Tort law: general defences

Areas of applicable law: Tort law – General defences – Negligence.

Main arguments: What defences are available in tort of negligence.

General defences: In tort law there are primarily three types of defences available which are called the general defences because they not only apply to tort of negligence but also to other types of torts. The three types of general defences are known as; Consent – Illegality, and Contributory negligence.

The defence of consent: is also known as volenti non fit injuria which is Latin for “he who voluntarily accepts the risk is not harmed“. The defence of volenti or consent is a complete defence which means if the defence is accepted, there will be no liability. The defence is available where the claimant had a choice to avoid risk but continued to take the risk; and therefore there is no one else to blame but him for the harm he may have suffered Wooldridge v Sumner (1963). And the same principle can be seen in the case of Morris v Murray (1990).

Volenti however without the free will of acceptance does not become a defence Smith v Baker (1891). Furthermore, accepting the risk voluntarily will not in itself suffice for the defence to operate as the defendant also needs to prove that the claimant had the knowledge of the risk and his acceptance of the risk was confirmed by his conduct Imperial Chemical Industries v Shatwell (1964).

The defence of illegality: If a person gets injured while taking part in an illegal act then he cannot receive damages for the injury or harm as the defence of illegality can apply against his claim. The rule is primarily influenced by policy reasons that a person who is injured while committing an act of crime should not be able to sue or be owed a duty of care to.  The principle is known as ex turpi causa non oritur actio which is Latin for no action can arise from a dishonourable or illegal act Ashton v Turner (1981)  | Gray v Thames Trains Ltd (2009)  | Pitts v Hunt (1991) | Vellino v Chief Constable of Greater Manchester Police (2001).

Defence of contributory negligence: the defence of contributory negligence is only partial defence which means if the defence is allowed then the defendant would only be liable to pay the damages which was due to his part in the tort Froom v Butcher (1976), and similarly in Revill v Newberry (1996).| Smith v Finch (2009)

Defence of contributory negligence may not apply if children are involved:  Gough v Thorne (1966).

A person cannot be contributorily negligent if the act in question was committed due to an emergency situation Gough v Thorne (1966) | Jones v Boyce (1816).