Defences in Tort
Defences in tort refer to legal arguments or justifications that can be used by defendants to avoid liability for a tortious act. These defences can include contributory negligence, consent, necessity, and statutory authority, among others. They provide a means for defendants to challenge the plaintiff's claim and potentially avoid legal responsibility for the harm caused.
6 Key excerpts on "Defences in Tort"
eBook - ePub- Wendy Laws(Author)
- 2021(Publication Date)
- Routledge(Publisher)
...PART 4 General defences 7 General defences DOI: 10.4324/9781003133698-12 7.1 Chapter overview This chapter outlines a number of general defences. They are ‘general’ defences because they can apply (depending on the circumstances) to all torts, not just to the tort of negligence. However, it is useful to consider them here, following on from the chapters on the elements of negligence, because the final stage in a negligence claim would be to consider defences. The chapter begins with the defence of contributory negligence. This is an important defence in practice since, in a large proportion of defended claims in negligence, the defendant is likely to allege that the claimant failed to take reasonable care for their own safety in some way. It next considers the defence of limitation, which restricts the time available to a claimant to commence an action. Then it looks at the principles governing when a defendant can effectively exclude their liability. Finally, it outlines the defences of voluntary assumption of risk and illegality. 7.2 Introduction: analysing defences in negligence claims Although the defences outlined in this chapter apply to other torts as well as negligence, it is useful to have a reminder of how defences fit into the analysis of a negligence claim. Always keep in mind the structure for analysis of a claim in negligence: Duty of care Breach of duty Causation of damage Defences. For a successful claim in the tort of negligence the claimant must establish that the defendant owed them a duty of care, that such duty was breached, and that the breach caused the claimant’s damage. When analysing a claim in negligence, it is important to begin by considering whether or not the claimant can establish those elements...
eBook - ePub- Sanmeet Kaur Dua, Chris Turner(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...5 Negligence: defences AIMS AND OBJECTIVES After reading this chapter you should be able to: ■ Understand the essential elements of the general defences ■ Identify the criteria for establishing the defences of volenti non fit injuria (voluntary assumption of risk), illegality (ex turpi causa non oritur actio) and contributory negligence ■ Recognise that volenti and illegality are complete defences removing liability while contributory negligence is only a partial defence with the effect of reducing damages ■ Critically analyse the defences ■ Apply the defences to factual situations 5.1 Introduction This chapter will examine the defences available to a claim in negligence. Defences which are of particular importance to a tort have been highlighted in their relevant chapters and those which are applicable only to a particular tort have likewise been discussed in their respective chapters. Generally, the defendant is responsible for establishing a defence on the balance of probabilities and the claimant may have to disprove it. 5.2 Defences and the relationship with causation Causation also needs to be considered when determining whether or not the claimant has either accepted a risk of harm and voluntarily taken it, or indeed has otherwise contributed to his own damage by taking insufficient care for his own safety. In this way a claimant who takes part in sporting activities, particularly in the case of a contact sport, may have voluntarily assumed the risk of injury by taking part and being aware of the nature of the sport...
- Jean-Sébastien Borghetti, Simon Whittaker, Jean-Sébastien Borghetti, Simon Whittaker(Authors)
- 2019(Publication Date)
- Hart Publishing(Publisher)
...Call definition (3) the ‘merit-based definition’ of defences. Definition (4) refers to rules which restrict the scope of the remedy or range of remedies available where liability is established, but do not defeat liability entirely. For instance, contributory negligence is routinely referred to as a defence in English law, but is not under definitions (1)–(3). Definition (5) refers simply to who has the burden of proof in relation to a factual issue. If the defendant must prove the absence of fault under a particular rule, then the absence of fault is a ‘defence’ according to this definition. Typically, the classification of a fact as a defence in the sense of definition (2) entails that the burden of proof is on the defendant in respect of that fact. Thus there is a significant overlap between definitions (2) and (5). Call this the ‘proof-based definition’ of defences. This chapter will primarily be concerned with defences in the externalist definition (2) and proof-based definition (5) senses. Why? First, the externalist and proof-based conceptions have some claim to being the central or, at least, most widely employed notions of defence. 4 Second, if we use defence to mean definition (1), then we are essentially referring to the entirety of tort and contract law. If definition (1) includes a ‘fact’ such as the absence of breach, or the absence of damage, then any absent element of any cause of action can be described as a defence. Similarly, if definition (4) is employed, then any remedy-restricting fact, such as a break in the chain of causation, will be counted as a ‘defence’. It is not possible to compare the entirety of English and French tort and contract laws in this chapter: a more restrictive definition is needed. This is subject to the caveat that, if a fact is counted as an externalist defence in English law, but is a denial in French law (or vice versa), then it merits inclusion here...
