The plaintiff accepts the risk only where there has been understanding on the part of both parties that the defendant did not assume any responsibility to take due care for the safety of the plaintiff and the plaintiff accepted the risk. the plaintiff, knowing of the virtually certain risk of harm, agrees expressly or by necessary implication, to exempt the defendant from liability. ![]() ĭefences - Contributory negligence - Motor vehicle accidents - The plaintiff, defendant and friends went drinking - On the return trip, one of the friends drove the defendant's car - The plaintiff took over the driving, because the friend was impaired - After a stop, the defendant drove the car - The defendant was impaired and did not have a licence - The plaintiff did not consent and protested his reckless, fast driving - The defendant failed to negotiate a curve - The car went off the road, injuring the plaintiff - The Manitoba Court of Queen's Bench held that the accident was caused by the defendant driving at an excessive speed - The plaintiff was not contributorily negligent - See paragraphs 4, 15.ĭefences - Consent - Assumption of risk - Implied consent - Motor vehicle passenger - The Manitoba Court of Queen's Bench stated that "volenti non fit injuria applies only if. Negligence - Motor vehicle - Speed - Excessive speed. Negligence - Motor vehicle - Passenger - Contributory negligence of passenger - Driving with drunk driver. ![]() Personal injuries and death - Leg - Fracture - The plaintiff passenger suffered a transverse fracture of the left leg in a motor vehicle accident - Three weeks hospitalization - Wheel chair, walker and crutches for ten months thereafter - Extremely painful - Left leg six millimetres shorter - Walks with a limp - 18 inch scar - Permanent, ongoing pain in hip and back - The Manitoba Court of Queen's Bench awarded $20,000 general nonpecuniary damages - See paragraphs 16 to 18.ĭeductions for payments or assistance by third parties - Contractually - Insurance - Accident and sickness benefits - A passenger was injured in a motor vehicle accident - She was denied disability payments under the Manitoba Public Insurance Corporation Act, because she was aware the driver's licence had been suspended - The insurer submitted that the damages awarded the passenger should be reduced by the amount of disability payments to which she would have been entitled under the Act - The Manitoba Court of Queen's Bench declined to deduct the amount from the award of damages - See paragraphs 20 to 23. The Manitoba Court of Queen's Bench allowed the plaintiff's claim and assessed damages.Ĭause of action - Bars - Ex turpi causa non oritur actio - The Manitoba Court of Queen's Bench stated that the defence of ex turpi causa is available only in situations where the conduct of the plaintiff giving rise to the claim is so tainted with criminality or culpable immorality that the courts will not assist recovery because of public policy - See paragraph 6.Ĭause of action - Bars - Ex turpi causa non oritur actio - The plaintiff and defendant had been drinking with a friend in North Dakota, where she was under the drinking age - The plaintiff was not impaired and, initially, she drove the defendant's vehicle - After a stop, the defendant took over driving without the plaintiff's consent - The defendant drove at an excessive rate of speed and caused an accident - The plaintiff suffered a broken leg - The Manitoba Court of Queen's Bench held that the defence of ex turpi causa non oritur actio did not apply - See paragraphs 5 to 9. He also pleaded ex turpi causa non oritur actio, or voluntary assumption of risk or contributory negligence. The plaintiff passenger brought an action in negligence against the defendant for injuries suffered in a single vehicle accident. ![]() ![]() Leonard Penner (defendant) and Manitoba Public Insurance Corporation (third party) Lorraine Desjardin and Dewayne McKinney (plaintiffs) v.
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