Chapter 3 - Defences Against Negligence in Common Law

Question 1

Name the three aspects of a denial defence

Answer 1

• 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

Question 2

Who must prove whether or not there was negligence?

Answer 2

The defendant

Question 3

What was the relevance of Bux v. Slough Metals Ltd.?

Answer 3

The employer requires employees to use safety goggles but knows that the employees rarely use them would be found negligent when an employee suffers an eye injury

Question 4

Define remoteness of damage

Answer 4

A defence that is based on proving that their actions were not the proximate cause, their action was remote from the final consequence

Question 5

What is meant by novus actus interveniens?

Answer 5

An intervening act which breaks the causal chain between the breach of duty and the plaintiff’s injury, seperate from the initial act and relieves the defendant of liability

Question 6

Explain the inevitable accident defence

Answer 6

The defendant must show that the damages were a result of an outside cause in which there was no control and thus was ultimately inevitable

Two examples:
Ryan v. Youngs
Telfer v. Wright

Question 7

Explain the no duty owed defence

Answer 7

Was this a foreseeable plaintiff? It is possible that there was no duty owed to the plaintiff to protect them

Question 8

What was the relevance of Palsgraf v. Long Island Railroad Co.?

Answer 8

No duty owed defence

The defendant’s guard knocked a package of fireworks from the arm of a man being helped to board a train, the fireworks exploded, knocked over a scale and injured the plaintiff.

This was a successful defence as the plaintiff was beyond the realm of a foreseeable danger

Question 9

Explain the emergency defence

Answer 9

If the defendant tried to extricate themselves from danger and injured a plaintiff in the process, emergency can be used. They will need to display that the position they were in was not of their fault.

Question 10

Explain the act of god defence

Answer 10

An act of god is defined as an act of extraordinary natural force without human interference that is unpredictable and impossible. Some natural events are foreseeable, however the severity must be unforeseeable.

Question 11

Define volenti non fit injuria

Answer 11

To him that is willing, there is no injury

Question 12

Explain the voluntary assumption of risk defence

Answer 12

This defence can be utilized if it can be proven that the plaintiff was aware of the risk and accepted it

Question 13

What two steps are required for volenti to be a successful defence?

Answer 13

1) Proving the plaintiff had knowledge of the risk

2) Proving the plaintiff waived his legal right to make a claim

Question 14

What is the relevance of Waldick v. Malcolm?

Answer 14

It outlines that the plaintiff having knowledge of the risk is not enough to exercise voluntary assumption of risk. There must also be evidence that they accepted the legal risk aside from the physical risk.

Question 15

Under the Occupiers’ Liability Act, volenti can be a successful defence in the following:

Answer 15

• Rural premises that are used for agricultural purposes (including land under cultivation, orchards, pastures, woodlots and farm ponds; vacant or underdeveloped; forested or wilderness)
• Golf courses when not open for playing
• Utility rights-of-way and corridors (excluding structures located thereon)
• Unopened road allowances
• Private roads reasonably marked by notice as such
• Recreational trails reasonably marked by notice as such

Question 16

What is the use of a disclaimer?

Answer 16

It is a notice of refusal to accept liability for damages that might occur in the future. It provides a warning to the potential plaintiff of a potential peril.

Question 17

Explain contributory negligence

Answer 17

This is a partial defence; it is used to share a percentage of the liability with another party

Question 18

Explain how a limitation period may be used

Answer 18

This prescribes that action must be brought within a certain time limit as prescribed by law and cannot be completed at any time

Question 19

How long is the typical limitation period in most jurisdictions?

Answer 19

Two years

Question 20

What was the relevance of Rylands v. Fletcher? What happened?

Answer 20

It was the origins of strict liability where there is no necessity to prove negligence.

The defendants made a reservoir, the reservoir was filled and water escaped through as old mine shaft into the plaintiff’s mine, flooding it. If the dangerous thing escapes (the water from the reservoir), that person would be held liable even if the person was not negligent.

Question 21

What are some examples of when strict liability would apply?

Answer 21

• 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

Question 22

What are the five exceptions to strict liability?

Answer 22

• 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

Question 23

Explain absolute liability

Answer 23

Regardless of who was at fault or negligence, there is no defence and responsibility lies upon the owner

Question 24

What does onus probandi mean?

Answer 24

Onus of proof

Question 25

In what ways might the onus of proof be shifted to the defendant?

Answer 25

By statute, by bailees and the thing speaks for itself

Question 26

What does res ipsa loquitur mean?

Answer 26

The thing speaks for itself

Question 27

When an accident could not have happened except through negligence of the defendant, these two requirements must be met

Answer 27

• 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

Question 28

What does the doctrine of scienter apply to?

Answer 28

Dangerous animals

Question 29

Explain how the doctrine of scienter works

Answer 29

The onus is on the plaintiff to prove that the animal which caused the damage or injury had a propensity for the actions that caused the harm. If this can be proven, the owner will be subject to strict liability;

Question 30

Which act indicates that an owner is liable for the actions of the dog?

Answer 30

The dog owners’ liability act

Question 31

What must the plaintiff prove when pursuing legal action against a dog owner for a dog bite?

Answer 31

Must only prove that they were bitten by the dog

Question 32

Is a dog owner liable if a person enters the premises with intent to commit a crime and the dog bites the person?

Answer 32

No, unless it is deemed unreasonable to protect the property in such a way

Question 33

What protects those who volunteer to rescue?

Answer 33

The Good Samaritan concept

Question 34

What is the leading case in which the defence of no duty owed was used successfully?

Answer 34

Palsgraf v. Long Island Railroad Co.

Question 35

What is the restriction in the act of god defence?

Answer 35

It may be necessary for a defendant who has a duty to foresee a natural event to prove that the severity was unforeseeable

Question 36

Which case established the two steps in a successful volenti defence?

Answer 36

Waldick v. Malcolm

Question 37

Which case introduced strict liability?

Answer 37

Rylands v. Fletcher

Question 38

Upon whom does the burdon of proof rest when the evidence leads to res ipsa loquitur as a conclusion?

Answer 38

The defendant

Question 39

What common law doctrine is concerned with domestic pets?

Answer 39

Scienter

Question 40

Upon whom the burden of proof usually rest for Scienter?

Answer 40

The plaintiff

Question 41

A motorcyclist swerves to avoid a child who runs onto the road. The motorcyclist collides with a parked automobile on the side of the road. He breaks both of his arms and causes $10,000 worth of damages to the park automobile. What defence is most applicable to the situation?

Answer 41

Emergency