Contributory Negligence

By July 7, 2017Articles

Article by Peter Trieu, a personal injury lawyer in Calgary, Alberta

accident lawyers Calgary Peter Trieu

Assume that Mr. Plaintiff is a passenger who gets injured while travelling with an impaired driver. How would you begin to assess the Plaintiff’s contributory negligence? We recently worked on a case that required us to think through that very question.

1.) To begin, we looked at the relevant portions of the Contributory Negligence Act (in force on the date of the collision), R.S.A. 2000, c. C-27) listed below:

Apportionment of liability

1(1)  When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.

Determination of degree of fault

2(1)  When damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each person was at fault.

Questions of fact

3   In every action

(a)    the amount of damage or loss,

(b)    the fault, if any, and

(c)    the degrees of fault,

are questions of fact.

2.) We then considered how a Plaintiff’s contributory negligence would succeed as a defence. To preserve the integrity of the legal process in pursuing fairness and justice for our client, we not only had to build our case, but think through how the defendant would tear down our client’s case as both the plaintiff & defendant’s arguments need to be given serious attention.

For contributory negligence to succeed as a defence, the Defendant in this case must prove that (Heller, para 14):
1.) The Plaintiff was negligent; and
2.) The Plaintiff’s negligence was a cause of the injuries;

The legal test in Alberta in determining the degree of fault under the Contributory Negligence Act (CNA) is found at paragraph 34 of Heller v. Martens [2002] ABCA 122, 303 A.R. 84, [2002] A.J. No. 638:

34  Apportionment of fault between a contributorily negligent Plaintiff and a negligent Defendant under the CNA requires an assessment of the parties’ degree of departure from the standard of care. Although not an exhaustive list, in assessing comparative blameworthiness courts have considered such factors as:

1. The nature of the duty owed by the tortfeasor to the injured person: Aynsley v. Toronto General Hospital (1967), [1968] 1 O.R. 425 (Ont. H.C.), at 444-45, aff’d(1971), [1972] S.C.R. 435 (S.C.C.); Teno v. Arnold, [1978] 2 S.C.R. 287 (S.C.C.).

2. The number of acts of fault or negligence committed by a person at fault: Bruce (County) v. McIntyre, [1954] 2 D.L.R. 799 (Ont. C.A.), aff’d [1955] S.C.R. 251 (S.C.C.).

3. The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault: Aynsley, supra.

4. The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy: Chamberland v. Fleming (1984), 12 D.L.R. (4th) 688 (Alta. Q.B.) (where the driver of a motor boat sped by a canoe causing it to tip, and the canoeist to drown). Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis: see John G. Fleming, The Law of Torts, 8th ed. (Sydney: Law Book Company, 1992) at 273-74.

5. The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy: Crothers v. Northern Taxi Ltd. (1957), 10 D.L.R. (2d) 87 (Man. C.A.), at 100; see also Clyke v. Blenkhorn (1958), 13 D.L.R. (2d) 293 (N.S. S.C.), at 304.

35        Fault may vary from extremely careless conduct, by which a party shows a reckless indifference or disregard for the safety of persons or property, to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm. Degrees of contributory negligence are assessed accordingly: Alberta Wheat Pool v. Northwest Pile Driving Ltd. (2000), 80 B.C.L.R. (3d) 153 (B.C. C.A.) at 165-66; see also Giuliani v. Saville (1999), 133 B.C.A.C. 164 (B.C. C.A.) at 167.

