McCutcheon et al. v. Wood et al., [1967] N.B. Law News No. 45 (CA)

JudgeRitchie, West and Limerick, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateDecember 09, 1966
JurisdictionNew Brunswick
Citations[1967] N.B. Law News No. 45 (CA)

McCutcheon v. Wood, [1967] N.B. Law News No. 45 (CA)

MLB Law News

Willard G. McCutcheon (plaintiff) v. Edwin J. Wood and Alden M. Phinney (defendants)

And by Order of Chief Justice Cormier dated the fourth day of January 1966,

Willard G. McCutcheon and the Workmen's Compensation Board (plaintiffs) v. Edwin J. Wood and Alden M. Phinney (defendants)

(Archives RS43/1966)

Indexed As: McCutcheon et al. v. Wood et al.

New Brunswick Supreme Court

Appeal Division

Ritchie, West and Limerick, JJ.A.

1967.

Summary:

Workmens' Compensation Act - Right of Action - This matter comes before the Court as a special case by order of the Chief Justice of the Queen Bench Division. The agreed facts are that the Plaintiff McCutcheon and the Defendants. Wood and Phinney were employed by different employers who were sub-contractors under the same contractor. Plaintiff was injured while operating his motor vehicle in the course of his employment, for which he was covered under the said Act when he was in a collision with a motor vehicle owned by Defendant. Wood and operated by Defendant Phinney. Defendant Phinney was acting in the course of his employment and under conditions which would have rendered him compensable by Board if injured. The Plaintiffs instituted an action claiming damages for personal injuries and property damage sustained by Plaintiff McCutcheon, and/or reimbursement to the said Board for moneys and benefits paid out of it. The question for the Court is whether Section 9, 10, and 11 of the Workmens' Compensation Act precludes any right of action of the Plaintiffs or either of them, for loss.

Held Delory v. Wasson 44 M.P.R. 356 (New Brunswick Court of Appeal) not applicable because of statutory amendments.

Because the Defendants are workmen or employers within the scope of the Act, the right of action for personal injuries of the Plaintiff McCutcheon is barred under Section 10 of the Act. Any right of action in respect of such a claim is conferred on the Board by virtue of Section 9(3) of the Act, which subrogates the Board to the position of the workman for the whole or outstanding part of "the claim of such workman against such other person".

Since the workman has no right of action, the Board being subrogated for such workman can be in no better position than the workman himself and therefore, also has no right of action. Section 10 does not purport to reduce or limit the amount or type of damages which may be claimed but bars the right to bring action at all.

Section 9 deals only with accidents causing personal injuries and since negligence causing damage to property is a separate cause of action, Section 10 is therefore not applicable and the Plaintiff McCutcheon can maintain an action for damages for damage to property and the Board is not subrogated to such a right.

Counsel:

Mark Yeoman, for the plaintiff, McCutcheon;

E. Neil McKelvey, Q.C., for the Workmens' Compensation Board;

W.G. Stewart, Q.C., for the defendants, Wood and Phinney.

This case was heard before Ritchie, West and Limerick, JJ.A., of the New Brunswick Supreme Court, Appeal Division. Limerick, J.A. (Ritchie and West, JJ.A., concurring) who delivered the following decision forthcourt on December 9, 1966.1967.

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