3.1 - Defences against Negligence Flashcards
Explain what defences might be available against an allegation of negligence
Defences Against Negligence
1 - Denial
2 - Remoteness of damage
3 - Inevitable accident
4 - No duty owed
5 - Emergency
6 - Act of God
7 - Voluntary assumption of risk
8 - Contributory negligence
Neg1 - Denial
-denying that they committed the act, denying that the act was negligent, or denying that the plaintiff was injured
-thus the defendant must prove that one or more of the following occurred:
> he or she did not commit the act that caused the complaint
> his or her actions were not negligent
> the plaintiff suffered no injury as a result of the defendant’s actions
-defendants must prove there was no negligent conduct, even when there has been compliance with applicable statutes.
-For example, an employer who is required by statute to provide employees with safety goggles and does so, but knows that the employees barely use them, will likely be found negligent if an employee suffers an eye injury (‘Bux v. Slough Metals Ltd.’)
Neg 2 - Remoteness of Damage
-defendants must prove that their actions were not the immediate and effective cause (otherwise known as proximate cause) of the plaintiff’s injuries or damages
-their actions must be remote from the final consequence in order to escape liability
-related to the remoteness of damage defence is ‘novus actus interveniens’. This Latin term refers to the intervening act that breaks the causal chain between the defendant’s breach of duty and the plaintiff’s injury
-the intervening force is an additional unrelated act preceding the original course of action and is independent of the initial act that started the chain of events leading to the plaintiff’s injury
-it breaks the chain of causation between the defendant and the plaintiff - relieving the defendant of liability
Neg 3 - Inevitable Accident
-the theory of defence for inevitable accident places the onus on the defendant to show that the cause and result of the accident were inevitable
-it must be shown that damages arose from an outside cause over which the defendant had no control
-the defence of inevitable accident is not often used, instead the defendant simply pleads that they were not negligent
Neg 4 - No Duty Owed
-the concept of “duty owed” can be used as a defence to a lawsuit
-in ‘Cooper v. Hobart’, the plaintiff alleged that the Registrar of Mortgage Brokers breached a duty of care to investors, first by failing to act sooner in suspending the license of a mortgage broker who had violated BC’s Mortgage Brokers Act; second, by failing to advise investors that the broker was under investigation
-the court found there was insufficient proximity between the Registrar and investors to create a duty of care
Neg 5 - Emergency
-if the defendants try to extricate themselves from danger and cause damage to the plaintiff in the process, they can please emergency as a defence
-they are required to show that they were in that position through no fault of their own
-for example, a child runs into the road in front of a cyclist who swerves to avoid the child but instead injures another pedestrian
Neg 6 - Act of God
-in law, an act of God is an act of extraordinary natural force without human interference
-it is unpredictable and impossible to foresee
-but it is sometimes necessary for a defendant who has the duty to foresee a natural event to prove that the severity of the incident was unforeseeable
-for example, a golfer on a golf course is injured when lightning strikes, or a sudden and violent rainstorm causes damage
Definition - “volenti non fit injuria (volens)”
-to one consenting, no wrong is done. Where people voluntarily assume a risk that results in injury to themselves, they are not entitled to claim damages from another
Neg 7 - Voluntary Assumption of Risk
-when a person voluntarily assumes a risk, liability will not result from it
-the Latin term for this defence is ‘volenti non fit injuria’: To him that is willing, there is no injury
-to escape liability, the defendant must show that the plaintiff knew of the risk and accepted it
-for example, a skier is injured while skiing
-the defence of ‘volenti’ will not be successful unless it passes a 2 step test:
-(1) proving the plaintiff had knowledge of the risk and
-(2) proving the plaintiff waived their legal right to make a claim
-The Appeal Court of Ontario in the case of ‘Waldick v. Malcolm’ held that a person must not only know about the risk and physically assume it but also must waive the rights of any legal claim in the event of an injury
-the defendant’s argument that knowledge of the risk itself constitutes a defence was rejected
-however, occupiers’ liability legislation in certain categories deems that persons have willingly assumed any associated risks.
