Chapter 3 - C13 Insurance Against Liability – Part 1 Download

STUDY 3 – Defences Against Negligence in Common Law.pdf   View or Download

Terms	Definitions
How is denial used as a defence to an action?	they can deny liability by denying the act, negligence or injury
What is remoteness of damage and how can it be proven?	defendants must prove that their actions were not the immediate and effective cause of the plaintiff's injuries or damages.
How does the defence of inevitable accident operate?	it places the onus on the defendant to show that the cause and result of the accident was inevitable.
What is the leading case in which the defence of no duty owed was used successfully?	Palsgraf v. Long Island Railroad Co.
Describe a case that would suit a defence based on a plea of emergency.	ex. a child runs into the road in front of a bicyclist who swerves to avoid him and injures another pedestrian.
What is the restriction in effect on an act of God defence?	no human interference.
What does volenti non fit injuria mean?	"to him that is willing, there is no injury" when a person voluntarily accepts a risk, liability will not flow from it.
What two steps were established in Waldick v. Malcolm to form a successful volenti defence?	plaintiff has knowledge of risk and waives rights of legal claim.
List the circumstances cited in the Occupiers' Liability Act of Ontario that would likely form a successful defence based on volenti.	a) Rural premises that are used for agricultural purposes including land under cultivation, orchards, pastures, woodlots and farm ponds; vacant or underdeveloped premises; forested or wilderness premises; b) Golf courses when not open for playing; c) Utility rights-of-way and corridors, excluding structures located thereon; d) Unopened road allowances; e) Private roads reasonably marked by notice as such; f) Recreational trails reasonably marked by notice as such
What defence seeks to have a plaintiff accept part of the fault for an injury?	contributory negligence - will allow the amount of damages to be reduced by the percentage of blame assigned to the plaintiff.
What type of agreement relinquishes the right to recovery?	disclaimer - it denies a plaintiff's right to recovery.
What is a limitation period?	it is a legal time period in which a legal action may be taken by the offended party.
What common law doctrine is concerned with domestic pets?	the common law doctrine of scienter applies to domestic pets particular dogs.
Upon whom does the burden of proof usually rest?	the party who alleges a fact has the burden of proving it.
Where does the onus of proof rest with respect to bailees? Why?	the onus of proof is on the bailee and is up to them to establish that they were not negligent.
Upon whom does the burden of proof rest when the evidence leads to res ipsa loquitur as a conclusion?	the burden of proof shifts to the defendant
Under what circumstances does res ipsa loquitur apply?	1. The thing that caused the loss was in the exclusive control of the defendant. 2. The thing that caused the loss could not have happened without negligence.
Which court case introduced the doctrine of strict liability?	Rylands v. Fletcher 1868.
What are the two most common situations in which strict liability arises?	The most common cases in which strict liability arises are those involving fire or large volumes of water used for industrial or transportation purposes.
List five defences against strict liability.	a) Act of God (something escapes as a result of an unforeseen event which cannot be prevented, such as an earthquake) 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 defendants 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
Give an example of a statute imposing absolute liability upon persons.	the Environmental Protection Act of Ontario places an absolute liability upon persons in control of a substance that is spilled and which causes damage to the environment. They must clean it up regardless of who was at fault for the spill.