 This is Waylon Chow. Welcome to Negligence Torts and Professional Liability, Module 3B, Part E. In this part, we will look at causation of harm and defenses. We will look at the two types of causation that need to be satisfied, factual causation and legal causation. To hold someone liable for negligence, the third element, causation of harm, must be shown. So causation of harm involves two different types of causation. The first is factual causation and the second is legal causation. The plaintiff needs to show both types of causation. Factual causation is determined by applying the so-called but for test. Another way of phrasing it is, did the negligence actually cause the harm? Or would the loss have occurred but for the breach of the standard of care? If the defendant had not acted carelessly, would the plaintiff have still suffered the same loss? So we need to find some kind of factual connection that the negligence caused the loss or injury that's being complained about. Legal causation applies what we call the remoteness principle. The remoteness principle asks, was the type of harm suffered by the plaintiff a reasonably foreseeable result of the defendant's carelessness? So what this rule is intended to eliminate are the injuries of the losses that are still factually connected. There's a factual causation that connects the two but the harm is just seen to be too far-fetched. It's too remote. Try to get a better understanding of factual causation and legal causation by doing this quick quiz question. At this point in time, please pause this video so that you have a chance to read through the question and try to figure out what is the best answer. The correct choice here is C. Remember we're looking for the false statement. So let's go through all four choices and explain why each of them is either the right answer or the incorrect answer. So A is a true statement. Remember we're looking for the false statement as our answer. A is a true statement. It says the smoke from the fire damaged various other parts of the house. Ken would be liable for this damage since it was caused by his negligence and this type of harm was reasonably foreseeable. So we have in that choice both a factual causation. It says that the smoke from the fire damaged various parts of the house. So that was caused by his negligence. So there's factual causation. And it also says this type of harm was reasonably foreseeable. By accidentally causing the fire, it is I think reasonably foreseeable or very obviously foreseeable that it would cause smoke damage to other parts of the house. So we have both factual causation and legal causation. So that's why A is a true statement and therefore not the correct answer. B is also a true statement. It says the delay in completing the kitchen required Barbie to eat out at restaurants. Ken would be liable for the cost of these meals since it was caused by his negligence and it was reasonably foreseeable. So it's saying that there is factual causation in that Ken's negligence and causing the fire led to the delay in completing the kitchen which then required Barbie to eat out at restaurants because she didn't have a kitchen at home. So there was factual causation. So I think that's clear. That's correct. And it also says that it was reasonably foreseeable, which I think is also correct. It's reasonably foreseeable that if a fire is caused, it would cause a delay in finishing the kitchen renovation. And therefore Barbie doesn't have a kitchen to eat at home and she would have to eat out at restaurants. So I think there's clearly reasonable foreseeability between the negligence and the eating out at the restaurants. C is the correct choice because it is the only false statement. It says while eating at a restaurant, Barbie chipped a front tooth that required her to get cosmetic dental work. Ken would be liable for Barbie's dentist bills since the chip tooth was caused by his negligence and it was reasonably foreseeable. So it was indeed caused by his negligence. There was factual causation here. Ken's negligence caused the fire. The fire caused the delay in finishing the kitchen renovations because the kitchen wasn't finished. Barbie had to eat at a restaurant and because she was eating at a restaurant, she bit into something that chipped her front tooth. So if there wasn't the negligence, she would not have been at the restaurant and she wouldn't have chipped her front tooth. So there was, I think, clearly factual causation. But I don't think there was legal causation. In other words, it wasn't legally, sorry, it wasn't reasonably foreseeable from the negligence in causing the fire that it would lead to Barbie chipping her tooth. I think there are just too many, it's too many steps removed from the negligence. So therefore the chip tooth is too remote and therefore there's no legal causation. And D is also a true statement, therefore it's not the correct answer. It says, due to her chip tooth in C above, Barbie was not able to work as a model for a month. Barbie is suing Ken for her lost income. Barbie would likely not be able to recover her lost income as it was too remote from Ken's negligence. So I would agree with that statement. It is true, the loss of the modeling income is too remote. It's not reasonably foreseeable from Ken's negligence in causing the fire. Even if a defendant is found to have committed a negligence