G. Defences

There are four defences to an action in negligence: contributory negligence, voluntary assumption of risk (volenti non fit injuria), illegality (ex turpi causa non oritur actio), and inevitable accident. Contributory negligence is a partial defence that leads to a reduction in the damages payable by the defendant. Voluntary assumption of risk, illegality, and inevitable accident are complete defences to the plaintiff's action. The evolution of these defences mirrors the evolution of negligence from a system emphasizing the concept of shifting loss between individuals on the basis of clearly established moral culpability to one that is significantly influenced by the loss-spreading power of liability insurance systems and compensatory concerns. In a loss-shifting system of corrective justice, defences are integral to achieve a fair result between the litigants. When compensatory and loss distribution goals predominate, defences tend to be perceived as impediments to addressing the compensatory needs of plaintiffs. Consequently, there has been a progressive restriction in the definition, scope, and application of the defences in negligence law. While contributory negligence continues to show some vitality, voluntary assumption of risk, illegality, and inevitable accident have been so successfully marginalized as to be of little practical consequence.

1) Contributory Negligence

Contributory negligence is the failure of the plaintiff to take reasonable care for her own safety which contributes to the accident or her loss. Under the old common law, contributory negligence was a complete defence to an action in negligence. The plaintiff was viewed as undeserving, a wrongdoer who did not warrant protection from the negligence of another. The allocation of the loss to the negligent plaintiff was also consistent with the tendency of the old common law to seek out a single cause of an accident. The injustice of placing all the loss on the plaintiff soon, however, became apparent, particularly in cases where the plaintiff's negligence was comparatively trivial and preceded the defendant's negligence. The courts responded to these situations by developing the rule of last clear chance, which held that, in cases where the defendant had the last clear opportunity to avoid the accident, the defendant was the sole cause of the accident and fully responsible for the plaintiff's losses. This provided the courts with some discretion to allocate 100 percent of the loss either to the plaintiff or to the defendant as justice demanded. Yet the common law proved incapable of developing the intuitively correct rule of splitting the loss between the two wrongdoers.

Eventually, apportionment of the loss between the parties was introduced in all provinces by legislation. [Note 147: See Alberta Contributory Negligence Act, R.S.A. 1980, c. C-23; British Columbia Negligence Act, R.S.B.C. 1996, c. 333; Manitoba Tortfeasors and Contributory Negligence Act, R.S.M. 1987, c. T90; New Brunswick Contributory Negligence Act, R.S.N.B. 1973, c. C-19; Newfoundland Contributory Negligence Act, R.S.N. 1990, c. C-33; Northwest Territories Contributory Negligence Act, R.S.N.W.T. 1988, c. C-18; Nova Scotia Contributory Negligence Act, R.S.N.S. 1989, c. 95; Ontario Negligence Act, R.S.O. 1990, c. N.1; Prince Edward Island Contributory Negligence Act, R.S.P.E.I. 1988, c. C-21; Saskatchewan Contributory Negligence Act, R.S.S. 1978, c. C-31; and Yukon Territory Contributory Negligence Act, R.S.Y. 1986, c. 32.] The legislation is not uniform and each Act must be carefully analysed to determine its scope and application and the extent to which remnants of the old common law doctrines such as the rule of last clear chance survive. There is, however, a great deal of consistency in the way the legislation deals with the issue of contributory negligence in the typical negligence action. If the negligence of the plaintiff contributed to her loss, the court must determine the degree to which the plaintiff is responsible for that loss and reduce the damages accordingly. [Note 148: See, for example, Ontario Negligence Act, R.S.O. 1990, c. N.1, s. 3: " In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively."] If a court is not able to determine the respective degrees of fault of the parties, they are deemed to be equally at fault and the defendant is liable for 50 percent of the damages. In this way the legislation provides the courts with a flexible loss allocation mechanism and avoids the all-or-nothing approach of the common law. [Note 149: The apportionment statutes do not cover some situations such as maritime negligence. In Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, the Supreme Court finally changed the common law to permit an apportionment of the loss.]

Contributory negligence can arise in three ways. [Note 150: The three categories of contributory negligence are listed in Klar, above note 41 at 365, citing N.P. Gravells, "Three Heads of Contributory Negligence" (1977) 93 L.Q. Rev. 581.] First, the plaintiff's negligence may be a cause of the accident. In Cork v. Kirby MacLean Ltd., [Note 151: [1952] 2 All E.R. 402 (C.A.).] for example, a worker suffered an epileptic fit and fell from an unsafe scaffolding on which he was standing. He had imprudently failed to tell his employer that he suffered from epilepsy. The Court held that, if he had told his employer of his illness, he would not have been assigned to work on the scaffold and the accident would probably not have occurred. [Note 152: It is always necessary for the defendant to prove that the plaintiff's contributory negligence was a cause-in-fact of the accident or the loss. Furthermore, contributory negligence is inoperative if the damage suffered by the plaintiff is not within the scope of foreseeable risk that made her conduct negligent. For example, the failure to look both ways before crossing the road is not contributory negligence in respect of being injured by a baseball hit by the defendant from a nearby sports field onto the road.] The loss was allocated equally between the defendant, whose failure to provide a safe scaffolding was also a cause of the loss, and the plaintiff. Second, contributory negligence may arise where the plaintiff's negligence is not a cause of the accident but he has put himself in a position of foreseeable harm from the defendant's negligence. A passenger who chooses to get into a car with a driver whom she knows to be intoxicated will be found to be contributorily negligent. Third, a plaintiff may fail to take protective measures in the face of foreseeable danger such as a failure to use an available seat belt in an automobile or aircraft. If the plaintiff's loss would have been less severe if the precautions had been taken, damages will be reduced for contributory negligence.

