Kirby v. Kalyniak

Kirby v. Kalyniak

Driver breached statutory duty by failing to use reasonable care and to give a proper signal when turning; both parties failed to keep a proper lookout and their negligence contributed to the injury; under statutory onus and contributory negligence statute the appropriate apportionment is two-thirds liability to the appellant and one-third to the respondent, and damages awarded accordingly.

Citation
[1948] SCR 544
Parties
Defendant Appellant: Leonard A. Kirby; Plaintiff Respondent: Paul Kalyniak
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
5 October 1948
Procedural Posture
Tort Motor Vehicle Negligence / Appeal to Supreme Court of Canada From Court of Appeal for Manitoba
Outcome
Appeal allowed in part; liability apportioned two-thirds against appellant and one-third against respondent; respondent awarded two-thirds of trial-assessed damages.
Legal Topics
Negligence, Contributory Negligence, Statutory Onus, Apportionment of Liability, Duty to Signal and Keep Lookout
Source Language
English
Tort Traffic/highway Law Civil Procedure Negligence Contributory Negligence Statutory Onus Apportionment of Liability Duty to Signal and Keep Lookout

Case Brief

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Parties

Leonard A. Kirby

Defendant Appellant

Paul Kalyniak

Plaintiff Respondent

Procedural Posture

Tort Motor Vehicle Negligence / Appeal to Supreme Court of Canada From Court of Appeal for Manitoba

Legal Issues

  1. 1 Whether driver breached statutory duty to use reasonable care before turning and to signal under Highway Traffic Act s.56(1)
  2. 2 Whether driver kept proper lookout and whether horn sounding sufficed to indicate a right turn
  3. 3 Allocation of fault and statutory onus under Highway Traffic Act s.81(1) and contribution under The Tortfeasors and Contributory Negligence Act s.4(3) and s.8

Ratio Decidendi

Driver breached statutory duty by failing to use reasonable care and to give a proper signal when turning; both parties failed to keep a proper lookout and their negligence contributed to the injury; under statutory onus and contributory negligence statute the appropriate apportionment is two-thirds liability to the appellant and one-third to the respondent, and damages awarded accordingly.

Court Disposition

Appeal allowed in part; liability apportioned two-thirds against appellant and one-third against respondent; respondent awarded two-thirds of trial-assessed damages.

Orders

  • Respondent awarded special damages $471.95 CAD and general damages $1,066.65 CAD (total $1,538.60 CAD)
  • Costs: respondent to have costs of the trial and of the appeal to the Court of Appeal; appellant to have one-third of his costs in the Supreme Court of Canada