In Rankin (Rankin’s Garage and Sales) v. J.J., 2018 SCC 19, the Supreme Court of Canada clarified how it will interpret existing duties of care, in the context of a personal injury arising from the theft of a vehicle stored at a commercial garage, and the evidentiary requirements for establishing novel duties of care.read more
Plaintiff Recovery Limited When Contributorily Negligent
Perrin v Blake, 2016 NSSC 88
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 95.
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 defendant.
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.