Documentation:Torts/Apportionment of liability

TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index

Apportionment of liability

Where damage or loss is caused by the fault of two or more persons, liability may be apportioned between the at-fault parties. The principle of apportionment of liability has been introduced by statute to modify the rules at common law in each Canadian province, as well as in other common law jurisdictions.

There are two main scenarios where apportionment arises: (1) when in addition to the defendant's tortious conduct the plaintiff's own carelessness contributed to their damage; and (2) where multiple defendants are at fault for causing the plaintiff damage.

Contributory negligence

Contributory negligence arises when a plaintiff carelessly contributed to their own damage alongside the defendant's negligence.

Elements for establishing contributory negligence
1. The plaintiff failed to take reasonable case in her own interests; and
2. That failure was casually connected to the loss she sustained.

Today, statute provides that contributory negligence operates as a partial defence to reduce the defendant's liability in proportion to the plaintiff's own fault.

The principles for apportioning fault between parties are set out below.

In the news
"Contributory negligence found against hospital worker who injured shoulder"
In May 2023, an Australian judge "awarded damages to a hospital worker who injured her shoulder while assisting a co-worker to move a mattress at work but found contributory negligence on the part of the worker also played a role in the injury".

The modern statutory position replaces the previous common law rule, which treated a plaintiff's contributory negligence as a complete defence to negligence liability. This all-or-nothing approach to liability at common law had long been considered unfair, and led to courts developing various rules to narrow the scope of the doctrine. The additional rules were "difficult to apply and led to unpredictable results". One such rule was the 'last clear chance' doctrine, in which "the plaintiff could recover [full] damages if the court was satisfied the defendant has the last clear opportunity to avoid injury".

Joint and several liability

Joint and several liability is not a defence as such, but a mechanism through which plaintiffs can claim against any or all at-fault defendants, and through which at-fault defendants can apportion liability as between themselves.

Today, statute provides that when multiple defendants are liable to a plaintiff for the same damage they will be held jointly and severally liable. In situations "[w]here the actions of one or more tortfeasors cause or contribute to a single injury, the tortfeasors are said to be ‘concurrent'."

• Joint liability involves "two or more defendants [that] are liable up to the full amount of an obligation...[and] several liability...is where the parties are only liable for their respective obligations".
• Joint and several liability "refers to the common law principle that tortfeasors who have combined to cause a single indivisible loss are each liable to the injured person for the full amount of the damage suffered (at common law, liability in solidum)."

Under joint and several liability, each defendant is liable to the plaintiff for the full extent of the damage suffered. If the plaintiff is successful in their case for damages, they are able to collect from any liable defendant full make-whole damages. The defendant who is collected from can then claim contribution from the other defendants involved in accordance with principles that apportion liability between them based on their relative fault. The principles for apportioning fault between parties are set out below.

In the news
Un-Happy Meal
Both McDonald's and a franchise holder have been found liable after a young girl was injured when a Chicken Nugget fell from a Happy Meal and onto her leg causing second-degree burns.

Joint and several liability "reduces plaintiffs' risk that one or more defendants are judgment-proof by shifting that risk onto other defendants. Only if all defendants are judgment-proof will a plaintiff be unable to recover anything". Judgment-proof plaintiffs are those who "lack the resources or insurance to pay a court judgment against them". This type of liability better ensures that plaintiffs are able to recover to be made 'whole' again, even when some defendants are unable to pay.

In Hill v. Church of Scientology of Toronto, both of the defendants were liable for defaming the plaintiff. The Supreme Court stated that "[i]t is a well‑established principle that all persons who are involved in the commission of a joint tort are jointly and severally liable for the damages caused by that tort. If one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel...[and] are liable for the injury. It would thus be inappropriate and wrong in law to have a jury attempt to apportion liability either for general or for special damages between the joint tortfeasors".

Joint and several liability of defendants can be contrasted to proportionate liability of defendants, the statutory regime in Australia, under which each party is only liable to the plaintiff in proportion to the harm they individually caused.

