Thornhill v. Bennett, (1985) 55 Nfld. & P.E.I.R. 81 (NFCA)

• Judge: Mifflin, C.J.N., Morgan and Gushue, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: August 23, 1985
• Jurisdiction: Newfoundland and Labrador
• Citations: (1985), 55 Nfld. & P.E.I.R. 81 (NFCA)

Thornhill v. Bennett (1985), 55 Nfld. & P.E.I.R. 81 (NFCA);

    162 A.P.R. 81

MLB headnote and full text

Thornhill v. Bennett

(1984 No. 216)

Indexed As: Thornhill v. Bennett

Newfoundland Supreme Court

Court of Appeal

Mifflin, C.J.N., Morgan and Gushue, JJ.A.

August 23, 1985.

Summary:

The defendant owner-driver of a motor vehicle struck the plaintiff pedestrian, who brought an action against him for damages. The defendant's automobile was insured in the name of his brother. The insurer denied liability. Judgment Recovery (Nfld.) Limited applied for a determination of whether the policy was void.

The Newfoundland District Court in a judgment unreported in this series of reports ruled that the policy was void. Judgment Recovery appealed.

The Newfoundland Court of Appeal allowed the appeal and held that s. 26(5) of the Automobile Insurance Act constituted a complete bar to the insurer's defence that the policy was invalid.

Insurance - Topic 4603

Automobile insurance - Actions by third parties against insurer on public liability - Defence by insurer respecting extent or validity of coverage or policy - The driver-owner of an automobile struck a pedestrian - The vehicle was insured in the name of the owner's brother - The insurer denied liability - The Newfoundland Court of Appeal held that s. 26(5) of the Automobile Insurance Act constituted a complete bar to the defence by the insurer that the policy was invalid - The court required the insurer to respond to the pedestrian's claim.

Cases Noticed:

Bourgeois v. Prudential Assurance Co. Ltd., [1946] 1 D.L.R. 139, consd. [para. 6].

Lewis v. Northern Insurance (1956) 4 D.L.R.(2d) 496 (Ont. H.C.), appld. [para. 9].

Marshall v. Law Union & Rock Insurance (1958), 18 D.L.R.(2d) 442 (N.B.C.A.), appld. [para. 9].

Blair v. Royal Exchange Insurance (1968), 67 D.L.R.(2d) 420 (Man. Q.B.), appld. [para. 9].

Gorveat v. Canadian General Insurance (1974), 7 Nfld. & P.E.I.R. 70; 3 A.P.R. 70 (P.E.I.S.C.T.D.), appld. [para. 9].

Crawford v. Employers' Mutual Insurance (1981), 35 N.B.R.(2d) 109; 88 A.P.R. 109, appld. [para. 9].

Minister of Transport v. London & Midland General Insurance (1971), 19 D.L.R.(3d) 643 (Ont. C.A.), not folld. [para. 10].

Lawrence v. Powell et al. (1978), 28 N.S.R.(2d) 167; 43 A.P.R. 167, not folld. [para. 11].

Wolfe v. Oliver et al., [1971-75] I.L.R. 1038; 8 N.S.R.(2d) 313, not folld. [para. 11].

Stevens v. Bowser et al. (1974), 18 N.S.R.(2d) 440; 20 A.P.R. 440, not folld. [para. 11].

Sibbins v. Atkins et al. (1983), 53 N.S.R.(2d) 599; 109 A.P.R. 599, not folld. [para. 11].

Statutes Noticed:

Automobile Insurance Act, R.S.N. 1970, c. 17, sect. 26(1), sect. 26(4), sect. 26(5) [para. 3].

Counsel:

Philip Chapman, for the appellant on behalf of Judgment Recovery Newfoundland Limited;

Alan Caule, Q.C., for the respondent, Insurance Corporation of Newfoundland.

This case was heard on June 18, 1985, at St. John's, Newfoundland, before Mifflin, C.J.N., Morgan and Gushue, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On August 23, 1985, Gushue, J.A., delivered the following judgment for the Court of Appeal: