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How does Contributory Negligence affect my Claim?

Posted by Kotak Law Office on September 26, 2016
Posted under General Information

In some accidents, such as motor vehicle collisions and slip and fall accidents, an injured person may have contributed to their injury, either in a minor way or more significantly. The courts may find a plaintiff to have been contributory negligent in their injury if their actions were not those of a reasonable and cautious person and as a result, they suffered injury. However, the fact that a claimant may have contributed to their injury, for example, by failing to wear a seatbelt, doesn’t preclude someone from getting substantial compensation if they become seriously injured.

In Zsoldos v. Canadian Pacific Railway Co., 2009, it was noted that contributory negligence may arise in three ways:

  1. The plaintiff’s direct actions or failure to take action contributed to the sequence of events leading up to their accident; or
  2. Although the plaintiff was not the cause of the accident, they put themselves in a position of foreseeable harm; or
  3. The plaintiff failed to take precautionary measures despite the existence of foreseeable danger, such as when failing to wear a seatbelt.

When a claimant/plaintiff is found partially negligent in their own injuries, then the contributory negligence percentages are deducted from the total amount of damages awarded.  For example, a plaintiff who is held 15 per cent negligent will receive 85,000 out of a $100,000 settlement.

Can children be liable for their injuries?

One notable exception is made for young children, who are generally exempt from contributory liability.  As defined in Linden and Feldhusen’s Canadian Tort Law, 2006, the doctrine of contributory negligence is not applicable to children five years old and under, but according to the Supreme Court of Canada, a child of six or more could, in some circumstances be guilty of contributory negligence.  When considering whether a child’s actions constitute contributory negligence, the jury or judge must consider whether the child exercised the care expected of a child of similar age, experience and intelligence.

In Saumur v. Antoniak, 2015, a boy was struck by a car while crossing at a school crosswalk in Hamilton at a time when the crossing guard had left her post early.  The judge in this case was satisfied that the boy’s actions were not below those of a “reasonably prudent 10-year-old of like intelligence and experience” and therefore decided that the plaintiff was not contributorily liable; rather, the crossing guard and the City of Hamilton equally shared liability for the boy’s injuries.

Defendant’s actions that may lead to a finding of contributory negligence

Someone who wears inappropriate footwear on an icy surface or sidewalk may be found contributory negligent when injured in a slip and fall accident, even when the owner/occupier of the street/sidewalk is negligent for allowing an unsafe condition causing the fall.  Similarly, someone who was injured in a car accident caused by a negligent driver may be found contributory negligent in the severity of their injuries if they did not wear a seatbelt. In both situations, the percent of fault or negligence attributable to the plaintiff would tend to be quite low.  By contrast, the courts may find a plaintiff who equally shared the blame in causing a car accident 50 per cent contributorily negligent in their own injuries.

When someone is injured in a car accident while not wearing a seat belt, the judge or jury will generally find them contributorily negligent.  In Snushall v. Fulsang, 2005, a woman sought damages resulting from a car accident in which she was injured as a passenger.  The woman was wearing the lap belt portion of the seat belt, but not the shoulder strap at the time of the accident.  Due to failure to properly wear her seatbelt, a jury trial found the woman 35 per cent negligent in her injuries, but on appeal, the judge held that this was an unreasonably high apportionment of fault and reduced her contributory negligence to 5 per cent.  Specifically, the trial judge noted that “in cases where failure to wear a seatbelt causes or contributes to the injuries, the degree of contributory negligence can range between 5 per cent and 25 per cent, with most cases being in the lower portion of that range”.

Lytle v. Toronto (City), 2004 involves a slip and fall accident that occurred on Lawrence Avenue West, when a woman caught her foot on an L-shaped pipe that was left lying across the sidewalk. She subsequently fell on her hand, her right knee and face, and the fall resulted in severe injuries to her right elbow.  The pipes had been placed against a wall adjacent to the road for garbage pickup by the property owner who lives at the location of the accident. Damages in this case were calculated at approximately $140,000.  In apportioning liability for the fall, the City was found not liable, as the pipe was difficult to spot and there is no policing regulation requiring the City of Toronto to ensure that residents refrain from putting out obstructions; on the other hand, the property owner was held negligent and liable as she continuously observed the pipes at the location and should have been aware that they presented a hazard. The judge found 25 per cent contributory negligence on the part of the injured woman, as the judge surmised that she was not being observant of her surroundings or taking care for her own safety when she tripped.

The argument of contributory negligence is often put forward by defendants in order to reduce their liability for an accident, however, in many cases, this argument is rejected by the courts.  In Bartlett v. Bayham Twp, for example, the defence argued that the plaintiff was guilty of contributory negligence because he was passing the defendant’s vehicle too close to an intersection and was thus in violation of a rule of the road when the collision occurred.  However, the court ruled that when there is a breach in law that is not an effective cause of the accident, a driver will not be found guilty of contributory negligence.  In this case, the driver who turned left without properly checking that it was safe to do so, while the plaintiff was overtaking him, was held solely liable for the accident and the plaintiff’s damages.

Conduct is generally thought to be negligent if it creates an unreasonable risk of harm, but the definition of what is unreasonable differs for each situation depending on various factors, such as the relative likelihood of foreseeable harm, the magnitude of that harm, and the cost of taking measures to prevent injury.  If a plaintiff exercised a degree of caution or care that an ordinary, reasonable and prudent would have done in the same situation, they will generally not be held contributory negligent. 

If you were involved in an accident and are unsure whether the other driver or a property owner can be held negligent for causing your injuries, call Kotak Law to find out about your legal rights in the matter.  In most cases, the initial consultation is free, and will certainly provide an excellent opportunity for having your questions answered and learning about the strength of your case.

 

 

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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader's situation by competent legal counsel who has had an opportunity to review all of the facts.
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