September 1, 2021
Contributory Negligence and Joint and Several Liability
CONTRIBUTORY NEGLIGENCE AND JOINT AND SEVERAL LIABILITY IN CANADA
Michael Libby and Clark Reynolds
I. INTRODUCTION – THE NATURE OF CONTRIBUTORY NEGLIGENCE
Even though a plaintiff may have suffered damage or loss attributable to another’s negligence, the plaintiff’s claim to damages may be reduced or eliminated if the plaintiff has failed to take reasonable care for his or her own safety, and his or her own negligence has contributed to that loss. In other words, where the plaintiff’s own negligence contributes to his or her injury, his or her right to fully recover for that loss may be correspondingly affected.
The definition of contributory negligence was re-stated by the Supreme Court of Canada in Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, where the Court held:
…when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiffs claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
II. CONTRIBUTORY NEGLIGENCE CONTRASTED WITH FAILURE TO MITIGATE
In order to better understand contributory negligence, it is useful to compare and contrast it with two similar but distinct legal principles which may also serve to defeat or reduce a plaintiff’s claim based on his or her own conduct: (1) a plaintiff’s duty to mitigate loss; and (2) the doctrine of volenti non fit injuria.
II.A. DUTY TO MITIGATE
A plaintiff’s duty to mitigate is derived from the general proposition that a plaintiff cannot recover from the defendant damages which he himself could have avoided by taking reasonable steps. A plaintiff’s duty to mitigate is therefore, rooted in the law of damages, and is principally concerned with the reasonableness of the plaintiff’s conduct after the event causing the loss. If a plaintiff does not take reasonable steps to mitigate his or her losses following that event, the amount of damages to which he or she would otherwise be entitled will be reduced by the amount attributable to that failure. In contrast, the defence of contributory negligence is concerned with the role of the plaintiff in the events leading up to and causing the loss so as to determine whether the plaintiff must bear some responsibility for the loss. Therefore, the principal distinction between contributory negligence and a failure to mitigate is that the former presents a question of relative responsibility for a loss, while the latter is concerned with the manner in which a plaintiff has managed and limited his or her loss.
II.B. VOLENTI NON FIT INJURIA
The doctrine of volenti non fit injuria, which is applicable only in limited situations, provides that a plaintiff may not recover for any loss for which he or she has voluntarily assumed the risk of injury. While the defences of both contributory negligence and volenti are based on the plaintiff’s conduct, in the former, the plaintiff must be negligent and thereby contribute to his or her injury. The latter provides a complete defence; the plaintiff is barred from recovery on the basis that he or she voluntarily and knowingly accepted the risk of being injured by the defendant’s conduct.
III. THE TEST FOR CONTRIBUTORY NEGLIGENCE
In Bow Valley, supra, the Supreme Court of Canada adopted the test for contributory negligence that was set out by Denning L.J. in Jones v Livox Quarries, as follows:
Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.
Despite the fact that contributory negligence does not require a duty of care, proving contributory negligence against a plaintiff is much like establishing negligence against a defendant. The standard of care which the plaintiff must meet is no different than that of a reasonable person acting to protect his or her own safety or property.
Furthermore, a plaintiff’s contributory negligence must be causally related to the plaintiff’s loss, and the defendant must prove that the plaintiff’s negligence caused or contributed to that loss. If the plaintiff’s injury is outside the scope of the foreseeable risk to which he or she is exposed by his or her actions, the plaintiff’s conduct will not be considered the proximate cause of the loss.
IV. THE PRACTICAL EFFECT OF CONTRIBUTORY NEGLIGENCE
Historically, contributory negligence was a complete defence to a plaintiff’s claim. Once the defendant was able to establish that the plaintiff contributed to his or her own loss, the plaintiff would be denied any means of recovery. That traditional contributory negligence bar has been replaced by provincial legislation which apportions liability between negligent defendants and contributorily negligent plaintiffs. While the provincial statutes have many similarities, some differ significantly as to whether defendants will be jointly and severally liable, as opposed to severally liable, where a plaintiff is contributorily negligent. A good example of the similarities and differences between the provincial statutes can be seen from a comparison of relevant sections of the Ontario, British Columbia, and Saskatchewan legislation – each of which adopt a slightly different approach to joint and several liability, which can lead to significant differences.
Sections 1, 3, and 4 of the Ontario Negligence Act read as follows:
1 Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.
3 In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.
4 If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent
This legislation provides that when there are two or more tortfeasors, and a plaintiff has also been found negligent, the proper approach to apportionment is to first reduce the extent of the recoverable damages in proportion with the plaintiff’s negligence, and then to apportion the remaining damages between the defendants, in accordance with their fault. Despite any contributory negligence on the part of the plaintiff, the defendants will be jointly and severally liable for the damages awarded to the plaintiff.
