Oftentimes, litigation involves multiple tortfeasors. The
apportionment of damages between multiple tortfeasors relies on the
degree of fault attributable to each of the defendants.
This article will outline the necessary steps and considerations
that arise during apportionment calculations.
1: Identify the Plaintiff's Injury
An understanding of the type of injury suffered by the plaintiff
is required for damage apportionment. This includes knowing all of
the plaintiff's physical and mental diagnoses following an
accident.
Once the injury has been identified, it must be shown to be caused
by the actions of a tortfeasor. Establishing causation will aid in
identifying the number of tortfeasors potentially liable for the
injury's damages.
2: Evaluate Contributory Negligence by the Plaintiff
In some cases, a plaintiff may, at the time of injury, fail to
reasonably protect oneself in a manner that would reasonably and
foreseeably create a risk of harm. This failure to self-protect is
called "contributory negligence".
Fault attributable to a plaintiff's injuries due to
contributory negligence is non-compensatory, meaning that the
plaintiff will be barred from recovering damages relative to
his/her degree of contributory negligence.
3: The Apportionment Analysis
i. Concurrent tortfeasors
"Concurrent tortfeasors" describes parties that
committed torts simultaneously at a single point in time to produce
the same injury to the plaintiff. The degree of fault attributable
to each party is a question of fact to be determined by the trial
judge or jury.
The degree of damage apportionment for concurrent tortfeasors
requires the consideration of, among other things, the following
factors:
- The nature of the duty owed by the tortfeasor to the injured party.
- The number of acts of fault or negligence committed by a person at fault.
- The timing of the various acts of negligence.
In the case of Blondeau (Litigation guardian of) v.
Peterborough (City) the 12-year old plaintiff was injured
during figure skating practice at the local ice rink. The fall was
caused by a depression in the ice where a hockey goal post could be
inserted.
The Plaintiff commenced legal action against the City, as the
owner of the sports center, the figure skating Club and the figure
skating coaches. All three parties knew that there had been
problems with resurfacing the ice over the goal post areas and a
reasonable standard of care required the parties to ensure that
these areas were inspected.
The City, as occupier, was found liable in negligence as a result
of failing to put procedures in place to ensure that the goal post
areas would be properly resurfaced and inspected before figure
skating activities. The Court also determined that the Club and its
coaches bore some responsibility for the injuries sustained in
failing to conduct regular ice inspections during its skating
lessons.
Having found the City to be primarily responsible, it was liable
for 75 per cent of the Plaintiff's damages. The Club's
liability was assessed at 15 per cent, and the coaches at 10 per
cent.
ii. Non-concurrent tortfeasors
Non-concurrent tortfeasors exist when an injury is caused by
separate tortious acts that are not connected through a single
event but rather, are completely independent of one another. Once
it is established that the torts are non-concurrent and several,
the courts must determine whether the tortious events present
sufficient or insufficient causes.
"Sufficient causes" describes the situation where each
tortious incident causes an injury and their individual effects
have superimposed on each other (e.g. when a second injury
aggravates an initial injury).
"Insufficient causes" applies to situations where the
injury is the result of several causal factors, all of which were
necessary but not independently sufficient, for the injury's
occurrence.
In Beam v. Pittman, the plaintiff was injured following
three motor vehicle collisions. In each case, the plaintiff was the
driver and her car was rear-ended.
The first accident caused a soft tissue injury, the second
accident aggravated the first injury and the third accident further
aggravated the injury, which resulted in a diagnosis of
fibromyalgia.
The trial judge referred to two methods of apportioning damages
between tortfeasors in cases where subsequent accidents aggravate
previous injuries.
The first method is to assess the damages attributable to the
first tortfeasor as if the trial were held on the day before the
second accident, and then assess those damages resulting from the
two accidents. The second tortfeasor pays the difference between
that assessed in respect of the first accident and the global
amount.
The second approach is to apportion damages on the basis of the
percentage of disability most probable to result from each
accident, as both accidents were necessary to produce some of the
loss. Apportionment of fault is a fact-dependant matter within the
discretion of the judiciary.
Both of these approaches have been applied by various courts. In
both cases, the plaintiff receives full compensation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
