Why we need a new negligence threshold

http://www.ottawacitizen.com/news/assault%20victim%20sues%20Carleton%20University/1867337/story.html

So, a woman is brutally sexually assaulted to the point where she needs reconstructive surgery, and it is her fault. Or it is partially her fault.

I guess she shouldn't have dressed so seductively at midnight in a controlled building which didn't have a standard security sweep or controlled access.

The problem with this laughable defence is that it just might work because of a concept at law known as "contributory negligence" - where the plaintiff is partly responsible for the harm that befell them.

Also at play is the idea that there are multiple parties who contributed to the negligence. There are books written on it, but the easy way to explain it is that everyone who is liable shares a part of the fault, and as such, the fault can be held entirely by any of them. The fault is apportioned proportionately after the fact based on "how much" fault each party was responsible for.

Without commenting on the relative merit of whether or not the woman in question should have registered with security or whether or not her professor owed her a duty of care to ensure she was safe - I would say that allowing this defence generally is part of the problem with sexual assault civil actions. I believe it is wrong in cases of sexual assault to suggest that a victim can in any way be responsible for her actions.

By the same tokens, when we are talking about a depraved criminal act, I am not sure that the university can be blamed either. Regardless of their negligence, the intervening act of the criminal is difficult to predict. Their duty is, at best, nebulous.

Regardless, it is my view that the threshold for contributory negligence is too low if it could possibly allow this defence. On the one hand, I suppose it may ALREADY be too low if the defence is laughed out of court (as I think it should be- with a hefty punitive costs award to boot). On the other hand, I have seen other examples where the proximity to the harm of a party that was successfully added was so remote as to be questionable.

On the Atlas Hugged mutated third hand (TM), I see the interest of justice being perverted by a large entity who is trying to shield itself from liability for something which - in the history of educational institutions - has been happening for years. More action should be taken to prevent these kinds of attacks - provoked or otherwise - and hopefully this case will move these institutions to act.

Would I have acted differently in her place? Maybe. Do all women need to be more vigilant in ensuring their own safety? Absolutely. Does that mean that the University can just abdicate its responsibility? No - and they deserve to compensate her for failing to protect the safety of the campus - not her specifically.