Webber et al. v. Burden et al., (1972) 3 Nfld. & P.E.I.R. 119 (NFSC)

• Judge: Higgins, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 09, 1972
• Jurisdiction: Newfoundland and Labrador
• Citations: (1972), 3 Nfld. & P.E.I.R. 119 (NFSC)

Webber v. Burden (1972), 3 Nfld. & P.E.I.R. 119 (NFSC)

MLB headnote and full text

Webber et al. v. Burden et al.

Indexed As: Webber et al. v. Burden et al.

Newfoundland Supreme Court

At Trial

Higgins, J.

June 9, 1972.

Summary:

The trial court allowed the action and held the defendant driver grossly negligent and liable for damages arising out of a motor vehicle accident. The plaintiff was a gratuitous passenger in a motor vehicle driven by the defendant. The defendant engaged in an impromptu race with another vehicle with the result that the defendant drove head-on into a building.

The trial court held that the defendant's conduct constituted gross negligence. Further, the trial court held that the defence of volenti non fit injuria was inapplicable, since the plaintiff had no opportunity to complain and could not be said to have consented to the defendant's conduct.

Torts - Topic 6726

Defences - Consent, assumption of risk - Implied consent, motor vehicle passenger - Negligence - Motor vehicle - Gratuitous passenger - What constitutes gross negligence - Volenti non fit injuria - Motor vehicle driver engaged in impromptu race on highway and struck building - No opportunity for plaintiff passenger to complain - Newfoundland Supreme Court held driver's conduct grossly negligent and defence of volenti non fit injuria inapplicable.

Cases Noticed:

McCulloch v. Murray, [1942] 2 D.L.R. 188, refd to.

Lehnert v. Stein, [1963] S.C.R. 38, appld.

Statutes Noticed:

Highway Traffic Act, S. Nfld. 1962, c. 82, sect. 220(1).

Counsel:

David B. Sparkes, for the plaintiffs;

David L. Russell, for the defendants.