Defences for Negligence Lesson 34 CLU 3MR

Defences for Negligence Learning Goal: Identify how one can respond to a negligence suit Review questions Note on the defences of negligence

Review: What is a tort? What is negligence? What does ‘duty of care’ mean? Provide an example of a ‘foreseeable’ act. What must have occurred for negligence to exist? Where is the burden of proof in a civil case?

Defences for Negligence The best defences are: Negligence did not exist The defendant did not owe the plaintiff any duty of care The plaintiff may not be able to recover as much as expected if a reasonable defence is put up

1) Contributory Negligence Society’s attitude used to be that the law should not protect people who do not look after their own safety Today, if both the plaintiff and the defendant are somewhat negligent the damages are divided The court decides the percentage of blame on each party See example on page 399 Often used in accidents when the victim (plaintiff) was not wearing a seatbelt

2) Voluntary Assumption of Risk Defendant must prove that the plaintiff clearly knew the risk of his or her actions and chose to assume that risk A ticket holder enters into a contract to attend an event Getting in the car with an impaired driver Case: Cowles v Balac (page 401)

3) Inevitable Accident When a situation was unavoidable Example at the bottom of page 402 Yoko and the lightning and her car

Special Types of Negligence

Occupier’s Liability The person in control & physical possession of a property Owe a duty of care to make the property safe for people A reasonable person would foresee risks to others Keep floors clean and dry, clear snow and ice 3 classes of people could enter:

1) Invitees: On the property for a purpose other than a social visit Ex. Students attending school, store customers, delivery people, etc. Occupier and invitee will both obtain material benefit from the business carried out These people are owed the highest standard of care

2) Licensees Person who enters with implied permission Ex. a friend who has been asked to dinner As a guest, the purpose is social, not business No economic benefit A lesser standard of care is required

3) Trespassers A person who is uninvited and has no legal right to be there (a burglar or a wandering child) Can also include guests who overstay their welcome Cannot set traps or cause deliberate harm to trespassers

Once you become aware of their presence, the occupier must exercise a reasonable standard of care Trespassing children have special rights Property includes play equipment (pool or jungle gym/play structure) is recognized as an allurement Owners must take extra precautions to protect children

Vicarious Liability In certain relationships, when a person is held responsible for another’s tort Vehicle owners have a duty of care to society: they must only lend their car to someone who is competent Both the driver and the owner are responsible for negligence If the vehicle was stolen, this isn’t the case

Parents may be held vicariously liable for their children’s torts Parental Liability Act was passed in Ontario This allows victims to sue the parents of children under 18 who intentionally take or damage another’s property Must prove the following:

That the child caused the damage or loss That the defendants are the child’s parents The amount of the damage Parents are liable unless they prove that damage was not on purpose Or that they reasonably tried to prevent the damage

Host Liability Read pages 408-410 Write a brief note about it’s contents Answer the “For Discussion” questions in the Childs v Desormeaux case.