Can a Person Be Found Partly At-Fault For Their Own Injuries?

Contributory Negligence Is the Legal Principle That More Than One Person May Be Liable to An Injured or Harmed Person and Which Even Includes the Injured Person May Be Partially Responsible and Self-Liable For a Portion of the Liability Award.

Understanding Contributory Negligence Concepts Including Factors For Review and Court Consideration

Lawsuit Document A person who suffers an injury or losses due to the conduct of another person, may be deemed partly to blame, or even others may be deemed partly to blame, and therefore liability for the injury or losses becomes apportioned to various people that are legally deemed as causing or contributing to the incident that occurred.

The Law
What Is Contributory Negligence

The concept of the injured person being partially at blame for the injuries suffered is called contributory negligence.

Within the case of Miles v. Corporation of the County of Elgin et al., 2020 ONSC 6014, the principles of contributory negligence as statutorily prescribed within the Negligence Act, R.S.O. 1990, c. N.1 as well as within the common law are well summarized whereas it was said:

[38]  Amongst the provisions found within the Negligence Act, supra:

a.  Section 1 provides that “Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent”;

b.  Section 3 provides that “In any action for damages that is founded upon the fault or negligence of the defendant, if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively”; and

c.  Section 4 provides that “If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent.

[39]  The “last clear chance” doctrine, whereby liability between multiple parties causing or contributing to an accident previously was apportioned to a much greater degree to the party who had the last opportunity to avoid a loss, has been rejected.[78]

[40]  As for contributory negligence of a plaintiff, the possibility of which is addressed by section 3 of the Negligence Act, supra, general principles include the following:

a.  When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued.  All that is necessary to establish such a defence is to prove to the satisfaction of the trier that the injured party did not, in his or her own interest, take reasonable care of himself or herself, and thereby contributed, by that want of care, to his or her own injury or loss.  When contributory negligence is set up as a shield against a defendant’s obligation to satisfy the whole of a plaintiff’s claim, the principle involved is that, where a person is part author of his or her own injury, he or she cannot call on the other party to compensate him or her in full.  The result is that the injured party recovers less than full compensation for his or her injuries.[79]

b.  Although contributory negligence does not depend on a duty of care, it does depend on foreseeability.  In particular, just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself.  A person is guilty of contributory negligence only if he or she ought reasonably to have foreseen that, if he or she did not act as a reasonable, prudent person, he or she might be hurt himself or herself; and in his or her reckonings, he or she must take into account the possibility of others being careless.[80]

c.  Contributory negligence can arise in three ways:

i.   a plaintiff’s negligence may have been a cause of the accident, in the sense that his or her acts or omissions contributed to the sequence of events leading to the accident;

ii.   although the plaintiff’s negligence may not have been a cause of an accident, the plaintiff may have put himself or herself in a position of foreseeable harm; and

iii.  a plaintiff may have failed to take precautionary measures in the face of foreseeable danger.[81]

d.  In relation to the first type of contributory negligence, (i.e., where it is alleged that a plaintiff’s negligence was a cause of the accident), a finding of contributory negligence does not require that the plaintiff’s negligence was the only cause of the relevant accident.  However, the plaintiff’s negligence must have been a proximate or effective cause of the accident.  In particular, if the plaintiff was negligent, but that negligence did not in fact cause or contribute to causation of the accident or damage to the plaintiff, there should be no finding of contributory negligence.[82]

e.  The burden of proving contributory negligence on the part of a plaintiff, and that any such contributory negligence caused damages for which a defendant otherwise might be wholly responsible, lies on the defendant alleging contributory negligence.[83]

As summarized in Miles, the concept of contributory negligence, and this is certainly a simplification of what may be much more complicated, is that the person who suffered an injury is partially at blame for the injury due to conduct that was partly a cause of the incident or partly a cause of the extent of the injuries; and accordingly, the Defendant to the lawsuit is partially, rather than wholly, liable for the injuries or losses that resulted.

What Are Some Examples of Contributory Negligence

The use of examples may help to better grasp how contributory negligence principles affect the allocation of liability within a lawsuit:

Contributory Negligence Within An Automobile Accident

In this example, contributory negligence may arise where the Defendant went through a stop sign or red light or was in some other way to blame for causing the accident; however, the failure to properly wear a seatbelt significantly contributed to the injuries and losses suffered by the Plaintiff.  In this type of situation a court might determine that the Defendant was one hundred (100%) percent responsible for causing the accident while also determining that the Defendant was only fifty (50%) percent liable for the injuries that resulted and that the negligence of the Plaintiff, for failing to wear a seatbelt, is self-liable for the remainder.

Contributory Negligence Within a Slip & Fall Incident

It seems logical to wear proper winter footwear when snow and ice conditions are likely; however, improper footwear often arises as a contributory negligence issue within slip & fall lawsuits.  For example, and an unfortunately common example, ladies heading out for a girls night on the town may choose less than adequate footwear such as heels that match the dress rather than wearing boots or even bringing boots that would be difficult to keep track of during an evening of dancing with friends.  In this situation, if a slip and fall occurs, the occupier of premises, such as owner or tenant, among others, where the fall occurs may be partly liable for failing to reasonably treat any unsafe snow and ice upon walkways whereupon pedestrians may walk.  Additionally, the lady who is wearing heels during, or after, a snowstorm may be self-liable for a portion of the injuries.  Interesting, the shoe manufacturer, among many others may also become involved and perhaps partly liable.

