MacLean et al. v. Lunn et al., (1996) 176 N.B.R.(2d) 120 (CA)

• Judge: Rice, Ryan and Bastarache, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 23, 1996
• Jurisdiction: New Brunswick
• Citations: (1996), 176 N.B.R.(2d) 120 (CA)

MacLean v. Lunn (1996), 176 N.B.R.(2d) 120 (CA);

    176 R.N.-B.(2e) 120; 447 A.P.R. 120

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Richard Lunn (defendant/appellant) v. Gregory MacLean, Georgina Boyd, Malcolm D. McCormack (plaintiffs/respondents), Malcolm D. McCormack (defendant/respondent), Arthur Ellis Well Drilling Ltd. (plaintiff/respondent) and Edward Curtis (defendant/respondent)

(179/95/CA)

Indexed As: MacLean et al. v. Lunn et al.

New Brunswick Court of Appeal

Rice, Ryan and Bastarache, JJ.A.

February 27, 1996.

Summary:

The plaintiffs sued for injuries arising out of a motor vehicle accident. The defendant driver ad­mitted liability. At issue was the liability of the defendant owner who denied giving the defendant driver permission to take his vehicle.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 164 N.B.R.(2d) 121; 421 A.P.R. 121, con­cluded that the defendant owner was liable to the plaintiffs for their provable damages. The defendant owner appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Torts - Topic 309

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Meaning of "consent" - Lunn was intoxicated - The bar­tender was about to refuse him further drinks when Curtis (Lunn's stepson) indicated that he had the keys to Lunn's vehicle and would be driv­ing - Upon leaving, Curtis sat in Lunn's truck with the engine running while he waited for another person - Lunn did not interfere - Curtis left with the truck and was involved in a motor vehicle acci­dent -Injured plaintiffs sued Curtis and Lunn for damages - Curtis admitted lia­bility - Lunn asserted that Curtis took his truck without consent - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, concluded that Lunn impliedly con­sented to Curtis taking his truck and was liable to the plaintiffs for provable dam­ages - The New Brunswick Court of Appeal affirmed the decision.

Torts - Topic 313

Negligence - Motor vehicle - Liability of owner for negligence of driver of owner's vehicle - Defences - Driving without consent - [See Torts - Topic 309 ].

Cases Noticed:

Hontestroom (S.S.) v. Sagaporack (S.S.), [1927] A.C. 37 (H.L.), refd to. [para. 9].

Stein Estate et al. v. Ship Kathy K et al., [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 9].

Kolesar Estate v. Joseph Brant Memorial Hospital and Malette (1977), 15 N.R. 302 (S.C.C.), refd to. [para. 9].

Taylor et al. v. Nicholson et al. (1986), 76 N.B.R.(2d) 379; 192 A.P.R. 379 (C.A.), refd to. [para. 11].

LeBlanc et al. v. Sanders Estate et al. (1981), 35 N.B.R.(2d) 494; 88 A.P.R. 494 (T.D.), refd to. [para. 12].

Statutes Noticed:

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 267 [para. 10].

Counsel:

Paulette C. Garnett, Q.C., for the appel­lant;

No one appeared for the respondent, Gregory MacLean;

No one appeared for the respondent, Georgina Boyd;

Terrence L.S. Teed, for the respondent, Malcolm D. McCormack;

Lucie Richard, for the respondent, Arthur Ellis Well Drilling Ltd.;

No one appeared for the respondent, Edward Curtis.

This appeal was heard on February 23, 1996, before Rice, Ryan and Bastarache, JJ.A., of the New Brunswick Court of Appeal. The following decision of the Court of Appeal was delivered by the court on February 27, 1996.