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
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
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,  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.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).