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
By Levi Parsche As 2022 winds to a close, it’s a good time to review some of the legislative changes that have impacted Atlantic Canada in the last year — and consider what’s ahead for…
Read MoreBy Kevin Landry and Colton Smith The Bank of Canada (“BoC”) has announced the supervisory framework (the “Framework”) it will use to oversee payment service providers under the Retail Payments Activities Act. The Retail Payments Activities…
Read MoreBy John Samms, Stuart Wallace and Dave Randell On December 14, 2022, the Newfoundland and Labrador Department of Industry, Energy and Technology announced the launch of a Crown land call for bids for wind energy…
Read MoreWe are pleased to present Beyond the Border: A Year End Immigration Wrap-Up. Compiled by lawyers from our Immigration team, this 2022 update covers topics including a look back at the end of pandemic restrictions…
Read MoreNote: this is an update to a previously posted Thought Leadership piece from November 2020 to reflect the delayed coming into force of these proposed changes, as well as additional information that has become available. …
Read MoreAs part of our presenting sponsorship of the 2022 Halifax Chamber of Commerce Annual Fall Dinner, lawyers in our Immigration group compiled a series of Thought Leadership articles drawing on the themes of population retention…
Read MoreBy Brittany Trafford and Michiko Gartshore On November 16th, 2022 the Federal Government switched to the 2021 National Occupational Classification (NOC) structure from the prior 2016 version. The NOC is Canada’s national system used to…
Read MoreAs part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…
Read MoreKevin Landry, Charlotte Henderson, and James Pinchak The governance of Artificial Intelligence (AI) is entering a new era since the Canadian Government first announced a digital charter in 2019 as part of a larger-scale overhaul…
Read MoreWe are pleased to present the eleventh issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. With a new academic year well underway, the Atlantic Region is finally seeing…
Read More