Chapter 3

Question 1

How is denial used as a defence to an action?

Answer 1

The defendant must prove that one or more of the following occurred:

A. He or she did not commit the act that caused the complaint

B. His or her actions were not negligent

C. The plaintiff suffered no injury as a result of the defendant’s actions

Question 2

What is remoteness of damage and how can it be proven?

Answer 2

i. The defendant’s actions must be remote from the final consequence (not the proximate cause) in order to escape liability.
ii. A novus actus interveniens (intervening act) breaks the causal chain between the defendant’s breach of duty and the plaintiff’s injury - relieving the defendant of liability.

Question 3

How does the defence of inevitable accident operate?

Answer 3

i. It places the onus on the defendant to show that the cause and result of the accident were inevitable.
ii. It must be shown that the damages arose from an outside cause over which the defendant had no control.

Question 4

What is the leading case in which the defence of no duty owed was used successfully?

Answer 4

Palsgraf v. Long Island Railroad Co.

Question 5

Describe a case that would suit a defence based on a plea of emergency.

Answer 5

a. A child runs into the road in front of a cyclist who swerves to avoid the child but instead injures another pedestrian.
b. The defendant must be in the position of danger through no fault of their own.

Question 6

Act of God

Answer 6

An act of extraordinary natural force without human interference.

Question 7

What is the restriction in effect on an act of God defence?

Answer 7

A defendant who has the duty to foresee a natural event must prove that the severity of the incident was unforeseeable.

Question 8

What does volenti non fit injuria mean?

Answer 8

To him that is willing, there is no injury.

Question 9

What two steps were established in Waldick v. Malcolm to form a successful volenti defence?

Answer 9

i. Proving the plaintiff had knowledge of the risk.

ii. Proving the plaintiff waived his legal right to make a claim.

Question 10

List the circumstances cited in the Occupiers’ Liability Act of Ontario that would likely form a successful defence based on volenti.

Answer 10

Rural premises that are used for agricultural purposes

i. including land under cultivation, orchards, pastures, woodlots, and farm ponds
ii. vacant or underdeveloped premises
iii. forested or wilderness premises

Golf courses when not open for playing
Utility rights-of-way and corridors

iv. excluding structures located thereon

Unopened road allowances

Private roads reasonably marked by notice as such

Recreational trails reasonably marked by notice as such

Question 11

What type of agreement relinquishes the right to recovery?

Answer 11

A disclaimer is a notice of refusal to accept liability for damages that might occur in the future.

Question 12

What defence seeks to have a plaintiff accept part of the fault for an injury?

Answer 12

Contributory negligence - it allows the damages to be reduced by the percentage of blame assigned to the plaintiff.

Question 13

What is a limitation period?

Answer 13

A period of time after which a cause of legal action may no longer be enforced.

Question 14

Which court case introduced the doctrine of strict liability?

Answer 14

Rylands v. Fletcher (reservoir flooded)

Question 15

What are the two most common situations in which strict liability arises?

Answer 15

Escape of substances from one land to another.

Escape of vicious animals.

Question 16

List five defences against strict liability.

Answer 16

a. Act of God
b. Escape caused by the plaintiff’s own actions
c. Escape by the deliberate wrongful act of a third party
d. When the dangerous object is on the defendant’s land with the implied or express consent of the plaintiff
e. When the authorization to bring and keep the dangerous object on the defendant’s land is granted by statute.

Question 17

Absolute Liability

Answer 17

Occurs in a prescribed set of circumstances, described by statute, for which there is no defence.

Question 18

Give an example of a statute imposing absolute liability upon persons.

Answer 18

The Environmental Protection Act of Ontario imposes absolute liability upon persons in control of a substance that is spilled and which causes damage to the environment.

Question 19

Where does the onus of proof rest with respect to bailees? Why?

Answer 19

When a charge is made for the service, and articles are damaged while in the hands of bailees, the onus is upon them to establish that they were not negligent.

Question 20

Upon whom does the burden of proof rest when the evidence leads to res ipsa loquitur as a conclusion?

Answer 20

“The thing speaks for itself”

When an accident could not have happened except through the negligence of the defendant, the burden of proof shifts to the defendant.

Question 21

Under what circumstances does res ipsa loquitur apply?

Answer 21

The thing that caused the loss must have been within the exclusive control of the defendant.

The thing that caused the loss could not have happened without negligence.

Question 22

What common law doctrine is concerned with domestic pets?

Answer 22

Scienter - It leaves the onus on the plaintiff to prove that the animal which caused the damage or injury had a propensity for the actions that caused harm.

(legislation often reverses this)

Question 23

Upon whom does the burden of proof usually rest?

Answer 23

Generally the party who alleges a fact has the burden of proving it.

Thus plaintiffs must prove allegations of negligence.

Question 24

Outline the Good Samaritan legislation.

Answer 24

Protects volunteer rescuers by restricting liability against them to the level of gross negligence or recklessness.

A person suing a rescuer for ordinary negligence would not be successful under Good Samaritan laws.

Question 25

Defences Against Negligence

Answer 25

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. Disclaimer
9. Contributory Negligence
10. Limitation Period

Question 26

When Onus of Proof Shifts from Plaintiff to Defendant

Answer 26

a. Changed by statute
b. Bailees
c. Res Ipsa Loquitur (the thing speaks for itself)
d. Scienter