TORTS MEMO 3Defences A. DEFENCES TO NEGLIGENCE •once plaintiff has made out all elements of a tort (whichever type), defendant can use these as a reason why they should still not be found liable •turns the lens to the plaintiff’s conduct (some deficiency which disentitles them to recovery)1. Contributory negligence (partial defence; defendant still partially liable but owes less money) Did P’s failure to take reasonable care for her own safety contribute to her loss? • used to be a full bar (complete defence), but this was too harsh and [has become a partial defence by statute] • 3 TYPES • (1) plaintiff’s negligence causes the accident [rare] (ex. comes up frequently with children who cause the harm they suffer) • (2) P has put themselves in a position of foreseeable harm by D’s negligence (ex. getting into car with drunk person driving) • (3) failing to take protective measures in the face of foreseeable danger (typically automotive cases, ex. failing to wear seatbelt) Cork v. Kirby MacBean Ltd., Alb. CA 1952 — P (employee) with epilepsy was on high scaffolding, had seizure and fell; D not fully liable b/c if they had known, they wouldn’t have assigned the P to that job; result was split liability 50/50 b/w the twoHall v. Hébert 1993 SCC — “willing passenger case” P exposes themselves to D’s negligence by allowing them to drive while obviously drunkGalaske v. O’DonnellSCC 1994 — if a P fails to wear a seatbelt & is hit by negligent D, it will reduce their award [as long as the failure to wear the seatbelt aggravated the injury] (ie. wearing it would’ve made a difference) — seatbelt defence • re: other protective devices (ex. life-vests), there is a [test]: a P will be expected to wear a device if (1) such an expectation is reasonable (ie. common-ness, expensiveness, etc.) (2) the harm would have been less severe if they had done so —> if not, they are contributorily negligent STEPS TO PROVE “CN” • everyone has duty of care to themselves [omit this] • [other steps of D’s negligence are to be followed] • but courts are more indulgent when it comes to P; less troubling to take risks with oneself
• ie. courts don’t like to pin contributory negligence on P; many don’t carry insurance • (1) did they breach standard of care, (2) would they experience the proximate harm but for their own actions? a) How careful did P need to be?