In Personal Injury Cases, What is Joint and Several Liability?
What is contribution and indemnity?
“Contribution and indemnity” is a means by which a Judge or a Jury can determine which defendant is liable and for what amount when a plaintiff alleges more than one person is responsible for an accident that caused them injury. Contribution and indemnity is intertwined with principles of joint and several liability.
In a personal injury court action, there are situations where more than one person may be responsible for the injuries the plaintiff suffered. In cases where there are more than one defendant, the Court can hold each defendant severally liable or jointly liable. A defendant that is held severally liable must pay an amount in proportion to their liability (25% severally liable, must pay 25% of total damages). Where two or more defendants are held jointly liable, the injured person can recover 100% of the damages from any of the defendants.
Joint and several liability is a principle of law that applies where more than one person is at fault for the accident that caused someone else to suffer injury. In law, persons who are joint and severally liable are equally responsible to pay the full amount of damages awarded to an injured person, even if they are only 1% at fault. This legal principle applies most often in car accident cases. For instance where the driver of the vehicle in the injured person was a passenger was speeding and collided with another vehicle who ran a red light.
Why is contribution and indemnity important?
In applying the joint and several liability principle, the law seeks to ensure that the injured person is wholly compensated for their injuries. In cases of serious injuries suffered in a car accident for instance, one of the defendants may have limited insurance coverage. The injured person can trigger additional insurance coverage by proving more than one person was responsible to different degrees for the accident and injuries and so can look to more than one insurance policy to satisfy a judgment for compensation.
Before the injured victim is awarded damages from more than one defendant, they must prove that each of the defendants were responsible for the accident. The burden is on the injured person to prove negligence in most cases.
Principles contained in the Negligence Act of Ontario
In Ontario, th principle of joint and several liability is embodied in the Negligence Act, R.S.O. 1990, c. N.1. That Act sets out the following:
Extent of liability, remedy over
1. 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. R.S.O. 1990, c. N.1, s. 1.
Recovery as between tortfeasors
2. A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled. R.S.O. 1990, c. N.1, s. 2.
Plaintiff guilty of contributory negligence
3. 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. R.S.O. 1990, c. N.1, s. 3.
Where parties to be deemed equally at fault
4. 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. R.S.O. 1990, c. N.1, s. 4.
Adding parties
5. Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties. R.S.O. 1990, c. N.1, s. 5.
Jury to determine degrees of negligence of parties
6. In any action tried with a jury, the degree of fault or negligence of the respective parties is a question of fact for the jury. R.S.O. 1990, c. N.1, s. 6.
When plaintiff may be liable for costs
7. Where the damages are occasioned by the fault or negligence of more than one party, the court has power to direct that the plaintiff shall bear some portion of the costs if the circumstances render this just. R.S.O. 1990, c. N.1, s. 7.
How do defendants apportion damages among themselves?
Where an injured person alleges that two or more defendants are jointly and severally liable, any defendant may claim contribution and/or indemnity from the other defendants.
Indemnification
Indemnification is the right of one defendant to collect from another defendant all the damages awarded against them in favour of the injured party.
Contribution
Contribution applies to have the defendants share the damages awarded. Where two or more defendants are held jointly liable, one defendant can seek contribution from another defendant. By applying the principle of contribution, one defendant can ensure that another defendant pays their fair share of the damages.
In personal injury court actions, contribution will allow one defendant to pursue another defendant for part of the total damages awarded. A defendant will do this when they believe they are only partially at fault for the accident.
In personal injury court actions, by claiming indemnity, one defendant can pursue another defendant for the entire amount of the damages awarded. This applies when one defendant believes they are not at fault for the accident at all.
It is important to retain an experienced Ottawa personal injury lawyer who understands legal principles that apply to your case such as contribution and indemnity claims among defendants. We offer free consultations. We work on a no fee until you win basis.
Marc-Nicholas Quinn
613-315-4878