Defences of Negligence
What is Volenti?
A full defence - very hard to prove - "no wrong is done to one who consents"
Contributory negligence, what is it?
Not a complete defence. Codified in legislature. Reduces the damages payable that the defendant owes the plaintiff.
Within the Occupier's Liability Act, it codifies that a (fill in the blank) is owed between occupiers and those people that enter the premises. And the (fill in the blank) is to keep persons (and their property) reasonably safe while on the premises.
(remember element 1 & 2 of the elements of negligence)
Duty of Care & Standard of Care
What is strict liability?
The act of imposing liability without negligence or intention (it doesn't matter if you did or didn't do it, you're on the hook)
What is the volenti test?
The defendant must prove that the plaintiff understood and accepted:
1) the physical risks
AND
2) the legal risks
For contributory negligence, what must the defendant prove?
1) the plaintiff failed to take reasonable care to protect themself
AND
2) the failure to take such care caused reasonably foreseeable damages
What is a social host and do they owe a duty of care?
Social hosts is someone just hosting a party (not for monetary benefit), and they do not owe a DOC to their guests.
"The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his own peril, and if he doesn't do so, is prima facie answerable for all the damage which is the natural consequence of its escape." What test is this?
Rylands v. Fletcher test
What is a waiver?
Terms that a person agrees to which releases the defendant of liability in exchange for the person's participation in an activity.
What is apportionment?
The process of dividing the damages across plaintiffs AND defendants
What is an office host and do they owe a duty?
An office host is an employer/business that hosts a party; they owe a DOC to their guests/employees.
To prove strict liability, the plaintiff must prove four things.
1) the defendant used its property in a 'non-natural' manner;
2) the defendant brought something onto its property that was likely to cause mischief if it escaped;
3) the thing escaped;
4) foreseeable damage was caused as a result of the escape.
What is a waiver inquiry? (is the waiver valid)
Court must be satisfied that the plaintiff intended to absolve the defendant of liability, they will ask;
1) did the plaintiff intend to be bound by the waiver?
AND
2) did the scope of the waiver cover the circumstances?
What does joint and several mean?
All defendants are on the hook for the 100% that is owed. The plaintiff can choose who they collect from, regardless of if they were 1% or 99% liable.
What is a commercial host, do they owe a duty of care; to whom?
A commercial host is an establishment that sells alcohol. They owe a DOC to their patrons (who become drunk) both on and off property - they also cannot kick them off their property and they also owe a DOC to the public that that person may come into contact with.
Defences to strict liability (4 items)
1) consent (explicit, implied, voluntarily assuming the risk)
2) default of the plaintiff (their fault)
3) act of God (natural or third party cause)
4) statutory authority (law applies and defendant was following it)
What is illegality? What does that defence do?
It is a complete, yet narrow, test.
It protects the integrity of the legal system.
To prevent from profiting from illegal acts.
Will not prevent a claim on a personal injury caused by negligence, as they are not benefiting from it and are just recovering damages.
How long is the limitation period? Where can you find it?
The limitation period is two years upon when a person reasonably discovers they have a claim.
Limitations Act
The cases were noted in the slides; what are they?
Occupier's Liability - MacKay v. Starbucks
Commercial Hosts - Jordan House Ltd. v. Menow & Hague v. Billings
Office Hosts - Hunt v. Sutton Group
Social Hosts - Childs v. Desormeaux
What is vicarious liability and what is an example of it?
Vicarious liability is the principle that a third party's relationship with the tortfeasor may lead to them being held liable for the tortfeasor's actions.
Employers being held responsible for their employees.