Although the Court of Appeal decision of Gosling v. Roper [2002] ABCA 71 was displaced by the subsequent Heller Court of Appeal decision as the leading authority on contributory negligence [*SEE END NOTE], Gosling still provided a useful causation analysis for passengers who get injured while travelling with an impaired driver:

26]           While it is true that the factors recited by the New Brunswick Court of Appeal in Bulmer v. Horsman, supra, and endorsed in Chalinor v. Brown, supra, were recited as applicable to apportionment analysis, they are, in fact, properly considered in determining whether the threshold test for contributory negligence is met when a passenger is injured in a vehicle driven by a person who is impaired. Those factors include:

a)         Whether the plaintiff actively contributed by way of encouragement to the defendant’s situation.

b)         The extent to which the plaintiff participated in the drinking activities of the defendant.

c)         The plaintiff’s knowledge of how much alcohol the defendant had consumed.

d)         Whether the plaintiff encouraged the defendant to undertake the drive.

e)         The symptoms exhibited by the driver to put the plaintiff on guard.

f)         The freedom of action of the plaintiff.

g)         The plaintiff’s knowledge of the driving habits and reputation of the defendant.

h)         When it was that the plaintiff discovered that the defendant was in such a condition so that he could not safely operate a motor vehicle.

3.) We then considered and prepared the relevant case law summaries in assessing the liability of a Plaintiff passenger as outlined below:






Gosling v. Roper 2002 ABCA 71



Although the Court of Appeal opined that the trial judge confused contributory negligence with apportionment of liability, the CA noted that this error was harmless, and affirmed the following findings of fact (para 28):

“(a)   There is no suggestion that [Gosling] actively encouraged [Roper] to drink while at the bar. She knew he was drinking and sat with him for almost one hour. For the rest of the evening she was socializing with friends and not in [Roper’s] company.

(b)   She did inquire about the Defendant’s ability to drive his car before leaving the bar location.

(c)   She said there was no indication of impairment on the part of [Roper], such as staggering, slurring of speech prior to leaving the bar before the accident.

(d)   [Roper] had, in the past, had a reputation as a good driver. On this occasion, he drove at a high rate of speed which was probably a contributory cause of the accident.”

[29]    The learned trial judge then stated (at A.B. 852 – Reasons for Judgment):

“Both the Plaintiff and the Defendant had been drinking over the course of the evening at the bar, but there was no evidence that the Defendant’s behaviour was such that his driving ability came into question.”

[30]    Mindful of the foregoing, the trial judge concluded (at A.B. 853 – Reasons for Judgment):

“Given the circumstances of this case, I am not satisfied that the Plaintiff knew or that she should have known that the Defendant’s ability to drive was impaired by alcohol to the extent that she understood the risk and agreed to drive with him, notwithstanding his impairment.”

Accordingly, the Court of Appeal upheld the trial judge’s finding that the Plaintiff was not contributorily negligent.





Pilon v. Janveaux 2006 CarswellOnt 1211, [2006] O.J. No. 887 (Court of Appeal)


Driver: 66.5%;

Bar: 14.2%

The Plaintiff suffered a serious brain injury as a result of a collision and brought an action against the driver, owner of the vehicle and tavern where he and the driver became intoxicated.

The Defendant driver and owner admitted 100% responsibility for the collision, but the jury was tasked with quantifying the plaintiff’s contributory negligence. At trial, the jury apportioned 17.5% responsibility to the Plaintiff for failing to take reasonable precautions for his own safety and 18% for failing to wear his seatbelt—thereby attributing 35.5% of the damages to the plaintiff’s contributory negligence (para 3).

However, the jury was not asked to determine to what extent, if any, the defendant tavern that served the two men (plaintiff & defendant driver) was responsible for (para 4):

a.) Contributing to the plaintiff’s damages and his contributory negligence by over-serving him to the point of intoxication thereby impairing his judgment with respect to:

    1. Accepting a ride with an intoxicated driver; and
    2. Failing to put on a seatbelt.

The Court of Appeal did not overturn the jury’s finding that the Plaintiff was 35.5% contributorily negligent. Rather, the Court apportioned liability between the plaintiff and the defendant tavern of the 35.5% responsibility of the plaintiff’s own injuries as follows:

  • 60% (of 35.5%) to the Plaintiff = 21.3%
  • 40% (of 35.5%) to the Tavern = 14.2%

The Court opined that the 60/40 apportionment of 35.5% accounted for the (para 13):

a.) Fact that plaintiff must ultimately be held accountable for his own actions;
b.) Reality that the plaintiff’s ability to lookout for himself was compromised in part by the tavern over-serving him.

