Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336 (CA);
206 R.N.-B.(2e) 336; 526 A.P.R. 336
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Temp. Cite: [1998] N.B.R.(2d) TBEd. NO.029
Claude J. Thibodeau and Louise Thibodeau (defendants/appellants) v. Louis F. Gallant (plaintiff/respondent)
(214/97/CA)
Indexed As: Gallant v. Thibodeau
New Brunswick Court of Appeal
Rice, Ayles and Drapeau, JJ.A.
November 6, 1998.
Summary:
Gallant’s vehicle struck the rear of Thibodeau’s parked van. Gallant sued the Thibodeaus in damages for the resulting loss. He argued that the Thibodeaus had created a hazardous situation. On the consent of the parties, liability was the only issue to be tried.
The New Brunswick Court of Queen’s Bench, Trial Division, in a judgment reported in [1997] N.B.R.(2d) (Supp.) No. 117, allowed the action and apportioned liability 75% against the Thibodeaus and 25% against Gallant. The Thibodeaus appealed.
The New Brunswick Court of Appeal, Rice, J.A., dissenting, dismissed the appeal.
Practice – Topic 8800
Appeals – General principles – Duty of appellate court regarding findings of fact by a trial judge – Gallant’s vehicle struck the rear of the Thibodeaus’ parked van – Gallant sued – He argued that the Thibodeaus had created a hazardous situation – The trial judge held that the Thibodeaus were 75% liable for the accident and Gallant, 25% – The New Brunswick Court of Appeal affirmed the ruling – The court held that the fault and the degree of each party’s fault were questions of fact and that an appellate court should not intervene on the question of fault unless the trial judge’s finding was unreasonable – In this case, the findings were not unreasonable – See paragraphs 1 to 19.
Torts – Topic 385
Negligence – Motor vehicle – Standard of care of driver – Obstructing highway – [See
Torts – Topic 557
].
Torts – Topic 395
Negligence – Motor vehicle – Standard of care of driver – Duty to pay attention – [See
Torts – Topic 557
].
Torts – Topic 557
Negligence – Motor vehicle – Evidence and burden of proof – Rear end collisions – Parked vehicle – The Thibodeaus’ van was parked without signal lights on the right-hand side of the road, partly on the shoulder, and obstructing the roadway – Gallant arrived from behind at 80 km/h – He wanted to pass the van – At a distance of 20 feet, Gallant realized that the van was parked and that a truck was coming in the opposite direction – He applied his brakes but struck the van – The trial judge held that the Thibodeaus were 75% liable for the accident and Gallant, 25% – Gallant was able to show that the Thibodeaus had created a hazardous situation – However, Gallant was not driving his vehicle with reasonable care – The New Brunswick Court of Appeal affirmed the ruling – See paragraphs 1 to 19.
Torts – Topic 6603
Defences – Contributory negligence – General – Apportionment of fault – General – [See
Practice – Topic 8800
].
Torts – Topic 6655
Defences – Ultimate negligence – Application of doctrine – Gallant’s vehicle struck the rear of the Thibodeaus’ parked van – Gallant sued – He argued that the Thibodeaus had created a hazardous situation – The Thibodeaus replied that Gallant was solely liable for the accident because he could have avoided hitting the rear of the van if he had been driving in a prudent manner – As the argument goes, there was nothing the Thibodeaus could have done, after parking the vehicle, to prevent Gallant from hitting the van – The New Brunswick Court of Appeal rejected that argument because it called for the application of a doctrine which was “decidedly outdated, i.e., the last clear chance doctrine” – The court affirmed the trial judge’s decision which had held that the Thibodeaus were 75% liable for the accident and Gallant, 25% – See paragraph 9.
Cases Noticed:
Fillier v. Whittom (1995), 171 N.B.R.(2d) 92; 437 A.P.R. 92 (C.A.), refd to. [para. 9].
Kolesar Estate v. Joseph Brant Memorial Hospital, [1978] 1 S.C.R. 491; 15 N.R. 302, refd to. [para. 12].
