The amount of compensation for damages payable from a collision depends largely on establishing who is at fault. Often, fault is found to lie with more than one person. The plaintiff’s counsel will argue that the defendant’s conduct departed from the applicable standard of care and will seek to prove a causal relation between the defendant’s breach of that standard of care and the accident. The defendant’s counsel will seek to defeat the plaintiff’s claim on the basis that he or she met the standard of care and that someone else contributed to the plaintiff’s injury.
Through the defence of “contributory negligence,” it may be established that a person other than the defendant (including the plaintiff) contributed to an event (e.g., automobile accident) that caused the plaintiff injury even if that person is not the primary cause of the injury. The intention of such claim is a finding that the defendant should not be wholly liable for the incident. The plaintiff is found to contribute to a loss if he or she fails to exercise the level of care that a reasonably prudent person would exercise in similar circumstances, whether through action or inaction. In the case of children, the standard of care will depend on what constitutes normal behavior in a child of the same age and intelligence. To make a determination of contributory negligence, certain tests must be met. There must be foreseeable harm to oneself from the action and a causal link between the negligence and loss. In other words, the harm could have been prevented since it was foreseeable and the negligent behavior resulted in a loss. Such would be the case in a collision where the injured person failed to wear his seatbelt and went through the windshield as a result in a collision. Where damage was caused by the fault or two or more persons, in BC liability is apportioned under the Negligence Act according to “comparative blameworthiness.” The amount each party is liable depends on how much he or she fell short of the standard of care that was required rather than the extent to which the loss may be said to have been caused by the conduct of each. In other words, liability is determined according to the creation of the risk of an accident. If it is not possible to establish degrees of fault, then the liability must be apportioned equally. The person who sustained the damage or loss may recover from the other person the percentage of the damage or loss sustained that corresponds to the degree of fault of that other person. For example, if a cyclist collided with a vehicle while going against a red light, the driver of the vehicle would not be 100% responsible; the cyclist’s compensation for damages against the driver could be reduced by 25%, 50% or 75%, depending on the circumstances. If it was found, in this same case, the cyclist ran into a stopped vehicle, the compensation for damages against the driver may be eliminated, again depending on the circumstances. In BC, if two or more persons are found at fault, they could be found jointly and severally liable to the person suffering the damage or loss. If two defendants are each found 40% at fault and one has no funds from which to pay his 40% of the judgment, then the plaintiff is left with no recourse for payment from the individual who lacked funds. In order to understand contributory negligence further, two similar but distinct legal principles can be examined, which may also serve to defeat or reduce a plaintiff’s claim based on his or her own conduct. Firstly, the “duty to mitigate” principle is that a plaintiff cannot recover from the defendant damages which he or she could have avoided by taking reasonable steps after the event causing the loss. For example, the plaintiff has a duty to mitigate his or her damages by following the recommended treatment plan. By contrast, contributory negligence is concerned with the role of the plaintiff in the events leading up to and causing the loss. Secondly, the “volenti non fit injuria” principle is that a plaintiff cannot recover loss for which he or she voluntarily assumed the risk of injury. For example, a plaintiff may not recover damages if she accepted being a passenger to an impaired driver and her intoxication led her to try take the wheel, causing the accident. Cases where a contributory negligence defence has been successful include:
Failing to use, or proper use of, a seatbelt, if use of the seatbelt was a factor in the accident;
Failing to wear a helmet or protective clothing as a motorcyclist or bicyclist;
Failing to yield the right of way;
Failing to have a vehicle repaired where a warning was issued by the manufacturer about a mechanical problem;
Failing to pay sufficient attention to surroundings, including icy conditions on foot in a parking lot;
Impairment from alcohol consumption as a driver or willing passenger, in some circumstances;
Failing to care for one’s own safety as a pedestrian;
Failing to keep a proper lookout in a vessel collision; and
Failing to wear a life jacket in a canoe swamping which resulted in the drowning of a person who could not swim.
Although the concept of contributory negligence appears straightforward, the defence is challenging, as seen by the high number of cases in which such allegations are abandoned or are unsuccessful. A court will not find the plaintiff as negligent simply because hindsight suggests that the accident was avoidable. The defence counsel will want to explore why a plaintiff did not choose an alternative to argue that the plaintiff’s conduct was unreasonable in the circumstances. For example, a child who ignored the safety rules provided and sustained injuries from relocating inside a moving school bus could be seen as capable of being negligent. By contrast, an elderly person who was injured in a fall while walking along an icy sidewalk when there was the available option of a clear sidewalk may not necessarily be found to have contributed to the misfortune. The task of proving contributory negligence is challenging if the plaintiff presents a credible witness whose conduct was not overtly dangerous or if the alternate course of action available was not easily accessible. A successful claim for contributory negligence requires the defence to establish a causal link between the behaviour of the person deemed negligent (e.g., the plaintiff) and the loss. For example, improper use of a seatbelt could result in a successful contributory negligence claim, but will depend on the unique circumstances of the incident. For example, a plaintiff’s loosening of the seatbelt is improper use of the seatbelt but not necessarily contributing to loss incurred. A defendant may be successful with a contributory negligence defence where the plaintiff failed to take adequate care of himself or herself. For example, failing to wipe one’s wet feet from the rain on the mat when entering a building may limit the plaintiff’s claim of negligence against the building corporation from a fall despite the existence of carpet in the foyer that is not slip resistant. The plaintiff’s failure to use the mat for his or her feet to reduce the risk of harm could be seen to increase the risk of injury and success of the claim against the corporation for negligence is limited if other individuals were in the same position as the plaintiff and observed and avoided the risk. Where alcohol is involved, the defendant cannot expect a favourable ruling of contributory negligence by simply claiming the plaintiff consumed alcohol prior to the accident; it must be established that the impairment played a role in the incident. If a plaintiff was intoxicated from alcohol and walking haphazardly along the side of a busy road in the dark wearing dark clothing, then there is a significant basis to claim the plaintiff’s negligence contributed to his or her harm; the plaintiff could be deemed impaired from the ability to make correct decisions at the time because of the level of alcohol in his or her bloodstream at the time. The defence should be prepared to prove how the plaintiff’s behaviour could have been different if the plaintiff was not under the influence of alcohol when the accident occurred. Like the presence of alcohol consumption, failing to yield the right of way does not necessarily mean that a defendant will bear the lion’s share of liability for an accident. All factors, such as traffic conditions and the presence of visual obstructions that may have played a role in the circumstances of the accident must be considered when assessing liability. Careful investigation of the circumstances of an accident may provide the defence counsel with the evidence needed to establish contributory negligence. The standard of care defined by what an ordinarily prudent person would have done in the same situation and unreasonable conduct by the plaintiff in causing or contributing to the accident is key for a successful defence of contributory negligence. A successful claim of contributory negligence will also require evidence of alternative courses of action available to the plaintiff that a reasonable person would have pursued and/or evidence of the warnings available that would have prompted a reasonable person to identify the risk. Because each case is unique, the rules of prior cases are of limited use in determining whether or not the plaintiff was negligent. Accordingly, the quality of evidence put forth by the defence is critical.