Although the plaintiff must bear the majority of the responsibility for his contributory negligence (60%), the tavern was assigned a significant percentage (40%) (para 13).

Accordingly, the Court of Appeal found the Plaintiff responsible for 21.3% of the damages and the Defendants, collectively responsible for 78.7% of the damages, which is apportioned as follows:


Liability Apportionment



Driver / Owner










Suran v. Auluck 2017 BCSC 472


Driver #1 (Chrysler 300): 65%;

Driver #2 (Cadillac): 10%

The deceased was a passenger (para 170) in a Chrysler 300 that was involved in a street race with a Cadillac that had gone awry. The deceased was unable to extricate himself from the Chrylser 300 when it caught fire, and his body was found partially seated on the right front passenger’s seat area with his feet trapped between the right front passenger’s door and the ground (para 4).

The Court found that:

1.) The driver of the Chrysler 300 and his deceased passenger were intoxicated on the night of the collision (para 177);

2.) The deceased passenger was in a state of moderate to severe intoxication;

3.) The deceased passenger had several opportunities to resist entering the car with the defendant driver, including stops at a gas station, a Pub, a friend’s residence, and the Defendant driver of the Cadillac’s residence (para 178);

The Court concluded that (para 181):

1.) The deceased passenger did not take reasonable care for his safety by being a passenger in a car driven by a person he likely knew to be intoxicated;

2.) The deceased passenger was likely not wearing a seatbelt;

3.) There was some evidence that the deceased passenger tried to slow the driver down;

4.) There was no evidence that the deceased passenger actively encouraged the erratic dangerous behavior of the Defendant driver;

Accordingly, the Court concluded that the deceased passenger’s contributory negligence should be set at 25% (para 181). The Court found the driver of the Chrysler 300 65% liable and the driver of the Cadillac 10% liable (para 196).





Allercott v. Larocque 1996 CarswellBC 131, [1996] B.C.W.L.D. 524



Although the collision was caused solely by the Defendant’s negligence, the Plaintiff was found 50% contributorily negligent on the following grounds (para 25):

1.) The Plaintiff accepted a last minute joy ride in a stolen car that was about to be abandoned;

2.) The Plaintiff knew of the Defendant’s lack of driving experience;

3.) The Plaintiff knew that the Defendant:

    1. Had not had any sleep;
    2. Had been drinking beer and breaking into cars;
    3. Had been joyriding (para 25)

The Plaintiff did not use a seatbelt which was functional and available to him—had he been wearing the seatbelt, he probably would not have been ejected from the car and his head injury would probably not have occurred.





Nielsen v. Brunet Estate 1994 CarswellBC 375



The Plaintiff was injured while a passenger in his own vehicle, when the Plaintiff’s vehicle was driven by the deceased Defendant. The Court of Appeal upheld the trial judge’s finding that the plaintiff should be found contributorily negligent on the following grounds:

1.) Neither the Plaintiff, nor the Defendant were wearing seatbelts, and both were ejected from the vehicle;

2.) The Plaintiff and Defendant had consumed a considerable amount of alcohol in the hours before the collision, and were both intoxicated at the time of the collision (the Plaintiff began consuming alcohol at noon on the day of the collision, and the Defendant joined him at 2:00 p.m. They continued drinking until about 10:00 p.m. (para 5);

3.) The Plaintiff was employed as a professional truck driver with many years of experience (para 6);

At trial, the trial judge was persuaded that the Plaintiff’s degree of contributory negligence was high, given that the Plaintiff:

1.) Agreed to be a passenger in a vehicle driven by the Defendant, in the circumstances of alcohol consumption between the both of them; and

2.) The Plaintiff’s responses in cross-examination to questions as to his readiness to be a passenger with drivers who were under the influence (para 6)

The Court of Appeal found that the trial judge did not err in his apportionment of fault and upheld the trial judge’s finding of 45% contributory negligence to the Plaintiff.





