Nadeau v. Rice, (1990) 109 N.B.R.(2d) 243 (CA)

• Court: Court of Appeal (New Brunswick)
• Case Date: June 28, 1990
• Jurisdiction: New Brunswick
• Citations: (1990), 109 N.B.R.(2d) 243 (CA)

Nadeau v. Rice (1990), 109 N.B.R.(2d) 243 (CA);

    109 R.N.-B.(2e) 243; 273 A.P.R. 243

MLB headnote and full text

[French language version follows English language version]

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

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

Luc Nadeau (appellant) v. Robert C. Rice (respondent)

Indexed As: Nadeau v. Rice

New Brunswick Court of Appeal

Léger, Deschênes and Godin, JJ. (ad hoc)

June 28, 1990.

Summary:

A motorcycle passenger was injured in a collision with a van. The passenger and motorcycle driver both claimed the motorcycle was in its proper lane; that the van was not. Based on that information the passenger's and driver's lawyer commenced a negligence action against the van driver. No alternative claim was made on the passenger's behalf against the motorcycle driver for gross negligence. The action was dismissed. The passenger now claimed that he was mistaken; that the motorcycle could have been in the wrong lane, therefore, the lawyer was negligent in not advising him to pursue the alternative claim for which the limitation period had by then expired. The passenger sued the lawyer.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action against the lawyer. The lawyer's decision was made on the passenger's statement as to the cause of the accident; the passenger was now estopped from changing his story to sue the lawyer. See (1989), 101 N.B.R. 271; 254 A.P.R. 271. The passenger appealed.

The New Brunswick Court of Appeal allowed the appeal and held that the lawyer should have known that the action against the van driver could have been dismissed.

Barristers and Solicitors - Topic 1614

Relationship with client - Conflict of interests - Acting for several parties - The passenger and the driver of a motorcycle went to the same lawyer to sue a van driver only for the collision which caused them damage - No alternative claim was made by the motorcycle passenger against the motorcycle driver - The action was dismissed and the motorcycle driver alone was found negligent, thereby revealing a basis for the alternative claim - Was the lawyer in a conflict of interests position? - The New Brunswick Court of Appeal answered yes - See paragraphs l to 7.

Barristers and Solicitors - Topic 2584

Negligence - Particular negligent acts - Commencement of action - The passenger and the driver of a motorcycle went to the same lawyer to sue a van driver only for the collision which caused them damage - No alternative claim was made by the motorcycle passenger against the motorcycle driver - The action was dismissed and the motorcycle driver alone was found negligent, thereby revealing a basis for the alternative claim, for which the limitation period had by then expired - The motorcycle passenger now sued the lawyer - The New Brunswick Court of Appeal held the lawyer negligent in not foreseeing the dismissal of the action against the van driver and in not advising the motorcycle passenger to pursue the alternative claim - See paragraphs 8 to 18.

Cases Noticed:

Page v. Barrister (1971), 3 N.B.R.(2d) 773; (1972), 4 N.B.R.(2d) 645, refd to. [para. 11].

Banks v. Reid, 4 C.C.L.T. 1, refd to. [para. 16].

Statutes Noticed:

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 268 [para. 9].

Authors and Works Noticed:

Grant & Rothstein, Lawyers' Professional Liability, p. 32 [para. 16].

Counsel:

Eugene J. Mockler, Q.C. and Zoël Dionne, for the appellant;

Cedric Haines, for the respondent.

This appeal was heard at Moncton, N.B. on February 15, 1990 by Léger, Deschênes and Godin, JJ. (ad hoc) of the New Brunswick Court of Appeal.

The judgment of the court was delivered at Moncton, N.B. on June 28, 1990.