Canada: The ABCs Of Damage Apportionment

Last Updated: March 13 2014
Article by Sydney Blackmore

Oftentimes, litigation involves multiple tortfeasors. The apportionment of damages between multiple tortfeasors relies on the degree of fault attributable to each of the defendants.

This article will outline the necessary steps and considerations that arise during apportionment calculations.

1: Identify the Plaintiff's Injury

An understanding of the type of injury suffered by the plaintiff is required for damage apportionment. This includes knowing all of the plaintiff's physical and mental diagnoses following an accident.

Once the injury has been identified, it must be shown to be caused by the actions of a tortfeasor. Establishing causation will aid in identifying the number of tortfeasors potentially liable for the injury's damages.

2: Evaluate Contributory Negligence by the Plaintiff

In some cases, a plaintiff may, at the time of injury, fail to reasonably protect oneself in a manner that would reasonably and foreseeably create a risk of harm. This failure to self-protect is called "contributory negligence".

Fault attributable to a plaintiff's injuries due to contributory negligence is non-compensatory, meaning that the plaintiff will be barred from recovering damages relative to his/her degree of contributory negligence.

3: The Apportionment Analysis

i. Concurrent tortfeasors
"Concurrent tortfeasors" describes parties that committed torts simultaneously at a single point in time to produce the same injury to the plaintiff. The degree of fault attributable to each party is a question of fact to be determined by the trial judge or jury.

The degree of damage apportionment for concurrent tortfeasors requires the consideration of, among other things, the following factors:

  • The nature of the duty owed by the tortfeasor to the injured party.
  • The number of acts of fault or negligence committed by a person at fault.
  • The timing of the various acts of negligence.

In the case of Blondeau (Litigation guardian of) v. Peterborough (City) the 12-year old plaintiff was injured during figure skating practice at the local ice rink. The fall was caused by a depression in the ice where a hockey goal post could be inserted.

The Plaintiff commenced legal action against the City, as the owner of the sports center, the figure skating Club and the figure skating coaches. All three parties knew that there had been problems with resurfacing the ice over the goal post areas and a reasonable standard of care required the parties to ensure that these areas were inspected.

The City, as occupier, was found liable in negligence as a result of failing to put procedures in place to ensure that the goal post areas would be properly resurfaced and inspected before figure skating activities. The Court also determined that the Club and its coaches bore some responsibility for the injuries sustained in failing to conduct regular ice inspections during its skating lessons.

Having found the City to be primarily responsible, it was liable for 75 per cent of the Plaintiff's damages. The Club's liability was assessed at 15 per cent, and the coaches at 10 per cent.

ii. Non-concurrent tortfeasors
Non-concurrent tortfeasors exist when an injury is caused by separate tortious acts that are not connected through a single event but rather, are completely independent of one another. Once it is established that the torts are non-concurrent and several, the courts must determine whether the tortious events present sufficient or insufficient causes.

"Sufficient causes" describes the situation where each tortious incident causes an injury and their individual effects have superimposed on each other (e.g. when a second injury aggravates an initial injury).

"Insufficient causes" applies to situations where the injury is the result of several causal factors, all of which were necessary but not independently sufficient, for the injury's occurrence.

In Beam v. Pittman, the plaintiff was injured following three motor vehicle collisions. In each case, the plaintiff was the driver and her car was rear-ended.

The first accident caused a soft tissue injury, the second accident aggravated the first injury and the third accident further aggravated the injury, which resulted in a diagnosis of fibromyalgia.

The trial judge referred to two methods of apportioning damages between tortfeasors in cases where subsequent accidents aggravate previous injuries.

The first method is to assess the damages attributable to the first tortfeasor as if the trial were held on the day before the second accident, and then assess those damages resulting from the two accidents. The second tortfeasor pays the difference between that assessed in respect of the first accident and the global amount.

The second approach is to apportion damages on the basis of the percentage of disability most probable to result from each accident, as both accidents were necessary to produce some of the loss. Apportionment of fault is a fact-dependant matter within the discretion of the judiciary.

Both of these approaches have been applied by various courts. In both cases, the plaintiff receives full compensation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Sydney Blackmore
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