SOMEONE ELSES CANS: 9.

DEFENCES TO NEGLIGENCE LIABILITY

There are a few defences to an action in negligence. They are: 1. Contributory Negligence: - unreasonable conduct by P in addition to D; this is because P owes a duty to take care to prevent injury to themselves Butterfield v. Forrester D obstructed highway with a pole, causing P to run into it. P however rode the horse unreasonably fast and hard and thus his injuries were exasperated. P injured in a car crash in which D was driving. P was not wearing a seatbelt. Court held the defence of contributory negligence was available to D. This ratio is slightly mitigated by Davies v. Mann: a negligent P might still recover if D could have avoided injury by taking reasonable care. This is known as the last clear chance rule. It is not enough for D to prove that P did not wear a seatbelt. P must also prove that injuries sustained by D would have been lessened if they had worn a seat belt.

Gagnon v. Beaulieu

Apportionment of Loss - inadequacies of the last clear chance rule gave rise to legislation which apportions liability on the basis of what each party contributes in negligence to the accident Negligence Act, R.S.O. 1990 - in any action for damages founded on the negligence of D, if negligence is also found on the part of P, the court shall apportion damages proportion to the degree of fault against the parties respectively - if it is not practicable to determine the degree of fault, parties shall be deemed equally at fault There are 3 ways in which a P may be deemed contributory negligent: (1) by contributing to the accident; (2) by exposing themselves to the risk of being involved in the accident; (3) buy failing to take reasonable precautions to minimize injuries in the likelihood of an accident. In determining the degree of contributory negligence, courts look at: the nature of the duty owed by D to P; the number of acts of fault committed by each; timing of the acts; nature of the act; extent to which a statutory duty of care was applicable. Mortimer v. Cameron At a house party, P and D pushed each other when D fell and pulled down P. P well into a wall which gave way and P became a complete quadriplegic. P was not Court held the trial erred in apportioning liability between city and Stingray at 80% and 20%. It should be 40% city and 60% Stingray because Stingray is at greater fault for failing to provide ongoing inspections.

negligent, but the city and the company responsible for maintaining the wall was. 2. Voluntary Assumption of Risk Maxim of volenti non fit injuria means P has bargained away the duty owed to them by D. Basic idea is that there is no duty of care owed to one who knows of the risk and consents to partake in the activity. Dube v. Labar Defence of voluntary assumption of risk will only apply if D has proven that P by express or necessary implication, consented to exempt D from liability. It is not enough that P knew of the risk of injury, they must consent to it without being compensated. SCC held that P by his conduct, knew D had been drinking and by allowing himself to be driven by D, bargained away his right. Note in Crocker v. Sundance, P signed a waiver but no attempt was made to draw the release provision to his attention so he could not have voluntarily gave up his right to a duty of care thus defence of voluntary assumption of risk does not apply. 3. Illegality Maxim of ex turpi non oritur action means that no right of action can arise from an unlawful conduct. Hall v. Hebert P and D were equally drunk. D stalled his car on a steep, unlit gravel road and allowed P to drive. P lost control immediately and flipped the car. P was severely injured and sued D for allowing him to drive. Court held the maxim does not apply it only applies in tort law where it will be necessary to maintain the internal consistency of the law. Eg. If P is seeking to profit from their illegal conduct (eg. Drug dealing), this defence will apply but NOT to claims for physical injury. P and D were binge drinking. P then drove, but after the parties switched and D drove. D caused an accident which caused injuries to P.

READ KLEEFELDS DIVIDING THE LIABILITY PIE

Janas Notes

There are 5 defences to negligence, but they will not begin to operate until the P has proven all elements: 1) Voluntary Assumption of Risk (limited in application but a full defence) 2) Participation in a criminal or immoral act (ex turpi causa non oritur acta) (limited in application but a full defence) 3) Contributory Negligence (partial defence only..watch for statutory limitations) 4) Inevitable Accident (not recognized by all academics, often taken as a consequence of negligence - Rintout v Xray) 5) Compliance with Statute

Contributory Negligence (CN)

The negligence of a person which, while not being the primary cause of a tort, nevertheless combined with the act or omission of the primary defendant to cause the tort, and without which the tort would not have occurred. -Duhaime.org To do a Contribution Assessment: 1. a) assess whether Ds are liable to the P at all in negligence, then calculate the gross damages b) assess the degree to which the P contributed to the loss 2. assess the Ds right to contribution Onus on the defendant to prove that injured party did not in his own interest take reasonable care of himself and contribute to his own injury by want of this care. 3 ways a P can be CN: 1) contribute to the accident 2) expose themselves to risk of accident 3) failure to take reasonable precautions to minimise injury in the event of accident * contributory negligence must be a cause of the loss in order for it to count against D - but for the Ps own actions/omissions the accident would not have happened - must also count as proximate cause - injury must culminate from risk created by P.

