Seabord Construction Ltd. v. Pack & Noel Ltd. and Canadian National Railway Co., (1971) 1 Nfld. & P.E.I.R. 331 (NFSC)

JudgeMifflin, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateMarch 01, 1971
JurisdictionNewfoundland and Labrador
Citations(1971), 1 Nfld. & P.E.I.R. 331 (NFSC)

Seabord v. Pack & Noel (1971), 1 Nfld. & P.E.I.R. 331 (NFSC)

MLB headnote and full text

Seabord Construction Ltd. v. Pack & Noel Ltd. & Canadian National Railway, Third Party

Indexed As: Seabord Construction Ltd. v. Pack & Noel Ltd. and Canadian National Railway Co.

Newfoundland Supreme Court

At Trial

Mifflin, J.

March 1, 1971.

Summary:

Trial Court dismissed the application of the defendant for an order for directions on third party procedure. Court held that a person sought to be added as a third party should be added as a defendant where the person was alleged to be wholly or partially responsible for the plaintiff's damage. Court also stated that a defendant in order to plead the Contributory Negligence Act should allege the separate and independent acts of negligence of the two parties and it was not sufficient for defendant in his defence to deny liability and allege another's responsibility.

Practice - Topic 660

Parties - Adding or substituting parties - Third party procedure - Whether person partly responsible for damage should be added as defendant or as third party - The Newfoundland Supreme Court held where right to contribution or indemnity is claimed from a joint tortfeasor, then he should be added as defendant and not as third party.

Torts - Topic 6637

Defences - Practice - Pleadings - Contributory Negligence Act - For a party to rely on Contributory Negligence Act he must allege contributory negligence and plead Act - The Newfoundland Supreme Court stated separate and independent Acts of negligence of the two parties which contributed to the cause of damage should be alleged.

Cases Noticed:

George Wimpey and Company Limited v. British Overseas Airways Corporation, [1955] A.C. 169, dist.

Statutes Noticed:

Contributory Negligence Act, R.S. Nfld. 1952, c. 159, sect. 3, sect. 7.

Rules of Court, Order 15, rule 43, rule 47.

Counsel:

W. Wells, for the plaintiff;

N.S. Noel, Q.C., for the defendants;

P.J. Lewis, Q.C., for the third party.

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