Negligence 3:- Defences and Remedies Lecture 14 Negligence 3:- Defences and Remedies

DEFENCES TO A CLAIM IN TORT

GENERAL DEFENCES There are five defences to an action for negligence:- 1) Consent 2) Contributory negligence 3) Statutory or common law justification 4) Necessity 5) Illegality

1) Consent The assumption of risk i.e. consent, is a complete defence to an action in tort Consent may arise by :- Express agreement to run the risk of injury e.g. the signing of a consent to medical treatment form to prevent a claim of trespass (battery) to the person of the patient or

Implied from the claimants conduct This is known as VOLENTI NON FIT INJURIA i.e. no harm is done to the willing Boxers are deemed to have consented to the infliction of harm which would otherwise amount to trespass to the person

but ……… Consent cannot be inferred from knowledge of the risk It must be shown that the claimant freely and voluntarily accepted the risk

MORRIS V MURRAY [1990] 3 All ER 801 The claimant and defendant had engaged in a prolonged drinking session before taking a flight in a light aircraft piloted by the defendant. The plane crashed , the defendant killed and the claimant seriously injured.

HELD the claimants action against the deceased pilots estate was barred by volenti as he had voluntarily consented to the flight, knowing of the risk

2) Contributory Negligence The Law Reform (Contributory Negligence) Act 1945 provides for apportionment of blame between the claimant and defendant Any award of damages may be reduced to the extent that the claimant was to blame for the injury or loss

FROOM V BUTCHER [1975] 3 All ER 520 Failure to wear a seatbelt is contributory negligence and can result in a 25% deduction from the amount of damages awarded if wearing the belt would have prevented the injury and a 15% reduction if the belt would have reduced the injury

3) Statutory Justification Actions of police arrest , entry and search are covered by The Police and criminal Evidence Act 1984 and if exercised lawfully the Act provides a defence to an action in tort

3) Common Law Justification Self defence and chastisement of a child by a parent are defences to the tort of trespass to the person provided that the force used is reasonable

4) Necessity If a person commits a tort in order to prevent a greater harm they may be able to raise the defence of necessity. The defendant must show there is an imminent threat of danger to person or property and that their actions were a reasonable response to the circumstances

LEIGH V GLADSTONE [1909] 26 TLR 139 necessity was successfully raised by prison officers who forcibly fed a suffragette who was on hunger strike

5) Illegality A person will not be able to maintain a cause of action if he has to rely on conduct which is illegal or contrary to public policy This expressed in the Latin phrase :- ex turpi causa non oritur actio Moral – Once again the Law will not assist those involved in illegal acts.

Thackwell v Barclays Bank [1986]1 All ER 676 Thackwell bought an action against the defendant for conversion of a cheque which represented the proceeds of a fraud to which the claimant had been a party

HELD Thackwells claim was barred by illegality as it was contrary to public policy to allow him to enjoy the proceeds of his fraud

REMEDIES

Remedies The remedies which are generally available in respect of tortious conduct are :- Damages Injunction

Damages Damages consist of a payment of money by the defendant to the claimant Tort damages are intended to be compensatory as the aim is to put the injured party in the position they would have been in had they not sustained the wrong i.e. put the claimant back to their original position

This is different to contract damages which aim to put the claimant where they would have been had the contract been completed, including the element of bargain which was the purpose of the contract

Injunction An injunction is a discretionary order of the court requiring the person to cease committing a tort An interim injunction is a temporarily order granted pending a full trial A quia timet injunction may be ordered before any damage is done as a preventative measure

A prohibitory injunction will stop the defendant from committing a tort A mandatory injunction requires the defendant to take positive steps to stop a tort from being committed. If the defendant fails to obey an injunction they will be in contempt of court and may be fined or imprisoned

Limitation of Actions The right to bring a legal action in tort does not last indefinitely The Limitation Act 1980 provides that an action must normally be bought within 6 years This period may be extended by 3 years for latent i.e. concealed damage

Whilst the right to bring an action is limited – accountability for (un) professional behaviour can last for almost a decade …………….. Indemnity insurance is a necessity in some professions and may need to go beyond retirement age !

References:- Adams, A. (2014) ‘Law For Business Students’. 8th Edn. In SAM Core Reading Volume Two. 2nd Edn. ed. By Jeffree, D. Harlow: Palgrave, 205-266