Walls v Mussens (1969 NB CA)

CN NOT ESTABLISHED - based on modified objective test not whether the P exercised careful and prudent judgment in doing what he did, but whether what he did was something that an ordinarily prudent man would have done under the stress of an emergency. Here, the P, along with others, threw snow on a fire at Ps gas station (rather than use a fire extinguisher). * P was not CN for failing to use fire extinguisher to put out the fire in his shop started by the D. AGONY OF THE MOMENT RULE -note that if P had been doing something negligent to begin with (like contributing to the cause of the fire in some way) he could not rely on this defence.

Gagnon v Beaulieu (1977 BC SC)

CN ESTABLISHED; Passenger injured in vehicle accident. Specific kinds of injuries sustained by plaintiff corresponded to lack of seatbelt; if seatbelt worn then those injuries wont have happened; onus on D to prove that if P had been wearing seatbelt, the injury would not have happened. APPORTIONMENT OF LOSS Governed by Negligence Act RSO 1990 - amount of damages will be reduced in proportion to degree of Ps fault - where apportionment cannot be determined, parties will be deemed equally at fault

Mortimer v Cameron (1994 SCC)

2 guys engaged in horseplay which leads to the apt. Stairs - fell and crashed through an improperly constructed wall - one rendered quadriplegic. -neither guy found negligent b/c accident was beyond scope of risk created by horseplay: could not have contemplated that the wall would pop out - liability apportioned between the City (40%) and building owners, Stingray (60%) for failing to properly make sure the wall was up to standard.

Voluntary Assumption of Risk volenti non fit injuria

Complete defence, but use has been limited in recent years owing to rise of CN usually limited to narrow circumstances, esp. sports. Onus: must be pleaded and proven by the D

General Principle: a P who has expressly or impliedly assented to an act cannot sue another for damages of injuries sustained - s/he must bear the loss w/o the help of the law - the risk must be a freely encountered one - where consent is expressly given, the court must determine whether there was an actual or manifested agreement to terms - nothing short of an agreement to waive any claim for neg;ce will suffice (Lagasse v Rural Municipality of Ritchie) Test to establish defence: 1) Did the P clearly know and appreciate the nature and character of risk? and 2) Was this risk voluntarily incurred?

Dube v Labar (1986 SCC)

Dube = Appellant = Passenger Laber = Respondent = Driver Appellant, a passenger in a car driven by respondent, was injured when it turned over. Both had been drinking the night before and on the day of the accident, and it appeared that respondent had been drinking in the car as a passenger. Respondent took over as driver when appellant could not start the car after stopping to pick up two hitchhikers. Appellant got into the car as a passenger after a short exchange in which respondent asserted that he was capable of driving. The accident occurred shortly thereafter. The car veered as respondent turned to speak to a hitchhiker in the back seat. Appellant attempted to grab the wheel and straighten out the car's course but his attempts eventually resulted in the car's overturning. - defence of volenti in general will be inapplicable to the majority of drunk driver + willing passenger cases, b/c the defence requires an awareness of circumstances and consequences of action that are rarely present on the facts of such cases at the relevant time So why VAR established in this case? *Dube and Laber had planned to get drunk that day and drive around. Therefore, Dube was aware of the risks he was incurring at a time when he was lucid enough to make a better decision.

Criminal or Immoral Conduct

Hall v Hebert (1993) SCC
Respondent, who owned a "souped-up" muscle car, and his passenger (appellant) had been drinking. When the car stalled on an unlit and particularly rough gravel road with a sharp drop off to one side, respondent decided the only way to start it was "a rolling start" when he could not find the keys after they had shaken out of the ignition. At appellant's request, respondent allowed

