Contributory Negligence

Contributory negligence is a partial defence that reduces a plaintiff’s recovery to the extent their own carelessness contributed to the injury. In Ontario, apportionment is governed by the Negligence Act, which allows the court to divide fault between the parties and reduce damages in proportion to the plaintiff’s share of responsibility.

In medical malpractice cases the defence is raised less often than in other areas of personal injury, but it does appear: a patient who fails to attend follow-up appointments, does not report worsening symptoms, declines recommended investigations, or does not follow clear post-operative or medication instructions may face an allegation that their own conduct contributed to the harm. Courts assess such allegations against what a reasonable patient in the circumstances would have done, recognizing the information and power imbalance between patient and clinician.

Posts tagged Contributory Negligence analyze Ontario decisions in which a patient’s own conduct was alleged to have contributed to the injury, and how the courts apportioned fault.