The last thing an injured individual will want to hear is that they are partially responsible for their own injures and as such their compensation will be reduced.
However, civil law in Ontario is a fault-based system in which damages are awarded against an at-fault party and potentially reduced to reflect the Plaintiff’s degree of fault for contributing to her own injuries.
Injured parties and experienced counsel must therefore assess their claims and determine if contributory negligence is a viable defence that may be raised by the Defendant. Failing to acknowledge a viable defence of contributory negligence will be an obstacle to settlement and may result in a lower-than-expected damage award after trial, which in turn may carry negative cost consequences if the award falls below the Defendant’s offer to settle a case. As such, the defence of contributory negligence must be considered where warranted.
What is contributory negligence?
Contributory negligence is a legal doctrine that holds a Plaintiff accountable and responsible for failing to take reasonable and prudent steps to protect himself from injuries that may be caused by the negligence of another party. Contributory negligence is a defence, and as such the onus falls on the Defendant to elicit evidence that the Plaintiff failed to take prudent or reasonable steps to protect herself from injuries caused by the negligence of another party. The defence must be established on a balance of probabilities.
Initially, Contributory negligence was a complete bar to a civil action such that if the Defendant successfully raised the defence, the action would be dismissed. However, this changed with the enactment of section 3 of the Negligence Act which provided that the Plaintiff’s damages are to be reduced by the degree to which they are found to have contributed to their own injuries.
As such, if the Defendant successfully raises the defence of contributory negligence, the trier of fact must then decide on a certain percentage by which to reduce the Plaintiff’s damages. For example, if the trier of fact (judge or jury) determines the Plaintiff to be 25% responsible for his injuries, then his damages will be awarded by 25% (ie… damages of $100,000 will be reduced to $75,000). The percentage to be applied against the Plaintiff’s damage award will depend on the facts of each case.
Below are commonly encountered examples of the application of Contributory Negligence:
A pedestrian jaywalking or failing to heed traffic signals at an intersection and subsequently being hit by a car
Failing to wear a seat belt (the Ontario Court of Appeal indicated that the maximum range for contributory negligence for failing to wear a seatbelt is 5% - 25% and will be on the higher end if wearing the seatbelt would have prevented the Plaintiff’s injury)
Alcohol Consumption before a motor vehicle accident or slip and fall
Failing to use snow tires
Failing to wear proper footwear during a snowstorm and subsequently slipping and falling on ice
Failing to wear prescription glasses/contact lenses and subsequently tripping and falling
Looking at one’s phone or not watching where one is going while walking and subsequently tripping and falling
Failing to follow medical advice in a medical malpractice claim
Running or walking too fast and subsequently tripping and falling
Failing to read instructions on a product and becoming injured by the product
Failing to wear a helmet while on a motorcycle or bicycle
Being aware of a hazard and nonetheless choosing to encounter or walk across the hazard
The application of contributory negligence is a fact-driven exercise and is not limited to the examples above. Essentially, the defence may be raised whenever there is evidence indicating that the Plaintiff failed to take reasonable steps to protect herself from injuries caused by the negligence of another party.
Experienced Plaintiff’s counsel will consider the defence of contributory negligence when warranted and advise their clients of the risk of this defence being accepted at trial. This will enable the Plaintiff and her counsel to plan accordingly and develop an effective litigation strategy.
Despite the above, it must be remembered that contributory negligence is a defence that must be proven by the Defendant. It is not enough for defence counsel to make a general allegation of contributory negligence. There must be cogent evidence proving the defence. Experienced Plaintiff’s counsel will not consider the defence of contributory negligence in the absence of such evidence.
If you have been injured by the fault of another party, call Hillier & Hillier at 905 453 8636 for strategic and effective representation.
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