Were you partially at fault in a motor vehicle collision? Movies and TV have made the general public believe that trials involve asking whether someone is responsible for an injury or an accident, and then asking how much damage was caused. But in real life, injury trials can be much more complex than just two parties battling it out in court.
Many injury cases involve multiple defendants pointing the finger at and blaming each other—as well as defendants trying to blame the victim for causing or contributing to his or her own injuries.
Many injury victims are shocked when a defendant or an insurance company’s first reaction is to blame them for their own injuries. For people already struggling with disability, lost work, and seemingly endless medical procedures, being blamed seems like adding insult to injury.
Understanding how Nova Scotia injury law treats victims who are partially responsible for their own injuries, and understanding what happens if you are indeed responsible, will help you handle these common defence tactics.
What is Contributory Negligence?
Contributory Negligence, as the name suggests, is the extent to which a victim “contributed” to his or her own injuries by his or her own negligence—that is, by doing or failing to do something that the victim should have done. Some examples of situations in which an otherwise innocent victim can be blamed for contributing to their injuries may include:
- A driver who is distracted by an in-car infotainment system, and thus fails to avoid another driver who has run a stop sign
- A consumer who is injured by a product because the victim failed to read or pay attention to usage instructions on packaging
- A motorcyclist who is hit by a negligent driver, but the cyclist is not wearing a helmet (and the same logic would apply to someone in a car who was not using a seat belt)
- Someone who falls on a substance on the floor, but the victim was looking elsewhere, or was not paying attention to his or her surroundings before falling
The law recognizes that just because a victim may have contributed to his or her own injuries—or at least, because the victim could have lessened (mitigated) the injuries that were sustained—that does not mean that victims should recover nothing.
Instead, Nova Scotia’s contributory negligence laws provide that a court must determine what percent of the accident or the injuries were caused by the victim’s own negligence. The victim will then not be permitted to recover for that percentage of the total verdict.
How Contributory Negligence Works in Court
Take for example a motorcyclist who is hit by a driver that ran a stop sign. The cyclist was not wearing a helmet. He sustains a torn rotator cuff in the accident. The court determines that the victim’s damages, including bills, future medical care, lost wages, and pain and suffering, are $100,000. The court also finds that the failure to wear the helmet made the victim 10% responsible (contributory negligence) for his or her own injuries. That means that the most the victim could recover would be $90,000.
The amount the victim is responsible for his or her own injuries changes depending on the facts. For example, assume that our motorcyclist did not suffer a rotator cuff injury, but rather sustained a traumatic brain injury when his head hit the pavement. The court might now find that wearing a helmet would have greatly decreased the injuries the victim sustained. In this scenario, the percentages may be reversed—a court could find the motorcyclist 90% liable for his or her injuries, and the driver that ran the stop sign only 10% liable. Now, the victim’s recovery is limited to only $10,000.
Getting Medical Treatment
One area in which many victims end up being liable for their own injuries, is in the failure to get proper medical attention or the failure to follow medical advice. In many cases, injuries or disabilities are made worse when people do not get medical attention.
Nova Scotia law allows a court to find a victim partially responsible for his or her own injuries, to the extent that the failure to obtain medical treatment caused or made the injuries worse than they would have been.
This failure to get proper medical attention opens the door for defendants to use their own experts to give their own medical testimony about how the victim’s injuries came about. Instead of a court hearing an otherwise clear-cut case about someone who fell on a dangerous surface, the court now hears medical experts testifying about whether the victim’s injuries were caused by the fall or caused by the failure to get appropriate medical treatment. The victim is seemingly “on trial” for his or her medical decisions, which is not a good situation in which to be.
Of course, not every accident involves just a victim and a single negligent defendant (person or business). In many cases, there may be multiple defendants responsible in part for the accident or inquiries sustained by an accident victim. Contributory negligence plays a role in these kinds of cases, as well.
Let us assume that in a car accident, a victim is hit from the side in an intersection in a car accident. The negligent driver runs a red light or other traffic signal. However, in addition to this illegal and careless driving by the negligent driver, the airbag in the victim’s car also fails to deploy. The victim suffers serious head injuries and, uncertain of exactly who is responsible for his injuries, sues both the driver and the car manufacturer.
There are two ways that these defendants can be liable to the victim if a verdict is entered in court.
Joint and Several Liability
The first way is called joint and several liability. This means that if one defendant could not pay the verdict (the total amount of the victim’s damages as determined by the court) the victim could go after either defendant to pay the total of the verdict.
Let us pretend that the court found the victim’s damages in our hypothetical to be $100,000. The Court also found the driver to be 80% liable and the car manufacturer 20% liable.
