Levesque, Donat J.

English

University of New Brunswick: Centre for Digital Scholarship Journals

U.  N.  B. L A W  J O U R N A L 37Case and CommentD RINK W ATK R AND A N O TH ER  v. KIMBKRHusband and wifc-Action by husband and wife for injury to wife-IIus- band’s contributory ncgligcnce-Liabilitv to contribute towards damages awarded to wife-Law Reform (Contributory Negligence)Act, 1945 (c. 28), s. 1 (1)The Courts, have always shown great reluctance to consider an Act of Parliament as altering or modifying a previous enactment, unless it does so in clear words. This is another decision which speaks eloquently in favour of this principle.The fact situation which gave rise to this action involves no in­tricacy. Mrs. O. was driving with her husband when their vehicle collided with a car driven bv Mr. K. Mr. and Mrs. D. brought this action for injuries suffered bv Mrs. 1). as a result of the collision: liability for the wife’s injury was admitted, but the husband plaintiff was found pu tlv  to blame. The defendant’s counterclaim raised the issue whether under section 1 (1) of the Contributory Negligence Act (19-f5) the husband would be liable towards his wife for Ins propor­tionate contribution to the injury.At the vcrv outset of his ease, counsel for the defendant was met w ith strong opposing legislation: the English Tortfeasors Act (sec. 6 ss. 1 * recites that “W here damage is suffered by any person as a result of a tort (c) anv tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been liable in respect of the same damage.” As husbands and wives may not sue each other in tort, this Act is ostensibly of no avail to the defendant but may prove fatal to his case.Despite the clear words of the Tortfeasors Act, counsel for the defendant argued strenuously that see. 1 (1) of the Contributory Negligence Act had the effect of defeating the tortious immunity which existed between husband and wife. T he pertinent section relied upon, provides: “W here any person suffers damage as the result partly of his own fault and partly of the fault of any otlier person or persons a claim in respect of that damage shall not be defeated bv reason of the fault of the person suffering the damage.” As this section makes no mention of the husband and wife limitation, the defendant con­tended that the husband plaintiff came within the words “any other person.” Hence the husband should be made to compensate the defendant for damages arising out of the injury to the w'ife since lie was partly responsible for it.Devlin J.. rejecting counsel’s contentions first directed liis attention to the general scope of the Contributory Negligence Act. Having remarked that the “Act is not intended to alter am substantive defence to a cause of action,” he continues: “T he defendant’s construction of subs ( 1 ) depends on reading the word “damage ’ as meaning more than physical damage and as wide enough to include the sort of fin­ancial loss which arises when, as the result of a wrongful act, a man has to make a payment to the third p,arty. It might perhaps, be read that wax if tlicrc were nothing to point to the contrary....but that reading makes subs. 3 at best superflous and at worst contradictory. If contribution between joint tortfeasors is among other cases covered by subs. (1 ), it is superflous, and, indeed almost incomprehensible, to pro­vide that s. 6 shall apply to persons who would be liable bv virtue of sub. s. ( 1 ). If however the meaning of “damage” is restricted to physical damage, the two sub-sections fall into place and arc complimentary.”If 1 were to add to that sound expose of statute exegesis it would be to agree with the conclusion of Devlin J. bv resorting to different means. Indeed I should prefer to tread a shorter path to reach a sim­ilar result.W ithout elaborating extensively on the history of the relevant statutes involved in this ease, it is possible to restrict their application, thus leaving their content intact and the word “damage” to be defined bv a higher authority.As I propose to discard the Contributory Ncgligcncc Act as irre­levant to the issue on the counterclaim, I shall deal with it now. This Act was ev olved to meet situations where the cause of damages due to negligence was divisible and attributable to different agents. It appor­tions damages in terms of causation; but its application is restricted to definite relationships. T o claim under the Act, independently of some other enactment, the parties must have been at the same time agents and victims of the negligent act complained of: both must have given and rcccivcd. If one of those essentials is lacking, the relationship is not established and the Act will not apply unless some other statute grants the privilege.Let me illustrate what I wish to convey bv referring to the case at hand. Here the plaintiff husband and the defendant were found negligent and both partly to blame for the collision. As between themselves, the Act clearly applies; but will it be applicable to all the damages which have issued from the impact?Glancing back on the facts, wc arc met with the wife’s claim for her injuries. The Court has found no ncgligcncc, cither personal or imputed on her part. W ere it not for the rule that wife and husband mav not sue each other in tort, she would have a perfectly good claim against cither perpetrator of the negligent act. But even then, site is not preclude:! from collecting her entire damages. The law on38 U.  N.  B. L A W  J O U R N A Lthis subjcct is thus expressed in The American Restatement Of Torts, \ o .  S83: ‘ W here two persons would otherwise be liable for a harm, one of them is relieved from liability by the fact that the other has an absolute privilege to act or an immunity from liability to the person harmed.” At tliis stage, the defendant admits liability for the wife’s claim but counterclaims against the husband for the hitter’s proportion­ate contribution to the wife’s injuries. As he was responsible for part of the wife’s injuries onlv, he contends that he should be compensated by the husband plaintiff for the other portion of the damages. The fallacy of defendant’s argument mav easily be detected; lie relies pri­marily and exclusively- on the Contributory Negligence Act, while he should first direct his attention to the Tortfeasors Act. Considered in relation to Mrs. D., both drivers were tortfeasors; they were co­tortfeasors. Therefore, the liability issuing from that relationship should be governed primarily bv the Tortfeasors Act. This Act pro­vides for compensation between co-tortfcasors; but one may recover from the other only if the partv injured could have sued that co-tort­feasor from whom recovery is sought. If the injured party in this case could have sued D. then the Act would apply and the amount of damage recoverable by K. would be defined by the Contributory Negligence Act. But as the facts in the counterclaim preclude us from enquiring beyond the Tortfeasors Act, it is submitted that am discussion of the Contributory Negligence Act was superfluous ancf irrelevant to the counter-issue.Donat J. Levesque, 2nd year.U.  N.  B. L A W  J O U R N A L  39GRAEME F. SOMERVILLELife Underwriter forThe Canada Life Assurance Company ROYAL BANK BUILDING -  SAINT JOHN, N. B.FRANK S. CLIFFB A., B.C.L.Barrister &  Solicitor, N otary Public Etc. SAINT JOHN, N. B.

Drinkwater and Another v. Kimber

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Drinkwater and Another v. Kimber

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