Reid v. Hatty

• Jurisdiction: New Brunswick
• Court: Court of Appeal of New Brunswick
• Judge: Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.
• Neutral Citation: 2005 NBCA 5
• Citation: 2005 NBCA 5,(2005), 279 N.B.R.(2d) 202 (CA),279 NBR (2d) 202,[2005] NBJ No 20 (QL),279 NBR(2d) 202,[2005] N.B.J. No 20 (QL),(2005), 279 NBR(2d) 202 (CA),279 N.B.R.(2d) 202
• Date: 09 June 2004

Reid v. Hatty (2005), 279 N.B.R.(2d) 202 (CA);

    279 R.N.-B.(2e) 202; 732 A.P.R. 202

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2005] N.B.R.(2d) TBEd. JA.042

Gail Hatty (appellant) v. Beverly Reid (respondent)

(100/03/CA; 151/03/CA; 2005 NBCA 5)

Indexed As: Reid v. Hatty

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.

January 27, 2005.

Summary:

The plaintiff was dropping off some mail for an elderly friend at her neighbour's house. When leaving she tripped on a four-inch high step or rise on the neighbour's front walkway. She fell forward against a vehicle parked in the driveway and hit her arm and head. The plaintiff sued the defen­dant neigh­bour for damages, claiming con­tinuing mem­ory and mental problems.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 264 N.B.R.(2d) 1; 691 A.P.R. 1, found that both the plaintiff and defendant were negli­gent and liability was apportioned equally between parties. The damages assessment was to follow at a later date.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported [2003] N.B.R.(2d) (Supp.) No. 52, assessed damages accordingly. The defendant ap­pealed.

The New Brunswick Court of Appeal allowed the appeal. The court held that the trial judge erred in law in finding that the defendant was responsible for the plaintiff's damages. The court, therefore, found it unnecessary to examine the damage award.

Evidence - Topic 8

General and definitions - What constitutes a "question of fact" - [See Practice - Topic 8800 ].

Evidence - Topic 12

General and definitions - What constitutes a question of law and fact - [See Practice - Topic 8800.1 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - The New Brunswick Court of Appeal noted that a majority of the court had previously stated that the degree of fault of each party was a question of fact and absent strong and exceptional reasons for interfering with a trial judge's apportion­ment of liability, it must stand - Further, the question of whether conduct conformed to the acceptable standard of care was a question of fact - See paragraphs 12 and 13.

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - The New Brunswick Court of Appeal stated that the identification of the applicable standard of care was a question of mixed fact and law - The standard of appellate review to be applied to a trial judge's characterization of the applicable standard of care was that of correctness - See paragraphs 14 and 15.

Torts - Topic 3506

Occupiers' liability or negligence for dan­gerous premises - General principles - Duty of occupier - Warning of danger - [See Torts - Topic 3588 ].

Torts - Topic 3510

Occupiers' liability or negligence for dan­gerous premises - General principles - Statutory reform - The New Brunswick Court of Appeal discussed the usefulness of occupiers' liability case law from other provinces given New Brunswick's abolish­ment of the law of occupier's liability (Law Reform Act, 1993) - See paragraphs 16 to 26.

Torts - Topic 3588

Occupiers' liability or negligence for dan­gerous premises - Negligence of occupier - Sidewalks, walkways, ramps, etc. - The plaintiff was dropping off some mail for an elderly friend at her neighbour's house - When leaving she tripped on a four-inch high step or rise on the neighbour's front walkway - She fell, injuring her arm and head - The plaintiff sued the defendant neighbour for damages for personal in­juries - The trial judge held that the rise was an unusual danger and was not proper­ly illuminated - Further, the defendant did not give adequate oral warning of the unusual danger - The court found also that the plaintiff was running on the walkway and apportioned liability equally between the parties - The defendant appealed - The New Brunswick Court of Appeal allowed the appeal - The trial judge erred in refer­ring to the rise in the walkway as an "un­usual danger" as that language came from the common law of occupiers' liability which was no longer in effect in New Brunswick - Rather, the trial judge ought to have considered the standard of care that might have been expected of an or­dinary, reasonable and prudent person in the circumstances by applying the law of negligence - Here, the trial judge held the defendant to too high a standard - The plaintiff was the author of her own misfor­tune, by running down the darkened walk­way after leaving the defendant's front door - Had she used the walkway when initially entering the property, the sensor light would have been triggered, making her aware of the rise - See paragraphs 1 to 36.

Cases Noticed:

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 5].

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), refd to. [para. 12].

McAdam et al. v. McIlveen et al. (2002), 252 N.B.R.(2d) 35; 658 A.P.R. 35 (C.A.), refd to. [para. 13].

O'Donnell v. O'Blenis (2004), 269 N.B.R.(2d) 273; 707 A.P.R. 273 (C.A.), refd to. [para. 13].

Arsenault v. Belanger (2002), 254 N.B.R.(2d) 353; 664 A.P.R. 353 (C.A.), refd to. [para. 13].

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 14].

Waldick v. Malcolm (1989), 35 O.A.C. 389; 70 O.R.(2d) 717 (C.A.), affd. [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 18].

Tutinka v. Mainland Sand and Gravel Ltd. et al. (1993), 39 B.C.A.C. 81; 64 W.A.C. 81; 110 D.L.R.(4th) 182 (C.A.), refd to. [para. 19].

Gallant v. Roman Catholic Episcopal Corp. (2001), 200 Nfld. & P.E.I.R. 105; 603 A.P.R. 105 (Nfld. C.A.), refd to. [para. 20].

Lorenz v. Ed-Mon Developments Ltd. (1991), 118 A.R. 201 (C.A.), refd to. [para. 25].

McAllister v. Wal-Mart Canada Inc. (2000), 228 N.B.R.(2d) 230; 588 A.P.R. 230 (C.A.), refd to. [para. 27].

Richter v. Capri Holdings Inc. et al. (2001), 214 Sask.R. 109 (Q.B.), refd to. [para. 28].

Hale v. Westfair Foods Ltd. (1995), 127 Sask.R. 223 (Q.B.), refd to. [para. 29].

Daigle v. Turrett (2001), 244 N.B.R.(2d) 148; 634 A.P.R. 148 (C.A.), refd to. [para. 31].

Authors and Works Noticed:

Osborne, Philip H., The Law of Torts (2nd Ed. 2003), pp. 151, 152 [para. 20].

Counsel:

Michael D. Brenton and Donald V. Keenan, for the appellant;

Barry R. Morrison, Q.C., and Nathan J. Weinman, for the respondent.

This appeal was heard on June 9, 2004, before Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. The following decision was delivered for the court by Larlee, J.A., on January 27, 2005.