Contributory Negligence

Many people like to think of accidents as “so-and-so’s fault.” The reality is that much of the time, two or even multiple parties share fault. The concept of contributory negligence, also known as contributory negligence, allows courts to distribute liability among two or more parties based on their relative degrees of fault.

How Negligence Claims Work

The Ontario Negligence Act governs negligence claims in Ontario, with court precedents filling in any gaps. 

To win a negligence claim, you must prove the following:

  1. Duty of Care: Common law (court precedent) has established the duty of care of every individual to exercise reasonable care to avoid harming others. Certain statutes, such as the Highway Traffic Act, establish more specific standards in some instances. 
  2. Breach of Duty:  Whatever the demands imposed by the defendant’s duty of care, you must prove that the defendant failed to meet them. Either the defendant committed a wrongful act, or they failed to do something that the law requires them to do. 
  3. Causation: You must draw a causal connection between the defendant’s breach of duty and the damages that you suffered. Even if, for example, the defendant was driving drunk, that won’t matter if their drunkenness did not cause the accident or affect its severity. The injury you suffered must have been a foreseeable consequence of the defendant’s negligence. In other words, the defendant is not liable for a freak accident.
  4. Damages: You cannot win unless you prove that you suffered losses—pecuniary damages, non-pecuniary damages, or both.

The standard of proof that you must meet is a ‘balance of probabilities.’ All this means is that your evidence shows that the defendant is more likely than not to be liable.

What Are Damages? 

Ontario recognizes three types of damages: 

  • Pecuniary damages. Easy-to-count damages, such as medical bills and lost wages.
  • Non-pecuniary damages. Psychological losses such as pain and suffering.
  • Punitive damages: An extra amount to punish the defendant. You can only qualify for punitive damages only if the defendant’s conduct was utterly outrageous. Even an intentional tort might not be enough. Ontario courts rarely award punitive damages. 

An experienced personal injury lawyer can help you evaluate what damages you may be able to recover for your losses and injuries.  

How Contributory Negligence Works

An Ontario court will apportion fault between or among parties on a percentage basis–30% for Party A and 70% for Party B, for example. The court will then apportion damages based on percentages of fault. Suppose, for example, that Party A is 30% at fault and suffered $100,000 in damages. They will lose 30% of their damages, and they will be entitled to the remainder ($70,000). 

When two parties share fault, each party owes the other money. For the sake of convenience, the court will set these amounts off against each other and order one party to pay the other. For example, if Party B owes Party A $70,000 and Party A owes Party B $3,000, for example, the court will set these amounts off against each other and order Party B to pay Party A $67,000.  

Suppose Party B is 70% at fault and suffers $10,000 in damages. They will lose 70% ($7,000) of their damages, leaving them with $3,000. This is known as comparative negligence. Even if you were 99% at fault for the accident, you can still recover 1% of your damages.

Joint and Several Liability 

Ontario recognizes the concept of joint and several liability. This means that if more than one party bears liability, you can seek 100% of your damages from any one of them. It will be up to that defendant to take legal action to seek contribution from the other defendant(s). 

How Affirmative Defenses Work

Contributory negligence is an affirmative defense in Ontario. That means that it is the defendant who must assert it, and the defendant bears the burden of proving it by a balance of probabilities.

Examples of Contributory Negligence

The following are some common examples of the ways in which injured parties might bear liability for contributing to their own injuries:

  • Failure to wear a seat belt in a car accident.
  • Failure to wear a helmet while riding a bicycle or motorcycle.
  • Distracted driving (texting, talking on the phone, arguing with a passenger, shaving in the rearview mirror, etc.).
  • Running through an icy parking lot incident to a slip and fall accident;
  • Not wearing proper safety gear on a construction site.
  • Failing to follow safety instructions.
  • Engaging in horseplay in inappropriate locations (e.g., swimming pools, for example).
  • Not using handrails on stairs or escalators.
  • Ignoring warning signs about hazardous conditions (e.g., ‘Caution: Wet Floor,’ for example).
  • Not securing a load properly on a vehicle. 

Regardless of how an injured party contributes to their own injuries, doing so can limit a financial recovery. 

An Ontario Personal Injury Lawyer Can Help Combat Claims of Contributory Negligence

If you believe you have a viable personal injury claim, you might need an Ontario personal injury lawyer. Your lawyer can guide you through the intricacies of the Ontario personal injury compensation system and provide you with tips on how to avoid damaging your claim. 

The earlier in the process you seek a lawyer, the better your chances of victory will be. Ultimately, it’s about getting you the full compensation you deserve for your losses.