3. Participation in a Criminal or Immoral Act
“Ex Turpi Causa Non Oritur Actio”
- cannot recover for injury sustained while involved in an illegal action - cannot recover for ones own wrongdoing
- protection of the integrity of the legal system
onus: on defendant to establish illegal/immoral conduct on part of P
Hall v Hebert (1993 SCC)- P is attmepting to sue D for letting him drive while drunk
Cory: tries to abolish ex turpi saying 2nd branch of Anns test would negate duty (are there any reasons to limit duty)
Majority (McLaughlin) disagrees: should be a defence to allow for flexibilty in application, and procedural pblms would arise form reversal of onus - defence found not o apply to facts of this case - claim allowed, but limited by contrib neg;ce
4. Inevitable Accident
- defence is one of very narrow scope:
-onus: on defendant (evidentary)
-criteria (McIntosh v Bell)
1. no control
2. the occurance could not have been prevented w. the greatest of skill and care
Rintoul v Xray and Radium- in trying to raise defence, D was unable to meet the very narrow req’ts - demonstrates its narrow applic’n - evidence must be both clear and cogent
XIII PROOF OF NEGLIGENCE
1. The Burden of Proof in a Negligence Action
legal burden: must prove the issue bop
evidentiary: must adduce enough evidence to support position (usually carried by party w/ legal burden, so in civil suit thats the P)
1. P must est “prima facie” case of neg’ce - failure to adduce enough evidence will result in a nonsuit
2. once prima facie case is est, (but note just b/c evidentiary burden is discharged, doesn’t mean that legal has) burden shifts to the D
Walker v London & South Western Ry Co. (1886 HL)- P was nonsuited when she was able to prove nthg more thatn that her husband had left for work saying he would take the footpath - although his body was found further down the Ry line, she had no means of knowing how the accident had occured
2. Exceptions to the General Principles Governing the Burden of Proof
a) STATUTES AND SHIFTING BURDENS OF PROOF
- statutes can work to reverse the burden of proof where its is impossible for P to know how accidnet occured
ex. Highway Traffic Act RSO 1970 c.202
s133 (1) where damage is sustained by any person by reason of a motor vehicle accident on the highway, onus of proof that loss/damage did not arise thru neg’ce or improper conduct of driver, rests with driver
(2) sec does not apply where collision is btwn motor vehicles, btwn motor vehicles and trains, nor to actions brought by a passenger in a motor vehicle in respect of injuries sustained by him while a passenger
MacDonald v Woodward(1974 Ont CO Ct)- man boosting anothers car is run over by the one he is helping - P need only show that that accident occured on highway,a dn that injury was the result of collision (not result of drivers conduct)- burden then shifts to D to show that neg’ce was not a factor
AG ON v Keller (1978 ON CA)- s 133 held to apply to a police officer who was serously injured when his car went out of control and struck a pole during a high speed chase. Fleeing driver knew he was being pursued and was attempting to escape, but at no time did the 2 vehicles collide.
b) DIRECTLY CASUED INJURY: UNINTENDED TRESSPASS
Dahlberg v Naydiuk (1969 Man CA) - P who was on his own land, was shot by the stray bullet of a deer hunter- action frame din neg;ce and trespass
-if rely on neg’ce- onus rests on P to prove D was neg’t
- if rely on tresspass- D gets judgement only if he satisfies “onus of establishing absence of both intention and neg’ce” so dos neg’ce in this def’n mean sthg giving rise to an aciton in neg’ce which would then shift burden to P?” - where injury is direct burden to disprove neg’ce lies w/ D - who in this case failed to prove that he was not neg’t
c) MULTIPLE NEGLIGENT DEFENDANTS
Rule: where the Ps abilty to establish liabilty is destroyed, the burden to disprove neg’ce will rest with the D
Cook v Lewis(1951 SCC) - P hit when Ds fired simultaneously at diff;t biurds flying in direction of P
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