1. Defences for Negligence
Lesson 34
CLU 3MR

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

3. 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?

4. 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

5. 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

6. 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)

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

8. Special Types of Negligence

9. 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:

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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:

16. 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

17. 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.