tort, meaning that the defendant owed a duty of care, the defendant breached the applicable standard of care, and also the defendant caused the harm. There is still available a number of different defenses that could reduce the defendant's liability, either reduce or even eliminate the defendant's liability. Those are contributory negligence and voluntary assumption of risk. Plaintiff is able to prove that there is a duty of care and that the defendant breached the standard of care and that there's causation, both factual and legal causation. The defendant may still be able to avoid all or part of the liability by showing one of the available defenses. And we'll talk about two of them. The first one is contributory negligence and the second is voluntary assumption of risk. Contributory negligence is when the plaintiff's loss or injury was caused partly by the plaintiff's own negligence. So it was caused both by the negligence of the defendant and partly by the plaintiff's own negligence. This is only a partial defense because we're only shifting a part of the blame back to the plaintiff. So we're shifting the responsibility for the damages part of it back to the plaintiff. So we're splitting the damages between the plaintiff and the defendant. How can a plaintiff be contributorily negligent? So it could be that the plaintiff took unreasonable steps into a dangerous situation or unreasonably contributed to the creation of an accident, unreasonably contributed to the damages arising from... The defense of voluntary assumption of risk is considered to be a complete defense, which means that if the court agrees that voluntary assumption of risk applies, the defendant has no liability at all, which then leaves the plaintiff with no compensation usually for some fairly serious injuries. Because of that, courts are usually reluctant to apply voluntary assumption of risk because they do not want to see an injured plaintiff to go away without any compensation. Therefore, what the courts have done, they have set a fairly high standard in terms of the requirements that are needed to have the voluntary assumption of risk defense. This defense requires that the plaintiff freely agree to accept both the physical and legal risk of injury. Accepting the legal risk of injury means usually giving up the right to sue for negligence. And the way that's given up, it's usually by having the plaintiff sign a waiver or agreement with an exclusion clause. Now, the Supreme Court, in a case called Crocker and Sundance, said essentially that having that kind of waiver, having just that may not be enough. The plaintiff in this case suffered some serious injuries from an inner tube race that was on a snow-covered mountain. The plaintiff had signed a waiver with an exclusion clause, but the court said that waiver was not enough for the defense of voluntary assumption of risk. The Supreme Court said that the waiver needed to be drawn to the attention of the signer. So it's not just enough to get the person to sign the waiver. The words in the waiver have to be drawn to the attention of the person signing. So the person signing does not necessarily have to read it. Their attention has to be drawn to the exclusion clause in the waiver. To better understand the defense of voluntary assumption of risk, let's do this quick quiz question. At this time, please pause this video so you have a chance to read through the question and consider what you think is the correct answer. The correct answer is B. So we are looking for the true statement. So B is the only true statement out of the five choices. So let's go through the five different choices. A says the court will struggle to uphold the disclaimer clause and deny liability if at all, if at all possible. The court will be reluctant for sure to say to the plaintiff that we're not giving you anything because the plaintiff was severely injured. So courts are usually reluctant to say that there's no liability at all for the injuries of someone who's severely injured. But it's incorrect to say that the court will deny liability if at all, if at all possible. B is a true statement. It says Zeta will be relieved of liability only if the disclaimer clause applied to the physical and legal risk of injury and was drawn to Deshaun's attention when he signed. So that's basically what the Crocker and Sundance case says is that the disclaimer clause has to put the risk of physical and legal risk of injury onto the plaintiff and also it has to be drawn to the plaintiff's attention when he signed it. C is also a false statement. It says because of general contractual principle the disclaimer clause may be ineffective, so it may be effective in response to a claim for a breacher contract but not in response to a claim for negligence. A contractual disclaimer clause can be valid in response or effective in response to both a breacher contract and also a claim for negligence. D, as a general rule, a disclaimer clause is effective only if the plaintiff carelessly contributed to their own loss. So that is not a general rule. It's not a rule at all actually. E, if the defense applies, the court will reduce liability only to the extent that is fair so that Deshaun will still recover some damages. So that's a false statement because the defense of voluntary assumption risk does not reduce liability. It eliminates liability on the part of the defendant.