Study 3: Defences Against Negligence in Common Law - Summary

Question 1

Defences

Answer 1

Those accused of committing a tort can defend themselves by various methods:

• Denial
• Remoteness of damage
• Inevitable accident
• No duty owed
• Emergency
• Act of God
• Voluntary assumption of risk
• Disclaimer
• Contributory negligence
• Limitation periods

Question 2

Defences to Strict Liability

Answer 2

Liability for damages caused by dangerous things is based on the doctrine of strict liability that was derived from Rylands v. Fletcher.

• It was concluded that any person who brings on their land and keeps there for their own purposes anything likely to do mischief if it escapes must keep it at their own peril. If the dangerous thing escapes and causes damage, the person who kept and cared for the object would be held liable even if that person was not negligent.

Question 3

Defences to Absolute Liability

Answer 3

Absolute liability occurs in a prescribed set of circumstances, described by statute, for which there is no defence (ex. when a substance is spilled that causes damage to the environment)

• Generally, Canada’s courts have not been open to findings of absolute liability. Of the few cases that arise, they tend to deal with straightforward regulatory issues such as driving a motor vehicle over the posted speed limit.

Question 4

Onus of Proof

Answer 4

Generally, the party who alleges a fact has the burden of proving it. Thus, plaintiffs must prove allegations of negligence. However, there may be exceptions, such as:

• Onus Changed by Statute
• Bailees
• Res Ipsa Loquitur
• Scienter
• Good Samaritan Concept

Question 5

Denial

Answer 5

Defendants can deny the act by proving one or more of the following:

• They did not commit the act that caused the complaint
• Their actions were not negligent
• The plaintiff suffered no injury as a result of their actions

Defendants must prove there was no negligent conduct, even when there has been compliance with applicable statutes (ex. Bux v. Slough Metals Ltd.)

Question 6

Remoteness of damage

Answer 6

Defendants must prove that their actions were not the immediate and effective cause (otherwise known as proximate cause) of the plaintiff’s injuries or damages (ex. Rankin’s Garage & Sales v. J.J.)

Question 7

Inevitable accident

Answer 7

Defendant must show that the cause and result of the accident were inevitable. It must be shown that the damages arose from an outside cause over which the defendant had no control.

Question 8

No duty owed

Answer 8

Must establish the plaintiff was not a foreseeable plaintiff.

Example: Palsgraf v. Long Island Railroad Co. - defendant knocked over a package of fireworks, which exploded, knocked over a scale, and injured another party. The injured party was denied recovery because she was beyond the range of foreseeable danger.

Question 9

Emergency (defense)

Answer 9

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

Question 10

Act of God (defense)

Answer 10

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

Question 11

Voluntary Assumption of Risk

Answer 11

When a person voluntarily assumes a risk, liability will not result from it. The Latin term for this defence is volenti non fit injuria: To him that is willing, there is no injury. To escape liability, the defendant must show that the plaintiff knew of the risk and accepted it.

Question 12

In Ontario, a volenti (i.e. voluntary assumption of risk) defense will succeed in the following circumstances outlined in the Occupier’s Liability Act

Answer 12

• Rural premises that are used for
  
  • agricultural purposes, including land under cultivation, orchards, pastures, woodlots, and farm ponds
  • vacant or underdeveloped premises
  • forested or wilderness premises
• 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
• Portage routes

Question 13

Disclaimer

Answer 13

A notice of refusal to accept liability for damages that might occur in the future. The defendant must show that the plaintiff read the notice or knowingly renounced their legal rights to make a claim.

Question 14

Contributory Negligence

Answer 14

Contributory negligence is a partial defence—it allows the damages to be reduced by the percentage of blame assigned to the plaintiff. For example, where a plaintiff would have suffered less serious injuries had he or she been wearing a seatbelt, contributory negligence can be raised as a defence.

Question 15

Limitation Periods

Answer 15

If an action is not brought within the time limit prescribed by law, the party’s legal remedies are extinguished. The limitation period may run from the time the event that gave rise to the action occurred or when the effects of the action were discovered. For example, the limitation period for typical tort actions is two years in most jurisdictions.

Question 16

Onus (of proof) Changed by Statute

Answer 16

Sometimes the onus of proof is shifted by statute (ex. if a car hits a pedestrian, the onus of proof is on the driver to prove they weren’t negligent)

Question 17

Onus of proof for bailees

Answer 17

In certain circumstances, bailees are subject to a shift in the onus of proof (ex. when articles are damaged while in their possession, they must prove they were not negligent)

Question 18

Res Ipsa Loquitur

Answer 18

“The facts speak for themselves”

If there is direct evidence to show how an accident occurred, the case must be decided on that evidence alone.

When an accident could not have happened except through the defendant’s negligence, the burden of proof shifts to the defendant. Two requirements must be met:

1. The thing that caused the loss must have been within the exclusive control of the defendant.
2. The thing that caused the loss could not have happened without negligence.

Question 19

Scienter

Answer 19

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. The plaintiff does not need to prove negligence on the part of the defendant, only that they were injured by the animal.

If it can be proved 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 strictly liable.

Question 20

Good Samaritan Concept

Answer 20

Protects volunteer rescuers by restricting liability against them to the level of gross negligence or recklessness. In the common law provinces and territories, Good Samaritan laws do not create a duty to rescue.

Question 21

Strict liability has been applied to cases involving the following

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

Defendants can only be excused from strict liability by bringing themselves within one of the following exceptions

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