1
Defences for Negligence (All About Law, Gibson, pp. 345 -348)
People sued for negligence have a number of available defences. The best defences
are that negligence did not exist or that the defendant did not owe the plaintiff any duty
of care. Even a plaintiff who is able to prove that negligence exists may not be able to
recover as much as expected. If the plaintiff has also been negligent in the incident or
has assumed a risk voluntarily, then damages may be reduced or not awarded at all.
Contributory Negligence
At one time, under common law, a plaintiff found to be in any way at fault for an accident
was denied the right to claim damages. Society's attitude was that the law should not
protect people who do not look after their own safety. However, such treatment seemed
harsh for plaintiffs who were only slightly at fault for their loss or injury.
Today, if both the plaintiff and the defendant are negligent to some degree, damages
are divided between them, according to the principle of contributory negligence. The
court must determine which party was more negligent, or whether both parties were
equally at fault. In making this decision, the judge considers the elements of negligence
discussed earlier in this chapter. The burden is on the defendant to prove the plaintiff" s
contributory negligence. Each province has a Contributory Negligence Act or a
Negligence Act that allows courts to divide responsibility between the parties.
For example, a motor vehicle accident results in damages of $80 000. The court finds
the defendant 75 percent at fault for driving well above the speed limit and through a red
light. The plaintiff, however, is found 25 percent at fault for driving through the
intersection on an amber light and not wearing a seat belt. As a result of this finding of
contributory negligence, the plaintiff will receive $60 000 from the defendant. The
plaintiff is liable for the remaining $20 000 and will not receive it. The damages
calculated are those that the judge or jury believe are required to fully compensate the
injured person for loss suffered. In other words, contributory negligence does cost the
victim. Contributory negligence is often used as a defence in accidents when the plaintiff
is not wearing a seat belt.
Jordan v. Poirier
(2000) 231 N.B.R. (2d) 170
New Brunswick Court of Queen's Bench
In July, 1998, the plaintiff, James Jordan, and the defendant, Ulysse Poirier, each headed to
a corner store to buy cigarettes at around 11:30 P.M. Jordan was on his bike and was
wearing a brown leather jacket, jeans, and a baseball cap because it was raining heavily.
Poirier drove his parents' car. The young men went to the same corner store but did not see
each other there.
On their way home, the parties were traveling in the same direction on parallel streets.
They both stopped at the stop signs at the intersection with a through street. As Jordan
entered the intersection, Poirier made a left turn into the intersection, proceeded along the
through street, and struck Jordan, severely injuring him. Evidence indicated that Poirier's car
windows were fogged up and he had trouble seeing. It was raining so hard that he had his
wipers on full speed and his headlights on high beams. There was no evidence that Poirier
was speeding, although Jordan thought he was driving fast. Jordan was wearing dark
clothing, and his bike didn't have the required headlight or bell. There were no other
vehicles on the roadway, and there were streetlights illuminating both streets and the
intersection.
2
Jordan sued Poirier for damages for negligence, but the Court of Queen's Bench held
that both parties were equally negligent as either party could and should have been seen by
the other.
For Discussion
1. What arguments could the plaintiff use to establish negligence on the part of the
defendant?
2. How did each of the parties contribute to the negligence for this accident?
3. Under New Brunswick's Contributory Negligence Act, the judge found the parties equally
at fault. Why do you think the judge found equal fault?
Voluntary Assumption of Risk Note: One of Canada's landmark judgments concerning
exemption clauses and waiver of liability is the Supreme Court of Canada's unanimous
judgment in Crocker v. Sundance Northwest Resorts Ltd. in 1988.
Crocker v. Sundance Northwest Resorts Ltd. [1988] 1 S.C.R. 1186 Supreme Court of
Canada
In March 1980, a tube race took place at the Sundance Resort near Thunder Bay,
Ontario, during its Spring Carnival, held to promote the resort. The prize money offered
was $200. The race consisted of two-person teams racing down a heavily mogulled hill (a
hill covered with mounds of snow) on oversized tire tubes. Videotapes made of earlier
races showed contestants being tossed about like rag dolls. Little or no skill was involved,
and the contest was mainly for the entertainment of participants and spectators.
William Crocker, 29 years old, and his partner, Rick Evoy, signed up for the race and
paid a $15 registration fee. Although they did not read the application, nor have their
attention drawn to it, the form contained a clearly marked exemption clause releasing the
resort from responsibility for "... all damage sustained ... and from any or all actions,
causes of action, claims, and demands of any nature."
