What factors will be used to determine whether a tortfeasor is more at fault than a defendant who first commits a negligent act?

British Columbia, Canada


The following excerpt is from MacEachern v. Rennie, 2010 BCSC 625 (CanLII):

In Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993 at paras. 62-63, Groves J. reviewed a number of factors that may be relevant in assessing relative degrees of fault. These include: 1. The nature of the duty owed by the tortfeasor to the injured person; 2. The number of acts of fault or negligence committed by a person at fault; 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; 4. The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy. Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis; 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; 6. The gravity of the risk created; 7. The extent of the opportunity to avoid or prevent the accident or the damage; 8. Whether the conduct in question was deliberate, or unusual or unexpected; and 9. The knowledge one person had or should have had of the conduct of another person at fault.

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