Chapter 3 Flashcards
Defences Against Negligence in Common Law
How is denial used as a defence to an action?
The defendant must prove that one or more of the following occurred:
A. He or she did not commit the act that caused the complaint
B. His or her actions were not negligent
C. The plaintiff suffered no injury as a result of the defendant’s actions
What is remoteness of damage and how can it be proven?
i. The defendant’s actions must be remote from the final consequence (not the proximate cause) in order to escape liability.
ii. A novus actus interveniens (intervening act) breaks the causal chain between the defendant’s breach of duty and the plaintiff’s injury - relieving the defendant of liability.
How does the defence of inevitable accident operate?
i. It places the onus on the defendant to show that the cause and result of the accident were inevitable.
ii. It must be shown that the damages arose from an outside cause over which the defendant had no control.
What is the leading case in which the defence of no duty owed was used successfully?
Palsgraf v. Long Island Railroad Co.
Describe a case that would suit a defence based on a plea of emergency.
a. A child runs into the road in front of a cyclist who swerves to avoid the child but instead injures another pedestrian.
b. The defendant must be in the position of danger through no fault of their own.
Act of God
An act of extraordinary natural force without human interference.
What is the restriction in effect on an act of God defence?
A defendant who has the duty to foresee a natural event must prove that the severity of the incident was unforeseeable.
What does volenti non fit injuria mean?
To him that is willing, there is no injury.
What two steps were established in Waldick v. Malcolm to form a successful volenti defence?
i. Proving the plaintiff had knowledge of the risk.
ii. Proving the plaintiff waived his legal right to make a claim.
List the circumstances cited in the Occupiers’ Liability Act of Ontario that would likely form a successful defence based on volenti.
Rural premises that are used for agricultural purposes
i. including land under cultivation, orchards, pastures, woodlots, and farm ponds
ii. vacant or underdeveloped premises
iii. forested or wilderness premises
Golf courses when not open for playing
Utility rights-of-way and corridors
iv. excluding structures located thereon
Unopened road allowances
Private roads reasonably marked by notice as such
Recreational trails reasonably marked by notice as such
What type of agreement relinquishes the right to recovery?
A disclaimer is a notice of refusal to accept liability for damages that might occur in the future.
What defence seeks to have a plaintiff accept part of the fault for an injury?
Contributory negligence - it allows the damages to be reduced by the percentage of blame assigned to the plaintiff.
What is a limitation period?
A period of time after which a cause of legal action may no longer be enforced.
Which court case introduced the doctrine of strict liability?
Rylands v. Fletcher (reservoir flooded)
What are the two most common situations in which strict liability arises?
Escape of substances from one land to another.
Escape of vicious animals.