Carfra Lawton LLP | Victoria BC

Apportionment of Fault Must be Pleaded

The defendant City of Vancouver is sued by a plaintiff injured while riding on the City’s sea wall. The City did not initially plead contributory negligence or that the accident was caused or contributed to by a company that rented the plaintiff a bike and helmet. The City applied to amend its defence to plead these matters. In the decision, MacDonald v. Cunniff, 2016 BCSC 559, Madam Justice Sharma permitted the amendments after reviewing the law on a defendant’s ability to plead fault against a non-party. She agreed with the City’s submission that “not only is it proper to add the allegations in its response about ABC Company Ltd., but that it must do so if it intends to argue that its liability should be several rather than joint as against the plaintiff’s alleged contributory negligence, and ABC Company Ltd.”

This is a sound and useful decision because it reinforces a key factor in the law of negligence and reiterates two important practice points:

  • In British Columbia negligence law, if a plaintiff and at least one defendant are at fault, fault must be apportioned between them in the degree to which each is at fault and liability is several not joint and several. This means the plaintiff can recover only the fault apportioned to the defendant or each defendant. This is why it was important for the City, in this case, to get these amendments made; if the City is held to be at fault but can prove that the plaintiff and ABC Company Ltd. are also at fault, then the plaintiff can recover only the fault attributable to the City. The City would have no exposure to pay the plaintiff the damages apportioned to ABC Company Ltd. because there would be no joint and several liability. In this scenario, it is the plaintiff who risks an incomplete recovery by not suing all the proper parties.
  • The first practice point is that if a party intends to argue a point of law at trial, it is good and proper practice to plead it and to include particulars. This applies equally to plaintiffs and defendants.
  • The second practice point is that it is not necessary for a defendant to file a third party notice against an alleged co-wrongdoer if the only goal is to ask the court to apportion fault at trial. It is sufficient to plead apportionment of fault in the defence. Anecdotally we have heard that some judges are unwilling to apportion fault to a non-party, but this decision and the cases on which it builds reinforces that there is nothing improper in doing so. Of course, not third-partying an alleged co-wrongdoer leaves the defendant exposed to joint and several liability if the plaintiff is held not to be contributorily negligent.

Case law summary by: Neil Carfra