Legal Studies 3040

Section 2: Damages, Defenses, and Special Liabilities

Lesson 2: Defenses to Negligence

Voluntary Assumption of Risk

Samantha and Naomi are teenage girls who both love to play basketball. They attend different schools and play on competing teams. During the final game of a city wide tournament, Samantha turned suddenly and bumped Naomi, causing Naomi to fall awkwardly. Naomi broke her wrist and was out for the rest of the season. Can Naomi sue Samantha?

As you'd no doubt expect, it's highly unlikely Naomi would sue unless Samantha were behaving in a wildly abnormal way that was likely to cause serious injury to someone. The fact is that in a sport like basketball there's always the possibility of injury and when you choose to participate, you implicitly accept the risk. As long as Samantha was behaving as you'd expect a competitor to behave in the heat of a basketball game, she can't be sued if someone is accidentally injured.

If by chance Naomi tried to bring a case against her, Samantha's defence would be that Naomi had accepted the risks inherent in basketball and that as a result she has no gounds for a complaint of negligence. In this lesson, you'll be looking at a few defences of this sort that can be used by defendants in negligence cases.
In the basketball scenario, Samantha's defense would be called voluntary assumption of risk.


Contributory Negligence

Another defence used in negligence cases is that of  contributory negligence.

I think I see this one coming. This is when the defendant claims he or she may have been negligent but the plaintiff was also negligent, right?

That's right. This normally isn't a complete defence, but it can be used to limit liability if a defendant can show that a plaintiff contributed to the dangerous situation through negligence.

 

Example of Contributory Negligence

Please note that although this is not a Canadian case, a good real life example to demonstrate this concept is the ongoing court battles between the late Michael Jackson's family and Michael's former doctor, Conrad Murray, and between Michael Jackson's family and his concert promotion team. These illustrate in detail issues of contributory negligence, and may be a topic you will like to explore for questions in your assignment booklet! Numerous articles on this subject are to be found on www.cnn.com.
To illustrate the principle of contributory negligence, consider the case of Mr. Bell, who is late for work. While running through crowded streets, he bumps into Robert, who's walking backward and talking to his girlfriend. Robert ends up in a water fountain, ruins his new running shoes and his watch, and breaks a front tooth. In this case, the courts would likely determine that both Mr. Bell and Robert were responsible for the incident. If Mr. Bell hadn't been running, he wouldn't have bumped into Robert. If Robert hadn't been walking backward, he would have seen Mr. Bell coming, and would probably have been able to avoid him or brace himself. As a result, Mr. Bell would in all probability be required to pay partial damages for the replacement of Robert's belongings and the repair of his tooth. In this sort of case the court usually apportions blame according to a percentage; for example, it might decide that Mr. Bell was 80 percent responsible and Robert was 20 percent responsible. Damages would be awarded accordingly.
 

When Can Children be Held Accountable?

One question that's arisen in determining contributory negligence is the age below which a child can't be considered to have contributed to any harm he or she has suffered. In 1992, a tragic case came before an Alberta court that helped set the standard for the future cases. A three-year-old child was struck by a car that his mother was driving, and the boy was left permanently disabled. When the case went to court, the judge determined that for a child, the age of responsibility is seven. In his decision, the judge explained that modern courts do not believe that any child below the age of seven can be considered guilty or negligent by his or her behaviour. Above that age, the courts will take into account all the surrounding factors to decide whether any guilt is present and, if so, how much. The judge added that the law has established that a child of three cannot possibly be held guilty of contributory negligence.

Check your knowledge by completing Something to Think About 10 on the next page.