3.2 - The Effect of Onus of Proof Flashcards
Explain the concept of onus of proof in common law
Definition - “Onus of proof”
-the burden or responsibility of proof, and is sometimes referred to by its Latin term ‘onus probandi’
Onus of Proof
-a breach of duty of care may result in a finding of liability against one of the parties involved
-depending on the relationship between the parties, that duty may shift from the plaintiff (to prove negligence) to the defendant, who must instead prove they were not negligent
-generally, the party who alleges a fact has the burden of proving it, thus plaintiff’s must prove allegations of negligence
-there are, however, several exceptions to this general rule in which the onus of proof shift and defendants must prove they are not responsible or liable for the damages
Onus changed by Statute
-sometimes the onus of proof is shifted by statute
-for example, prov. and terr. highway traffic legislation. The Legislation provides that if a car hits a pedestrian on a roadway, the onus is on the driver to prove that they were not negligent
Onus changed by Statute - Bailees
-in certain circumstances, bailees are subject to a shift in the onus of proof
-a bailee accepts articles belonging to another for a specific reason, such as safekeeping or repair
-when a charge is made for the service and articles are damaged while in their hands, the onus is on the bailee to establish they were not negligent
-for example, when a garage accepts a car for servicing, the garage is expected to return the car without damaging it in any way. If the car is negligently hoisted up and then falls, causing damage, the garage is responsible
Definition - “res ipsa loquitur”
-the facts speak for themselves. A doctrine of law or a presumption of certain facts
Definition - “Burden of Proof”
-the standard by which a claim must be proven to prevail. The burden of proof is typically borne by one party or another
Res Ipsa Loquitur
-the issue of ‘res ipsa loquitur’ has been viewed as a legal rule by some in the past
-the Supreme Court of Canada has clarified the status and use of the term as a description of the state of the evidence from which it is proper to draw and inference of negligence
-two requirements must be met:
> the thing that caused the loss must have been within the exclusive control of the defendant
> the thing that caused the loss could not have happened without negligence
-however, if there is direct evidence to show how an accident occurred, the case must be decided on that evidence alone
-once the plaintiff has shown that an accident could not have happened except through the defendant’s negligence, the burden of proof shifts to the defendant
-for example, suppose a person was injured by an object falling from the second floor window of a factory. As there could not be any reasonable explanation for the incident except the defendant’s want of care, ‘res ipsa loquitur’ would describe this situation. The defendant (the factory owners) would have to prove they were not responsible
-those who sue manufacturers of inherently dangerous products, such as poison or radioactive materials, often refer to ‘res ipsa loquitur’ in order to reverse the onus of proof (such manufacturers are also held to a higher duty of care)
Scienter
-the common law doctrine of ‘scienter’ applies to dangerous animals. It leaves the onus on the plaintiff to prove that the animal that caused the damage or injury had a propensity for the actions that caused the harm
-if it can be proved that the owner was aware of similar behavious by the animal prior to the incident, the animal will be considered a dangerous animal and the owner will be held strictly liable
-in some of the common law prov. and terr., legislation governs the liability of dog owners
-according to the ‘Dog Owner’s Liability Act’, the owner of the dog is liable for damages resulting from a dog bite or attack.
-it is a form of strict liability in that the injured person is not required to prove negligence on the part of the defendant
-the plaintiff must only show that they were bitten by the dog
-when a person enters the premises intending to commit a crime and is attacked by the dog, the owner is not liable unless it was unreasonable of the owner to protect the property this way
Good Samaritan Concept
-most of the common law prov. and terr. have enacted Good Samaritan legislation to protect volunteer rescuers by restricting liability against them to the level of gross negligence or recklessness
-a person suing a rescuer for ordinary negligence would not be successful under Good Samaritan laws
-The Good Samaritan doctrine is a legal principle that provides a defence against torts for an attempted rescue by someone who voluntarily helps a victim in distress
-in the common law prov. and terr., Good Samaritan laws do not create a duty to rescue
-gross negligence is more than simple carelessness or failure to act
-it is deliberate, willful behaviours with complete disregard for the health and safety of others
-thus, if a Good Samaritan negligently causes injury to others while trying to save or protect them, the Good Samaritan will be relieved from being held responsible at law
