Skip to content

Client Update: Perrin v Blake reaffirms the law on contributory negligence and recovery of damages

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? The answer in Nova Scotia is no, which Justice McDougall recently confirmed in Perrin v Blake, 2016 NSSC 88.

Nova Scotia’s Contributory Negligence Act provides in section 3 that a plaintiff found contributorily negligent is only entitled to recover from each defendant in proportion to that defendant’s liability. The words “jointly and severally” do not appear in the Contributory Negligence Act – an important factor in the decision.

In other words, the defendants are not jointly and severally liable to the negligent plaintiff. They are only severally, or proportionately, liable.

Take the example of a Nova Scotia plaintiff who is found 50% liable for a motor vehicle accident, with each of two defendants 25% liable. The plaintiff can only recover 25% of her damages from each defendant, because that is the proportion that corresponds to each defendant’s own fault. (If the defendants were jointly and severally liable, the plaintiff could recover the entirety of the other 50% share of her damages from either defendant, who could then pursue their co-defendant for contribution pursuant to the Tortfeasors Act.)

Justice McDougall’s decision on this point is consistent with many previous Nova Scotia cases, like Inglis Ltd v South Shore Sales & Service Ltd (1979), 31 NSR (2d) 541 (SC (AD)); Lunenburg (County) District School Board v Piercey, 1998 CanLII 3265 (CA); Teed v Amero, 2001 NSSC 97; and Merrick v Guilbeault, 2009 NSSC 60.

These cases have not been overtaken by the Supreme Court of Canada decisions in Bow Valley Huskey (Bermuda) Ltd v Saint John Shipbuilding Ltd, [1997] 2 SCR 1210 or Ingles Tutkaluk Construction Ltd, 2000 SCC 12, which dealt with different statutory regimes.

Justice McDougall acknowledged that other provinces—like Alberta, Ontario, and Saskatchewan—have made different legislative choices about the liability of concurrent tortfeasors where there is contributory negligence on the part of the plaintiff. On Nova Scotia’s regime, Justice McDougall noted: “While this may limit a plaintiff’s ability to recover, it is nonetheless a valid way to allocate the risk of non-recovery and should not be interfered with.”

Therefore, the status quo remains in force in Nova Scotia: a contributorily negligent plaintiff will only be able to recover from each of multiple concurrent tortfeasors according to the proportion of their liability.

Stewart McKelvey represented one of the defendants in this matter and successfully advocated for this confirmation of the law. The foregoing is intended for general information only. If you have any questions about how this may affect you, please contact a member of our Insurance practice group.

SHARE

Archive

Search Archive


 
 

Reset for renewables: Nova Scotia overhauls energy regulation and governance in advance of influx of renewable energy

April 5, 2024

By Nancy Rubin and James Gamblin The Government of Nova Scotia has embarked on a path to dramatically reshape the regulation and governance of the energy sector with the passage of Bill 404, the Energy…

Read More

An employer’s guide to human rights law in Atlantic Canada

April 2, 2024

By Kathleen Starke and Annie Gray Human rights landscape Human rights legislation prohibits discrimination in specific contexts, including employment and the provision of services. In all Atlantic Provinces, Human Rights Commissions are responsible for enforcing…

Read More

Recognizing subtle discrimination in the workplace: insights from recent legal cases

March 4, 2024

By Sheila Mecking and Michiko Gartshore Subtle discrimination can have a much stronger and longer effect on employees when not properly addressed. It can also result in costly consequences for an employer who does not…

Read More

Immediate changes to travel eligibility for citizens of Mexico

February 29, 2024

By Brittany Trafford and Brendan Sheridan Today Immigration, Refugees and Citizenship Canada (“IRCC”) has announced significant changes to the travel requirements for Mexican citizens. As of February 29, 2024 at 11:30p.m. Eastern Time, all electronic…

Read More

Updated guidance on business reporting obligations under Canada’s supply chain transparency legislation

February 23, 2024

By Christine Pound, ICD.D., Twila Reid, ICD.D., Sarah Dever Letson, CIPP/C, Hilary Newman and Daniel Roth Introduction As we reported on November 30, 2023, the Fighting Against Forced Labour and Child Labour in Supply Chains…

Read More

Trustees beware! New trust reporting and disclosure requirements under the Income Tax Act are here – are you ready for them?

February 21, 2024

By Richard Niedermayer, K.C., TEP  & Rackelle Awad New trust disclosure rules originally announced on February 27, 2018, are now in force, and trusts with taxation years ending on or after December 31, 2023 are…

Read More

Proposed Criminal Interest Rate Regulations: exemptions to the lower criminal interest rate

February 14, 2024

By David Wedlake and Andrew Paul In late December 2023, the Federal Government issued draft Criminal Interest Rate Regulations under the Criminal Code. These proposed regulations follow the Budget Implementation Act, 2023, No. 1 which…

Read More

Outlook for 2024 Proxy Season

February 9, 2024

By Andrew Burke, Colleen Keyes, Gavin Stuttard, David Slipp and Logan Walters With proxy season on the horizon, many public companies are once again preparing their annual disclosure documents and shareholder materials for their annual…

Read More

Significant changes announced for new study permit applications

February 6, 2024

By Brendan Sheridan and Tiegan Scott The Government of Canada recently announced further changes to the international student program that not only limits the number of new study permit applicants per year, but also increases…

Read More

Plans of arrangement come to Newfoundland and Labrador

January 30, 2024

By Tauna Staniland, K.C., ICD.D, Joe Thorne, and Nadine Otten What can you do when your corporation wants to complete a complex transaction requiring significant corporate restructuring that cannot be easily completed under the corporation’s…

Read More

Search Archive


Scroll To Top