Defences to the Tort of Negligence

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This lecture explains common defences to a claim for negligence.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome to YouCounsel.

We have been talking about this tort of negligence.  In yesterday’s lecture, I explained what the elements of tort of negligence are that you need to establish if you are filing a claim against anyone for the tort of negligence.

Today, we will take the opposite side and discuss what some of the defences are that you could raise to defeat a claim for negligence against you.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

The best defences for the negligence claim against you are two:

  1. Number one, you owe no duty of care to the plaintiff.  You can show that you did not owe a duty of care to the plaintiff. Then you’re off the hook for that negligence claim.
  2. Or, you can simply show that the specific act that is being alleged as a negligent act, that negligence did not occur, the act was not negligent at all.

These are simple straightforward defences.  If you can show either of the two, you will be off the hook for the negligent claim.

If that doesn’t work then there are three defenses to negligence claims that can be used and have been used in various cases.

  1. Number one is called contributory negligence.
  2. Number two is voluntary assumption of risk; and
  3. Number 3 inevitable accident.

I’ll talk about these.

(1) Contributory negligence: Essentially, what you’re saying is that plaintiff has some fault in having those injuries or harm that was done to the plaintiff.  Both plaintiff and defendant have done something wrong; have been negligent with respect to this issue; with respect to the instance.  The plaintiff has some blameworthiness in this scenario.  If that happens then it is a shared liability between the defendant and the plaintiff.  It is based on the degree of fault. The court will determine:

[a] whether the plaintiff was negligent at all in contributing towards his or her injuries; and,

[b] what was the percentage of that contribution—should the plaintiff be held liable for 25 percent of his or her injuries, 50 percent or 75 percent.  The court then does assign a certain degree of fault on each party (on the plaintiff and the defendant).  That’s how the damages could be a proportioned.

In this scenario, when the defendant is alleging that the plaintiff was also negligent, then it is the burden of the defendant to prove that the plaintiff was contributorily negligent. Let’s take an example again. A common example is a motor vehicle accident. In this case the plaintiff claims that the defendant ran a red light and caused an accident which caused the plaintiff’s injury. If that is the basic scenario but let’s say that in that scenario it is determined that at the time of the accident the plaintiff was not wearing a seat belt and the defendant takes the position that the injuries caused to the plaintiff were either completely because of the plaintiff not wearing his seat belt or at least, in part, his not wearing seat belt contributed towards the extent of injuries that the plaintiff suffered.  In this scenario, the defendant will then show to the court that (i) number one that the plaintiff did not wear a seat belt at the time of the accident and therefore the plaintiff was negligent in that act; and, (ii) secondly, that the plaintiff not wearing the seat belt either caused the injuries or contributed towards the extent of injuries that the plaintiff has suffered.

When this is established, there are few things that can happen the court may say that the defendant is completely off the hook and award no damages or the court may apportion the damages. As I said, the court may decide that the plaintiff is liable 25 percent for his wrongdoing.  Then, in that scenario, the court will reduce the damages by 25 percent because this is not a scenario where the defendant is claiming any damages because it is the plaintiff that is injured.  The injury has been caused to the plaintiff and therefore the plaintiff will not be paying any money to the defendant, unless, there is a counter claim for something.  In ordinary circumstances, there is no money that is going from the plaintiff to the defendant for contributory negligence. But, let’s say if the total value of the damages was $100,000 and the plaintiff was liable 25 percent for contributory negligence, then the plaintiff will receive $75,000. The money is not going from the plaintiff to the defendant.

(2)  Voluntary Assumption of risk: For this defence, the defendant must prove two things: [a] number one that the plaintiff clearly knew the risk of the activity; and, [b] secondly, that the plaintiff made a choice to assume that risk. Two components—both of these need to be shown by the defendant to succeed on the defence of voluntary assumption of risks.  We, in our daily lives, deal with this scenario all the time. We all sign a number of waivers depending upon different activities that we engage in, where we voluntarily assume the risk of that activity.  We go to, for example, ski resorts and engage in skiing. We all (pretty much everyone) signs a waiver that clearly states that there are risks inherent in the specific activity of skiing and then we may get hurt in that process.  We are making that choice on our own.  We sign these waivers for all kinds of activities – you go for skydiving, you go for swimming, even in circumstances where you attend and are just watching a hockey game in the arena. Oftentimes you will see that the ticket that you buy will indicate on the back of the ticket – perhaps – that pucks may fly out of the arena and come into the area where the spectators are sitting.  You might get harmed by that.  You are taking that risk. You’re assuming that risk that you may get hit by a puck if you are not paying attention.  In that situation (if you are injured) you’re not able to get any liability against the arena owners or the organizers. We sign these kind of waivers all the time.

(3) Finally, the third defence, is inevitable accident.  In this defence, the defendant shows to the court that the injury was due to an unavoidable or unforeseeable situation—something that the defendant could not do anything about—even with prudence and due care, the defendant could not have avoided that injury or that accident to the plaintiff.  Let’s take a similar example of a motor vehicle accident. In this scenario, someone is driving on the 401 (Expressway) and his or her vehicle was struck by lightning. Because of the lightning strike, the driver lost control of the vehicle, ended up changing lanes and hitting another car which caused the accident injuries to the plaintiff.  In this scenario, if the defendant can show that his loss of control of the vehicle was really because of the lightning strike and for no other reason and there was nothing that the defendant could have done to prevent that accident, then, this particular defence will succeed and the defendant will not be liable.

What you want to remember is that your best defenses are that you can show that there’s no duty of care or that the act that is being alleged to be negligent was not negligent.  Then, you also want to know that each province pretty much have their own legislation. In Ontario it’s called Negligence Act which codifies these things and talks about how the court has the power to award contributory negligence and also if there are multiple defendants how is the liability apportioned between multiple defendants if the case is successful.  Finally in our everyday lives I think it is important to read these waivers carefully to understand the kind of risk they were assuming and then decide whether we want to engage in that particular activity or not.

I love this topic. As I said I really enjoy talking about torts. It’s one of my favorite topics. We’ll continue this conversation and I will provide further lectures so we can have some examples of how the tort of negligence takes place in our day to day lives now and what are some of the areas that it may develop further.

Thank-you for watching.

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