Contributory negligence is determined by applying the objective standard of the reasonably prudent person. Consideration is given to the same factors as are influential in deciding a defendant's negligence. The foreseeability of harm, the likelihood of damage, the seriousness of the threatened damage, the cost of precautionary measures, the exigencies of emergency situations, and the utility of the plaintiff's conduct are all taken into account. The utility of the plaintiff's conduct is particularly influential in respect of police officers and rescuers where the task undertaken demands a selfless disregard for one's own safety. Courts are reluctant to reduce damages in such cases.

Overall, the apportionment process in cases of contributory negligence tends to be conventional, arbitrary, and lenient. It is conventional in the sense that in most cases courts either reduce damages by 15 to 25 percent or they utilize the option of splitting the loss either because of a rough equality of fault between the parties or because it is not possible to allocate the respective degrees of fault of the parties. This permits contributory negligence to play some role in accident prevention without unduly affecting the compensatory functions of negligence law. It is arbitrary in the sense that, although courts are required to make an assessment of blameworthiness, they are often not particularly sensitive to degrees of culpability. For example, the same 25 percent reduction in damages has been made where a passenger failed to wear her seat belt [Note 153: Stewart, above note 91.] and where a grossly intoxicated person participated in a tube-racing competition down a mogulled ski hill after he had been warned of the extreme danger of doing so. [Note 154: Crocker, above note 90.] It is lenient in respect of both the degree of reduction in the damages (not often in excess of 50 percent and often less than 30 percent) and the manner in which the standard of care is applied. This leniency is due, largely, to the patterns of insurance. Judges are acutely aware of the harsh consequences of a finding of contributory negligence, particularly in personal injury litigation. Plaintiffs who suffer personal injury often do not carry first-party disability insurance. A 25 percent reduction of a large award will, therefore, result in a harsh penalty and significant undercompensation. Defendants, on the other hand, are normally covered by liability insurance and are largely immune from personal hardship when liability is imposed. Courts are therefore more indulgent of plaintiffs than they are of defendants. This attitude is even evidenced in some cases of damage to property where first-party insurance is more common. The New Brunswick Court of Appeal decision in Walls v. Mussens Ltd. [Note 155: (1969), 2 N.B.R. (2d) 131 (S.C.A.D.).] provides a splendid illustration of a lenient application of the standard of care. The plaintiff owner of a service station was faced with a small gasoline fire on his premises. It was caused by the negligence of the defendant's employees who were using the plaintiff's facilities to repair a timberjack. The plaintiff failed to use available fire extinguishers to control the fire. He joined with the defendant's employees in throwing snow on it. The fire, however, was being fed by a disconnected fuel line and it spread and destroyed the plaintiff's premises. A strong argument can be made that the plaintiff did not exercise the skill and knowledge of a reasonably careful owner of a service station in protecting his property. Nevertheless, the Court held that there was no contributory negligence. In doing so, it applied the standard of a reasonable person rather than the standard of the reasonable service- station operator, it invoked the "agony of the moment" rule even though the fire was initially small, and it concluded that the plaintiff's actions were consistent with what an ordinarily prudent man might (not ought) to have done. It is difficult to imagine such indulgence if the plaintiff was named as a defendant in respect of damage to a neighbouring property or injuries to persons by a further spread of the fire.

One issue to which courts have given great attention is the plaintiff's failure to use available seat belts in automobiles. The courts, in fact, took a lead in this area and in most provinces the failure to wear a seat belt was regarded as contributory negligence before legislation mandating the use of seat belts was passed. This was, at the time, a heavily debated issue. That debate subsided after the legislation was passed. Now courts routinely make a moderate reduction (5 to 25 percent) in damages for the failure to wear an available seat belt so long as there is proof that the plaintiff's injuries would have been less severe if the seat belt had been used. [Note 156: Galaske, above note 123 at 682.] Nevertheless, the pre-legislation seat belt cases raise some interesting issues in respect of the increasing range of protective clothing, equipment, and devices that are readily available in the marketplace but are not as yet required by legislation. A court may find that there has been such wide public acceptance of affordable and effective safety equipment such as helmets for cycling (in those provinces that do not as yet have legislation), roller-blading, or ice-skating, protective eyewear for a variety of sports and activities, and possibly smoke detectors in private residences that the failure to use them is negligent. The independent purchase of protective equipment is not necessarily a sufficient distinguishing feature from manufacturer-installed seat belts. Current trends indicate that judicial policy is reflective of an increasingly risk-sensitive public that expects people to take precautionary measures. A reduction in an award of damages for contributory negligence is likely to be made when the protective measures are common practice, common sense, affordable, and effective. [Note 157: A good example is the use of life jackets: see Chamberland v. Fleming (1984), 54 A.R. 291 (Q.B.). Life jackets were not mandatory when the case was decided.] Whether or not the extension of contributory negligence principles to an increasing range of safety measures is good policy depends upon which of the conflicting policies and functions of negligence law are favoured. Deterrence and fairness suggest that the defendant should not bear the whole loss. Compensatory policies favour the plaintiff and suggest that deterrence and accident prevention concerns should be left to the introduction and strict enforcement of penal legislation.