DEFENCES . this is to tort. vicarious liability.


there are specilaised defences  – defamation or nuisance action – have been consideed udner the appropriate tort.

some reference has already been made at various points to the defences listed below.

contributory negligence, consent and illegality



defendant mya pleaed that the claimant’s neglgence contributed to the injury

this is referred as contributory negligence

until 1945 a successful plea of contributory negligence was a complete defence

law reform contributory negligence  act 1945 now provides for an apportionement of lablity between the claimant and the defendant

important issue in relation to this defence –

a—- claimant must have failed to take reasoanble vare for his safety but no question of pres existing duty of care arises.  the contributory negligence  must be a cause f the damage   and the damage must be   a reasonably foreseeable  consequence of   the contributoyr negligence.

the claimant’s neglgence may gave contributed   to the accident itself.   a motor cyclist failing to look out for ther vehcile for example

or may have contribued to the inirut ibnly – such as a drive failing to wear a seat belt

jones v boyce   1816

jones v   livox quarries  1952

B……………….. apportionment works in two ways.   the judge , MUST first determine   the amount of damages payable if te claimant had not been negligent and then deduct a certain percentage   to reflect the claimant’s   contribution.    it seems that the percentage may reflect    both the relative   blameworthiness   of the parties.  there e is modern authority for the view that   damages cannot be reduced by 100 per cent.  another defence might achieve that result,

stapley v gypsum  mines 1955

pitts v    hunt 1991



at first  it seems obvious  that someone   who consents  to the tort  should not then  turn round   and sue. in practice   hwoever it is complex   and cotnroversial.. forst, three introductory discussiin points.

A…………. the role of consent varies from tort to tort

it has been referred to in tort of battery and defemation

in thes torts the application of the defence is straightforward

the  patient who consents to the incision and excision necessary to remove an appendix is agreeing to the veryt hing that would otherwise be battery.

the position is v different    when the tort invovled is negligence or a tort of strict liability.  there is is usually called an assumption of risk

here the claimant cannot usually know in advance   what is going to happen in the way that a patietn awaiting surgey does and thus the application of the defence is carefully cotnrolled

B………………… the defence of volenti non fit iniuria  cannot operate until there has been a tort

this seems obious . but is foten overlooked by mistake

take the postions of a claiamnt who has a dangerous job.  say on a fishing boat in the deep oceans. if the employers observe all safety regs   and take teasonble care reuired by common law then no tort has been committed

then the claiamnt cannot sue and not beause of any consent to risks

the issue of consent only arises  of there has beena  breach of regs   or of the cmmon law duty and it is argued that the claimant knew of this breach  and nevertheless agreed to face that risk.

C———————-  consent can operate int wo differrn ways .

sections 2 (1)   and 2 (5) of the Occupier’s liability act 1957

scecion 2. 1 envisages  the poccupier exlcldsuing liability    by a notice saying ;;enter at your own risk.”

so that the visitor    runs the legal risk  of being unable to get compensatrion for any unjires

section 2.5    envisages the visitor incurijng the physical risk by corssing the defective  bridge .



both common law and statute recognised   the right of the defendantr   to exclude   liabilityby a suitably   worded notice.

beside the occupiers’s liability act it was at one time common for drivers to have notices on the dashbaord of their care sauing ‘passengers travel at their own risk.’

the reason was that drve back them were compelled to insurre agains tliability to third parties outside the care but not against passnegrs. This changed in 1971

this right to exclude liability is stricly controleld and has been further constraised by statute

first  exlcsuin caluses in contract are relevant

i. if the claiamnt kenw of its terms in advance

ii..    its terms clearly cover the situat that has occurred

iii.  teh claiAMNT was free to choose where t taje the risk or not.    burnett v  british waterways 1973

the main statutory   intervention has been the Unfair Ciontract terms atc 1977

section    and 11 – remember that this does not just apply to exclusions operation gin the course of business.

this act is restricted   to exclusion of liability arising in the course of business or on the premises  occupied for the purpose of a business but is otherwise of general application

road traffic act 1988   section 149 (3)  re enacting legislation 1971

prevent s car drivers excluding liability to passengers by ‘an antecedent agreement or understanding.’

there is also a law restricting the rights of employers in some circumstances to exclude their duties ti employees but the details are outside the scope of this course.




the principles in this area have mainly been worked out inas  number of social contexts


A.     employer and employee

the sciope of this defence in relation ebtween employer and employee is limited by the insistence of the courtts since the end of the 19 century  that the employee must not only know of the danger but consent to ti


smith  v baker 1891



the defence is still allowed bu weak.  whay is the emplpyuer not allowed to rely on it much.

ICI  v       shatwell   1965




B          car passanger and drunk driver, a learner of physically disabled


these cases can bee seen i 2 ways. that rh pssanegr shoudl be unable to sue because of the defence of conset


another is to say that the defenda owed only the stanrda of care to be epcted  of a druknk a learner tc…

and only if the standard of rdinv has fallen below that elvel s ther a tort at all


english courts have tended to analyse it in the foemr way and the australib ciurt in the altter


dann   v hamitlon  1939


insurnace commissioners v   joyce  1948



nettleship   v westonb   1971



cook v cook   1986




english corius eem to have th view tht the rtoad traffic act 1988   porevent this defenc ein road accident . it may allly to oter traffic accident


pitts v hunt 1991



morris v murray   1991





action by spectator  in sprting event against organiser  or competitor



here the court have reassned that there ws no breach od duty ebcause the defendant owbned a lesser duty appropirate   to someone striving to succeed in a comeptitve activity


wooldridge   v   sumner 1963



white v   blackmore 1972





it is unlikely  that the defence will ever apply where the very thing that the defendant was under a duty to do was to protect the claimant against his won actions  eg because the claimant as a suicide risk


reeves   v commissioner of the police of the metropolis   2000





About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

2 responses »

  1. I like what I read, however the knowledge I gathered was a bit distorted partly due to typographical error, there was alot of them up there. Pls make some corrections. Thanks.

    • Thank o for you comment. You are interested in defences to tort and your name is alibi ; almost. This is nominative determinism. I cannot be arsed to correct the errors. Pick the molt out of your own eye first.

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