Can a judge vary the degree of fault fixed by the trial judge?
British Columbia, Canada
The following excerpt is from Weiss v. Young Men's Christian Association of Greater Vancouver, 1979 CanLII 487 (BC CA):
Counsel for the appellant contends that the trial judge erred in fixing the respondent’s degree of fault at only 20 per cent. The respondent has cross-appealed, and contends that the trial judge erred in finding any contributory negligence. I find, with all due respect to the view of the trial judge, that I am unable to agree that he correctly apportioned fault between the parties. In Kolodychuk v. Squire, 23rd February 1972 (not reported), varied 1972 CanLII 147 (SCC), [1973] S.C.R. 303, 34 D.L.R. (3d) 265, McFarlane J.A., speaking for this court, varied the degrees of fault fixed by the trial judge. I am mindful of the caveat he expressed in doing so: “It has been said frequently that the cases must be rare in which an appellate court will interfere with a trial judge’s apportionment of blame while accepting his basic findings as to negligence.”
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