The Nova Scotia Supreme Court recently reaffirmed the law that,
in Nova Scotia, where a plaintiff has been found to be
contributorily negligent, his or her recovery is limited to the
liability apportioned to each defendant individually.
Perrin was a passenger on an all-terrain vehicle driven by
Blake. They were involved in an accident with another driver,
Adshade. Adshade did not have insurance coverage. Blake
held an insurance policy with Nordic Insurance Company of
Canada. Perrin commenced an action for damages against Blake,
Adshade, and Nordic, under Blake's uninsured vehicle
coverage. Both Blake and Nordic argued that Perrin was
contributorily negligent and relied on the Nova Scotia
Contributory Negligence Act, RSNS 1989, c
The parties brought a motion under Civil Procedure Rule 12
for a determination of law concerning the question of whether a
plaintiff, who bears some contributory negligence, can recover
against the defendants jointly and severally (meaning the plaintiff
can collect the entire judgment from any one of the parties) or
whether the plaintiff's recovery is limited to the liability
apportioned to each defendant severally.
Perrin argued that although existing case law in Nova
Scotia has interpreted s. 3 of the Contributory Negligence
Act to limit the responsibility of a defendant to his or her
proportionate allocation where a plaintiff has been contributorily
negligent, equivalent legislation in other provinces has been
interpreted in such a way that recovery remains joint and
several. Perrin argued that this interpretation should be
followed in Nova Scotia as well.
The Court disagreed and held that although the Nova Scotia
statute is similar to that seen in other provinces, the absence of
the words "jointly and severally" in the Act is
significant. The Court found that the Legislature's
decision to exclude these words from the Act signaled an intention
to limit a plaintiff's right of recovery. Despite
contrary case law in other jurisdictions, where a plaintiff in Nova
Scotia is found to be contributorily negligent, the law remains
that he or she can only then recover from each individual defendant
that portion of liability attributed to that particular
Lesson for Insurers
In cases involving a contributorily negligent plaintiff and
multiple defendants, it is important to take note of the applicable
contributory negligence legislation. In cases where the Nova
Scotia Act applies, a defendant is only liable for the specific
portion of liability found by the court.
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