Chapter 3 Flashcards
What are the defences someone who is accused of committing a tort can use?
Denial
Remoteness of damage
Inevitable accident
No duty owed
Emergency
Act of god
Voluntary assumption of risk
Contributory negligence
Explain the defence denial
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
What case is used to illustrate the defence denial?
Bux vs Slough Metals Ltd.
Explain the defence remoteness of damage
Defence must prove that their actions were not the immediate and effective cause of the plaintiffs injuries or damages
Define novus actus interveniens
This Latin term refers to the intervening act that breaks the casual chain between the defendants breach of duty and plaintiffs injury
Explain the defence inevitable accident
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
What case illustrates the defence inevitable accident?
Ryan vs Youngs
Mr. Youngs suffers a heart attack while driving, the car goes out of control and causes injury to Mr. Ryan
Explain defence emergency
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
Explain the defence act of god
An act of extraordinary natural force without human interference. It is unpredictable and impossible to foresee
Define volenti non fit injuria
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
What two-step test must be passed in order for the defence voluntary assumption of risk to be successful?
Proving the plaintiff had knowledge of the risk
Proving the plaintiff waived his or her legal right to make a claim
What case is used to illustrate the defence voluntary assumption of risk?
Waldrick vs Malcolm
Define disclaimer
A notice of refusal to accept liability for damages that might occur in the future
Explain the defence contributory negligence
Partial defence
It allows the damages to be reduced by the percentage of blame assigned to the plaintiff
What kind of cases has strict liability been applied to?
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
What are the exceptions a defendant has in the case of strict liability?
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
Define 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
What are the situations where onus of proof shifts to the defendant?
Statute
Bailees
Res Ipsa Loquitur
Scienter
Good Samaritan concept
What is the Latin name for onus of proof
Onus probandi
Explain onus of proof changed by statute
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
Explain onus of proof changed by Bailees
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
Define res ipsa loquitur
The facts speak for themselves. A doctrine of law or a presumption of certain facts.
What two requirements must be met for the onus of proof res ipsa loquitur?
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
Explain onus of proof 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 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
Explain the onus of proof Good Samaritan concept
Used to protect volunteer rescuers
Provides a defence against torts for an attempted rescue by someone who voluntarily helps a victim in distress
