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Client Update: Perrin v Blake reaffirms the law on contributory negligence and recovery of damages

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 proportionately, liable.

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 Tortfeasors Act.)

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, [1997] 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.

Stewart McKelvey represented one of the defendants in this matter and successfully advocated for this confirmation of the law. The foregoing is intended for general information only. If you have any questions about how this may affect you, please contact a member of our Insurance practice group.

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