Mr. Segal

In a medical negligence appeal arising from catastrophic birth injuries, the appellants challenged the trial judge's equal apportionment of fault among two settling physicians and a hospital that was both directly negligent and vicariously liable for a nurse's negligence.

The court held that s. 4 of the Negligence Act was misapplied because it was practicable to distinguish relative fault, and a vicariously liable defendant's share may reflect the individual contribution of the employee whose negligence caused the loss without requiring that employee to be added as a defendant.

The court further stated that s. 1 does not authorize attribution of fault to non-parties, although that issue did not need to be decided to dispose of the appeal.

The trial judge's refusal to reduce the rule 53.09(1) discount rate for future wage loss was upheld.

Costs were varied to reflect the revised 50 per cent apportionment against the hospital.

The appellant's husband, a police officer, was struck and killed by a vehicle while investigating an accident on a well-lit highway.

The trial judge found the driver solely responsible and awarded $195,000 in damages under the Fatal Accidents Act.

The Court of Appeal found the officer 25% contributorily negligent and reduced the damages by applying a fixed 7% discount rate based on recent Supreme Court jurisprudence.

The Supreme Court of Canada allowed the appeal, restoring the trial judge's findings on liability and damages.

The Court clarified that the discount rate is a factual issue to be determined on the evidence in each case, not a fixed rule of law, and found no palpable and overriding error in the trial judge's assessment.