A recent decision out of Halifax has affirmed the contributory negligence status quo in car accident, and personal injury cases. In
Perrin v. Blake, 2016 NSSC 88, the Nova Scotia Supreme Court ruled that a contributory negligent plaintiff cannot recover 100% of his or her losses, notwithstanding that there may be two or more defendants also negligent.
The Plaintiff in the case was Casey Perrin, who was injured in a car accident in Nova Scotia. He was a passenger in the vehicle driven by one defendant (“Driver 1”). The other vehicle involved in the car accident was driven by the other defendant (“Driver 2”). Importantly, driver 2 did not have insurance. Driver 1 had an insurance policy which included claims arising from car accidents involving unidentified and uninsured vehicles. Under this policy, the insurance company would step into the place of Driver 2 since he had no insurance. This is otherwise known as “Section D” insurance.
A lawsuit was started against Driver 1, Driver 2, and Driver 1’s insurance company (since Driver 2 did not have insurance). In their defence, these parties to the lawsuit argued that the Plaintiff caused or contributed to his own injuries. They felt that he was contributorily negligent.
Relatively early in the lawsuit, all the parties decided to go to Court to have a question of law answered. Such an approach will often help settlement discussions. If may be that an answer to a legal question will bridge a settlement impasse.
In this case, the question which the Court was asked to answer was whether, in a case where there is a contributorily negligent plaintiff and two or more negligent defendants, can the plaintiff recover 100% of her damages from any of the defendants?
Everyone agreed with the basic principle that if a plaintiff is not contributorily negligent, the defendants would be liable for the plaintiff’s injuries on a joint and several basis. That is to say that when the combined conduct of the tortfeasors causes a single loss, the parties are concurrent tortfeasors (and jointly and severally liable for the totality of the plaintiff’s loss). Practically what this means is that the plaintiff can fully recover 100% of his/her damages from a single defendant (even if another defendant is found to also be at fault). This is helpful where that second defendant may not have the ability to compensate the plaintiff.
The Nova Scotia Court noted that at common law, a contributory negligent plaintiff was not entitled to any recovery for their damages (even if others were also partly to blame). This could of course result in unfairness, which has been remedied in all Canadian provinces by enacting contributory negligence legislation. Nova Scotia has the Contributory Negligence Act, the relevant provisions read as follows:
Apportionment of liability
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.
Interpretation of Section
(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. R.S., c. 95, s. 3
Determination of degrees of fault
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. R.S., c. 95, s. 4.
The Court noted that the majority of Canadian provinces have had similar legislation interpreted such that recovery of damages remains joint and several (regardless of whether the plaintiff may have been contributorily negligent). However, it found that this is not the case in Nova Scotia. The decision revised the development of the Nova Scotia Contributory Negligence Act, as follows:
The development of the Nova Scotia Contributory Negligence Act is outlined in South Shore.
In 1953 the model Contributory Negligence Act was revised by the Uniformity Commissioners. Section 2(1) and (2) of that Act are identical to 1(1) and (2) of s. 1 of the Nova Scotia Act as enacted by 1954 (N.S.) c. 7. Section 3(1) and (2) of the 1953 Model Act provided:
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) Except as found in ss. 4 and 5 where two or more persons are found at fault they are jointly and severally liable to the person suffering the damage or loss but as between themselves, in the absence of any contract, express or implied, they are liable to make contribution to or indemnify each other in the degree in which they are respectively found to have been at fault.
It will be noted that s. 3(1) of the Model Act is identical to s. 2 of the current Nova Scotia Act but that s. 3(2) of the Model Act was not enacted in this Province. Thus our Act does not provide for contribution or indemnity between wrongdoing defendants.
The Model Contributory Negligence Act has been adopted by various provinces, including Alberta, New Brunswick, Prince Edward Island, British Columbia, Saskatchewan and Newfoundland.
The Tortfeasors Act was first enacted in this province by 1945 (N.S.), c. 19 and has remained unchanged except that s. 3(2) was enacted 1961 (N.S.), c. 49.
A review of the relevant legislation in the other common law provinces discloses that where a section similar to s. 2 of the Nova Scotia Contributory Negligence Act exists it is always found in conjunction with a provision similar to s. 3(2) of the Model Act of 1953.
Critical to the Court’s analysis is that Nova Scotia’s legislation made the express decision not to include the words “jointly and severally” in the Act. This proved fatal to the Plaintiff’s argument. The Court ultimately rules that if the defendants are found to be negligent, and the plaintiff contributorily negligent, her recovery against each defendant is limited to the extent of their individual liability.
Practically what this means is that is the Plaintiff is found to be 25% liable for her injuries, and the Defendants jointly and severally liable for 75% for the accident, the Plaintiff can only recover 75% of her losses. That is the amount that corresponds with the defendants’ fault.