Telford v. Hogan 2014 BCSC 1925



The plaintiff passenger suffered injuries whilst riding in a vehicle with the impaired Defendant driver.

The Court found that the Defendant bore more responsibility for the collision than the Plaintiff for the following reasons (para 81):

1.) Driving whilst intoxicated

2.) Driving at an excessive speed on the highway which contributed her not being in a position to recover from Plaintiff’s interference with the steering wheel;

However, the Court found the Plaintiff contributorily negligent because:

1.) The Plaintiff had put herself in a severely intoxicated state and also interfered with the Defendant’s steering wheel (para 81);

2.) The Plaintiff was well aware that the Defendant was drinking over the course of the day, had particular knowledge of the quantity of the Defendant’s alcohol consumption (as the majority of alcohol supplied to the Defendant driver came from the plaintiff’s own drink container) (paras 89, 103, 105)

Accordingly, the Court found the Plaintiff 35% contributorily negligent. Although there were allegations that the Plaintiff was contributorily negligent arising from her failure to wear a seatbelt, this issue was to be decided at a later time, failing agreement of the parties (para 5).





Glanville v. Moberg 2014 BCSC 1336



The Court found the Defendant 70% liable and Plaintiff passenger 30% contributorily negligent for the following reasons:

1.) The Plaintiff was voluntarily riding with an impaired driver (para 114);

    1. The Plaintiff was aware or ought to have been aware that the Defendant’s ability to drive was impaired by alcohol;
    2. The Plaintiff’s judgment may have been clouded by his own alcohol consumption when he agreed to ride with the Defendant;
    3. The Plaintiff was a “voluntary” passenger in the Defendant’s vehicle;
    4. The Plaintiff was unable to take reasonable care of himself because he drank himself into a significant state of intoxication (para 122)

2.)The Defendant displayed obvious signs of impairment immediately following the collision (para 115);

3.)The Defendant was not only negligent, but reckless—whereby he chose to drive aggressively, erratically, and at an excessive speed while very impaired;

Although the Court found that the Plaintiff was not properly wearing his seatbelt (para 117), the Court also concluded that there was no medical or engineering evidence that the Plaintiff’s injuries would have been prevented or lessened if the shoulder portion of the seatbelt had been worn (para 121.

Accordingly, the Court found the Plaintiff 30% contributorily negligent.





Landreau v. Tremblay 2008 CarswellOnt 10885, 170 A.C.W.S. (3d) 676



In this case, the Court found the Plaintiff 35% contributorily negligent when he was injured (after being thrown from a pick-up truck bed on an off-road trail) on the following grounds:

1.) The Plaintiff was riding in the box of a truck, regardless of whether or not there was room for him in the cab of the truck (para 12);

2.) The Plaintiff sat on a cooler, unrestrained, facing the front of the truck and rollbars instead of on the floor and in the middle of the box;

3.) The Plaintiff did this after having had a few drinks, knowing that:

    1. The driver had a few drinks; and
    2. That they were intending to go off-road on a hunting trail

Accordingly, the Court found the Plaintiff 35% contributorily negligent because:

1.) The Plaintiff’s conduct showed a want of reasonable care for his own safety, and if he had conducted himself in a reasonable manner, his injuries would have been avoided or lessened (para 14);

2.) The Plaintiff’s conduct of riding in a box of a truck was more blameworthy than simply not wearing a seatbelt while seated in a cab of a vehicle;





Holton v. MacKinnon 2005 BCSC 41


Driver: 40%; Tavern #1: 15%

Tavern #2: 15%

The Plaintiff became a quadriplegic as a result of a collision whereby the Court found the Plaintiff 30% contributorily negligent, the Defendant driver 40% liable, and Tavern #1 and Tavern #2 each 15% liable (para 440).

The Court enunciated the following principles (para 440):

1.) A driver who drinks himself into a state of intoxication must bear a substantial portion of the fault;

2.) A Plaintiff who drinks himself into a state of intoxication so that he is unable to care for himself, must also bear a substantial portion, although less so than the driver;

3.) A Commercial host should bear a relatively substantial portion as well, although in this case, the substantial fault was shared by 2 commercial hosts.