appellant to drive when they tried the rolling start. Respondent had been aware that appellant had consumed 11 or 12 bottles of beer that evening, three within the last hour prior to the accident. Despite this, he did not consider the appellant drunk. Appellant lost control of the car; it left the road, went down the steep slope and turned upside down. Both were able to walk away from the accident and reached the house of an acquaintance who described them as being drunk. It was later discovered that the appellant had suffered significant head injuries. This defence is still applicable for policy reason; not used often in Canada; now use contributory negligence. However, essence is that there is generally no right of action arising from a base or immoral cause; is a complete defence so P cannot profit from illegal conduct or evade consequences of a criminal sanction (fines, lost income while in jail) this case however got some damages because of injuries received Cory: tries to abolish ex turpi saying 2nd branch of Anns test would negate duty (are there any reasons to limit duty) Majority (McLaughlin) disagrees: should be a defence to allow for flexibility in application, and procedural problems would arise from reversal of onus - defence found not o apply to facts of this case - claim allowed, but limited by contributory negligence. SCC : The use of ex turpi causa is not justified where the plaintiff's claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant since no inconsistency is introduced into the fabric of the law in making such an award. If a plaintiff's conduct was in contravention of the law and if this conduct was a factor in producing his injury, he may well be found guilty of contributory negligence or indeed of being the author of his own misfortune. Yet simply because the plaintiff was a wrongdoer does not necessarily mean that he can have no remedy at law for harm done to him. There have been, as we have seen, numerous cases where a plaintiff who has either been impaired while driving or drunk in a public place as in Crocker v. Sundance Northwest Resorts Ltd., supra, has been permitted to recover. 50-50 split on negligence btw P & D -Those were McLachlins reasons as the majority. Basically she says that getting compensated for injury is not profiting from illegal conduct so its in the interest of justice to allow a criminal to obtain compensation for injuries caused by someones negligence even if they were doing something illegal. -Justice Cory dissented and feels that ex turpi causa should be dropped and the duty of care should be negated at the policy stage of the Anns test. He says to infer voluntary assumption of risk from the fact of an illegal bargain. *NOTE: 1. No lost earnings damages for criminal activity 2. No punitive or exemplary damages

Inevitable Accident

Test: 1. The harm could not have been prevented by the exercise of reasonable care on the part of the defendant 2. If the harm occurred without the negligence of the defendant, they could not, by the exercise of reasonable care, have avoided the accident by other means.

Rintoul v X-Ray and Radium Indust. Ltd., [1956] SCC

Ouellette, employee of X-Ray, was driving a company truck when the brakes failed and he rearended Rintoul (slow speed accident). X-Ray claimed inevitable accident, but failed. They did not PROVE (only asserted) that the brakes were properly inspected and therefore the failure could not have been prevented prior to the accident. They also did not prove that there was no other course of action that Ouellette could have taken to avoid the accident.

Statutory Provisions
-Statutory provisions can affect the availability of relief in tort law Eg. Trespass to Property Act limits judgments to $1,000. NOTE that limitation periods are often defined in statute. -Statutes can imply or expressly state a duty or standard of care Statutory Cause of Action Standard of care and relief can be laid out in statute. The civil liability is stated separately from the judicially developed claim. *Therefore, the statute is the source of the claim, rather than the common law (as with most tort actions). Statutes in Common Law Torts Courts may be affected by the statutes when making decisions. For example, if a statute requires that the municipality repair roads, the court will take that into consideration when someone is injured as a result of the municipality not keeping the road in repair. In other words, the regulatory scheme supports the recognition of a duty of care in negligence.

Trachsler v Halton [1955] HC

The Municipal Act (now RSO 1990cM45, s.284(1)) creates a duty in municipalities to keep highways in such condition that travellers using them with ordinary care may do so in safety.

Ratio: When a highway is put out of repair without any fault of those whose duty it is to keep it in repair, then that duty is reasonably performed if the repair is made within a reasonable time after they are informed, know or should have acquired knowledge of the need to repair. NOT LIABLE

R. In Right of Can. v Sask. Wheat Pool (1983) SCC

The Sask Wheat Pool delivered infested wheat to the Cdn Wheat Board in violation of s.86(c) of the Canadian Grain Act. The Board sought damages based on the breach. The appeal was dismissed with costs negligence was neither pleaded nor proven. U.S.A. take statutory breaches as being negligence cases England created a new tort of statutory breach where the P need only show: (1) breach of the statute, (2) damage caused by the breach Where does Canada stand? Canada seems to side with the States. Fleming states that the rationale is more intellectually acceptable. A breach of statute is prima facie evidence of negligence then go from there. NO ABSOLUTE LIABILTY FOR BREACHES OF STATUTE Just because a statute does not say that there can be a civil liability claim, it does not mean that it excludes claims of liability.

Galaske v ODonnell [1994] SCC

An 8 year old child and his father were passengers in a vehicle. They were injured in an accident. The child was not wearing a seat belt. Does the driver owe a duty of care to the child even though his father was in the car? YES. The driver is liable. Sec. 217(6) of the Motor Vehicle Act states that a driver shall not drive on a highway if a child between 6 and 16 is in the vehicle and not properly buckled in. The Statute shows that failure to ensure the child is wearing a seatbelt is unreasonable conduct which falls below the prescribed standard of care.

Ryan v. Victoria (City) (1999) SCC

The P was injured after the front wheel of his motorcycle became caught in a flangeway that comprised part of a railway track that ran through the citys street. A duty of care was found to exist between the parties. The crucial question was whether the D had met its standard of care. RAILWAY LIABLE. Although railway complied with minimum standards, they ought to have made the flangeways safer by going beyond the standards prescribed by statute. Ought to have known of three prior accidents and fixed the flangeway. Burden not on the two-wheel riders to incur risk of injury. Remedial measures were available to railway at minimal cost.