Contributory Negligence of Landlord Within a Trip & Fall Incident

As another type of example, and to show how principles of contributory negligence may become complicated and involve persons other than who appears to have caused the incident and who was injured, consider the case of Taylor v. Allen, 2010 ONCA 596 wherein the landlord was found partly liable for injuries that occurred to a guest of a tenant during a social gathering.  In the Taylor case, Taylor was a guest of residential tenants.  The tenants were hosting a bonfire party.  The landlord had built and maintained the firepit that was being used for the bonfire party.  The firepit was constructed with a perimeter of cinder blocks.  When two women as guests at the bonfire party began to fight, Taylor stepped away; however, while in a drunken state, Taylor tripped over the cinder blocks and fell into the fire and was seriously burned.  Taylor sued the tenants and the landlord as occupiers of the premises for having caused, or contributed, to the injuries that were suffered by Taylor.  In the original trial decision, Taylor v. Allard, 2009 CanLII 10986 at paragraph 41, the judge deemed Taylor fifty (50%) percent liable for his own injuries and found the two tenants twenty-five (25%) percent liable with zero (0%) percent liability upon the landlord.  However, Taylor appealed and the Court of Appeal agreed with a finding of liability against the landlord.  Specifically, the Court of Appeal said:

[20]  I agree with the appellant. Sections 94(1) and 80(1) of the LTA read as follows:

94. (1) A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and despite the fact that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.

80. (1) This Part applies to tenancies of residential premises and tenancy agreements despite any other Act or Parts I, II or III of this Act and despite any agreement or waiver to the contrary except as specifically provided in this Part.

[21]  Section 94(1) imposes a statutory responsibility on the landlord of residential premises to maintain and repair the premises. Section 80(1) provides that this responsibility prevails, despite any agreement or waiver to the contrary. See Phillips v. Dis-Management (1995) 1995 CanLII 7079 (ON SC), 24 O.R. (3d) 435 per Sharpe J. (as he then was).

[22]  Since this was a residential premises, this statutory duty applied to the respondent landlord and could not be removed by his rental agreement with the tenants. Nor could the rental agreement serve as a defence to the respondent in a suit brought by the tenants if the danger created by the cinder blocks had caused them harm.

[23]  The combined effect of ss. 94(1) and 80(1) of the LTA is therefore that, for the purposes of s. 8(1) of the OLA, these premises were occupied under a tenancy in which the landlord is responsible for the maintenance and repair of the premises. Equally, for the purposes of s. 8(2), the rental agreement could not prevent the landlord’s default being actionable at the suit of the tenants. As a consequence, the respondent landlord had a duty of care under s. 8(1) of the OLA, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

[24]  In other words, s. 8(1) imposes on the respondent the same duty of care to the appellant that the respondent would have under s. 3 of the OLA as an occupier for a danger arising from his failure to maintain the premises.

[25]  In summary, therefore, the respondent not only had a duty of care as occupier to the appellant under s. 3 of the OLA. He had a duty of care to the appellant under s. 8(1) of the OLA. The trial judge therefore erred in finding that the respondent owed no duty of care to the appellant.

[26]  In my view, the findings of fact by the trial judge also necessarily entail the conclusion that the respondent breached his duty of care to the appellant imposed by s. 8(1) of the OLA. Particularly given that he created the danger in the first place by installing the cinder blocks surrounding the fire pit, by permitting the danger to continue the respondent landlord failed in his statutory responsibility to maintain the premises. The danger that caused the appellant harm arose from this failure. The respondent therefore breached his duty of care to the appellant under s. 8(1) of the Act.

[27]  I conclude that the respondent landlord breached his duty of care to the appellant, both his duty under s. 3 of the OLA as an occupier and his duty under s. 8(1) of the OLA as a landlord with the responsibility to repair and maintain the premises. Taking into account the appellant’s contributory negligence, assessed by the trial judge at 50%, the respondent is therefore responsible for 50% of the damages suffered by the appellant jointly and severally with the tenants. I would split the fault between the landlord and the two tenants equally, just as the trial judge did with the tenants. Each of them should be found at fault for one third of 50% of the appellant’s damages.

Accordingly, after the appeal, Taylor was deemed fifty (50%) percent self-liable and the landlord as well as the two tenants wear each deemed one-third liable for the remaining fifty (50%) percent being sixteen 66/100 (16.6667%) percent each.

Summary Comment

Contributory negligence involves the legal principle that more than one person may be liable to an injured person and such even includes the injured person who is deemed partially responsible and self-liable for a portion of the liability award.  The contributory negligence principle is based upon simple concepts; however, the application of contributory negligence within actual legal cases may become much more complicated than as initially appears.

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