Defences for Negligence Defences for Negligence - PowerPoint Presentation

Slide1

Defences for NegligenceSlide2

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.Slide3

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 parties.

Often used as a defence in accidents when the plaintiff was not wearing a seatbelt.Slide4

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.Slide5

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.Slide6

Special Types of Negligence

Occupier’s Liability

– Concerns responsibility toward people who enter a property.

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.Slide7

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.Slide8

Licensees:

a person who enters property with the implied permission of the occupier.

Usually there for a social, not a business purpose.

Lesser standard of care is required than for invitees.Slide9

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 trespasser.

Special duty when property includes play equipment – allurement to children. i.e.: swimming pool, swing set – such equipment may pose dangers.Slide10

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.Slide11

Commercial and Social Host Invitees

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.Slide12

Motor Vehicle Negligence

Can lead to both Criminal and Civil actions.

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.Slide13

Motor Vehicle Negligence continued…

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.Slide14

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.Slide15

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 years).

It can be foreseen that an injury can result from not wearing a seatbelt by a reasonable person.Slide16

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.Slide17

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.Slide18

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 batterySlide19

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.