Accidents can happen in many ways – and, in some cases, accident victims can also be contributing parties to the accident in question. This phenomenon is referred to as “contributory negligence” in Ontario – where an accident plaintiff is found to have contributed to the injury they suffered. 

While contributory negligence does not prevent an accident victim from bringing a claim against the defendant, it can significantly impact how their case progresses and the damages they receive through settlement or a trial. Below, we’ll discuss Ontario’s key contributory negligence principles (including Ontario’s Negligence Act, RSO 1990, c N.1). 

A Refresher on Negligence in Ontario

Before getting into contributory negligence, let’s start at the beginning. 

Most types of accident claims rest on the legal concept of “negligence” – that is, that another party created a risk of harm that resulted in damage or injury to an accident victim. 

To establish a negligence claim in Ontario, an accident victim needs to prove: 

  • the negligent party owed a duty of care to the injured party; 
  • the negligent party breached the applicable standard of care; 
  • the injured party sustained damages; and
  • the damages were caused by the negligent party’s negligence. 

If an accident victim can prove the elements above, they will be entitled to damages for the injuries and losses they have suffered due to the negligent party’s wrongdoing. These damages include compensatory damages (like medical expenses or income loss) and non-pecuniary damages (like pain and suffering, emotional distress, and loss of enjoyment). 

However, an accident victim’s word is not gospel in the eyes of Ontario’s legal system, and defendants have a right to challenge the accident victim’s claim. One common area of contention is contributory negligence. 

Contributory Negligence in Accident Claims

To be clear, accident victims do not advance contributory negligence in their claim. Rather, the defendant often brings up contributory negligence as a defense against the victim’s claim. 

Essentially, contributory negligence is a legal defense where the defendant attempts to establish that the victim’s negligence contributed to their loss or damage (in whole or in part). 

Some examples of contributory negligence defenses include the following: 

  • a defendant in a motor vehicle accident claims that the victim was contributorily negligent because they weren’t wearing a seatbelt when the accident occurred; 
  • a defendant in a pedestrian accident claims the victim was contributorily negligent because they were walking at night in dark clothing and no reflective gear; 
  • a defendant in an occupier’s liability case claims the victim was contributorily negligent by willingly ignoring signs warning of a specific danger that contributed to their injuries; or
  • a defendant in a dog bite case claims the victim was contributorily negligent by harassing or taunting the dog before the attack occurred. 

How Defendants Prove Contributory Negligence

If a defendant claims the accident victim was contributorily negligent, they must prove their claim. Essentially, the defendant needs to prove that the victim’s actions contributed in whole or in part to their loss or damage. They will typically rely on previous court decisions to determine how much the victim’s contributory negligence will impact their claim. 

The Negligence Act and the Impact of Contributory Negligence

Ontario’s Negligence Act, RSO 1990, c N.1 provides a framework for determining liability in negligence cases, including cases where a defendant alleges contributory negligence and where multiple defendants are involved. In this legislation, contributory negligence in Ontario is handled by the courts as follows: 

  • If the court finds that the victim’s actions contributed to their injuries and damages, the court will apportion damages in proportion to the degree of fault or negligence found between the parties. For instance, the court might determine that the victim was 25% contributorily negligent for failing to wear a seatbelt and apportion 75% liability to the defendant. 
  • If the court finds that the victim’s actions contributed to their injuries and damages but cannot determine the extent to which the victim is contributorily negligent, they will deem the victim and defendant equally at fault. For instance, in this case, the court would apportion 50% liability to the victim and 50% liability to the defendant. 
  • If the case is heard by a jury, then the jury will determine the degree to which the victim was contributorily negligent (instead of the judge). 

As a result, the victim’s damages will be reduced by the extent to which they were contributorily negligent. For instance, if the court determines that the accident victim is entitled to $100,000 in damages (without factoring in contributory negligence), but the accident victim is 25% contributorily negligent for their injuries and damages, the accident victim will be awarded $75,000 in damages. 

Remember that a contributorily negligent accident victim may be required to bear some of the costs associated with their claim (depending on the court’s direction). 

Contributory Negligence in Ontario and Accident Benefits

Under Ontario’s Insurance Act, RSO 1990, c. I.8, motor vehicle accident victims who require medical or rehabilitative treatment or income replacement are entitled to benefits pending dispute resolution. This means that you are eligible to receive the statutory accident benefits to which you are entitled without having to wait for your case to settle or go to court – and without consideration of whether you are at fault or contributorily negligent. 

Conclusions on Contributory Negligence in Ontario and Personal Injury Claims

Defendants commonly argue that accident victims are contributorily negligent for the injuries and damages they suffered in an accident. After all, it’s in the defendant’s best interest to defend themselves against legal claims. 

Nonetheless, it’s critical for accident victims to take contributory negligence allegations seriously – and to remember that, even if they are found contributorily negligent, they are still entitled to compensation for their injuries.  If you have been involved in an accident, require assistance with your claim, or are concerned about contributory negligence, speak with a skilled personal injury lawyer for guidance. 

Skilled Personal Injury Lawyers Serving Ottawa, Eastern Ontario and North Bay

At Tierney Stauffer LLP, our skilled personal injury lawyers have many years of experience going up against insurance companies to get full and fair settlements for our clients. We will advise you of the best course of action to obtain the maximum possible settlement so that you can recover financially and move on with your life. 

Call us at 1-888-799-8057 or contact us online to set up a free consultation with one of our experienced personal injury lawyers


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