IV.B. BRITISH COLUMBIA
Sections 1, 2(c), and 4 of the British Columbia Negligence Act read as follows:
1 (1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.
(3) Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed.
2 The awarding of damage or loss in every action to which section 1 applies is governed by the following rules:…
(c) as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss is entitled to recover from that other person the percentage of the damage or loss sustained that corresponds to the degree of fault of that other person;
4 (1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault.
(2) Except as provided in section 5 if 2 or more persons are found at fault
(a) they are jointly and severally liable to the person suffering the damage or loss, and
(b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault.
The effect of these sections was explained by the British Columbia Court of Appeal in Leischner et al v West Kootenay Power and Light Company, et al., as follows:
Sections 1 and 4 apply to different situations; s. 4 applies to cases where two or more persons cause damage to the plaintiff; s. 1 applies where the plaintiff himself is one of the persons found to have caused his damage or loss; s. 2(c) provides that in a s. 1 case the plaintiff shall recover from a defendant only the proportion of the loss that corresponds to that defendant’s fault…
In the result where a plaintiff is blameless, he obtains joint and several judgment against any number of defendants responsible for his loss; where a plaintiff shares in the blame, then by ss.1 and 2(c) he obtains several judgments against the defendants liable for his loss.
A simple example is helpful in understanding the differences between the two statutory schemes:
A plaintiff is found 30% contributorily negligent for an accident. Defendant A (an insured corporation) is found 20% at fault, and Defendant B (an individual) is found 50% at fault. Under the B.C. statute, the plaintiff can only seek 20% of his judgment from Defendant A, the insured corporation, and must seek the remaining 50% of his judgment from Defendant B, the individual. If Defendant B has no funds from which to pay his 50% of the judgment, the plaintiff is left with no recourse.
Under the Ontario legislation, however, the plaintiff would be free to collect the full 70% of the judgment from defendant A, the insured corporation, even though defendant A was only 20% at fault.
Both legislative schemes provide for contribution and indemnity among defendants in cases of joint and several liability. This permits any defendant that is called upon by the plaintiff to pay more than its proportionate share of the loss to seek reimbursement from the other defendants for their proportionate share.
A recent legislative change in British Columbia bringing in a “no-fault” auto insurance scheme will also have a significant impact on joint and several liability in commercial host claims. The amendments to the Insurance (Vehicle) Act which came into effect on May 1, 2021 will impact a plaintiff’s ability to seek contribution from commercial hosts arising out of impaired driving “overservice” claims in British Columbia. While the scheme still permits plaintiffs to sue commercial hosts, the hosts’ liability will now always be several rather than joint and several – even where the plaintiff is not contributorily negligent. This means that in such a claim, recovery from a commercial host will be limited to the host’s degree of fault.
Sections 2, 3, and 3.1 of the Saskatchewan Contributory Negligence Act read as follows:
2 (1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault, but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
(2) Nothing in subsection (1) operates so as to render any person liable for any damage or loss to which his fault has not contributed.
3 (1) Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which each person was at fault.
(2) Subject to section 3.1, if two or more persons are found at fault, they shall be jointly and severally liable to the person suffering damage or loss, but as between themselves, in the absence of a contract, express or implied, they are liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault.
3.1 (1) In this section, “other persons found at fault” means:
a) the person suffering the damage or loss if that person has been found to be at fault; and
b) the other persons found to be at fault from whom the contribution can be collected.
(2) If the court is satisfied that the contribution of a person found at fault cannot be collected, the court shall, after determining the degree in which each person is at fault, make an order apportioning the contribution that cannot be collected among the other persons found at fault, proportionate to the degrees in which they have been respectively found to have been at fault.
(3) This section applies only to damages or losses caused or contributed to by a person’s acts or omissions that take place on or after January 1, 2005.
Much like Ontario’s, Saskatchewan’s legislation reduces recoverable damages in proportion to the plaintiff’s degree of fault. It also similarly provides for joint and several liability between tortfeasors through s. 3(2), allowing for contribution and indemnity in accordance with their respective degrees of fault. Similarly, both provinces’ legislation provides that the plaintiff’s contributory negligence does not limit joint liability between tortfeasors.
But while Sections 2 and 3 of the Contributory Negligence Act may function similarly to Ontario’s legislation, Section 3.1 is distinct from other contributory negligence regimes in Canada. This section provides that where the contribution of a person at fault cannot be collected, their share of contribution is distributed among the “other persons found at fault” in proportion to their degree of fault. Notably, contributorily negligent plaintiffs are included in the definition of “person at fault” under s. 3.1(a) such that they are also responsible for a share of uncollectable contributions.
