Weaver and Weaver v. Buckle and Buckle, (1983) 42 A.R. 241 (CA)

• Judge: Haddad, Laycraft and Harradence, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 08, 1983
• Citations: (1983), 42 A.R. 241 (CA)

Weaver v. Buckle (1983), 42 A.R. 241 (CA)

MLB headnote and full text

Weaver and Weaver v. Buckle and Buckle

(15309)

Indexed As: Weaver and Weaver v. Buckle and Buckle

Alberta Court of Appeal

Haddad, Laycraft and Harradence, JJ.A.

February 8, 1983.

Summary:

The plaintiffs brought an action in negligence against the defendants after the plaintiff seven year-old boy ran from behind a parked vehicle into the path of the defendants' vehicle. The Alberta Court of Queen's Bench in a judgment reported 35 A.R. 97 allowed the action in part and found the defendant driver negligent and 60% at fault and the boy contributorily negligent and 40% at fault. Both parties appealed on the issue of liability.

The Alberta Court of Appeal allowed the defendants' appeal and dismissed the plaintiffs' action on the ground that the defendant driver was not negligent.

Evidence - Topic 2401

Presumptions - Inference from failure to call available evidence - The Alberta Court of Appeal refused to draw adverse inferences from the failure to call certain witnesses, where there was no evidence that the witnesses could have added anything and where some of the witnesses were not in the control of either party and could have been called by either - See paragraphs 10 to 13.

Practice - Topic 8800

Appeals - Duty of appeal court regarding fact findings by trial judge - The Alberta Court of Appeal set aside a decision of a trial judge on the issue of liability for a motor vehicle accident, where the record disclosed a rational basis for concluding that the trial judge failed to appreciate a relevant issue or vital evidence - See paragraph 32.

Torts - Topic 355

Negligence - Motor vehicle - Pedestrians - Street or highway crossing - Non-intersection - A seven year-old boy ran from behind a parked vehicle into the path of a vehicle proceeding at a reasonable speed - The Alberta Court of Appeal held that the driver was not negligent.

Torts - Topic 562

Negligence - Motor vehicle - Evidence - Skid marks - The Alberta Court of Appeal held that in determining liability for a motor vehicle accident reliance on evidence of skid mark length is dangerous and such evidence should be used only to confirm other evidence - See paragraphs 19 to 20, 30.

Torts - Topic 563

Negligence - Motor vehicle - Evidence - Vehicle stopping distances - The Alberta Court of Appeal held that stopping distances should be proved by expert evidence, not by published tables, which often conflict - See paragraphs 20, 30.

Cases Noticed:

Hydrogas Ltd. v. Great Plains Development (1980), 20 A.R. 483, refd to. [para. 10].

Levesque v. Comeau (1970), 5 N.B.R.(2d) 15; 16 D.L.R.(3d) 425 (S.C.C.), refd to. [para. 10].

Ristow v. Westenstein, [1934] S.C.R. 128, consd. [para. 19].

Braun v. Roy, 12 D.L.R.(2d) 390, consd. [para. 19].

Bothwell and Bothwell v. Gallaway, [1951] O.R. 50, consd. [para. 19].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271; 29 C.C.C.(2d) 257, appld. [para. 32].

R. v. Harper (1982), 40 N.R. 255; 133 D.L.R.(3d) 546, appld. [para. 32].

Statutes Noticed:

Highway Traffic Act, S.A. 1975, c. 56, sect. 158 [para. 8].

Authors and Works Noticed:

O'Connor, Highway Traffic Act [para. 20].

Shannon, Motor Vehicle Offences, p. 301 [para. 20].

Counsel:

J.P. Brumlik, Q.C., for the appellant;

H.W. Veale, Q.C., for the respondent.

This case was heard before HADDAD, LAYCRAFT and HARRADENCE, JJ.A., of the Alberta Court of Appeal.

On February 8, 1983, LAYCRAFT, J.A., delivered the following judgment for the Court of Appeal: