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.
Archive
DUE DILIGENCE Generally, occupational health and safety legislation in Atlantic Canada, like other jurisdictions, requires employers to take reasonable precautions to ensure the health and safety of workers in their workplace. Read More INCIDENT RESPONSE…
Read MoreThe Cyber-safety Act (“the Act”), excepting Part V (that part amending the Safer Communities and Neighbourhoods Act), was proclaimed August 6, 2013 and is now in effect. As discussed in our May 17, 2013 Client Update and our HRLaw blog The business case…
Read MoreThe Supreme Court of Canada has now released the much anticipated decision in the case of Marine Services International Ltd. v Ryan Estate, 2013 SCC 44. In doing so, the high court has signaled, at least…
Read MoreIn Wood v. Wood et al, 2013 PESC 11, a motion pursuant to Rule 7.08 of the Rules of Civil Procedure for court approval of a settlement involving a minor, Mr. Justice John K. Mitchell approved the settlement among the…
Read MoreClients who sit on boards of corporate employers should take note of recent amendments made to New Brunswick’s Employment Standards Act (the “ESA”) which could increase their exposure to personal liability in connection with claims advanced by…
Read MoreSignificant changes may be coming to the standard automobile policy in PEI, including increases to the accident benefits available under Section B and an increase to the so-called “cap” applicable to claims for minor personal…
Read MoreOn June 17, 2013, pursuant to the recently amended Section 70 of the Labour Relations Act for Newfoundland and Labrador (“NL”), the Government of Newfoundland and Labrador issued three Special Project Orders (“SPOs”) in respect of the…
Read MoreOn June 14, 2013, the Supreme Court of Canada (“the Court”) released the decision that employers across the country were waiting for. In CEP Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34, a…
Read MoreThe Government of Newfoundland and Labrador (“NL”) has recently released its “Aboriginal Consultation Policy on Land and Resource Development Decisions” (the “Policy”). A copy of the Policy can be accessed here. This new Policy is the…
Read MoreThe following is a province-by-province update of legislation from a busy 2013 spring session in Atlantic Canada. Watching these developments, we know the new legislation that has passed or could soon pass, will impact our…
Read More