Negligence, Pt. 2

1. Negligence, Pt. 2 Law 12 – MUNDY 2011

2. Defences for Negligence • Contributory Negligence • Voluntary Assumption of Risk • Inevitable Accident

3. Defences: Contributory Negligence • Defendant shows evidence indicating that plaintiff (or 3rd party) is also partially negligent • Means that judge could award partial damages to both plaintiff and defendant • Example: If judge rules that plaintiff and defendant are both liable for 50% each of $50000 award (to plaintiff), then each must be responsible for paying $25000

4. Defences: Voluntary Assumption of Risk • Used if evidence shown that plaintiff knew the risks involved in an activity (that the defendant was also involved in) • Evidence needs to specifically show: • plaintiff knew the risks • plaintiff willingly accepted the risks • Thus defendant must show documents or witnesses that give evidence to this

5. Defences: Voluntary Assumption of Risk • Hence, many activity operators (such as rafting companies) will have participants sign a waiver that lists the risks involved and in which the participant’s signature is given stating they acknowledge, understand and accept those risks • However, if participant is impaired, intoxicated, or in no position to give full consent, then waiver will be deemed void (and defendant may be liable for damages in suit)

6. Defences: Inevitable Accident • Also known as “Act of God” or “force majeur” • Occurs when accidents may be the result of a natural occurrence, such as a snowstorm or an earthquake • Defendant must prove they could not have foreseen it (i.e.- wasn’t forecast on the weather news) nor could have prevented it

7. Special Types of Negligence • Motor Vehicle Negligence • Occupiers’ Liability • Host Liability • Professional Negligence

8. Motor Vehicle Accidents • Violating any section of the Highway Traffic Act or the Motor Vehicle Act could result in both criminal trial and civil suit • Here, burden of proof shifts to defendant, as they must prove that the accident was NOT due to negligence (i.e. – violation of either act)

9. Motor Vehicle Accidents • Drivers of motor vehicle accidents are liable for the safety of their own passengers • Hence, if accident occurs, and seen as fault of driver, passengers may sue driver for damages • However, voluntary assumption of risk may be a defence for driver, if passengers accepted a ride knowing driver was intoxicated

10. Motor Vehicle Accidents • If seatbelts are not used, courts now rule that person was not acting as a reasonable person, as it is foreseen that failure to wear one would result in injury if accident occurs • Hence, drivers owe children a duty of care to ensure they are wearing seatbelts as passengers • If any party in civil suit shows not wearing seat belt, court rules with contributory negligence

11. Motor Vehicle Accidents • Vicarious Liability can take place in suits of motor vehicle accidents • Vicarious Liability = person is held responsible for damages, despite not causing damages or injury, due to relationship (and thus duty of care) • Example – if A loans B his car, then B causes accident to C, C may sue A as well for damages

12. Motor Vehicle Accidents • Vicarious Liability also extends to owners of companies, whose vehicles are driven by their employees – if employee causes an accident, employer can be sued • However, if employee was operating vehicle in a manner that was not intended and expressed by owner (example – drag racing), then vicarious liability cannot be shown

13. Motor Vehicle Accidents • Parents are also responsible for vicarious liability in accidents where their children cause accidents • In BC – the Parental Responsibility Act requires only that the plaintiff prove: • child caused property damage or injury • that the defendants are indeed the child’s parents • amount of damage

14. Occupiers’ Liability • An occupier is defined as someone who supervises and controls a property (not necessarily the owner) • Duty of care exists for occupier towards anyone who enters their property • Occupier must be able to foresee and address any safety issues that exist for people entering the property

15. Occupiers’ Liability • Differing levels of standard of care exist for following categories of people entering property: • invitee • licensee • tresspasser

16. Occupiers’ Liability • invitee is one who is on property for reason other than social purposes • This includes customers at stores, patients at hospitals, students at school • This category is seen by court to have highest level of standard of care

17. Occupiers’ Liability • Licensee is someone who enters property with implied permission of occupier – usually invited for social reasons • Thus, lesser standard of care exists than that of invitee – but in B.C. courts assume same standard of care by occupiers for both invitees and licensees

18. Occupiers’ Liability • Trespasser is someone who does not have permission to enter the property • Not only burglars but even guests who are no longer welcome to stay on property • Occupier must provide a reasonable standard of care

19. Occupiers’ Liability • Many items on a property can be seen as enticing for children; these items are known as allurements • Occupier must take all reasonable steps to ensure chance of accident by children towards allurements is reduced • Example – must place high enough fence around a backyard pool

20. Host Liability • Relatively new category in which restaurants, bars and pubs (known as “Commercial hosts”) and social hosts (those inviting guests at home while serving alcohol) are liable for their guests • This relates to drinking and driving of guests: hosts must provide duty of care to ensure intoxicated guests do not injure themselves or anyone else

21. Professional Negligence • Professionals are workers who have a specific skill set expertise towards a service to society • These include: doctors, architects, engineers, pharmacists, etc. • Although even professionals make mistakes, a standard of care exists wherein professional must take steps to ensure risks are minimized

22. Professional Negligence • For example, if pharmacist has intentionally lacked sleep but still works, then distributes incorrect prescription to customer, then pharmacist is liable • For doctors, malpractice (failure to provide standard of care during medical procedures) and failure to get informed consent (where patients do not receive truth about medical condition, treatments and risks) are two specific types of professional negligence