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30 Nov 2020

Summary Judgment denied to Plaintiff in “left hand turn” claim

by Matthew Pearn
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Rushton v. Estate of Ian MacKay, 2020 NBQB 216

On August 3, 2010 the Plaintiff Craig Rushton was travelling due west along Highway 3 near Harvey, New Brunswick. Meantime, the Defendant was travelling in the opposite direction. The Defendant turned left into the Harvey Irving gas station crossing the Plaintiff’s lane of travel. The two vehicles collided, either in the Plaintiff’s lane of travel or in the nearby gas station parking lot.


The Plaintiff commenced an action against the defendant for injuries. The Defendant filed a defence denying liability for the collision and denying that the Plaintiff suffered injuries as described in his claim.


In December of 2018, the defendant died. The Plaintiff asked the defendant to admit liability for the Plaintiff’s claim in its entirety. When this was not agreed, the Plaintiff filed a Motion for Summary Judgment. Along with the Motion, the Plaintiff filed an affidavit of 44 paragraphs, of which only one dealt with the alleged damages suffered by the Plaintiff. There was also a general lack of evidence regarding the cause of the collision, only factual accounts from the two parties to the action.


The Motion Judge considered whether Summary Judgment should be granted. The Motion Judge stated that to grant such a ruling, he would need sufficient evidence that (1) the defendant owed a duty of care to the Plaintiff driver, (2) the defendant may have breached that duty, (3) the Plaintiff had suffered damages, as claimed, and (4) that those damages were caused by the defendant’s breach of that duty.


Here, the Plaintiff simply attempted to present transcript evidence as proof of the cause of the collision and presented no evidence of the Plaintiff’s damages. The Motion Judge held that summary judgment should be denied, and thus dismissed the Plaintiff’s Motion with costs.