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CIVIL PROCEDURE - Causes of action

Tuesday, August 18, 2020 @ 5:59 AM  


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Appeal by the plaintiff from the dismissal of his motion for summary judgment on the claim for negligence. The appellant sued the respondent for assault and negligence, claiming the respondent assaulted him and was negligent in assaulting the appellant with such a force that it caused the appellant permanent injuries. Both causes of action arose from the same factual matrix and caused him the same injuries and damages. The respondent was convicted of assault because of the incident and admitted liability. While the motion judge granted the appellant summary judgment for the action based on assault, she denied the motion for summary judgment respecting the claim based on negligence for the reason it was rendered moot.

HELD: Appeal dismissed. Once the summary judgment relating to the cause of action in assault was granted, where it rested on the same facts as the cause of action based in negligence and resulted in the same injuries and damages, the negligence action merged with the summary judgment in the assault action and it could not form the basis for a separate judgment. That was obviously the principle which guided the motion judge’s decision in terming the negligence action moot. Pleading two different causes of action in one Statement of Claim, based on the same facts which resulted in the same injuries and consequential damages, never entitled a party to two distinct judgments.

Michaud v. Comeau, [2020] N.B.J. No. 159, New Brunswick Court of Appeal, K.A. Quigg, B.L. Baird and C.A. LeBlond JJ.A., July 9, 2020. Digest No. TLD-August172020003