Holland et al. v. Hallonquist

DONNA MARIE HOLLAND, an infant

*Nov.14 under the age of twenty-one years by

Dec.

APLAT her next friend Frank Holland and the

APPELLANTS; said FRANK HOLLAND (Plaintiffs)

AND

RICHARD HALLONQUIST (Defendant). . RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL

FOR BRITISH COLUMBIA

J.:-The appellant commenced an action against the respondent for damages in respect of injuries which she sustained on August 30, 1964, while being driven, as a passenger, in an automobile owned and driven by the respondent. Her statement of claim alleged, in para. 3, that she sustained her injuries as a result of the grossly negligent driving of the respondent. Particulars of the alleged gross negligence were given, including an allegation that the respondent drove his motor vehicle at an excessive rate of speed when he knew or ought to have known that his motor vehicle was in a bad state of repair and when he knew or ought to have known the front end was in a dangerous condition.

The statement of claim also contained, in para. 4, an allegation that the respondent, on or about the month of February 1964 had purchased a 1954 Oldsmobile motor vehicle, that he had negligently maintained it and was careless in its upkeep, so that, just prior to the accident, it had travelled across the highway, then parallel to the highway and collided with a railway embankment, causing the injuries to the appellant. Six particulars of negligence were given, three of which related to failure to keep the vehicle in good repair and three of which referred to the respondent's having permitted the vehicle to be driven while in an unsafe condition.

Before a statement of defence had been filed the parties jointly referred a point of law to the Court, as to whether Section 71, as it read at the relevant time, provided as follows:

COUR SUPRtME DU CANADA the Families Compensation Act, for any injury, loss, or damage sustained OWN by such person or for the death of such person by reason of the operation et of that motor-vehicle or of that motor-vehicle with trailer attached by the driver thereof while such person is a passenger on or is entering or alighting from that motor-vehicle or trailer, unless there has been gross negligence on the part of the driver of the vehicle and unless such Martland J. gross negligence contributed to the injury, loss, or damage in respect of which the action is brought; but the provisions of this section shall not relieve

(a) any person transporting a passenger for hire or gain; or (b) any person, to whose business the transportation of passengers is normally incidental, transporting a passenger in the ordinary course of the transporter's business from liability for injury, loss, or damage to such passenger, or arising from the death of such passenger. No final judgment shall be entered in any such action until the Court is satisfied upon evidence adduced before it that the driver of the vehicle has been guilty of gross negligence. The question was answered in the negative by the learned judge who heard the application and his judgment was sustained on appeal'. From that decision the appellant, with leave, has appealed.

In the Courts below the issue was dealt with in two stages. First, the question was considered as to whether an owner, qua owner, could be held liable for ordinary negligence in the maintenance and condition of his motor vehicle. As to this, both Courts held that he could, notwithstanding s. 71. Second, they went on to hold that where the owner was the driver of the car in which the passenger was riding, when injured, s. 71 did apply because the cause of action against the owner, qua owner, for negligent maintenance became fused into the character and nature of his operation of the motor vehicle. The learned judge of first instance puts the matter this way:

Here, however, the owner and the driver of the vehicle are one and the same person and consequently, as the facts pleaded in paragraph 3 of the statement of claim indicate that the defendant "was driving his 1954 Oldsmobile motor vehicle" and the infant plaintiff was his passenger, the defendant is entitled to the protection of the statute in its requirement that gross negligence must be established. The operation of the vehicle by the defendant in such circumstances includes in the field of negligence surrounding that operation the knowledge of the defendant as to the condition of his vehicle and the condition of the vehicle itself. The particulars indicated in paragraph 4 of the statement of claim are particulars which are relevant to the negligence in the operation of the vehicle itself. The pleadings clearly indicate that the defendant owned and operated the vehicle at the time of the accident.

59 W.W.R. 41, D.L.R. (2d)

TLC.

119681 With respect, while reaching the same conclusion as to i6 the answer to be given to the question of law raised, I have adopted a somewhat different approach to the issue. eta. To the question of law, as framed, the answer had to be in the negative. Apart altogether from the application of s. 71, negligent maintenance of a motor vehicle, per se, could not give rise to a cause of action. Facts would have to be established to link the negligence alleged to the injuries sustained by the appellant. In the particulars given in para. 4 of the statement of claim, it is alleged that the respondent "permitted" his motor vehicle to be driven while it was in an unsafe condition, but it is clear, from para. 3, that the appellant alleges that the respondent was the driver. The cause of action alleged in the statement of claim is, in substance, that he negligently operated his motor vehicle which he knew, or should have known, was in an unsafe condition. The question which the parties sought to put in issue is whether, in such circumstances, s. 71 is applicable.

Eliminating from that section those words which are not relevant in this case, it provides:

The statement of claim alleges that, at the time the appellant was injured, the respondent was the owner and driver of a motor vehicle. The appellant states that she was carried as a passenger in that motor vehicle. Her claim is for injury sustained by reason of the operation of that vehicle by the respondent, the driver, while she was a passenger in it.

These facts alleged in the statement of claim bring the action squarely within the section, and, that being so, gross negligence on the part of the respondent contributing to her injury must be established if she is to succeed.

It is unnecessary to consider, and for that reason I express no opinion upon, what might be the position, under s. 71, of an owner of a motor vehicle against whom a claim is made by an injured passenger, where the owner is not