What if the driver of the vehicle were uninsured? What if the driver of the vehicle drove off after the accident, never to be found? How would the victim recover the 80% of $100,000 that the drover owed pursuant to the verdict?
If there were joint and several liability, the victim would be able to force the manufacturer of the defective airbag to pay the total $100,000, even though the manufacturer was only 20% liable (the law would then allow the manufacturer to sue the negligent defendant driver for the excess amount the manufacturer paid, but that lawsuit would not directly involve the victim).
Joint and several liability is helpful to victims because it is a type of security to ensure that if a defendant cannot or will not pay a verdict, the victim will at least get the entirety of his or her verdict. As long as at least one defendant is insured, or is large enough to satisfy a judgment, there is a good chance of complete recovery of a verdict by a victim.
Apportionment of Liability
The other way that the defendants would be liable, as opposed to joint and several liability, would simply be in proportion to their percentage of fault.
That apportionment of liability as between these two actors in our example was 80% for the driver and 20% for the car manufacturer with the defective airbag, but it does not matter what the division between the two parties ends up being. Whatever the division—whatever the apportionment of liability—is, if there is no joint and several liability, the defendants will only be liable to pay for the percentage of the total damages that their liability caused. There is no way to force one defendant to pay 100% of the verdict if another defendant cannot or will not pay.
Again, let us assume that a court finds that the victim’s total damages to amount to $100,000. If we pretend that a court finds that the driver was responsible for 80% of the victim’s injury, and the defective airbag manufacturer was responsible for 20%, the driver would have a verdict of $80,000 entered against him or her, and the manufacturer would have a verdict of $20,000 entered.
This type of division makes things difficult for a plaintiff because if the driver could not be found, or was not able to pay for damages, the only damages the victim could recover would be from the manufacturer, for $20,000. Which is one of the reasons why joint and several liability exists.
The Effect of Contributory Negligence
This is where contributory negligence has a significant impact on victim’s cases when there are multiple defendants.
If there is any finding that the Plaintiff caused or contributed to his or her own injuries in the accident, the victim can no longer utilize joint and several liability if there are multiple defendants. The victim can only hold each defendant liable for the percentage that the court finds them responsible for the accident or injuries.
This can be a huge problem in cases in which defendants cannot be found or when suing smaller defendants that may not have the means to pay a large verdict. In situations in which one defendant has a “large pocket,” and the other does not, or where the other defendant is not known, the large pocket defendant can not only point the finger at the other, smaller defendant, but also has the ability to point the finger at the victim, knowing that if the victim is only 1% liable, then the large pocket defendant only needs to pay the amount for which the large defendant is ultimately found to be liable.
Let us look at a hypothetical slip and fall case to see how this would work. Assume a victim falls on a wet floor in a large office complex. The office complex (the biggest pocket in this scenario) blames the cleaning company, which is really just a sole, self-employed worker—clearly someone unable to pay a large verdict. The victim sues both the office complex and the cleaning company.
The office complex’s strategy will be to put as much responsibility on the cleaning company, but also to show that the victim failed to look down, or failed to observe the wet condition.
Assume the victim sustained $100,000 in damages, but is held to be 5% responsible for his own injuries. The cleaning company is held 75% responsible and the office complex 20% responsible.
First, contributory negligence prevents the victim from ever recovering part of his recovery—specifically, $5,000 (5% of $100,000).
Worse, the victim now may not be able to ever get paid 75% of his verdict ($75,000) because the cleaning company is just a single person who may not have assets, or insurance to pay a judgment. He cannot force the office complex to pay the full $100,000 the way he could have done had he not been 5% contributorily negligent.
Be Aware of Contributory Negligence Issues
None of this means that someone who may be partially responsible for his or her own injures cannot sue, or that you should ever refrain from holding parties responsible for their own actions in court. It just means that some common sense can go a long way in helping your injury case.
Be wary of your surroundings, and heed safety advice, such as wearing seat belts, maintaining your vehicles, reading instructions on products, getting medical attention when needed, or being aware of your surroundings.
Remember that savvy defendants will do anything to try to second guess ordinary every day
behavior, which is why you should never take an insurance company’s “advice” on settling a case, even if they say that you caused or contributed to your own injuries. A good injury law firm can counteract these attempts to coerce you to settle your case, and help you convince a court that you did nothing out of the ordinary that would have contributed to your accident or your injuries.
Make sure you have someone by your side to handle the defences and arguments that insurance companies and negligent parties will make. The lawyers s at Preszler Injury Lawyers can help explain how to combat the most common defence tactics to help you in your injury case. Call today to speak with one of our lawyers.