Koziol – see Kolesar Estate v. Joseph Brant Memorial Hospital.
Kolesar v. Jeffries – voir Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.
Beaudoin-Daigneault v. Richard et al., [1984] 1 S.C.R. 2; 51 N.R. 288, refd to. [para. 12].
Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 12].
Lapointe v. Hôpital Le Gardeur – see Lapointe v. Chevrette.
Waldick v. Malcolm (1989), 35 O.A.C. 389; 70 O.R.(2d) 717 (C.A.), consd. [para. 13].
Métivier v. Cadorette et Gourde, [1977] 1 S.C.R. 371; 8 N.R. 129, refd to. [para. 15].
Sparks et Fairfax v. Thompson, [1975] 1 S.C.R. 618; 1 N.R. 387, refd to. [para. 17].
Cormier v. Miller et Miller (1990), 111 N.B.R.(2d) 54; 277 A.P.R. 54 (C.A.), refd to. [para. 28].
Leischner v. West Kootenay Power & Light Co. (1986), 24 D.L.R.(4th) 641 (B.C.C.A.), refd to. [para. 38].
Paquin v. Lessard, Cotnoir, Morgan and the Highway Victims Indemnity Fund, [1975] 1 S.C.R. 665; 10 N.R. 620, consd. [para. 39].
Bruce v. McIntyre, [1955] S.C.R. 251, refd to. [para. 40].
Dorval v. Bouvier, [1968] S.C.R. 288, refd to. [para. 40].
Haase v. Pedro, [1971] S.C.R. 669, refd to. [para. 40].
Freedman v. Côte St-Luc (Ville), [1972] S.C.R. 216, refd to. [para. 40].
Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654, refd to. [para. 40].
Silburn v. Antagon Construction Co., [1977] 2 S.C.R. 271; 12 N.R. 304, refd to. [para. 40].
Guidolin v. Voyageur Provincial Inc. and Lachance, [1977] 2 S.C.R. 1112; 14 N.R. 495, refd to. [para. 40].
Gladney v. Story (1977) Ltd. and Story (1990), 84 Nfld. & P.E.I.R. 153; 262 A.P.R. 153 (Nfld. C.A.), refd to. [para. 40].
Lorenz v. Winnipeg (City), [1994] 1 W.W.R. 558; 88 Man.R.(2d) 193; 51 W.A.C. 193, refd to. [para. 40].
Taylor v. Ankenman and Jaegli Enterprises Ltd., [1981] 2 S.C.R. 2; 40 N.R. 4; 124 D.L.R.(3d) 415, refd to. [para. 41].
Schreiber Brothers Ltd. v. Currie Products Ltd. and Gulf Oil Canada Ltd., [1980] 2 S.C.R. 78; 31 N.R. 335; 108 D.L.R.(3d) 1, refd to. [para. 41].
Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 41].
Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, refd to. [para. 41].
Succession Bourgoin v. Pelletier (1997), 193 N.B.R.(2d) 216; 493 A.P.R. 216 (C.A.), refd to. [para. 45].
Rintoul v. X-Ray and Radium Industries Ltd. et Ouellette, [1956] S.C.R. 674, refd to. [para. 46].
Statutes Noticed:
Contributory Negligence Act, R.S.N.B. 1973, c. C-19, sect. 5 [para. 11].
Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 151 [para. 44]; sect. 161(1.1) [para. 43]; sect. 194(1) [para. 42].
Counsel:
Henry J. Murphy and J. Danie Roy, for the appellants;
Thomas Maillet, for the respondent.
This appeal was heard on May 21, 1998 by Rice, Ayles and Drapeau, JJ.A., of the New Brunswick Court of Appeal.
The decision of the Court of Appeal was delivered on November 6, 1998 and the following reasons were filed:
Drapeau, J.A. (Ayles, J.A., concurring) – see paragraphs 1 to 19;
Rice, J.A. (dissenting) – see paragraphs 20 to 47.
