Chapter 3

Question 1

What are the defences someone who is accused of committing a tort can use?

Answer 1

Denial
Remoteness of damage
Inevitable accident
No duty owed
Emergency
Act of god
Voluntary assumption of risk
Contributory negligence

Question 2

Explain the defence denial

Answer 2

The defence must prove one 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 defendants actions

Question 3

What case is used to illustrate the defence denial?

Answer 3

Bux vs Slough Metals Ltd.

Question 4

Explain the defence remoteness of damage

Answer 4

Defence must prove that their actions were not the immediate and effective cause of the plaintiffs injuries or damages

Question 5

Define novus actus interveniens

Answer 5

This Latin term refers to the intervening act that breaks the casual chain between the defendants breach of duty and plaintiffs injury

Question 6

Explain the defence inevitable accident

Answer 6

The theory of this defence places onus on the defendant to show that the cause and result of the accident were inevitable. It must be shown that the damages arise from an outside cause over which the defendant had no control

Question 7

What case illustrates the defence inevitable accident?

Answer 7

Ryan vs Youngs

Mr. Youngs suffers a heart attack while driving, the car goes out of control and causes injury to Mr. Ryan

Question 8

Explain defence emergency

Answer 8

If the defendants try to extricate themselves from danger and cause damage to the plaintiff in the process, they can plead emergency as a defence.
They are required to show that they were in that position through no fault of their own

Question 9

Explain the defence act of god

Answer 9

An act of extraordinary natural force without human interference. It is unpredictable and impossible to foresee

Question 10

Define volenti non fit injuria

Answer 10

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

Question 11

What two-step test must be passed in order for the defence voluntary assumption of risk to be successful?

Answer 11

Proving the plaintiff had knowledge of the risk
Proving the plaintiff waived his or her legal right to make a claim

Question 12

What case is used to illustrate the defence voluntary assumption of risk?

Answer 12

Waldrick vs Malcolm

Question 13

Define disclaimer

Answer 13

A notice of refusal to accept liability for damages that might occur in the future

Question 14

Explain the defence contributory negligence

Answer 14

Partial defence
It allows the damages to be reduced by the percentage of blame assigned to the plaintiff

Question 15

What kind of cases has strict liability been applied to?

Answer 15

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 fumigations
Spraying of herbicides
Keeping of wild animals or domestic animals with known violent behaviour

Question 16

What are the exceptions a defendant has in the case of strict liability?

Answer 16

Act of god
Escape caused by the plaintiffs own actions
Escape by the deliberate wrongful act of a third party
When the dangerous object is on the defendants land with the implied or express consent of the plaintiff
When the authorization to bring and keep the dangerous object on the defendants land is granted by statute

Question 17

Define absolute liability

Answer 17

Liability associated with very dangerous actions. Often found in cases involving explosives and in many automobile laws. Negligence does not have to be proven

Question 18

What are the situations where onus of proof shifts to the defendant?

Answer 18

Statute
Bailees
Res Ipsa Loquitur
Scienter
Good Samaritan concept

Question 19

What is the Latin name for onus of proof

Answer 19

Onus probandi

Question 20

Explain onus of proof changed by statute

Answer 20

For example provincial and territorial legislation. The legislation provides that if a car hits a pedestrian on the roadway, the onus is on the driver to prove he or she was not negligent

Question 21

Explain onus of proof changed by Bailees

Answer 21

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

Question 22

Define res ipsa loquitur

Answer 22

The facts speak for themselves. A doctrine of law or a presumption of certain facts.

Question 23

What two requirements must be met for the onus of proof res ipsa loquitur?

Answer 23

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

Once the plaintiff has shown that an accident could have happened except through the defendants negligence, the burden of proof shifts to the defendant

Question 24

Explain onus of proof scienter

Answer 24

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 prove that the owner was aware of similar behaviour by the animal prior to the incident, the animal will be considered a dangerous animal and the owner will be held in strict liability

Question 25

Explain the onus of proof Good Samaritan concept

Answer 25

Used to protect volunteer rescuers
Provides a defence against torts for an attempted rescue by someone who voluntarily helps a victim in distress