McLellan v. Williston and New Brunswick, (1969) 1 N.B.R.(2d) 777 (CA)

• Judge: Bridges, C.J.N.B., Ritchie and Limerick, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 28, 1968
• Jurisdiction: New Brunswick
• Citations: (1969), 1 N.B.R.(2d) 777 (CA)

McLellan v. Williston (1969), 1 N.B.R.(2d) 777 (CA);

    1 R.N.-B.(2e) 777

MLB headnote and full text

Sommaire et texte intégral

McLellan v. Williston v. The Province of New Brunswick (third party)

Indexed As: McLellan v. Williston and New Brunswick

Répertorié: McLellan v. Williston and New Brunswick

New Brunswick Court of Appeal

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

July 18, 1969.

Summary:

Résumé:

In an action arising out of a motor vehicle collision, the New Brunswick Court of Appeal varied the judgment of the trial Court, and held the Plaintiff driver at fault for proceeding past repair trucks parked on a highway and a highway flagman in the absence of a signal from the flagman. The defendant driver was held at fault for driving too fast under the circumstances. The Province of New Brunswick was held liable for failure of the flagman to signal or warn the approaching traffic.

The New Brunswick Court of Appeal held that the plaintiff driver could not be awarded judgment against the Third Party, the Province of New Brunswick. The Appeal Court stated that the plaintiff driver in order to obtain maximum coverage should have joined as defendants, all persons who might be liable.

The New Brunswick Court of Appeal also stated that under the circumstances, the proper course would have been for the defendant to joint the Province of New Brunswick as a defendant pursuant to Order 21, Rule 11, of the Rules of Court rather than proceeding against the Province of New Brunswick under Order 16a of the Rules of Court.

The New Brunswick Court of Appeal held that the failure of the flagman to give proper signals constituted misfeasance and was not non-feasance, and that the Province of New Brunswick was liable pursuant to the provisions of the Proceedings Against the Crown Act.

The New Brunswick Court of Appeal varied the trial court's apportionment of fault between the parties. The trial court based its apportionment on a finding that the flagman signalled to the plaintiff, which finding the appeal court reversed as being against the preponderance of the evidence.

The New Brunswick Court of Appeal apportioned fault, with Bridges, C.J.N.B. dissenting, 60% to the plaintiff driver, 20% to the defendant driver and 20% to the third party, Province of New Brunswick.

The New Brunswick Court of Appeal held plaintiff awarded 25% of her damages from defendant (proportioned to fault 1 to 3); defendant awarded 60% of her damages from plaintiff and in addition, the defendant was awarded 20% of her damages from the Third Party, Province of New Brunswick; and in addition, the defendant was awarded contribution from the third party, Province of New Brunswick, for 50% of the defendant's liability to the plaintiff.

Practice - Topic 1103

Parties - Third party procedure - Jurisdiction of court - Respecting judgments and relief - Plaintiff claimed against defendant - Defendant counterclaimed against plaintiff and claimed against third party under Order 16a of the Rules of Court - Fault divided by court between plaintiff, defendant and third party - Inability of Court to make award of damages in proportion to the fault of each party (New Brunswick Court of Appeal).

Municipal Law - Topic 1723

Liability of municipalities - Highways and streets - Traffic control, general - Negligence - Liability of the Province of New Brunswick for the failure of a flagman on a highway to give direction to approaching traffic - Whether misfeasance or non-feasance (New Brunswick Court of Appeal).

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - Evidence - Reversal by New Brunswick Court of Appeal of finding of Trial Court as being against the preponderance of evidence.

Cases Noticed:

City of Saint John v. City Transit Limited (1955), 35 M.P.R. 86, dist.

Statutes Noticed:

Rules of Court, Order 21, rule 11, rule 12, rule 16a.

Proceedings Against the Crown Act, R.S.N.B. 1952, c. 176, sect. 2(2)(b).

Counsel:

Ronald J. Ashfield, for defendant/appellant, Jean Williston;

No one for other parties.

APPEAL from an unreported judgment of the Northumberland County Court dated October 28, 1968 arising out of an action for damages for negligence