Saskatchewan’s Contributory Negligence Act has also been interpreted as distinct from legislation in British Columbia and Ontario regarding contributions from non-negligent tortfeasors. The Saskatchewan Court of Appeal has held that the word “fault” in s. 3 of the Act only applies to negligent tortfeasors and does not allow for contribution from intentional tortfeasors. This is contrary to British Columbia and Ontario, where their respective appellate courts have interpreted the word “fault” broadly enough to allow for contribution from non-negligent tortfeasors.
IV.D. NOVA SCOTIA
Sections 3 and 4 of the Nova Scotia Contributory Negligence Act read as follows:
3 (1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
(2) Nothing in this Section operates so as to render any person liable for any damage or loss to which his fault has not contributed.
4 Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree to which each person was at fault.
While Nova Scotia’s Contributory Negligence Act is generally comparable to other contributory negligence regimes, it does not include reference to “joint and several” liability which has played a role in some limited judicial interpretation of the legislation. In Perrin v Blake, the Nova Scotia Supreme Court addressed the absence of this language alongside prior decisions that considered the legislation, stating that “s. 3 of the Act limits the responsibility of a defendant to his or her proportionate allocation when the plaintiff is contributorily negligent”. If such an interpretation is maintained, this would align Nova Scotia more closely with British Columbia as joint and several liability would only apply where a plaintiff is not contributorily negligent.
IV.E. CANADA GENERALLY
Besides the statutory schemes governing contributory negligence in British Columbia and Nova Scotia, other jurisdictions in Canada are generally consistent with Ontario’s approach. In Alberta, the Court of Appeal has explicitly confirmed that joint and several liability under the Contributory Negligence Act applies among defendants even where the plaintiff is found to be contributorily negligent. Further, since legislation such as New Brunswick’s Contributory Negligence Act as well as Manitoba’s The Tortfeasors and Contributory Negligence Act include language referencing joint and several liability, it seems less likely that the limited judicial interpretation in Nova Scotia would be reproduced in these jurisdictions.
V. THE BASIS FOR APPORTIONMENT OF FAULT
Apportioning fault for contributory negligence is not as straightforward as allocating responsibility among several parties, all of who have played a role in causing a loss. The court’s task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each.
This is because the degree of a defendant’s negligence in causing an accident bears no relationship to how much of the damage might have been prevented had the plaintiff not been contributorily negligent. Since the extent to which a defendant and the extent to which a plaintiff “caused” the plaintiff’s loss are not related, “causation” cannot be the basis of the allocation of responsibility between them.
A fault or blameworthiness analysis evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care. The question that affects apportionment, therefore, is the weight of fault that should be attributed to each of the parties, not the weight of causation. As stated by the British Columbia Court of Appeal in Cempel:
In the apportionment of fault there must be an assessment of the degree of the risk created by each of the parties, including a consideration of the effect and potential effect of occurrences within the risk, and including any increment in the risk brought about by their conduct after the initial risk was created. The fault should then be apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties.
Alberta’s Court of Appeal has similarly rejected the “causation” approach to apportioning fault, confirming that the comparative blameworthiness analysis applies. The Court stated that causation is a necessary precondition to liability, but apportionment is based on fault.
The courts in Ontario have addressed apportionment of fault similarly. In Rizzi v Marvos the Court of Appeal concluded that apportionment was based on fault or negligence, rather than causation. Laskin JA, (dissenting in part), stated that “The principle of apportioning fault on the basis of comparative blameworthiness, not comparative causation, has been approved by this court, by most academics, and by other provincial appellate courts in Canada.”
VI. EXAMPLES OF REDUCTIONS IN DAMAGES FOR CONTRIBUTORY NEGLIGENCE
As noted above, provincial legislation generally provides that where it is impossible to establish different degrees of fault, liability will be apportioned equally.
Where evidence permits the court to apportion fault, the extent to which, a plaintiff’s damages should be reduced for contributory negligence must be determined based upon the evidence. While apportionment will depend on the facts of each particular case, the following overview will give an example of reductions that have been imposed by courts in various types of cases.
VI.A. MOTOR VEHICLE
- Plaintiffs who are impaired drivers or willing passengers with impaired drivers, and are injured in motor vehicle accidents may be found to be 25% to 35% contributorily negligent.
- Plaintiffs involved in motor vehicle accidents who fail to wear seatbelts may be found to be 10% to 20% contributorily negligent (but only where the defendant can prove that proper use of a seatbelt would have prevented or lessened the injury).
- Motorcyclists and bicyclists who fail to wear helmets may be found to be 10%-15% contributorily negligent (where the defendant can prove that proper use of a helmet would have reduced the injury).
- A plaintiff pilot whose airplane hit thin unmarked lightning strike wires in the course of landing was held to be 50% contributorily negligent.
- Plaintiffs who boarded the wrong aircraft despite the fact that employees of the defendant airline had inspected their boarding passes without comment, were held to be 50% contributorily negligent for missing their correct flight.
