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Contributory Negligence in Motor Vehicle Accidents

A common argument advanced by Defendants in motor vehicle accident litigation is that the Plaintiff was partially responsible for his or her own misfortune. Essentially, Defendants will argue that, while they themselves may have acted in a negligent manner, the Plaintiff likewise acted negligently and should have the quantum of his or her damages reduced accordingly. This is referred to as the doctrine of contributory negligence, and it involves an assessment of the Plaintiff’s conduct and whether or not the plaintiff acted negligently. A brief summary of the doctrine of contributory negligence is provided below.

The starting point for the law on contributory negligence in Alberta is the Contributory Negligence Act, RSA 2000, c C-27. Section 1 of the Contributory Negligence Act sets out that, in the event that multiple individuals contribute to loss or damage, the responsibility for rectifying said damage will be apportioned between the individuals based on their relative degrees of fault. Sections 1 and 2 further set out that the court is responsible for determining the parties’ relative degrees of fault, and that, if it is impossible to do so, the Court will apportion liability equally between the parties:

Apportionment of liability
1 (1) When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.

(2) Nothing in this section operates to render a person liable for damage or loss to which the person’s fault has not contributed.

Determination of degree of fault
2(1) When damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each person was at fault.

(2) When 2 or more persons are found at fault, they are jointly and severally liable to the person suffering the damage or loss, but as between themselves, in the absence of a contract express or implied, they are liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault.

Case Law
In addition to the above-noted legislation, the common law provides guidance on the application of the doctrine of contributory negligence in Alberta. A leading case on the test for contributory negligence in Alberta is Heller v Martens, 2002 ABCA 122, which establishes that to avail himself of the defence of contributory negligence, the defendant must prove that the plaintiff was negligent and that the plaintiff’s negligence caused the injuries. If the defendant successfully establishes these two criteria, the court must apportion liability for the plaintiff’s injuries among those found at fault. This apportionment is done based on the comparative blameworthiness of the parties found at fault. In Heller v Martens, the ABCA set out a non-exhaustive list of factors to be considered in assessing comparative blameworthiness including:

  • The nature of the duty owed by the tortfeasor to the injured party;
  • The number of acts of negligence committed by each person at fault;
  • The timing of various negligent acts;
  • The nature of the conduct held to amount to fault; and
  • The extent to which the conduct at fault breaches any statutory requirements.

In summary, in order to establish that the Plaintiff was contributorily negligent, the Defendant must show: 1) that the Plaintiff acted negligently; and 2) that the Plaintiff’s negligent behavior caused, or contributed to the cause of, the Plaintiff’s loss. If the Defendant is able to establish that the Plaintiff was contributorily negligent, the Court will then apportion liability based on the parties’ comparative blameworthiness.

For example, in the case of an accident between 2 vehicles, the court may determine that the Defendant was negligent for failing to stop in time to avoid rear-ending the Plaintiff. The court may then decide, however, that the Plaintiff was also negligent for failing to wear a seatbelt at the time of the collision. The court will then evaluate the comparative blameworthiness of the Plaintiff and Defendant and apportion damages accordingly. If the Court decides that the Defendant is 75% blameworthy and the Plaintiff is 25% blameworthy, the court will proceed to reduce the Plaintiff’s damages by 25%.

Contributory Negligence in Motor Vehicle Accidents
With respect to motor vehicle accidents, some common allegations of contributory negligence are listed below. While there is no exhaustive list of allegations of contributory negligence, many of the common allegations are as follows:

  • The Plaintiff failed to wear a seatbelt;
  • The Plaintiff was travelling at an excessive rate of speed;
  • The Plaintiff failed to pay sufficient attention while driving;
  • The Plaintiff was intoxicated at the time of the collision;
  • The Plaintiff was on his or her phone, or was otherwise distracted, while driving;
  • The Plaintiff failed to signal appropriately;
  • The Plaintiff stopped excessively quickly, giving rise to a collision;
  • The Plaintiff failed to stop in a reasonable amount of time, giving rise to a collision;
  • The Plaintiff failed to have his or her headlights illuminated; and
  • The Plaintiff failed to maneuver his or vehicle appropriately in a manner to avoid a collision.

Given the potentially significant impact that a finding of contributory negligence can have on a damages award, it is important for Plaintiff counsel to be aware of the likelihood that a court will find their client to be contributorily negligent, and the degree that damages are likely to be reduced.

As counsel, it is our responsibility to consider all of the circumstances surrounding a motor vehicle accident and assess the likelihood that our clients may be held to be contributorily negligent. With this information, we can then advise our clients on the likelihood that their award of damages would be reduced, and whether they should be prepared to accept a reduction in damages on this basis.

If you are considering pursuing a motor vehicle accident action and want to learn more, contact one of our personal injury lawyers here.

By Ian Miller