Apportionment principles

Once multiple parties are found to be at fault for the same damage, provincial statutes require each party's share of liability to be apportioned according to their relative blameworthiness. Apportionment of liability "requires an assessment of the parties' degree of departure from the standard of care". It is not a question of relative causal potency of each party's actions.

Courts have regard to various factors in assessing relative blameworthiness between parties, known as Aberdeen factors in British Columbia.

Principles for apportioning fault between parties include (but are not limited to):

1) the nature of the duty owed by the tortfeasor to the injured person; 2) the number of acts of fault or negligence committed by a person at fault; 3) the timing of the various negligent acts; 4) the nature of the conduct held to amount to fault; 5) the extent to which the conduct breaches statutory requirements; 6) the gravity of the risk created; 7) the extent of the opportunity to avoid or prevent the accident or the damage; 8) whether the conduct in question was deliberate or unusual or unexpected; and 9) the knowledge one person had or should have had of the conduct of another person at fault.

Provincial apportionment statutes

The introduction of statutes in the early to mid 1900s regarding "apportionment legislation was ... one of the most important developments in the history of tort law". The first apportionment legislation regarding contributory negligence in Canada was enacted in Ontario in 1924. Today, all of the provinces in Canada have apportionment legislation governing contributory negligence and joint and several liability.

In Canada, "jurisprudence has rejected unequivocally the proposition that causal potency is relevant to the appointment of damages ...; relative blameworthiness ... is the only criterion that is relevant in determining the appropriate reduction in damages for contributory negligence". This is unlike other jurisdictions, such as Great Britain, Australia, and the United States, that do take causal potency into consideration.

Negligence Act, RSBC 1996
Negligence Act, RSBC 1996, c 333, ss 1-2, 4
Apportionment of liability for damages 1 (1) If by the fault of two 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 to which each person was at fault. (2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally. (3) Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed. Awarding of damages 2 The awarding of damage or loss in every action to which section 1 applies is governed by the following rules: (a) the damage or loss, if any, sustained by each person must be ascertained and expressed in dollars; (b) the degree to which each person was at fault must be ascertained and expressed as a percentage of the total fault; (c) as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss is entitled to recover from that other person the percentage of the damage or loss sustained that corresponds to the degree of fault of that other person; (d) as between two persons each of whom has sustained damage or loss and is entitled to recover a percentage of it from the other, the amounts to which they are respectively entitled must be set off one against the other, and if either person is entitled to a greater amount than the other, the person is entitled to judgment against that other for the excess. *** Liability and right of contribution 4 (1) If damage or loss has been caused by the fault of two or more persons, the court must determine the degree to which each person was at fault. (2) Except as provided in section 5 if two or more persons are found at fault (a) they are jointly and severally liable to the person suffering the damage or loss, and (b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault.

Other provincial apportionment statues:

• Alberta: Contributory Negligence Act, RSA 2000, c C-27, ss 1–2; Tortfeasors Act, RSA 2000, T-5.
• Manitoba: The Tortfeasors and Contributory Negligence Act, CCSM c T90, ss 4–6.
• New Brunswick: Contributory Negligence Act, RSNB 2011, c 131, ss 1–3; Tortfeasors Act, RSNB 2011, c 231.
• Newfoundland and Labrador: Contributory Negligence Act, RSNL 1990, c C-33, ss 2–3.
• Nova Scotia: Contributory Negligence Act, RSNS 1989, c 95, ss –3; Tortfeasors Act, RSNS 1989, c 471.
• Nunavut: Contributory Negligence Act, RSNWT 1988, c C-18.
• Ontario: Negligence Act, RSO 1990, c N.1, ss 1–4.
• Prince Edward Island: Contributory Negligence Act, RSPEI 1988, c C-21, ss 1–2.
• Québec: Civil Code of Québec, CQLR c CCQ-1991, art 1478.
• Saskatchewan: The Contributory Negligence Act, RSS 1978, c C-31, ss 2–3.
• Yukon: Contributory Negligence Act, RSY 2002, c 42.

Discussion questions

• Who do you think should bear the risk of non-recovery – plaintiffs or defendants? Who benefits more from the rules at common law as compared to under the statutory regime?