, DICKSON, J., delivered the following judgment: