Defences for Negligence

The best defence is Negligence did not exist, or the defendant didn’t owe the plaintiff a duty of care. The best defence is Negligence did not exist, or the defendant didn’t owe the plaintiff a duty of care. Duty of Care – a specific legal obligation to not harm other people or their property; a principle of tort law. Duty of Care – a specific legal obligation to not harm other people or their property; a principle of tort law.

Contributory Negligence If both the plaintiff and the defendant are negligent to some degree, damages are divided between them. If both the plaintiff and the defendant are negligent to some degree, damages are divided between them. The court determines which party was more negligent, or both parties were equally at fault. The court determines which party was more negligent, or both parties were equally at fault. Each province has a Contributory Negligence Act that allows court to divide responsibility between the parties. Each province has a Contributory Negligence Act that allows court to divide responsibility between the parties. Often used as a defence in accidents when the plaintiff was not wearing a seatbelt. Often used as a defence in accidents when the plaintiff was not wearing a seatbelt.

Voluntary Assumption of Risk The defendant must prove that the plaintiff clearly knew of the risk of his/her actions and made a choice to assume that risk. The defendant must prove that the plaintiff clearly knew of the risk of his/her actions and made a choice to assume that risk. Example: A fan struck, and injured, by a hockey puck at a game will not succeed in an action – the ticket holder enters into a contract to attend the event and assumes the risk. Example: A fan struck, and injured, by a hockey puck at a game will not succeed in an action – the ticket holder enters into a contract to attend the event and assumes the risk.

Inevitable Accident Injury of loss may result from a situation that is unavoidable, no matter what precautions the reasonable person would have taken under the circumstances. Injury of loss may result from a situation that is unavoidable, no matter what precautions the reasonable person would have taken under the circumstances. Example: If hail strikes Leanne’s car, causing her to collide with another car, Leanne would not be held liable since she could not foresee such an occurrence and couldn’t prevent it. Example: If hail strikes Leanne’s car, causing her to collide with another car, Leanne would not be held liable since she could not foresee such an occurrence and couldn’t prevent it.

Special Types of Negligence Occupier’s Liability – Concerns responsibility toward people who enter a property. Occupier’s Liability – Concerns responsibility toward people who enter a property. Occupier – Any person who has control and physical possession of a property and who owes a duty of care to make the property safe for people. i.e.: To keep sidewalks and steps clear of snow and ice. Occupier – Any person who has control and physical possession of a property and who owes a duty of care to make the property safe for people. i.e.: To keep sidewalks and steps clear of snow and ice.

To establish the standard of care and the Occupier’s Liability, Canadian Law has established 3 classes of persons who could enter another property: Invitees: any person on the property for a purpose other than a social visit is owed the highest standard of care. Invitees: any person on the property for a purpose other than a social visit is owed the highest standard of care. Example: students attending school, store customers, persons making deliveries, service people coming to make repairs. Example: students attending school, store customers, persons making deliveries, service people coming to make repairs.

Licensees: a person who enters property with the implied permission of the occupier. Licensees: a person who enters property with the implied permission of the occupier. Usually there for a social, not a business purpose. Usually there for a social, not a business purpose. Lesser standard of care is required than for invitees. Lesser standard of care is required than for invitees.

Trespassers: a person who enters property without permission or without legal right to be there. Examples: burglars and wandering children. Trespassers: a person who enters property without permission or without legal right to be there. Examples: burglars and wandering children. Occupiers cannot set traps or cause deliberate harm to trespassers. Occupiers cannot set traps or cause deliberate harm to trespassers. Owe a duty of common humanity to act with at least a minimal degree of respect for the safety of the trespasser. Owe a duty of common humanity to act with at least a minimal degree of respect for the safety of the trespasser. Special duty when property includes play equipment – allurement to children. i.e.: swimming pool, swing set – such equipment may pose dangers. Special duty when property includes play equipment – allurement to children. i.e.: swimming pool, swing set – such equipment may pose dangers.

Trespassers continued … Occupiers must show that all reasonable precautions have been taken to prevent any accident that could reasonably have been foreseen as arising from a possible allurement – this may help to reduce, but not eliminate, liability. Occupiers must show that all reasonable precautions have been taken to prevent any accident that could reasonably have been foreseen as arising from a possible allurement – this may help to reduce, but not eliminate, liability.

