Walsh v. Marwood Ltd., 2009 NSSC 15

• Judge: McDougall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 09, 2008
• Jurisdiction: Nova Scotia
• Citations: 2009 NSSC 15;(2009), 275 N.S.R.(2d) 92 (SC)

Walsh v. Marwood Ltd. (2009), 275 N.S.R.(2d) 92 (SC);

    877 A.P.R. 92

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MR.021

Larry Joseph Walsh (plaintiff) v. Marwood Limited (defendant)

(Hfx No. 104865; 2009 NSSC 15)

Indexed As: Walsh v. Marwood Ltd.

Nova Scotia Supreme Court

McDougall, J.

January 21, 2009.

Summary:

A truck driver was injured when struck by a load of lumber being offloaded by forklift at the defendant's premises. The driver elected workers' compensation benefits instead of a negligence action against the defendant. The Workers' Compensation Board brought a subrogated claim against the defendant, which was permitted under s. 19 of the Workers' Compensation Act if the accident resulted from "the driving of a motor vehicle as defined in the Motor Vehicle Act that is registered or required to be registered under that Act". Otherwise, the civil action was barred by s. 18 of the Act.

The Nova Scotia Supreme Court held that the action was statute-barred. The forklift was not being driven as a motor vehicle at the time of the accident and was not intended to be operated on a highway. The forklift was operated only in the lumberyard and on a private access road leading to the lumberyard, neither of which constituted a "highway" as defined by the Act. Accordingly, the forklift was neither registered, nor required to be registered under the Act. If a civil action was not precluded, the defendant's employee would have been found negligent (defendant vicariously liable) and the driver would not have been found contributorily negligent.

Highways - Topic 10

General and definitions - Definitions - Street, highway or road - [See Workers' Compensation - Topic 120 ].

Workers' Compensation - Topic 120

General principles - Effect of statute on other causes of action - Exceptions to statutory bar re civil actions - A truck driver was injured when struck by a load of lumber being offloaded by a forklift at the defendant's premises - The driver elected workers' compensation benefits instead of a negligence action against the defendant - The Workers' Compensation Board brought a subrogated claim against the defendant, which was permitted under s. 19 of the Workers' Compensation Act if the accident resulted from "the driving of a motor vehicle as defined in the Motor Vehicle Act that is registered or required to be registered under that Act" - Otherwise, the civil action was barred by s. 18 of the Act - The Nova Scotia Supreme Court held that the action was statute-barred - The forklift was not being driven as a motor vehicle at the time of the accident and was not intended to be operated on a highway - The forklift was operated only in the lumberyard and on a private access road leading to the lumberyard, neither of which constituted a "highway" as defined by the Act - The lumberyard was not an area that was used by the general public for their own purposes - Since the forklift was not being driven as a motor vehicle, and was neither registered nor required to be registered, the s. 19 exception to the civil action bar in s. 18 did not apply.

Cases Noticed:

Smith v. Nevins, [1925] S.C.R. 619, refd to. [para. 17].

Roed v. Tahsis Co. (1977), 4 B.C.L.R. 176; 1977 CarswellBC 140 (S.C.), refd to. [para. 23].

R. v. Steeden (G.F.) (1995), 60 B.C.A.C. 273; 99 W.A.C. 273 (C.A.), refd to. [para. 23].

Vytlingam v. Farmer et al. (2007), 368 N.R. 251; 286 D.L.R.(4th) 577; 2007 SCC 46, refd to. [para. 24].

Herbison v. Lumbermens Mutual Casualty Co. (2007), 368 N.R. 292; 286 D.L.R.(4th) 592; 2007 SCC 47, refd to. [para. 24].

Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1, refd to. [para. 25].

Peters v. North Star Oil Ltd. (1965), 53 W.W.R.(N.S.) 321; 1965 CarswellMan 47 (Q.B.), refd to. [para. 26].

Argue (F.W.) Ltd. et al. v. Howe, [1969] S.C.R. 354, refd to. [para. 26].

Nova Scotia Power Corp. v. Tank Lines Ltd. et al. (1978), 31 N.S.R.(2d) 629; 52 A.P.R. 629; 91 D.L.R.(3d) 410 (T.D.), refd to. [para. 26].

Dixon Cable Laying Co. v. Osborne Contracting Ltd. (1974), 49 D.L.R.(3d) 243; 1974 CarswellBC 211 (S.C.), refd to. [para. 27].

Blackburn (L.) Excavating Ltd. v. Salmon Arm Machine Shop Ltd. (1977), 76 D.L.R.(3d) 100; 1977 CarswellBC 559 (S.C.), refd to. [para. 27].

Cordeiro v. LaFarge Canada Inc. et al. (1997), 49 O.T.C. 249; 1997 CarswellOnt 4379 (Gen. Div.), refd to. [para. 27].

Jenkins v. Bowes Publishing Co. (1991), 3 O.R.(3d) 154; 1991 CarswellOnt 453 (Gen. Div.), refd to. [para. 28].

Lanteigne v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2002), 210 N.S.R.(2d) 258; 659 A.P.R. 258; 2002 NSCA 156, refd to. [para. 30].

Adams v. Pineland Amusements Ltd. et al. (2007), 231 O.A.C. 177; 2007 ONCA 844, refd to. [para. 31].

Spencer v. Lutkehaus, [1986] B.C.J. No. 130 (C.A.), refd to. [para. 37].

Dechant v. TNL Equipment Ltd., [1998] B.C.T.C. Uned. D46 (S.C.), refd to. [para. 39].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 46].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 46].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 47].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 47].

Taylor v. Jollimore and Scotia Fuels Ltd. (1989), 92 N.S.R.(2d) 17; 237 A.P.R. 17 (T.D.), refd to. [para. 51].

Austin v. McKay et al. (1998), 197 N.B.R.(2d) 298; 504 A.P.R. 298 (C.A.), refd to. [para. 51].

Halliday v. Larche (Frank) Mfg. (1975) Ltd. and Titus (1986), 75 N.S.R.(2d) 286; 186 A.P.R. 286 (T.D.), affd. (1987), 81 N.S.R.(2d) 253; 203 A.P.R. 253 (C.A.), refd to. [para. 51].

Graham v. Lee, [2001] B.C.J. No. 44 (S.C.), refd to. [para. 51].

Driscoll v. Crombie Developments Ltd. (2006), 242 N.S.R.(2d) 261; 770 A.P.R. 261 (S.C.), refd to. [para. 51].

Gale et al. v. White Bay Ocean Products Ltd. (2002), 211 Nfld. & P.E.I.R. 278; 633 A.P.R. 278 (Nfld. T.D.), refd to. [para. 51].

Statutes Noticed:

Workers' Compensation Act, R.S.N.S. 1989, c. 508, sect. 17(1), sect. 17(2) [para. 13]; sect. 17(3), sect. 17(4) [para. 14]; sect. 18 [para. 15]; sect. 19 [para. 16].

Counsel:

David P.S. Farrar, Q.C., for the plaintiff;

Philip M. Chapman, for the defendant.

This action was heard on December 10-14, 2007, and January 9, 2008, at Halifax, N.S., before McDougall, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 21, 2009.