Manitoba Public Insurance Corp. v. Puddicombe, 2003 MBCA 141

• Judge: Scott, C.J.M., Kroft and Steel, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 15, 2003
• Jurisdiction: Manitoba
• Citations: 2003 MBCA 141;(2003), 180 Man.R.(2d) 133 (CA)

MPIC v. Puddicombe (2003), 180 Man.R.(2d) 133 (CA);

    310 W.A.C. 133

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. DE.002

The Manitoba Public Insurance Corporation (plaintiff/respondent) v. Fred Puddicombe and Frances Puddicombe (defendants/appellants)

(AI 03-30-05488; 2003 MBCA 141)

Indexed As: Manitoba Public Insurance Corp. v. Puddicombe

Manitoba Court of Appeal

Scott, C.J.M., Kroft and Steel, JJ.A.

November 21, 2003.

Summary:

A van, which was registered in Alberta, was involved in a single vehicle accident in Manitoba. Passengers suffered injuries, which resulted in the payment of statutory compensation payments by the Manitoba Public Insurance Corporation (MPIC). MPIC commenced a subrogated action against the owner and driver of the van pursuant to s. 77(1) of the Manitoba Public Insurance Corporation Act to recover the amounts paid. The defendants moved for summary judgment to dismiss the action.

A Master of the Manitoba Court of Queen's Bench dismissed the motion. The defendants appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 169 Man.R.(2d) 202, dismissed the appeal. The defendants appealed.

The Manitoba Court of Appeal dismissed the appeal.

Evidence - Topic 152

Degree, standard or burden of proof - Res ipsa loquitur and specific burdens - Negligence - Application of res ipsa loquitur - The Manitoba Court of Appeal stated that "Proof of the occurrence of a single vehicle accident does not necessarily create a presumption of negligence on the part of the defendants. Res ipsa loquitur is a matter of circumstantial evidence but not more" - See paragraph 26.

Insurance - Topic 2886

Subrogation - Insurer limited to rights of insured - A van, which was registered in Alberta, was involved in a single vehicle accident in Manitoba - The Manitoba Public Insurance Corporation (MPIC) commenced a subrogated action against the owner and driver of the van pursuant to s. 77(1) of the Manitoba Public Insurance Corporation Act to recover amounts which it had paid to injured passengers - Section 153(1) of the Highway Traffic Act stated that where a motor vehicle caused loss or damage upon a highway, the onus of proof was on the owner or driver of the vehicle to show that the loss or damage did not arise solely through his or her negligence or improper conduct - The Manitoba Court of Appeal held that since MPIC was subrogated to the rights of the passengers, it could assert no better position than the passengers themselves - Accordingly, MPIC was subject to s. 153(2) of the Highway Traffic Act, which eliminated the reverse onus in s. 153(1) when an action was brought by a passenger - See paragraphs 11 to 24.

Insurance - Topic 5242

Automobile insurance - Compulsory government schemes - Subrogation or indemnity - Limitations - [See Insurance - Topic 2886 ].

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - A van was involved in a single vehicle accident - The Manitoba Public Insurance Corporation (MPIC) commenced a subrogated action against the owner and driver of the van pursuant to s. 77(1) of the Manitoba Public Insurance Corporation Act to recover amounts which it had paid to injured passengers - The defendants moved for summary judgment to dismiss the action - MPIC did not file any affidavit evidence or cross-examine on the defendants' affidavits - The Manitoba Court of Appeal affirmed the dismissal of the defendants' motion - The defendants' affidavits raised concerns as to their reliability - There were inconsistencies and uncertainties about the pattern of deceleration and re-acceleration, there was an absence of clarity about the use and performance of the cruise control and there was an issue as to whether the speed alleged was appropriate - The presence of black ice was also never described as more than a "belief" by the defendants - It could not be said that MPIC had no reasonable chance of success or that there was no reasonable issue for trial.

Torts - Topic 167

Negligence - Evidence - Presumption of negligence (res ipsa loquitur) - Res ipsa loquitur - Inference of negligence - [See Evidence - Topic 152 ].

Torts - Topic 551

Negligence - Motor vehicle - Evidence and burden of proof - Statutory burden on owner or operator - Exceptions - [See Insurance - Topic 2886 ].

Cases Noticed:

Pizza Pizza v. Gillespie (1990), 75 O.R.(2d) 225 (Gen. Div.), refd to. [para. 9].

Manitoba Public Insurance Corp. v. From (R.W.) Ltd. and Juenke (1981), 12 Man.R.(2d) 27 (Co. Ct.), refd to. [para. 21].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118; 156 D.L.R.(4th) 577, refd to. [para. 27].

Statutes Noticed:

Highway Traffic Act, R.S.M. 1987, c. H-60; C.C.S.M., c. H-60, sect. 153(1), sect. 153(2) [para. 14].

Manitoba Public Insurance Corporation Act, R.S.M. 1987, c. P-215; C.C.S.M., c. P-215, sect. 77(1) [para. 15].

Counsel:

J.A. Pollock, for the appellants;

K.T. Addison, for the respondent.

This appeal was heard on September 15, 2003, before Scott, C.J.M., Kroft and Steel, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Kroft, J.A., on November 21, 2003.