MacDonald v. Mitchell and Barry, (1969) 2 N.B.R.(2d) 165 (CA)

• Judge: Bridges, C.J.N.B., Limerick and Hughes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 18, 1969
• Jurisdiction: New Brunswick
• Citations: (1969), 2 N.B.R.(2d) 165 (CA)

MacDonald v. Mitchell (1969), 2 N.B.R.(2d) 165 (CA);

    2 R.N.-B.(2e) 165

MLB headnote and full text

Sommaire et texte intégral

MacDonald v. Mitchell and Barry

Indexed As: MacDonald v. Mitchell and Barry

Répertorié: MacDonald v. Mitchell and Barry

New Brunswick Court of Appeal

Bridges, C.J.N.B., Limerick and Hughes, JJ.A.

December 17, 1969.

Summary:

Résumé:

The New Brunswick Court of Appeal affirmed judgment of trial Judge who held the driver of a motor vehicle responsible for plaintiff's damages for personal injuries where the driver started a motor vehicle when the driver with an artificial right hand had been drinking intoxicating liquors.

The New Brunswick Court of Appeal reversed trial Judge's finding that the owner was liable in circumstances where the owner left the key in the ignition of his motor vehicle and knew that a person was sitting in the driver's seat of such vehicle.

The New Brunswick Court of Appeal held that the owner was not liable pursuant to section 241 of the Motor Vehicle Act which requires possession of a motor vehicle of driver with the owner's consent.

The New Brunswick Court of Appeal held that the owner did not consent to the driver taking possession of the motor vehicle where the owner left the key in the ignition and knew that the driver was alone in the vehicle.

Torts - Topic 309

Negligence - Motor vehicle, liability of owner for negligence of driver of owner's vehicle - Meaning of "consent" or "gives or furnishes" - Statutory liability of owner - Whether a person is in possession of a motor vehicle with the consent of the owner where the owner left the person alone in the motor vehicle which had the key in the ignition (New Brunswick Court of Appeal).

Torts - Topic 7377

Joint and concurrent tortfeasors - Contribution between tortfeasors - Claim for, general - Negligence - Practice - Claim for contribution or indemnity between joint or concurrent tortfeasors - Tortfeasors Act - Circumstances under which court must determine degrees of fault pursuant to section 2(1) of the Contributory Negligence Act (New Brunswick Court of Appeal).

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim, adding particulars or subsequent facts - Evidence of negligence of defendant adduced which was not alleged in statement of claim - Circumstances under which court should grant application for amendment of statement of claim (New Brunswick Court of Appeal).

Damage Awards - Topic 147

Injury and death - Leg injuries - Crush type injury - Crushing injury to muscles - 46 year old male - Impairment of earning capacity - $15,000 general damages for personal injuries (New Brunswick Court of Appeal).

Cases Noticed:

Pike v. Denine (1955), 38 M.P.R. 6, folld.

Marsh v. Kulchar, [1952] 1 S.C.R. 330, folld.

Steward v. North Metropolitan Tramways Company (1886), 16 Q.B.D. 556, folld.

Marleau v. People's Gas Supply Company Limited, [1940] S.C.R. 708, folld.

Hallett v. Fredericton Propane Gas Company Limited (1953), 32 M.P.R. 130, folld.

Walton v. Nearing et al. (1960), 44 M.P.R. 322, folld.

Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601, folld.

Lang v. Pollard, [1957] S.C.R. 858, folld.

Statutes Noticed:

Motor Vehicle Act, S.N.B. 1955, c. 13, sect. 241.

Rules of Court, Order 28, rule 1, rule 6, rule 12.

Contributory Negligence Act, S.N.B. 1961-62, c. 16, sect. 2(1).

Tortfeasors Act, R.S.N.B. 1952, c. 232.

Counsel:

E. Neil McKelvey, Q.C., and L.E. Clain, for the appellant, Mitchell;

Murray F. Cain, for respondent, MacDonald;

J.D. Harper, for respondent Barry.

Appeal from a judgment of Prescott, J., dated April 18, 1969, [(1969) 1 N.B.R.(2d) 563], in favour of the plaintiff in an action for damages for personal injury arising out of a motor vehicle accident.

Bridges, C.J.N.B., concurs with Hughes, J.A.