The Court found the Plaintiff contributorily negligent on the following grounds (para 438):

1.) The Plaintiff was drinking throughout the evening and early hours of the following morning with his companions;

2.) The Plaintiff had ample time, before becoming seriously intoxicated, to observe and appreciate that his driver, like him was drinking continuously and was becoming, and became intoxicated (para 438);

3.) The Plaintiff knew or ought to have known that if the defendant driver drove them home, the plaintiff could be harmed, and the Plaintiff would have been able to assess the situation;

4.) By drinking until he was seriously intoxicated, the Plaintiff did not, in his own interests, take reasonable care of himself and contributed to this lack of care to the injury he eventually suffered (para 438).





Colebank v. Kropinske 2002 BCSC 436



The Plaintiff a passenger in a car driven by her defendant boyfriend. The Court found the Plaintiff 75% contributorily negligent for injuries she suffered after falling out of the car on the following basis:

1.) The Plaintiff failed to take reasonable care for her safety by pulling on her door handle, leaning out of the vehicle such that her head, one leg and half of her body were out of the door of the car (para 2). The defendant had a grip on her arm, but lost his grip and the plaintiff fell out as a result;

2.) Although the Plaintiff had been drinking and using marijuana, the Plaintiff must have known of the risk to her safety by telling the defendant she could jump out of the car, roll, and walk home, thereby accepting the risk to her physical harm (para 15);

The Court found the Defendant 25% liable because (para 17):

1.) He knew or should have known of the risk the plaintiff would exit the car while it was moving;

2.) He failed to discharge his duty to ensure that she was seat belted (although this played a relatively small role in what happened);

3.) He supplied the Plaintiff with alcoholic beverages and marijuana, knowing that when the Plaintiff was intoxicated, she could be uncontrollable;

4.) The defendant drove too fast in all the circumstances that were known to him and he should have slowed his rate of speed below the posted speed limit





Robinson v. Williams Estate 2005 ABQB 659



The Court found the Plaintiff 25% contributorily negligent for the injuries he suffered on the following basis:

1.) The Plaintiff had a duty of care to look out for his own well-being (para 124);

2.) The Plaintiff breached that duty of care by knowingly and willingly getting into a car with a drunk driver who was about to go on a pre-dawn pleasure trip up a narrow winding mountain road that did not have guard rails (para 125) (para 129)

3.) It was reasonably foreseeable to the Plaintiff that serious harm would befall the occupants of the vehicle (para 131);

4.) The Court found that this was:

    1. Not a situation where the driver continued to drink alcohol after getting into a vehicle;
    2. Not a situation where the driver decided on a destination or a situation where the driver had to confront an unexpected crisis during the course of travel;
    3. Not a situation of necessity: there was no need for the Plaintiff to get into the car—the Plaintiff was not stranded far from home without available alternate means of transportation;

Thurs, the Court concluded that the standard of care required of the Plaintiff was not to enter the Defendant’s vehicle (para 131).

The Court found that the Plaintiff’s actions were not as blameworthy as the Defendant, given that:

1.) The Plaintiff’s actions in knowingly and willingly getting into a vehicle with a drunk driver was not in contravention of the Criminal Code;

2.) The Defendant was drunk, tired, emotionally upset and his vehicle was not in perfect working order (para 130);

3.) The Defendant drove too fast, at night, down a narrow, winding mountain road.

The Court applied the comparative blameworthiness approach, where, if the Court is unable to establish different degrees of fault, liability for the damage should be apportioned equally (para 132). In this case, the Court concluded that:

1.) Because drunk driving is prohibited in both Canadian criminal and Alberta provincial law; and,

2.) It is not against the law to become a willing and knowing passenger in a vehicle driven by a drunk driver;

The Defendant driver in this case was more blameworthy for the injury to the Plaintiff. The court indicated that there may have been an argument in favour of a higher level of blameworthiness upon the Plaintiff, since (para 132):

1.) The Plaintiff could have easily and cheaply avoided injury altogether by showing reasonable care for his own safety; and

2.) The Plaintiff’s negligence occurred at the outset of the incident rather than during the course of a series of events;

However, the defendants only argued for a 25% degree of blameworthiness upon the Plaintiff and the Court agreed with the 25% apportionment.





