Negligence, Pt. 2
Law 12 – MUNDY
2011
Defences for Negligence
• Contributory Negligence
• Voluntary Assumption of Risk
• Inevitable Accident
Defences: Contributory Negligence
• Defendant shows evidence indicating that
plaintiff (or 3rd party) is also partially negligent
• Means that judge could award partial damages
to both plaintiff and defendant
• Example: If judge rules that plaintiff and
defendant are both liable for 50% each of
$50000 award (to plaintiff), then each must be
responsible for paying $25000
Defences: Voluntary Assumption of
Risk
• Used if evidence shown that plaintiff knew the
risks involved in an activity (that the defendant
was also involved in)
• Evidence needs to specifically show:
▫ plaintiff knew the risks
▫ plaintiff willingly accepted the risks
• Thus defendant must show documents or
witnesses that give evidence to this
Defences: Voluntary Assumption of
Risk
• Hence, many activity operators (such as rafting
companies) will have participants sign a waiver
that lists the risks involved and in which the
participant’s signature is given stating they
acknowledge, understand and accept those risks
• However, if participant is impaired, intoxicated,
or in no position to give full consent, then waiver
will be deemed void (and defendant may be
liable for damages in suit)
Defences: Inevitable Accident
• Also known as “Act of God” or “force majeur”
• Occurs when accidents may be the result of a
natural occurrence, such as a snowstorm or an
earthquake
• Defendant must prove they could not have
foreseen it (i.e.- wasn’t forecast on the weather
news) nor could have prevented it
Special Types of Negligence
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Motor Vehicle Negligence
Occupiers’ Liability
Host Liability
Professional Negligence
Motor Vehicle Accidents
• Violating any section of the Highway Traffic Act
or the Motor Vehicle Act could result in both
criminal trial and civil suit
• Here, burden of proof shifts to defendant, as
they must prove that the accident was NOT due
to negligence (i.e. – violation of either act)
Motor Vehicle Accidents
• Drivers of motor vehicle accidents are liable for
the safety of their own passengers
• Hence, if accident occurs, and seen as fault of
driver, passengers may sue driver for damages
• However, voluntary assumption of risk may be a
defence for driver, if passengers accepted a ride
knowing driver was intoxicated
Motor Vehicle Accidents
• If seatbelts are not used, courts now rule that
person was not acting as a reasonable person, as
it is foreseen that failure to wear one would
result in injury if accident occurs
• Hence, drivers owe children a duty of care to
ensure they are wearing seatbelts as passengers
• If any party in civil suit shows not wearing seat
belt, court rules with contributory negligence
Motor Vehicle Accidents
• Vicarious Liability can take place in suits of
motor vehicle accidents
• Vicarious Liability = person is held responsible
for damages, despite not causing damages or
injury, due to relationship (and thus duty of
care)
• Example – if A loans B his car, then B causes
accident to C, C may sue A as well for damages
Motor Vehicle Accidents
• Vicarious Liability also extends to owners of
companies, whose vehicles are driven by their
employees – if employee causes an accident,
employer can be sued
• However, if employee was operating vehicle in a
manner that was not intended and expressed by
owner (example – drag racing), then vicarious
liability cannot be shown
Motor Vehicle Accidents
• Parents are also responsible for vicarious
liability in accidents where their children cause
accidents
• In BC – the Parental Responsibility Act requires
only that the plaintiff prove:
▫ child caused property damage or injury
▫ that the defendants are indeed the child’s parents
▫ amount of damage
Occupiers’ Liability
• An occupier is defined as someone who
supervises and controls a property (not
necessarily the owner)
• Duty of care exists for occupier towards anyone
who enters their property
• Occupier must be able to foresee and address
any safety issues that exist for people entering
the property
Occupiers’ Liability
• Differing levels of standard of care exist for
following categories of people entering property:
▫ invitee
▫ licensee
▫ tresspasser
Occupiers’ Liability
• invitee is one who is on property for reason
other than social purposes
• This includes customers at stores, patients at
hospitals, students at school
• This category is seen by court to have highest
level of standard of care
Occupiers’ Liability
• Licensee is someone who enters property with
implied permission of occupier – usually invited
for social reasons
• Thus, lesser standard of care exists than that of
invitee – but in B.C. courts assume same
standard of care by occupiers for both invitees
and licensees
Occupiers’ Liability
• Trespasser is someone who does not have
permission to enter the property
• Not only burglars but even guests who are no
longer welcome to stay on property
• Occupier must provide a reasonable standard of
care
Occupiers’ Liability
• Many items on a property can be seen as
enticing for children; these items are known as
allurements
• Occupier must take all reasonable steps to
ensure chance of accident by children towards
allurements is reduced
• Example – must place high enough fence around
a backyard pool
Host Liability
• Relatively new category in which restaurants,
bars and pubs (known as “Commercial hosts”)
and social hosts (those inviting guests at home
while serving alcohol) are liable for their guests
• This relates to drinking and driving of guests:
hosts must provide duty of care to ensure
intoxicated guests do not injure themselves or
anyone else
Professional Negligence
• Professionals are workers who have a specific
skill set expertise towards a service to society
• These include: doctors, architects, engineers,
pharmacists, etc.
• Although even professionals make mistakes, a
standard of care exists wherein professional
must take steps to ensure risks are minimized
Professional Negligence
• For example, if pharmacist has intentionally
lacked sleep but still works, then distributes
incorrect prescription to customer, then
pharmacist is liable
• For doctors, malpractice (failure to provide
standard of care during medical procedures) and
failure to get informed consent (where patients
do not receive truth about medical condition,
treatments and risks) are two specific types of
professional negligence