Walls v. Mussens Ltd. and Morrison, (1969) 2 N.B.R.(2d) 131 (CA)

• Judge: Bridges, C.J.N.B., Limerick and Hughes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 24, 1969
• Jurisdiction: New Brunswick
• Citations: (1969), 2 N.B.R.(2d) 131 (CA)

Walls v. Mussens Ltd. (1969), 2 N.B.R.(2d) 131 (CA);

    2 R.N.-B.(2e) 131

MLB headnote and full text

Sommaire et texte intégral

Walls v. Mussens Limited and Morrison

Indexed As: Walls v. Mussens Ltd. and Morrison

Répertorié: Walls v. Mussens Ltd. and Morrison

New Brunswick Court of Appeal

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

December 30, 1969.

Summary:

Résumé:

The New Brunswick Court of Appeal affirmed judgment of trial judge and held that the failure of the plaintiff service station operator to use available fire extinguishers in the prevailing excitement did not constitute contributory negligence even though the plaintiff's failure to do so may have deprived those present of a chance to minimize the loss.

Trial court awarded the plaintiff $54,300 for damages for damage to service station and equipment resulting from a fire which was started by the negligent use of propane torch by the defendant Morrison, while in the employ of the defendant, Mussens Limited.

The New Brunswick Court of Appeal stated that the test to be applied in such circumstances is not whether the plaintiff exercised a careful and prudent judgment in doing what he did, but whether what the plaintiff did was something an ordinarily prudent man might reasonably have done under the stress of the emergency.

The New Brunswick Court of Appeal also affirmed the trial judge's assessment of the measure of damages with respect to the value of the service station and equipment destroyed by fire.

Torts - Topic 6613

Defences - Contributory negligence, particular cases - Actions in emergency - Plaintiff's service station and equipment destroyed by fire which was started due to negligence of defendants - Whether failure of owner to use available fire extinguishers before fire was out of control constituted contributory negligence under the Contributory Negligence Act (New Brunswick Court of Appeal).

Damage Awards - Topic 536

Torts/Quebec responsibility - Injury to land and buildings - Loss of buildings - Damages - Measure of - Value of equipment and value of building destroyed by fire (New Brunswick Court of Appeal).

Cases Noticed:

The Bywell Castle, L.R. 4 P.D. 219, folld.

Rowan v. The Toronto Railway Company, 29 S.C.R. 717, folld.

Tatisich v. Edwards, [1931] S.C.R. 167, folld.

Counsel:

John C. McNair, Q.C., for the defendant/appellant;

William L. Hoyt, for the respondent/plaintiff.

Appeal from judgment of Barry, J., dated January 24, 1969, [(1969), 1 N.B.R.(2d) 330], in favour of the plaintiff arising out of an action for negligence for damages for damage to property.

The judgment of the Court was delivered by Hughes, J.A.