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23 Ins. Counsel J. 201 (1956)
Canadian Comparative Negligence Law

handle is hein.journals/defcon23 and id is 203 raw text is: INSURANCE COUNSEL JOURNAL Canadian Comparative Negligence Law EDSON L. HAINES* Toronto, Canada L AWYERS ask, How long will the set- tlement of automobile damage claims be left to the courts?, and the answer would seem to be, So long as public dis- satisfaction does not increase to the point where it commands the attention of the legislators and encourages them to apply their usual solution of administrative tri- bunals. Law is often far behind contemporary thinking, and judges and lawyers are not good social engineers. In their quest for popular reforms, politicians are often re- luctant to improve the old, particularly when the old is in disrepute. It is much easier to try the new. We know the public dislike for the harsh common law rule which prevents an injuried plaintiff from recovering, if he is even 1% at fault. And we are well aware of the inequity of re- quiring one concurrent wrongdoer to pay the plaintiff's entire loss without recourse against another wrongdoer. And finally, when such remedial legislation is enacted, we discover how frustrating and illusory the relief can be if the legislation is not well-drafted. It is the object of this paper to outline the experience and practice in the Prov- ince of Ontario, which was the first Prov- ince to amend the rigours of the common law. Today all other Provinces in Canada have similar legislation. In 1914, after years of statutory amendments and great dissatisfaction with master and servant litigation, Ontario adopted what appeared to be then some rather radical workmen's compensation legislation. It took from the courts and boards of arbitration practical- ly all the litigation arising from injuries to workmen. With it went the common law doctrine of contributory negligence, the fellow-servant rule, and assumption of risk. In its place was an administrative tribunal placed beyond the courts, awarding com- pensation regardless of fault. Judges, law- yers and witnesses were no longer neces- sary. Even the right of appeal was taken away. (From the very beginning, the On- tario Workmen's Compensation Board was *of the firm of Haines, Thomson, Rogers,. Ben- son, Howie & Freeman; associate professor of trial procedure at University of Toronto School of Law. popular with the vast majority of work- men and employers. Today it provides compensation, medical and hospital bene- fits equal to anything available privately, and its rehabilitation centers are models copied throughout the world.) The success of the Workmen's Compen- sation Act and the removal from the courts of such a large body of litigation were two of the dominant factors in bringing to the attention of the legislators and the bar that the law of torts needed a substantial overhaul in Ontario if it were going to con- tinue to serve the public needs. Conse- quently, the first comparative negligence law was enacted in Ontario in 1924 and, with appropriate amendments, has worked most successfully. It achieves the following results: 1. An injured plaintiff whose fault has contributed to his loss, finds his re- covery reduced by the degree of his fault. 2. Where there are concurrent wrongs on the part of two or more defendants, each remains liable to the plaintiff, but between themselves are entitled to con- tribution in the degree to which the neg- ligence of the other contributed to the loss. 3. Where the plaintiff sues only one of two or more concurrent tort feasors, the defendant can add the other tort feasor as a party defendant, if the plain- tiff does not object, or, as a third party, if the plaintiff objects. In any event, all tort feasors can be brought before the court. In this respect, there is a further option. Any tort feasor can set- tle with an injured person and there- after proceed against another tort feasor for contribution. This may be done at any time before or after the injured per- son sues. The only limitation is that the person making the settlement must: (a) Admit that he was a tort feasor, and (b) He must satisfy the court that the amount of the settlement was reasonable. April, 1956 Page 201

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