An appellate court’s duty: correct explanations

Lawyers, and others, who aren’t experts in the subject matter read appellate decisions, too. That’s one of the ways we learn. That’s one of the ways we become better at what we do.

An appellate court fails one of its duties to the profession, and to the public, if the court explains a decision  in terminology which incorrect and misleading, even if the decision is valid on the evidence.

Fault and liability are not synonyms.  The members of a BCCA panel forgot that in the reasons in Hansen v. Sulyma, 2013 BCCA 349.

In Hansen, H was injured in a motor vehicle accident.  The trial judge found that each of defendants D1, D2 and D3 were at fault and liable. The trial judge  apportioned fault for the purpose of their claims over for contribution. This apportionment effectively established the amount that each would pay to the plaintiff on the assumption that each of the defendants had adequate assets or insurance. You should assume they did. The trial judge also found that the plaintiff was not at fault,

For those not familiar with relevant British Columbia law: If P had also been at fault, the extent of liability of each of the defendants would have been several (propotional), not  joint (solidary).

The issues on appeal were fault, liability and apportionment.

The BCCA affirmed the trial finding that the plaintiff was not also at fault. However, the reasons refer to this as the “contributory liability of the plaintiff” issue in the heading that introduces the discussion of the plaintiff’s conduct,: see para. 34. There’s no such animal as “contributory liability” of a plaintiff or anybody else. However, in the paragraph, the Court uses “contributorily negligent”.

The discussion of the apportionment of fault amongst the defendants begins at para. 35. It concludes in para. 38o. It’s introduced with the heading: “Apportionment of Liability”.   “Liability” is used frequently instead of fault,

[38]    I would allow the appeal on this point and re-apportion 20% of the liability to the pub defendants, 70% to Mr. Leprieur, and 10% to Mr. Sulyma.

The liability of each of the defendants to the plaintiffs wasn’t for a percentage of the judgment amount. It was joint and several for 100%.

The BCCA didn’t intend to say that all that S had to pay was 10% in the event that H tried to collect all of the judgment from S. But, that’s what the quoted paragraph states.

The para. 38 wording would have been accurate  if the plaintiff had also been at fault. But he wasn’t.

There’s no good reason for errors of this sort.

The BCCA panel members (and all of the parties’ counsel, and those of us who practice in the area) know that so long as each of the defendants (or subsequent parties) have sufficient readily exigible assets – particularly where each of the persons held liable for damages or contribution  have insurance – the apportionment of fault sets out the amount that each person will actually pay out. That way there’s no need for any of the persons held liable to pay more than their “share” and have to enforce the contribution award.

This isn’t new.

In passing, there’s also no good reason for the person(s) involved in preparing the summaries of BCCA decisions to believe that British Columbia has a Contributory Negligence Act, even more so when the correct name of the statute – the Negligence Act –  appears in the text of the reasons. See Mawani v. Pitcairn, 2013 BCCA 338, The reasons are dated July 19, 2013. That small “oops” in the summary is still there as of Aug 2, 2013.

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