Commercial and Social Host Invitees Emerging area of Tort Law involves the possible liability of commercial and social hosts. Example: restaurant and bar owners, or citizens hosting parties in their homes, could be sued if someone is hurt or killed after being hit by a drunk driver leaving their functions. Emerging area of Tort Law involves the possible liability of commercial and social hosts. Example: restaurant and bar owners, or citizens hosting parties in their homes, could be sued if someone is hurt or killed after being hit by a drunk driver leaving their functions. The hosts have a specific duty of care and must take positive steps to prevent intoxicated customers from driving, or they will be held liable for any resulting injuries to third parties. The hosts have a specific duty of care and must take positive steps to prevent intoxicated customers from driving, or they will be held liable for any resulting injuries to third parties.

Motor Vehicle Negligence Can lead to both Criminal and Civil actions. Can lead to both Criminal and Civil actions. Each province has a Highway Traffic, or Motor Vehicle Act that provides regulations – i.e. speed limits. Each province has a Highway Traffic, or Motor Vehicle Act that provides regulations – i.e. speed limits. Violating any section of the Act suggests driver negligence. Violating any section of the Act suggests driver negligence.

Motor Vehicle Negligence continued… Burden of proof gets shifted to defendant in motor vehicle cases. The defendant must prove that any loss or injury did not result from the defendant’s negligence. Burden of proof gets shifted to defendant in motor vehicle cases. The defendant must prove that any loss or injury did not result from the defendant’s negligence. Motor vehicle accidents often involve contributory negligence if there is evidence that both drivers are responsible for an accident to some extent. Motor vehicle accidents often involve contributory negligence if there is evidence that both drivers are responsible for an accident to some extent.

Liability for Passengers Driver is liable for safety of passengers Driver is liable for safety of passengers Passenger is voluntarily accepting risk by riding in a vehicle with a driver who is intoxicated or engages in dangerous driving (speeding). Passenger is voluntarily accepting risk by riding in a vehicle with a driver who is intoxicated or engages in dangerous driving (speeding). Voluntary Assumption of Risk can be used as a defence – burden is on defendant to prove that the plaintiff understood the risk involved and willingly assumed it. Voluntary Assumption of Risk can be used as a defence – burden is on defendant to prove that the plaintiff understood the risk involved and willingly assumed it.

Seatbelts and Negligence All provinces and territories have seatbelt laws that require driver and passengers to wear them. All provinces and territories have seatbelt laws that require driver and passengers to wear them. Drivers have specific duty of care to ensure passengers wear seatbelts (especially those under 16 years). Drivers have specific duty of care to ensure passengers wear seatbelts (especially those under 16 years). It can be foreseen that an injury can result from not wearing a seatbelt by a reasonable person. It can be foreseen that an injury can result from not wearing a seatbelt by a reasonable person.

Professional Negligence Professionals include doctors, dentists, engineers, architects, accountants, and lawyers who have specialized knowledge and skills and must exercise a certain standard of care. Professionals include doctors, dentists, engineers, architects, accountants, and lawyers who have specialized knowledge and skills and must exercise a certain standard of care. Professionals actions are measured against the standards of similar professionals. Professionals actions are measured against the standards of similar professionals. Largest body of case law is in the area of medical negligence. Largest body of case law is in the area of medical negligence.

Medical Negligence Doctors duty of care to patient – adequate standard of care provided (reasonable duty of care) Doctors duty of care to patient – adequate standard of care provided (reasonable duty of care) If doctor fails to reach the standard, this is medical negligence If doctor fails to reach the standard, this is medical negligence If the patient cannot prove negligence, no damages for injuries will be awarded, even if injuries are serious. If the patient cannot prove negligence, no damages for injuries will be awarded, even if injuries are serious.

Medical Negligence continued … A patient must give INFORMED CONSENT – the patient has the right to know the truth about their medical condition, treatment options and risks involved in order to know whether to accept, or reject, a medical procedure. A patient must give INFORMED CONSENT – the patient has the right to know the truth about their medical condition, treatment options and risks involved in order to know whether to accept, or reject, a medical procedure. If a patient is not informed, the doctor may be liable for negligence – even assault or medical battery If a patient is not informed, the doctor may be liable for negligence – even assault or medical battery

Medical Negligence continued … Medical Battery exists if the doctor treated the patient without consent. Medical Battery exists if the doctor treated the patient without consent. In determining whether a tort has been committed, the court must answer the question: “Would a reasonable patient, knowing all the risks, have decided against the treatment?” If the answer is yes, the doctor is negligent. In determining whether a tort has been committed, the court must answer the question: “Would a reasonable patient, knowing all the risks, have decided against the treatment?” If the answer is yes, the doctor is negligent.