Smith v. Shanks, (1989) 98 N.B.R.(2d) 420 (CA)

• Judge: Hoyt, Rice and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 25, 1989
• Jurisdiction: New Brunswick
• Citations: (1989), 98 N.B.R.(2d) 420 (CA)

Smith v. Shanks (1989), 98 N.B.R.(2d) 420 (CA);

    98 R.N.-B.(2e) 420; 248 A.P.R. 420

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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Randy Smith (plaintiff/appellant) v. Paul D. Shanks (defendant/respondent)

(190/88/CA)

Indexed As: Smith v. Shanks

New Brunswick Court of Appeal

Hoyt, Rice and Ryan, JJ.A.

July 4, 1989.

Summary:

The plaintiff sued the defendant driver for damages for personal injuries suffered when he was struck by the defendant's vehicle.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in 91 N.B.R.(2d) 334; 232 A.P.R. 334, dismissed the plaintiff's action. The plaintiff appealed.

The New Brunswick Court of Appeal, Rice, J.A., dissenting, allowed the appeal. The Court of Appeal allowed the plaintiff's action, splitting liability on a 50/50 basis.

Damage Awards - Topic 100

Injury and death - Head injuries - General - A 19 year old male was struck by a car - He suffered injuries to his right leg and head - Spent 10 days in hospital - Missed a year of high school - The New Brunswick Court of Appeal affirmed an assessment of $8,000.00 general damages - See paragraph 16.

Damage Awards - Topic 124

Injury and death - Leg injuries - General - [See Damage Awards - Topic 100 above].

Torts - Topic 352

Negligence - Motor vehicle - Pedestrians and bicyclists - On highway - Late one cold clear February night, the defendant drove down a street - There were high snow banks and garbage bags on each side of the street - He saw a dark object lying on the street 10 feet ahead - He stopped, raised his high beams and, believing the object was a garbage bag, proceeded around it - He struck the object, which was in fact the plaintiff - The New Brunswick Court of Appeal held that the defendant driver was negligent for hitting the plaintiff - See paragraphs l to 12, 17 to 20.

Torts - Topic 362

Negligence - Motor vehicle - Pedestrians and bicyclists - Contributory negligence of - Late one cold February night, the defendant drove down a street - There were high snow banks and garbage bags on each side of the street - He saw a dark object lying on the street 10 feet ahead - He stopped, raised his high beams and, believing the object was a garbage bag, proceeded around it - He struck the object, which was in fact the plaintiff - The plaintiff had been drinking but could not explain how he came to be lying there - The New Brunswick Court of Appeal held that the defendant driver was negligent, but split liability on a 50/50 basis, because of the plaintiff's contributory negligence.

Torts - Topic 376

Negligence - Motor vehicle - Standard of care of driver - Keeping a proper lookout - [See Torts - Topic 352 above].

Cases Noticed:

A.C. Billings & Sons Ltd. v. Riden, [1957] 3 All E.R. 1, refd to. [para. 34].

Ouellet v. Cloutier, [1947] S.C.R. 521, refd to. [para. 35].

Glasgow Corporation v. Muir, [1943] A.C. 448, refd to. [para. 36].

Authors and Works Noticed:

Devlin, Lord, The Enforcement of Morals (1965), p. 15 [para. 11].

Gluckman, Max, The Judicial Process (1955, Revised 1967), p. 128 [para. 11].

Linden, Canadian Tort Law (4th Ed. 1988), pp. 94 [para. 7]; 117 [para. 35].

Powell, R., The Unreasonableness of the Reasonable Man (1957), 10 Current Legal Problems, p. 104 [para. 11].

Counsel:

Stephen J. McNally, for the appellant;

William J. McNichol, for the respondent.

This appeal was heard on January 25, 1989, before Hoyt, Rice and Ryan, JJ.A., of the New Brunswick Court of Appeal. The decision of the Court of Appeal was rendered on July 4, 1989, including the following opinions:

Ryan, J.A. - see paragraphs 1 to 16;

Hoyt, J.A., concurring - see paragraphs 17 to 22;

Rice, J.A., dissenting - see paragraphs 23 to 39.