1. Contributory Negligence
a) CONDUCT CONSTITUTING THE DEFENCE
onus: on the defendant to prove that injured party did nto in his own interest take reasonable care of himself and contrib to his own injury by want of this care
3 ways a P can be contrib neg’t
1) contribute to the accident
2) expose themselves to risk of accident
3) failure to take reasoanble precautions to minimise injury in the event of accident
* contrib neg’ce must be a cause of the loss in order for it to count against him - but for the Ps own actions/ommissions the accident would not have happened - must also count as proximate cause - injury must culminate from risk created by P
Walls v Mussens (1969 NB CA)- based on modified objective test “not whether the P exereciced a careful and prudent j’ment in doing what he did, but whether what he did was sthg that an ordinarily prudent man would have done under the stress of an emergency” found the P was not contrib neg;t for failing to use fire extinguisher to put out the fire in his shop stared by the D
Gagnon v Beaulieu (1977 BC SC)- established that b/c P knew or ought to have known that he should be wearing a seatbelt, P was held contrib neg’t for injuries sustained in motor vehicle accident - onus on D to show that the seatbelt was not worn, and if it was that it would have prevented injuries
b) APPORTIONMENT OF LOSS
Governed by Negligence Act RSO 1990 (text of act pg 457)
- amount of damages will be reudced in proportion to degree of Ps fault
- where apportionment cannot be determined, parties will be deeemed equally at fault
Mortimer v Cameron (1994 SCC)- 2 guys engaged in horseplay on stairs fell and crashed through an improperly constructed wall- one is injured to point of paralysation - Neither guy found neg’t b/c accident was beyon scope of risk created by horseplay, could not have contemplated that the wall would “pop out” - liabilty apportioned btwn the City and building owners for failing to properly inspect the wall and make sure it was up to standard
To do a Contribution Assesment:
1.a)assess whether D’s are liable to the P at all in neg’ce, then calculate the gross damages
b)assess the degree to which the P contributed to the loss
2.assess the D’s right to contribution
2. Voluntary Assumption of Risk “volenti non fit injuria”
- complete defence, but use has been limited in recent years owing to rise of contrib. neg’ce usually limtied to narrow circ’s, esp. sports
Onus: must be pleaded and proven by the D
General Principle: a P who has expressly or impliedly assented ot an act cannot sue another for damages of injuries sustained - s/he must bear the loss w/o the help of the law
- the risk must be a freely encountered one
- where consenbt is expressly given, the ct must determine whether there was an actual or manifested agreement to terms
- nthg short of an agreement to waive any claim for neg;ce will suffice (Lagasse v Rural Municipality of Ritchie)
Test to establish defence:
1) Did the P clearly know and appreciate the nature and character of risk? and
2) Was this risk voluntarily incurred?
Dube v Labar (1986 SCC)- defence of volenti in general will be inapplicable to the majority of drunk dirver willing passenger cases, b/c the defence requires ana warenessof circs and consequences of action that are rarely present on the facts of such cases at the relevant time
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