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1 Defences can be both specific and general.

2 Some torts, e.g. defamation, have a range of specific defences.

3 Many defences, e.g. those in negligence, apply generally.

4 Most provide a total defence by showing the defendant is not at fault, others provide a partial defence only.

1.4.2 Volenti non fit injuria (consent)

1 This means no injury is done to one who voluntarily accepts a risk.

2 It does not apply where the claimant only knew of the existence of the risk rather than understanding it (Stermer v Lawson (1977)).

3 Nor does it apply where the claimant is forced to accept the risk (Smith v Baker (1891)).

4 It commonly applies in sporting situations if physical harm is likely (Simms v Leigh RFC (1969) and Condon v Basi (1985)).

5 It is important in the medical context (Sidaway v Governors of Bethlem Royal Hospital (1985)) where one issue is whether or not there is a requirement of informed consent.

6 It occasionally applies in certain employment situations (Gledhill v Liverpool Abattoir Co Ltd (1957)).

1.4.3 Inevitable accident

1 A defendant is never liable for a pure accident.

2 Pure accident means one beyond the defendant’s control (Stanley v Powell (1891)).

1.4.4 Act of God

1 Concerns extreme weather conditions.

2 However, they must be unforeseeable conditions, not merely bad weather (Nichols v Marsland (1876)).

1.4.5 Self-defence

1 Everybody is entitled to defend himself.

2 But only by using reasonable force (Lane v Holloway (1968)).

1.4.6 Statutory authority

1 No liability if act authorised (Vaughan v Taff Vale Railway (1928)).

1.4.7 Illegality (ex turpi causa non oritur actio)

1 A defendant can avoid liability where the claimant suffers the harm while engaged in an illegal act (Ashton v Turner (1981)).

2 However, see more recently Revill v Newbery (1996).

1.4.8 Necessity

1 Applies if an act is done to avoid worse damage (Watt v Herts CC (1954)).

2 Saving life is an obvious example (Leigh v Gladstone (1909)).

1.4.9 Contributory negligence

1 Originally this was a complete defence, but now governed by the Law Reform (Contributory Negligence) Act 1945 and partial only.

2 The effect is to reduce the claimant’s damages where (s)he has contributed to his/her own harm (Sayers v Harlow DC (1958)).

3 It is now commonplace when accepting lifts from drunk drivers (Stinton v Stinton (1993)) or failing to wear crash helmets while a passenger on a motorbike (O’Connell v Jackson (1972)), or failing to wear a seat belt (Froom v Butcher (1976)).

4 It is not necessary to show that the claimant owed a duty of care, merely that (s)he failed to take care in all the circumstances.

5 However, causation must always be proved – the claimant’s act in fact helped cause the damage suffered (Woods v Davidson (1930)). This can be complex when exposure to asbestos and smoking are possible causes of lung diseases (Badger v Ministry of Defence (2005)).

6 There has been debate as to whether 100 per cent reduction of damages is possible – Jayes v IMI (Kynoch) Ltd (1985) made such an award, Pitts v Hunt (1990) argued this was not possible, and the possibility was raised again in Reeves v Commissioner of Police (1998).

Key Cases Checklist

1.1.5.2

Bradford Corporation v Pickles [1895] AC 587 HL

Key Facts

The claimant supplied water to Bradford from sources that ran through underground channels beneath the defendant’s land. The claimant alleged that, in an attempt to force it to buy his land, the defendant drained water from his land, causing the claimant’s reservoir to empty. The claimant sought an injunction to prevent the defendant from drawing water from his land but this was denied.

Key Law

The defendant’s motive for drawing water from his land was held to be irrelevant, even if it was through malice. The defendant was legitimately exercising property rights in extracting water from his land. The claimant only had rights to the water once it reached his land and the injunction was denied.