Jones v. Cheesbrough 2003 ABQB 196



The Plaintiff passenger suffered significant injuries in her own vehicle that was driven by the Defendant. By applying the test set out in Heller, The Court found the Plaintiff 40% liable and the Defendant 60% liable for the following reasons:

1.) The Defendant’s actions included (para 28):

    1. Driving the vehicle with a very high blood concentration;
    2. Dangerous driving causing bodily harm contrary to section 245(3) of the Criminal Code of Canada (to which he pled guilty and was convicted); and
    3. Driving at a grossly excessive speed;

2.) The Plaintiff’s actions included (para 28):

a. Riding as a passenger in her own vehicle while it was being driven by a person having a very high blood alcohol concentration (the Court opined that despite the Plaintiff’s high blood concentration, she would have been able to observe the Defendant’s degree of impairment (para 19); and

b. Failing to wear an available seatbelt which would have materially reduced the extent of her injuries (para 14);

In this case, the Court opined that there was a considerable degree of blameworthiness between the Plaintiff and Defendant (para 30). The Court ultimately found that the Defendant’s blameworthiness exceeded that of the Plaintiff’s and apportioned 60% liability to the Defendant, and 40% to the Plaintiff (para 30).





Michell v. Duncan 1985 CarswellBC 2235



The Plaintiff was rendered a paraplegic when the truck in which he was a passenger collided with another vehicle. The collision was found to be wholly the fault of the defendant driver of the truck.

However, the Court found the Plaintiff 50% liable on the following grounds:

1.) The Plaintiff was not wearing a seatbelt and his injuries would have been less severe if he had worn one (and thus, was held to be 20% responsible for his injuries for failure to wear a seatbelt) (paragraphs 2 & 8);

2.) The Plaintiff was held to be an additional 30% responsible for his injuries for riding with a driver that he knew, or should have known to be impaired, especially considering that:

    1. The Plaintiff had several opportunities to leave the truck after the journey commenced and the Defendant had been driving wildly (paras 9-10);

In our present case, we suggested that Michell pre-dated the Contributory negligence tests that have been applied in subsequent case law such as Heller v. Martens, given that such a result in the Michell case does not account for the heightened blameworthiness of the Defendant and would not serve the objectives of tort law, namely, compensating the injured and deterring the tortfeasor (see Heller, para 26-27).

The lawyers at Kubitz & Company are honored to represent Plaintiffs. We do not act for insurance companies. We thrive on pursuing a robust analysis of our cases and thinking through the merits and pitfalls of the claims that come through our office. Call us at 403-250-7100 for a consultation with one of our lawyers if you have been injured in a collision and are thinking of, or are unsure of whether you ought to pursue a claim or not.

[*END NOTE]:  This was discussed by J. Veit in the Robinson v. Williams Estate QB decision (2005 ABQB 659) where she writes, “With respect, I am of the view that the Gosling decision — which is a causation analysis — has, in effect, been over-ruled by the subsequent appeal decision in Heller v. Martens [2002CarswellAlta 657 (Alta. C.A.)] which has established comparative blameworthiness as the approach that supercedes the causation approach in Alberta. In coming to this conclusion, I note that although the Gosling and Heller panels were different, in the subsequent decision of Chae v. Min, Paperny J.A., who was part of the panel on Gosling, adopted Heller as the law in Alberta. Alternatively, even if Heller does not over-rule Gosling, because Heller is the last word on the subject of contributory negligence from our Court of Appeal, the rules of stare decisis require a trial judge to follow Heller. (para 14).


Peter Trieu, a personal injury lawyer in Calgary, Alberta