Study 3: Defences Against Negligence in Common Law - Summary Flashcards
Defences
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
Defences to Strict Liability
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.
Defences to Absolute Liability
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.
Onus of Proof
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
Denial
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.)
Remoteness of damage
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.)
Inevitable accident
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.
No duty owed
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.
Emergency (defense)
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
Act of God (defense)
An act of extraordinary natural force without human interference. It is unpredictable and impossible to foresee.
Voluntary Assumption of Risk
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.
In Ontario, a volenti (i.e. voluntary assumption of risk) defense will succeed in the following circumstances outlined in the Occupier’s Liability Act
- 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
Disclaimer
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.
Contributory Negligence
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.
Limitation Periods
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.
Onus (of proof) Changed by Statute
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)
Onus of proof for bailees
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)
Res Ipsa Loquitur
“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:
- 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.
Scienter
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.
Good Samaritan Concept
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.
Strict liability has been applied to cases involving the following
- 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
Defendants can only be excused from strict liability by bringing themselves within one of the following exceptions
- 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
