Co-operators Insurance Association v. Kearney

Co-operators Insurance Association v. Kearney

Majority: On the facts plaintiff was a servant for the limited purpose of the adjustment; Part II of the Workmen's Compensation Act (ss.124 and 125) gave the plaintiff a statutory cause of action and barred the common‑employment defence; Highway Traffic Act s.50(2)/s.105(2) bars recovery against owner/driver qua owner/driver but does not extinguish an employer’s personal or statutory liability for the negligence of a servant acting within the scope of employment; appeal dismissed and trial judgment awarding $16,800 to plaintiff affirmed.

Citation
[1965] SCR 106
Parties
Appellant/defendant: Co-operators Insurance Association; Respondent/plaintiff: Robert Henry (Bert) Kearney; Co Defendant/employee: Edward George Livesey
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
19 November 1964
Procedural Posture
Civil Appeal Negligence/personal Injury / On Appeal to Supreme Court of Canada From Court of Appeal for Ontario
Outcome
Appeal dismissed (majority) with two dissenting judges
Legal Topics
Vicarious Liability, Common Employment, Gratuitous Passenger Immunity, Highway Traffic Act S.50(2)/s.105(2), Workmen's Compensation Act Ss.123 125, Master and Servant, Respondeat Superior
Source Language
English
Motor Vehicles Negligence Employment Law Statutory Interpretation Workers' Compensation Vicarious Liability Common Employment Gratuitous Passenger Immunity +4 more

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Parties

Co-operators Insurance Association

Appellant/defendant

Robert Henry (Bert) Kearney

Respondent/plaintiff

Edward George Livesey

Co Defendant/employee

Procedural Posture

Civil Appeal Negligence/personal Injury / On Appeal to Supreme Court of Canada From Court of Appeal for Ontario

Legal Issues

  1. 1 Whether plaintiff was servant of employer at time of accident
  2. 2 Whether Highway Traffic Act s.50(2)/s.105(2) barred plaintiff's action against employer
  3. 3 Whether Workmen's Compensation Act ss.123-125 removed common employment defence and created statutory cause of action under s.124

Ratio Decidendi

Majority: On the facts plaintiff was a servant for the limited purpose of the adjustment; Part II of the Workmen's Compensation Act (ss.124 and 125) gave the plaintiff a statutory cause of action and barred the common‑employment defence; Highway Traffic Act s.50(2)/s.105(2) bars recovery against owner/driver qua owner/driver but does not extinguish an employer’s personal or statutory liability for the negligence of a servant acting within the scope of employment; appeal dismissed and trial judgment awarding $16,800 to plaintiff affirmed.

Court Disposition

Appeal dismissed (majority) with two dissenting judges

Orders

  • Appeal dismissed with costs
  • Judgment of trial court awarding damages of $16,800 to plaintiff affirmed