eBook - ePub- Kenny Chin(Author)
- 2014(Publication Date)
- Routledge-Cavendish(Publisher)
...Although this defence is available, it is rarely used. The defence relies on foreseeability and it is therefore argued that it has no place in a strict liability tort which does not require fault. Remedies The most common form of remedy in tort is damages. This is a common law remedy which is usually represented as monetary compensation. The object is to put the claimant back in his original position as if the tort had not been committed so far as money is able to do. This should be compared with the damages awardable in relation to breach of contract, which is to compensate as if the contract is completed. For tort, it is going back to the past and, for contract, it is looking into a hypothetical future. It will be more complex when personal injuries are involved. We live in a capitalist society in which almost everything can be measured in monetary terms. The court will follow previous decisions to assess quantum, for example, a broken finger may be £300, a light whiplash may be £500, but a more serious injury needing two months medical attention and causing discomfort for two further years, may be £5,000. There can be many heads of damages such as pain and suffering, loss of amenity, loss of earnings and medical expenses. Regarding extent of damage, the general rule is that damages, which were reasonably foreseeable, are recoverable. Injunction is an equitable remedy which will be appropriate when damages are not adequate in matters such as threatened or repeated trespass and nuisance. There are other remedies including abatement and forcible ejection. The former is available in nuisance and the latter for trespass to land. Such defences will be discussed in the sections regarding the relevant torts. Negligence Negligence in a general sense could mean carelessness causing personal injury, damage to property or financial losses. Contractual obligations have been well established. Students will note that most contract law cases date back to the 19th century...
eBook - ePub- Matthew Cousins(Author)
- 2019(Publication Date)
- Routledge(Publisher)
...5 General principles of the law of tort GENERAL PRINCIPLES OF THE LAW OF TORT Key legislation Compensation Act 2006 Consumer Protection Act 1987 Latent Defects Act 1986 Occupier’s Liability Act 1984 Limitation Act 1980 Civil Liability (Contribution) Act 1978 Health and Safety at Work etc. Act 1974 Civil Evidence Act 1968 Occupier’s Liability Act 1957 Law Reform (Contributory Negligence) Act 1945 WHAT IS TORT? Tort is a civil wrong. The term “tort” derives from the Norman French word for “wrong”. Tort is concerned with the infringement of a right that results in a loss that gives rise to an action of damages. Where there is no direct contractual relationship between parties, tort can provide a remedy. Tort is separate from the law of contract. Tort covers a wide range of causes of action arising out of various aspects of everyday life, such as neighbour disputes, negligence, trespass and injuries to the person. An architect normally owes a contractual duty and a concurrent duty in tort to the client and to third parties. 1 The types of tort most relevant to architects are: Negligence; Nuisance; Public nuisance; Trespass. 1 Henderson v Merrett Syndicates [1995] 2 AC 145 at 194. LIMITATION Key case Oxford Architects Partnership v Cheltenham Ladies College 2 2 [2006] EWHC 3156 (TCC). The law will not allow an action to remain in perpetuity. Under the Limitation Act 1980 claims for negligence in tort in respect of physical damage to property must be commenced within six years from the date when the claimant suffers damage (section 2) or, if later, within three years from the date when the claimant first knew about the damage and certain material facts about it (section 14A). Under the Limitation Act 1980, claims for negligence in tort in respect of personal injury or death must be commenced within three years from the date on which the cause of action accrued or, if later, the date of knowledge of the person injured (section 11(4))...
eBook - ePub- Chris Monaghan(Author)
- 2015(Publication Date)
- Routledge(Publisher)
...That is not to say that the parties to a contract will have complete freedom to determine the extent of their obligations, as the law has restricted the freedom of contract by introducing rules on the validity of certain terms and by introducing mandatory obligations for particular types of contracts. The law of tort has developed to establish that a duty of care will be owed in different circumstances and seeks to regulate our conduct by imposing an obligation to avoid causing others loss. You will see how the different torts arise and how a business will need to understand first its legal obligations and thus try to avoid liability, and second the protection that is afforded to it by tort law. Figure 5.1 Key torts covered in this chapter In this chapter we will consider how the material covered will relate to a fictional business, Temple, Strand & Holborn Ltd (TSH Ltd). TSH Ltd specialises in fitting out shops. Remedies Unlike contract law the aim of damages in tort law is to put the claimant back in the position she was in prior to the tort occurring. Damages are intended to be compensatory in nature. There are different types of damages available, depending on the circumstances of the claim. In addition to damages a claimant may seek the court to award an equitable remedy such as an injunction. Injunctions are awarded at the court’s discretion and are commonly sought in order to prevent a party from acting in a way that would amount to a civil wrong. For example, we will see below that the defendant could be liable where he passes off his goods as being associated with the claimants. An injunction could be awarded to prevent the defendant from selling these goods. Temporary pre-trial injunctions A party can apply for an interlocutory injunction that is a temporary restraint to prevent another party from acting in a certain way until the trial...