When the race began, Crocker and Evoy were intoxicated because they had been
consuming their own alcoholic beverages as well as drinks bought at the bar. The resort's
manager was supervising the race and was aware of the plaintiff's intoxication when he
saw Crocker stumble and fall before the race. He suggested to Crocker that he not race,
but he did not attempt to actually prevent Crocker from doing so. Crocker and Evoy won
the first heat.
Between races, both the resort owner and the manager suggested to Crocker that he
should not race again because of his condition. Nonetheless, Crocker stated in no
uncertain terms that he intended to race. In the second heat, the plaintiff was thrown from
the tube when the tire hi t a mogul. Crocker broke his neck, rendering him a quadriplegic.
Although he had some very limited use of his arms, Crocker became entirely unable to
care for himself and would likely require hospitalization or permanent care for the rest of
his life.
Crocker brought an action against the resort for negligence causing personal injuries.
At trial in 1983, he was awarded damages of $405 275, even though he was found to be
25 percent at fault for his own injuries. Crocker appealed this decision in 1985 to the
Ontario Court of Appeal, where the award was overturned and the resort was held not
liable at all in a 2 to 1 decision. Crocker was granted leave to appeal to the Supreme
3
Court of Canada, and in June 1988 the Court restored the trial judgment in a 6 to 0
decision.
For Discussion
1. What standard of care did Sundance owe Crocker and other participants? Was that
standard met?
2. Why did the trial court and the Supreme Court not accept Sundance's defence that
Crocker's signing of the waiver exempted it from liability? Do you agree? Explain.
3. What steps could Sundance have taken to prevent this accident?
4. Why was Crocker found 25 percent at fault for his own injuries? Do you agree? Explain.
5. With which court decision do you agree, and why? Copyright «;) 2003 Nelson
Voluntary Assumption of Risk
For the defence of voluntary assumption of risk to succeed, the defendant must prove that
the plaintiff clearly knew of the risk of his or her actions and made a choice to assume that
risk. For example, a fan struck and injured by a baseball at a game will probably not
succeed in an action against the player who hit the ball because the fan should be aware
of the risks of the game. On the other hand, if an angry player threw the bat or ball into the
stands and injured a fan, the fan might well succeed in a legal action. In this case, injury
does not arise from an ordinary risk of the game. Generally, risk is stated on the ticket.
The ticket holder enters into a contract to attend the event and assumes this risk. If risk is
not stated on the ticket, there may be an implication that the person voluntarily assumes
the risk merely by observing the activity.
Someone who causes injury to passengers while driving impaired may also use the
defence of voluntary assumption of risk. The burden of proof is on the defendant. The
court assumes that a plaintiff who gets into a car knowing that the driver is drunk
voluntarily assumes a risk of injury. The plaintiff will therefore receive reduced damages.
Inevitable Accident
Injury or loss may result from a situation that is unavoidable, no matter what precautions
the reasonable person would have taken under the circumstances. If lightning strikes
Hannah's moving car, causing her to lose control and to collide with oncoming traffic,
Hannah would not likely be held liable since she could not foresee such an occurrence
and could not prevent it. This is an inevitable accident.
Hagerman v. Niagara Falls (City)
(1980) 29 O.R. (2d) 609 Ontario High Court
The 66-year-old plaintiff and avid hockey fan, Hagerman, and her friend Bruce Harris
attended the Niagara Falls Memorial Arena to watch a junior A hockey game. They
requested seats at the south end of the arena behind a plexiglass screen, 1.5 m high. They
usually sat there, since Hagerman preferred this view of the ice surface, and she also had
protection from flying pucks.
During the game, a player shot a puck from the blue line in the direction of the goal.
Harris saw the puck coming and thought it would hit the plexiglass, but it just cleared the top
of the screen and came toward them. He raised his arm to protect himself and leaned to his
left to protect the plaintiff, who had been distracted from the play and did not see the puck
4
coming toward her. The puck shattered the left lens of Hagerman's glasses, resulting in the
loss and removal of her eye.
Hagerman sued the city of Niagara Falls and others for damages. However, her action
was dismissed.
For Discussion
1. On what grounds did the plaintiff base her claim?
2. What duty of care did the defendants owe the plaintiff and others attending the game?
3. Explain the meaning of the following statement: "Flying pucks are an inherent risk of thegame of hockey." Does it apply to this case? Explain.
4. Why did the defendants argue the defence of voluntary assumption of risk?
5. Why do you think the action was dismissed?
Review Your Understanding
1. What are the two best defences in a negligence action?
2. What is contributory negligence? Explain, using an original example.
3. How do the courts divide the fault between the parties when both are
at fault?
4. What is voluntary assumption of risk?
5. Identify the two factors that the defendant must prove for the defence of voluntary
assumption of risk to succeed.