Patterson v. MacKenzie, (1972) 5 N.B.R.(2d) 176 (CA)

• Judge: Hughes, C.J.N.B., Limerick and Bugold, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: August 14, 1972
• Jurisdiction: New Brunswick
• Citations: (1972), 5 N.B.R.(2d) 176 (CA)

Patterson v. MacKenzie (1972), 5 N.B.R.(2d) 176 (CA);

    5 R.N.-B.(2e) 176

MLB headnote and full text

Sommaire et texte intégral

Patterson v. MacKenzie

Indexed As: Patterson v. MacKenzie

Répertorié: Patterson v. MacKenzie

New Brunswick Court of Appeal

Hughes, C.J.N.B., Limerick and Bugold, JJ.A.

August 14, 1972.

Summary:

Résumé:

The New Brunswick Court of Appeal allowed the appeal in part and varied a judgment of the New Brunswick Court of Queen's Bench which held a defendant driver 100% at fault for damages arising out of a motor vehicle accident. The plaintiff pedestrian was struck by the defendant's motor vehicle in a shopping centre parking lot when the pedestrian was crossing a motor vehicle traffic lane in front of a store. The defendant driver was driving at 15 m.p.h. on a slippery hard packed snow surface. The plaintiff pedestrian emerged from behind a parked truck and stepped into the path of the defendant's motor vehicle.

The New Brunswick Court of Appeal held the defendant driver two-thirds at fault for driving at an excessive speed in the circumstances. The appeal court held the plaintiff pedestrian one-third at fault for failing to keep a proper lookout when emerging from behind the parked truck.

Bugold, J.A., dissenting, would have held the defendant 75% at fault and the plaintiff pedestrian 25% at fault.

The judgment of Robichaud, J., of the New Brunswick Court of Queen's Bench is set out immediately following the judgments of the Court of Appeal - see paragraphs 51 to 111.

Torts - Topic 353

Negligence - Motor vehicle, pedestrians and bicyclists - Off highway - Shopping centre parking lot accident - Pedestrian was struck while crossing a motor vehicle traffic lane in front of a store - The New Brunswick Court of Appeal held the defendant driver two-thirds at fault for travelling too fast in the circumstances and held the plaintiff pedestrian one-third at fault for failing to keep a proper lookout when emerging from behind a parked truck.

Torts - Topic 6655

Defences - Ultimate negligence - Application of doctrine - Doctrine of last clear chance - The New Brunswick Court of Queen's Bench referred to doctrine as obsolete and refused to apply it - Paragraphs 72 to 78.

Torts - Topic 578

Negligence - Motor vehicle, off highway accidents and traffic rules - Parking lots - Shopping centre parking lot accident - The New Brunswick Court of Appeal stated that a careful driver operating his car in a parking lot would observe the rules of the road as established by statute - Paragraph 8.

Torts - Topic 578

Negligence - Motor vehicle, off highway accidents and traffic rules - Parking lots - Shopping centre parking lot accident - The New Brunswick Court of Appeal held a driver negligent for driving at 15 m.p.h. on slippery hard packed snow in a parking lot where there was pedestrian traffic in the immediate vicinity - Paragraph 5.

Damage Awards - Topic 59

Injury and death - Body injuries - Pelvis and pubic bones (incl. hip and urinary tract) - Fractured pelvis - 56 year old female - Permanent partial disability - The New Brunswick Court of Appeal affirmed a general damage award of $15,000.00 - Paragraphs 25 to 35 and 93 to 110.

Cases Noticed:

Nance v. British Columbia Electric Co., [1951] 2 All E.R. 448, folld.

Fardon v. Harcourt-Rivington (1932), 146 L.T. 391, folld.

British Columbia Electric Railway Co. Ltd. v. Ferrar, [1955] S.C.R. 757, folld.

London Passenger Transport Board v. Upson, [1949] A.C. 155, folld.

MacDonald v. Mitchell and Barry (1970), 2 N.B.R.(2d) 165, folld.

Davies v. Mann (1842), 10 M. & W. 546, not folld.

Davies v. Swan Motor Co. (Swansea) Ltd., [1949] 1 All E.R. 620, folld.

Hartlen v. Bourtilier, 52 D.L.R.(2d) part 7, 1966 633, folld.

Counsel:

John M. Hanson, for the defendant;

William L. Hoyt, Q.C., for the respondent.