-in Ontario, a ‘volenti’ defence will succeed in the following circumstances outlined in the Occupiers’ Liability Act concerning a person who enters certain premises described in the Act:
> where entry is prohibited under the ‘Trespass to Property Act’
> where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry
> where the entry is for the purpose of a recreational activity and
> no fee is paid for the entry or activity of the person; and
> the person is not being provided with living accommodation by the occupier
-in ON and other jurisdictions with similar occupiers’ liability statutes, the considerations raised by the ‘volenti’ defence at common law are now often raised as contributory negligence
Disclaimer
-a disclaimer is a notice of refusal to accept liability for damages that might occur in the future
-it provides a warning to a potential plaintiff of a potential peril
-the disclaimer is associated with the ‘volenti’ defence: The expectation is that the claimant has read the notice and assumed the risk
-generally the law requires that plaintiffs must have knowingly renounced their legal rights to make a claim
-a simple notice of disclaimer posted on a wall would probably not be sufficient to escape liability
-the defendant must show that the plaintiff read the notice
-as mentioned before, the principles of the ‘volenti’ defence apply
Neg 8 - Contributory Negligence
-contributory negligence is a partial defence - it allows the damages to be reduced by the percentage of blame assigned to the plaintiff
-for example, where a plaintiff would have suffered less serious injuries had they been wearing a seatbelt, contributory negligence can be raised as a defence
Limitation Periods
-if an action is not brought within the time limit prescribed by law, the party’s legal remedies are extinguished
-each Prov. and Terr. has general statutes of limitation; in addition, other prov. terr. and federal statutes apply to a variety of specific circumstances. It is a complex area of law
-for example, the limitation period may run from the time the event that gave rise to the action occurred or when the effects of the action were discovered
-for example, the limitation period for typical tort actions is two years in most jurisdictions
-in general, the use of limitation periods, particularly in civil matters, provides for a sound economic environment that permits businesses to plan against potential litigation
Defences to Strict Liability
-liability for damages caused by dangerous things is based on the doctrine of strict liability (‘Rylands v. Fletcher’)
-in cases falling into this category, it is not necessary for the plaintiff to prove negligence as long as the plaintiff can prove the surrounding circumstances whereby a dangerous thing was kept on the defendant’s land and it escaped, causing damage
-in ‘Rylands’, the defendants made a reservoir on their land, then the reservoir was filled, water escaped through an old mine shaft into the plaintiff’s mine and flooded it
-from this it was concluded that any persons who brings on their land and keeps there for their own purposes anything likely to do mischief if it escapes must keep it at their own peril. If the dangerous thing escapes and causes damage, the person who kept and cared for the object would be held liable even if that person was not negligent
-Strict liability has been applied to cases involving the following:
> fire or large volumes of water used for industrial or transportation purposes
> commercial use of or commercial quantities of gas and electricity
> use of poisonous gases in fumigation
> spraying of herbicides
> keeping wild animals or domestic animals with known vicious tendencies
-defendants are not liable for the escape of things naturally on their land as long as they have not done something to change the direction or flow of that thing normally on the land.
-for example, a heavy spring runoff from someone’s land to that of another person will not invite liability as long as the defendant did not alter his land in any way to direct such flow
Defendants can only be excused from strict liability by brining up themselves within one of the following exceptions:
> Act of God
> Escape caused by the plaintiff’s own actions
> Escape by the deliberate wrongful act of a third party
> when the dangerous object is on the defendant’s land with the implied or express consent of the plaintiff
> when the authorization to bring and keep the dangerous object on the defendant’s land is granted by statute
Definition - “Absolute Liability”
-liability associated with very dangerous actions. Often found in cases involving explosives and in many automobile laws. Negligence does not have to be proven
Defences to Absolute Liability
-absolute liability occurs in a prescribed set of circumstances, described by statute, for which there is no defence
-for example, the ‘Environmental Protection Act of Ontario’ imposes absolute liability on persons in control of a substance that is spilled and causes damage to the environment
-the defendant cannot escape liability by proving that they were free of fault, and they must clean it up regardless of who was at fault for the spill
-for example - driver causes an accident with an oil tanker and the tanker driver and owner must clean up the spill, but the defendant (oil tanker owner) may subrogate against the driver of the vehicle at fault to try to reclaim their expenses
-generally, Canada’s courts have not been open to findings of absolute liability, of the few cases that arise, they tend to deal with straightforward regulatory issues such as driving a motor vehicle over the posted speed limit
