Study 3 - Defences Against Negligence in Common Law

Question 1

What are the eight (8) defense methods against liability?

Answer 1

• Denial
• Remoteness of Damages
• Inevitable accident
• No duty owed
• Emergency
• Act of God
• Voluntary assumption of risk
• Contributory negligence

Question 2

What is Denial?

Answer 2

Proving one or more of the following:

• The defendant did not commit the act that cause the complaint
• The defendant was not negligent
• The plaintiff suffered no injury as a result of the defendants actions

Question 3

What is Bux . Slough Metals Ltd. [1974] known for?

Answer 3

Denial Defense,
Defendant must prove there was no negligent conduct,
event when there has been compliance with applicable statutes.
Such as when defendant provided safety goggles to employees but knew they were not using them. They are still negligent

Question 4

What is novus actus intervenient

Answer 4

Latin term: the intervening act that breaks the causal chain between the defendant’s breach of duty and the plaintiffs injury

REMOTENESS OF DAMAGE - defense that the defendants actions were no the immediate and effective cause of the plaintiffs injuries.

Question 5

What are Ryan v. Youngs [1938] 1 All ER 522, and Telfer v. Wright, 1978 CanLII 1262 (ON CA) known for

Answer 5

Inevitable damage defenses
Ryan v. Youngs - successful - Youngs had a heart attack (first ever) while driving and caused damage to Ryan.

Telfer v. Wright - unsuccessful - Wright had history of blacking out, dizziness, and caused damage to Telfer. He should have known better than to drive and the plea of inevitable accident was not successful

Question 6

What is Palsgraf v. Long Island Railroad Co. (1928), 248 NY 229, 59 ALR 1252 known for?

Answer 6

Leading case for defense of No duty owed.
- Is the plaintiff a foreseeable plaintiff?

• defendant’s (railroad) guard assisted man on to train
• Man was carrying explosives which dropped and caused damage to plaintiff (woman)
• Woman sued
• She was denied recovery on the grounds she was beyond the range of foreseeable danger

Question 7

What is Emergency as a defense?

Answer 7

If while extricating themselves from danger a defendant causes damage to the plaintiff in the process they can please emergency as a defense.

Example used: cyclist swerves to avoid child who jumped onto the road and then injures a pedestrian

Question 8

What is an Act of God?

Answer 8

A liability defense like if a golfer is hit by lightening on a course.
Sometimes necessary for a defendant who has a duty to foresee a natural event to prove that the severity of the incident was unforeseeable

Question 9

What is volenti non fit injuria? How is it used as a defense?

Answer 9

volenti non fit injuria (volens)

• to one consenting, no wrong is done
• VOLUNTARY ASSUMPTION OF RISK
• Where a person voluntarily assumes a risk that results in injury to himself, his is not entitled to claim damages from another

E.g. a skier injured while skiing

Question 10

Why is Waldrick v. Malcolm cited in Voluntary Assumption of Risk defense?

Answer 10

Waldrick slipped and fell on the Malcolms rented farmhouse driveway. The court dismissed the volenti defense.
“Knowledge of the risk itself [does not] constitute a defense
Plaintiff must accept both the physical risk and the legal risk or else the defense is unlikely to be successful

Question 11

Which defense is a disclaimer related to?

Answer 11

Volunti defence: the expectation is that the claimant has read the notice and assumed the risk.

Question 12

How does contributory Negligence work as a defense?

Answer 12

Allows defendant to claim that the plaintiffs actions contributed to their own injuries

Question 13

What are the five (5) defenses to Strict Liability?
Rylands v. Fletcher was a the case that defined strict liability - that the plaintiff need not prove negligence if someone brings something dangerous on to their property.
Plaintiff only need prove the circumstances whereby a dangerous thing was kept on defendants land and that it escaped

Answer 13

• 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 defendant’s land with the express or implied consent of the plaintiff
• When the authorization to bring and keep the dangerous object on the defendant’s land is granted by statute

Question 14

Is there a defense to Absolute Liability?

Answer 14

No, for example a tanker spill.
Even if an act of god caused a tanker spill and pollution the defendant is still legally liability to take whatever steps are necessary to correct the damage to the environment.

Keywords: environment, pollution

Question 15

What is onus probandi?

Answer 15

Onus probandi is onus of proof?
Onus of proof is determined by statute and determines the party who alleges a fact has the burden of proving it.

Generally plaintiffs must prove facts. Sometimes due to statue law this can shift to the defendant. Such as if a car hits a pedestrian.

Bailees also generally have the onus probandi shifted on to them as they are legally responsible for the bailement

Question 16

What is res ipsa loquitur, how is it related to onus of proof?

Answer 16

Res ipsa loquitur: The facts speak for themselves.
It is a doctrine of law or a presumption of certain facts.

Such as if there is insufficient evidence to determine but enough evidence to draw a conclusion based on the description enough to draw a conclusion based on a description of the state of evidence then