Defences for Negligence

Defences for Negligence
 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.
Contributory Negligence
 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.

 Each province has a Contributory Negligence Act that
allows court to divide responsibility between the

 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.

 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.

 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

 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.

 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

 Usually there for a social, not a business

 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.

 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

 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.
Commercial and Social Host
 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.
Motor Vehicle Negligence
 Can lead to both Criminal and Civil

 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.
Motor Vehicle 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.
Liability for 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).

 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.

 Drivers have specific duty of care to ensure
passengers wear seatbelts (especially those under 16

 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 actions are measured against the
standards of similar professionals.

 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)

 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.
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.

 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.

 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.