- The plaintiff lessee of a helicopter that crashed due to a mechanical problem was held to be 40% contributorily negligent for failing to previously address a warning issued by the manufacturer about that mechanical problem.
- A plaintiff who had been a passenger in a small airplane and who was injured when he stood before the taxiing airplane in an attempt to help the pilot roll it into the hanger was held to be 30% contributorily negligent.
- Two of the plaintiffs were pilots of a helicopter involved in an accident and were each held to be 10% contributorily negligent for flying the helicopter above its weight specifications.
- A plaintiff whose pleasure craft collided with a ferry was held to be 33% contributorily negligent for failing to keep a proper lookout in a shipping channel he knew to be navigated by large ferries.
- A plaintiff whose ship was struck by a second ship that crossed the plaintiff’s ship’s course was held to be 25% contributorily negligent for failing to keep a proper lookout, and for proceeding on assumptions as to the other ship’s movements that were based on scanty information.
- The owner of a fishing vessel whose net was damaged by another nearby fishing vessel was held to be 75% contributorily negligent for failing to keep a proper lookout.
- The plaintiff cargo carrier was found to be 40% contributorily negligent with respect to damage to its barge caused by improperly stowed cargo because the barge’s captain had overseen, and provided some instruction for the stowage of the cargo.
- A plaintiff whose pleasure boat was struck by another vessel was found to be 20% contributorily negligent for failing to keep a proper lookout, as he was left with insufficient time to take the appropriate measures to avoid the collision.
- A plaintiff who leased their vessel to be used as lodging for an offshore logging camp was found to be 80% contributorily negligent since they had moored the vessel in shallow water, failed to seek permission to tie their vessel to the booming ground, and failed to ensure there was a watchman in place.
VI.D. COMMERCIAL HOST
- A plaintiff suffered injuries when she slipped and fell in a restaurant, and while she was not found to be legally impaired the fact that she had consumed a martini was considered to have contributed to the fall, leading to a finding of 35% contributory negligence.
- A plaintiff was assaulted and injured while in the parking lot of a bar, however due to his aggressive and confrontational behaviour as well as his level of intoxication he was found 25% contributorily negligent.
- A passenger in a vehicle driven by an intoxicated driver was injured when the vehicle hit a tree. While the driver and bar were held liable, the passenger was held to be 25% contributorily negligent because he failed to wear a seatbelt, entered the vehicle knowing the driver was impaired, and encouraged the driver to drive faster.
- A plaintiff was injured when he fell down the stairs outside of a tavern where he had been drinking, but due to the fact that he had been previously directed to leave through the front door before it was locked and had been consuming alcohol all evening he was found 25% contributorily negligent.
- A plaintiff was a passenger in a vehicle driven by an intoxicated driver, and while the driver and two commercial hosts were found liable the plaintiff was held to be 30% contributorily negligent for drinking himself into a state of intoxication as well as getting into a vehicle with a driver he knew was intoxicated.
VI.E. SPORTS AND RECREATION
- A 16-year old plaintiff was injured while participating in a gymnastics unit as part of gym class and was found 25% contributorily negligent since she willingly attempted a maneuver she knew could be difficult.
- An experienced skier who became preoccupied cleaning snow and ice off of the seat of a lift chair failed to notice that it was ascending, leaving him dangling until he allowed himself to fall, resulting in a finding of 50% contributory negligence.
- A novice water skier had his fingers severed when they became entangled in the ski rope, but in part due to his prior experience with moving ropes and cables he was found 15% contributorily negligent.
- A plaintiff was rendered paraplegic as a result of diving into shallow water, and despite an absence of signs indicating water depth he was found to be 65% contributorily negligent due to his choice to dive into water of unknown depth.
- A skydiving student was injured when she crash landed on her first jump, but due to her failure to mentally review and employ her training she was found to be 30% contributorily negligent.
- A credit union brought an action against a solicitor for his failure to properly prepare guarantees related to a mortgage, but the fact that the credit union had failed to sufficiently examine the documents they received from the solicitor led to a finding of 50% contributory negligence.
- A plaintiff suffered total loss of vision in his left eye shortly after being assessed by an ophthalmologist, but due to his failure to promptly report his vision issues he was found 40% contributorily negligent.
- A plaintiff was rendered completely incapacitated due to complications from TB meningitis due to a delayed diagnosis, but the plaintiff’s failure to attend for further assessment resulted in a finding of 30% contributory negligence.
- The plaintiff’s office building was negligently designed and constructed such that it experienced leaks and flooding, but the plaintiff was found to be 15-25% contributorily negligent in relation to a number of claimed repair costs due to their own inefficient repairs and piling of snow.
- A company was subjected to both a penalty and interest related to over $1 million in unremitted provincial retail sales tax due to their accountant’s negligence, however it was held to be 50% contributorily negligent for its failure to detect the shortfall as this had been an issue revealed by prior audits.