Negligence Act ~ Introduction

The Negligence Act deals with several aspects of negligence, liability and apportionment, including

1)    liability,

2)    apportionment between joint tortfeasors,

3)    apportionment to plaintiff,

4)    no determination of apportionment, and

5)    procedural matters.

The difficulty arises in cases where there are several parties who might be liable for the damages including the plaintiff himself. The Act specifies the law, the presumptions of law, apportionment and subsequent contribution as between the parties liable.

Negligence Act ~ Liability of Joint Tortfeasors

The Negligence Act sets out dealing with the matter of the liability between joint tortfeasors.

Here is the section 1:

Extent of liability, remedy over

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.

So, what does that mean?

Let’s assume that three cars. A, B and C are involved in an accident. They are following one another. The first vehicle A comes to a full stop. However, it’s icy and the second car B fails to stop and collides with the rear of vehicle A. The third car is travelling far to fast and crashes into the rear of vehicle B, forcing it once again into vehicle A.

Let’s assume that a court determined that the total damages sustained amounted to $50,000.

This particular section of the Negligence Act provides as follows:

•·        The Court decides on an apportionment of liability between B and C for A’s damages.

•·        The Court might determine that B is 25% at fault and C is 75% at fault.

•·        Both B and C are responsible or liable to A for $50,000.

•·        As between themselves, B will be responsible for 25% of $50,000, or $12,500.

•·        As between themselves, C will be responsible for 75% of $50,000, or $37,500.

•·        The liability to A, is joint and several, that means they both together owe A $50,000 and each of B and C owe A, $50,000 individually.

•·        Should either B or C pay A, the full $50,000, then they are entitled to contribution and indemnity from the other, for their share. B can get 75% from C, and C can get 25% from B.

Negligence Act ~ Recovery

In our example, A sustained injuries and damages due to the negligence of both B and C. But, since it was actually just B who came into direct contact with A, then A might decide that just B will be sued.

Let’s look at section 2:

Recovery as between tortfeasors

2. A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.

So, B gets sued by A and is liable for a judgment in favour of A in the amount of $50,000. B can still sue C and claim contribution and indemnity. There are two choices 1) add C to the action by third party proceedings or 2) wait until the judgment is rendered by the court.

It is also contemplated that the first action will be settled rather than tried. In this case, B still has the same rights of recovery. However, this time B needs to prove that the settlement figure, (whatever it was) was reasonable in the circumstances.

In this situation B might reasonably argue that a $40,000 settlement was reasonable since it represented a savings, and that a $60,000 settlement might also be reasonable since it saved the costs of trial.

Should the settlement figure have been $100,000, which a court might conclude was well in excess of a reasonable amount, the court could fix a lower amount.

Again, the right to recover is limited to the apportionment determined by the court, which in the case of settlement shall be determined at the second trial (B vs. C) or in the third party proceedings (B vs. C).

Negligence ~ Apportionment to Plaintiff

In some cases, the plaintiff himself may have caused or contributed to the accident.

Let’s reconsider the same three car rear-end accident, but this time, vehicle A, changed lanes quickly without signally. So, while vehicle A did come to a full stop in front of vehicle B, it cut down on the stopping distance of B, and also C. So, in part A contributed to the accident as well.

Here’s section 3:

Plaintiff guilty of contributory negligence

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.

The net result is fairly clear. Some of the blame can be place upon the plaintiff. Assuming that A is found to be 50% at fault, then B is 37.5% at fault and C is 12.5% at fault.

Apportionment allows a court to assess the liability of the plaintiff (victim) in the fact situation.

Negligence Act ~ No Determination of Apportionment

Sometimes it’s difficult to apportion liability.

Here’s section 4 of the Negligence Act:

Where parties to be deemed equally at fault

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.

The result seems clear enough. If the court cannot ascertain the degree of liability, then the default position is simply “equal apportionment.

Let’s assume that there was $10,000 in damages to the rear of the car following the first accident, but that the driver of vehicle A sustained a severe whiplash and other injuries assessed at a value of $40,000.

We know this, because following the first collision the plaintiff driver in vehicle A got out examined the damage and then sat back down in his vehicle awaiting the police. Then, the second crash. The first caused the vehicle damage and the second caused the personal injury. The question becomes whether this was one accident or two. Should the apportionment be 20% and 80%? Should there be any liability placed upon vehicle B for the personal injury? Should there be any liability placed upon vehicle C for the car damage? It was already damaged! Or, in the case of the personal injury, there was no injury whatsoever until the second car hit. Then again, vehicle A wouldn’t have been sitting there at the intersection immobilized had it not been for the first collision.

If it simply gets too difficult to decide, the court might resort to the equal apportionment rule.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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