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.
