Chapter 3

Question 1

List 8 defenses

Answer 1

1. Denial
2. Remoteness of damage
3. Inevitable accident
4. No duty owed
5. Emergency
6. Act of God
7. Voluntary assumption of risk
8. Contributory negligence

Question 2

Define denial defense

Answer 2

Parties May defend against liability for plaintiff’s injuries or damages by denying that they committed the act, denying that the act was negligent, or denying that the plaintiff was injured.

Question 3

In a denial defense what 3 occurences must the defendant prove ?

Answer 3

1. He or she did not commit the act that causes the complaint
2. His or her actions were not negligent
3. The plaintiff suffered no injury as a result of the defendants actions

Question 4

Define remoteness of damage defense

Answer 4

Defendants must prove that their actions were not the immediate and effective cause otherwise known as proximate cause of the plaintiff’s injuries or damages. Their actions must be remote from the final consequence in order to escape liability.

Question 5

Define the Latin term Novus actus interveniens

Answer 5

The Latin term refers to the intervening act that breaks the casual chain between the defendants breach of duty and the plaintiffs injury. The intervening force is an additional unrelated act proceeding the original course of action. It is independent of the initial act that started the chain of events leading to the plaintiff’s injury. It breaks the chain of causation between the defendant and the plaintiff relieving the defendant of liability

Question 6

Define inevitable accident defense

Answer 6

The theory of defense for inevitable accident places the onus on the defendant to show that the cause and result of the accident were inevitable. It must be shown that the damages arose from an outside cause over which the defendant had no control. The defense of inevitable accident is not often used. Instead, the defendant simply pleads that he or she was not negligent.

Question 7

Define no duty owed defense

Answer 7

The concept of duty owed can be used as a defense to a lawsuit. Was the plaintiff foreseeable plaintiff? The leading case on this defense is palgraf vs long island railroad co. In palsgraf the defendant’s guard knocked a package of fireworks from the arm of a man being helped to board a departing train. The fireworks exploded, knocking over a scale, which injured the plaintiff. She was denied recovery on the grounds that she was beyond the rage of foreseeable danger

Question 8

Define emergency defense

Answer 8

If the defendants try to extricate themselves from danger and cause damage to the plaintiff in the process, they complete emergency as a defense. They are required to show that they were in that position through no fault of their own. For example, a child runs into the road in front of a cyclist who swerves to avoid the child but instead injured another pedestrian.

Question 9

Define act of God defense

Answer 9

In-law, an act of God is an act of extraordinary natural force without human interference. It is unpredictable and impossible to foresee. But, it is sometimes necessary for a defendant who has the duty to foresee a natural event to prove that the severity of the incident was unforeseable. For example, a golfer on a golf course is injured when lightning strikes, or a sudden and violent rain storm causes damage.

Question 10

Define voluntary assumption of risk defense

Answer 10

When a person voluntarily assumes a risk, liability will not result from it. To escape liability, the defendant must show that the plaintiff knew of the risk and accepted it. For example a skier is injured while skiing

Question 11

Define volenti non fit injuria (volens)

Answer 11

To one consenting, no wrong is done. Where a person voluntarily assumes a risk that results in injury to himself, he is not entitled to claim damages from another.

Question 12

List 6 circumstances a volenti defence will succeed in the occupiers liability act

Answer 12

1. Rural premises that are used for:
   - agricultural purposes, including land under cultivation, orchids, pastures, wood lots, and farm ponds
   - vacant or underdeveloped premises
   - forested or wilderness premises
2. Golf courses will not open for playing
3. Utility rights of weight and corridors
   - excluding structures located there on
4. Unopened road allowances
5. Private roads reasonably marked by notice as such
   - recreational trails reasonably marked by notice as such
6. Portage routes

Question 13

Define disclaimer

Answer 13

A disclaimer is a notice of refusal to accept a liability for damages that might occur in the future. It provides a warning to a potential plaintiff of a potential peril. The disclaimer is associated with the volenti defense

Note: a simple notice of disclaimer posted on a wall would probably not be sufficient to escape liability. The defendant must show that the plaintiff read the notice.

Question 14

Define contributory negligence

Answer 14

Contributory negligence is a partial defense - it allows the damages to be reduced by the percentage of blame assigned to the plaintiff. For example, where a plaintiff would have suffered less serious injuries had he or she been wearing a seatbelt, contributory negligence can be raised as a defense. The amount of damages will be reduced by the percentage of blame allocated to the plaintiff.

Question 15

Define limitation periods

Answer 15

If an action is not brought within the time limit prescribed by law, the party’s legal remedies are extinguished. Each province and territory has general statutes of limitation in addition other provincial, territorial, and federal statutes apply to a variety of specific circumstances.

Question 16

Define absolute liability

Answer 16

Liability associated with very dangerous actions. Often found in cases involving explosives and in many automobile laws. Negligence does not have to be proven

Question 17

List five cases in which strict liability has been applied

Answer 17

1. Fire or large volumes of water used for industrial or transportation purposes
2. Commercial use of or commercial quantities of gas and electricity
3. Use of poisonous gases in fumigation
4. Spraying of herbicides
5. Keeping wild animals or domestic animals with known vicious tendencies

Question 18

Defenses to absolute liability

Answer 18

Absolute liability occurs in a prescribed set of circumstances common described by statute for which there is no defense.

Question 19

Define onus of proof

Answer 19

The burden of responsibility of proof, and is sometimes referred to by its Latin term onus probandi

Question 20

Define onus change by statute

Answer 20

Sometimes the onus of proof is shifted by statute. Take, for example, provincial and territorial highway traffic legislation. The legislation provides that if a car hits a pedestrian, the onus is on the driver to prove that he or she was not negligent.

Question 21

Define Bailee

Answer 21

A Bailee accepts articles belonging to another for a specific reason, such as safekeeping or repair.

Question 22

Res ipsa loquitur

Answer 22

The facts speak for themselves. A doctrine of law or a presumption of certain facts.

Question 23

List two requirements that must be met if the burden of proof shifts to the defendant

Answer 23

1. The thing that caused the loss must have been within the exclusive control of the defendant
2. The thing that caused the loss could not have happened without negligence

Question 24

Define scienter

Answer 24

The common law doctrine of scienter applies to dangerous animals. It leaves the onus on the plaintiff to prove that the animal that caused the damage or injury had a propensity for the actions that cause the harm. If it can be proved that the owner was aware of similar behavior by the animal prior to the incident, the animal will be considered a dangerous animal and the owner will be held strictly liable. In some of the common law provinces and territories, legislation governs the liability of dogs.

Question 25

Define Good Samaritan concept

Answer 25

Most of the common law provinces and territories have enacted Good Samaritan legislation to protect volunteer rescuers by restricting liability against them to the level of gross negligence or recklessness. A person suing a rescue for ordinary negligence would not be successful under Good Samaritan laws