Proof of Negligence

February 12, 2018 | Author: Anonymous | Category: Social Science, Law, Tort Law
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Proof of Negligence 

Although the law of evidence specifically deals with the various processes in which evidence is adduced and weighed in trials, certain specific problems of proof of evidence in tort warrant special attention. Beyond the issue of burden of proof generally, there are issues relating to shifts in evidential burden of proof, the maxim res ipsa loquitor, the rule in Cook v. Lewis and “novel” approaches to other problems of proof.

The Burden of Proof on the Ptf 



Generally speaking, the rule is that s/he who alleges the existence of a fact has the burden of proving it. In negligence law, therefore, it is the ptf that must prove the essential elements giving rise to a viable cause of action, that is: The the dft owed him/her a duty of care; that the dft’s conduct was negligent; that the ptf suffered compsensable injury, and finally that the injury was caused by the dft’s negligence.

Burden of Proof and Inferences 



Once the ptf has made out his/her case, there is an “evidential” burden on the dft to prove the facts necessary to establish any of the defenses available to him/her. It must be noted that in determining which of the facts adduced by either party ought to be given probative value, the courts/jury are at liberty to draw reasonable inferences on what ought to have occurred.

Wakelin v. L & S Railway 

Dec’sd estate sued railway company in negligence. It was unclear whether dec’sd ran into a train or whether the train negligently ran into dec’sd. The HOL reasoned that dec’sd wife could not succeed in negligence unless she proved on a preponderance of evidence that the dft was negligent.

Balance of Probabilities 

The rule is that the ptf must prove his/her case on a “balance of probabilities.” This does not mean a statistical probability of 51 per cent. All it requires is that the evidence adduced by the ptf must be more persuasive than that of the losing party. The court need not be entirely devoid of doubts. However, where the evidence of both are equally persuasive and plausible, the party with the burden of proof loses.

Evidential Burden 

The onus of proof rests on the ptf and never shifts. However, in the course of trial, the evidence introduced by either party may warrant a rebuttal or reply. This is a dynamic process which is often characterized as the “evidential burden.” Note Sopinka’s warning in Snell v. Farrell.

Exceptions to the General Rule Statutory Onus Shift in Proving Negligence  Directly caused injury  Multiple Negligent Defendants  Res Ipsa Loquitor  “Novel” Approach in Sindell v. Abbott? 

Statutory Onus Shift 



There are a few cases where statutes have shifted the onus of proof. For eg, S. 193 of the Highway Traffic Act provides that: Where a loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver.

Justifying the “Onus” Section 

“This section was enacted in order to overcome difficulties experienced by ptfs in obtaining and presenting sufficient evidence of a motorist’s negligence to avoid a non-suit at the close of their case. Knowledge of relevant facts and circumstances leading up to an accident might be in the possession only of the dft and injustice might result if a ptf was unable to overcome the initial obstacle of a prima facie case and to avoid having his case determined b/4 all evidence was b/4 the court” MacDonald v. Woodard

The Procedural Effect of “Onus” Sections The HOL has suggested, and quite correctly too, that the procedural effects of “onus” sections are:  1. To create a rebuttable presumption of negligence against the dft.  2. To grant the ptf victory in instances where the evidence of both the ptf and the dft are EQUALLY balanced and persuasive. 

Osgoode Hall Law Study of Onus Sections 

In 1965, the Osgoode Hall Law School published its study on “Compensation for Victims of Automobile Accidents”. The study found that the onus section is largely used by pedestrians who are run down. It also found that unlike the previous regime, 54 per cent of pedestrians who sued, recovered.

Statutory Onus Shift Similarly, s. 10 (2) of the Parental Responsibility Act provides that:  In an action against a parent for damage to property or for personal injury or death caused by the fault or neglect of a child who is a minor, the onus of establishing that the parent exercised reasonable supervision and control over the child rests with the parent. 

Judicial Application of s. 10 (2) 

In Shannon v. T.W and Cinnirella v. C.C., the courts dismissed suits in negligence against parents. In interpreting the onus section, the courts held that the “standard of care required of parents is that of reasonably careful people in the circumstances. The standard is an objective one that focuses on their conduct and its adequacy with reference to that of a reasonable person. The standard imposed by the Parental Responsibility Act is one of reasonableness, not perfection.”

Directly Caused Injury 

Another exception to the general rule that the onus of proof rests on the ptf is in cases where, arising from trespass, the injury to the ptf is directly caused by the dft. In such cases, the onus rests on the dft to show the absence of both intention and negligence on his part. This is a very anomalous and strange exception. See Dahlberg v. Naydiuk

The Rule in Cook v. Lewis 

In Cook v. Lewis, the ptf was injured by a gun shot fired by one of the 2 defendants. Both dfts fired at the same time and the birdshot from one of their guns struck the ptf. The jury could not determine which particular hunter injured the ptf. None of the legal theories available at that time could avail the ptf. The SC established the principle that when a ptf is seriously disadvantaged in proving her case, through no fault of her, the onus of disproving negligence rests on the dft.

Res Ipsa Loquitor 

This maxim allows the ptf in suits where the cause of the accident is unknown, to discharge the burden of proof by circumstantial evidence. The origin of the maxim has been traced to the case of Byrne v. Boadle: ptf was injured by a falling barrel of flour as he was walking beside the window of a shop owned by the dft. The ptf adduced no direct evidence as to whose fault made the barrel of floor to fall. The court reasoned that the fall of the barrel was of itself evidence of negligence.

Res Ipsa loquitor The doctrine applies in cases where”  A. the thing that inflicted the damage is under the sole management and control of the dft.  B. the occurrence is such that it would not have happened without negligence.  C. there must be no evidence as to how or why the occurrence took place. 

The Requirement of Control 

The circumstances of the case must point to the dft as the sole source of the injury. The element of control need not be physical in nature. It is enough if there is sufficient link between the dft and the injury-producing event as to bespeak negligence on the part of the dft. Note that the maxim does not apply where there are more than 1 dft capable of independently answering for the ptf’s loss.

Occurrence bespeaks negligence 

The second element is that the mere occurrence of the event should raise an inference of negligence. Common experience must suggest that the event would not have occurred in the absence of negligence. Would a house that suddenly collapsed bespeak of negligence in the construction? What of water-mains breaking and flooding the neighborhood?

Unknown cause of the event 

The third element is that the occurrence which brought about the ptf’s injury must not be susceptible to direct proof. Thus, where there is direct evidence as to the cause of the occurrence, the maxim would not apply. See North York v. Kert Chem. Indust. Inc

The Effect of Res Ipsa Loquitor 

The procedural effect of a successful invocation of the maxim is that it raises an “inference” of negligence. It does not displace or remove the onus of proof on the ptf. If successfully invoked by the ptf, the dft may then adduce evidence to show how the accident or event might have occurred in the face of reasonable care. The explanation must be based on evidence, not speculation, theories, or conjecture.

Fontaine v. ICBC 

The decision of the SC in Fontaine marked the expiration of the doctrine of res ipsa loquitor in Canadian negligence law. In the words of Major, “whatever value res ipsa loquitor may have once provided is gone. Various attempts to apply the socalled doctrine has been more confusing than helpful…it would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence action”.

Sindell v. Abbott Lab & Ors 

Ptf and others in a similar position sued the dfts for manufacturing and selling DES. There was no direct proof of which of the dfts had sold the particular drug to a particular ptf. All the dfts manufactured DES and all the ptfs had developed malignant bladder tumor from maternal use of DES. In modifying the “material contribution test” the court reasoned that each of the dfts was liable to the extent of their market share of DES.

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