1.1.7.6

Z and others v United Kingdom [2001] 2 FLR 612; [2001] EHRR 3 ECHR

Key Facts

A family of young children first came to the attention of a Social Services Department in 1987. The local authority failed to apply for a care order until 1992. In the meantime, neighbours, teachers, police, doctors and health visitors all expressed concern about the children’s welfare. A psychiatrist who examined the children in 1993 reported that it was the worst case of neglect and emotional abuse that she had ever seen. The Official Solicitor brought an action for negligence against the local authority, arguing that the children had suffered long-term damage that could have been avoided if the council had acted promptly. The action failed in the House of Lords (now the Supreme Court) and was taken to the European Court of Human Rights.

Key Law

The House of Lords (now the Supreme Court) held that it would not be just or reasonable to impose a duty since it would cut across the council’s other statutory duties, removing resources that could otherwise be used for child protection. The Children Act 1989 was for public benefit generally, not private rights. The European Court of Human Rights accepted that the children were subjected to inhuman and degrading treatment contrary to Art 3, denied a fair trial contrary to Art 6, and refused an effective remedy contrary to Art 13.

Key Comment

The result of this ruling is that English courts will have to rethink the apparent blanket immunity from liability that they have in the past been prepared to extend to public bodies in negligence actions.

1.4.2.3

Smith v Baker [1891] AC 325 HL

Key Facts

A quarry worker was injured when a crane moved rocks over his head and some fell on him. He had previously complained that the practice was dangerous and the defendant argued that the fact that he continued to work meant that he had voluntarily accepted the risk of harm. The defence failed.

Key Law

The House held that, while the workman may have consented to general dangers relating to his work he could not be said to have accepted the risk of the specific harm suffered.

Key Judgment

Lord Halsbury LC explained:

‘a person who relies on the maxim must shew a consent to the particular thing done … It appears to me that the proposition upon which the defendants must rely must be a far wider one than is involved in the maxim.’

1.4.3.2

Stanley v Powell [1891] 1 QB 86 QBD

Key Facts

During a pheasant shoot the defendant ‘accidentally’ shot a beater, a man whose role it was to beat the ground so that the birds would fly up out of the moorland. The defendant successfully claimed an inevitable accident because he was able to show that the injury was caused when the pellet ricocheted off trees.

Key Law

The court held that if the claimant was unable to show that the defendant acted negligently then the damage must have occurred accidentally, which therefore provided a complete defence.

1.4.4.2

Nichols v Marsland (1876) 2 ExD 1 CA

Key Facts

The defendant had created artificial lakes on his land. During an exceptionally heavy rain storm described as ‘the worst in living memory’ the lakes burst their banks and flooded neighbouring land.

Key Law

The court held that the defendant should not be liable if the escape occurred through reasons beyond his own fault but by Act of God.

1.4.7.2

Revill v Newbery [1996] QB 567 CA

Key Facts

An allotment holder, the defendant, fed up with trespassers on his allotment, lay in wait in his shed and then fired through a hole in the door at a trespasser, injuring him. The defendant’s claim, that the illegal actions of the trespasser relieved him of all liability, failed.

Key Law

The court held that the defendant’s actions were out of proportion in the circumstances and the defence would fail. One reason was that this would thwart the clear intentions of Parliament in the Occupiers’ Liability Act 1984 to create a duty of care towards trespassers.

Key Judgment

Evans LJ suggested that if the defence were to apply in such circumstances:

‘it would mean that the trespasser … was effectively an outlaw, who was debarred by the law from recovering compensation for any injury which he might sustain’.

Key Problem

The extent to which a person is entitled to protect his property from trespassers is very contentious with the public. The Government is currently looking at the possibility of giving greater rights to the owners of land against trespassers.

1.4.9.3

Froom v Butcher [1976] QB 286 CA

Key Facts

A car accident was caused by the defendant’s negligence but the claimant was not wearing a seat belt. He suffered head and chest injuries. His claim succeeded but damages were reduced by 20 per cent.

Key Law

The court applied an objective standard of care in determining that the claimant had worsened the injuries. A prudent person would have worn a seat belt, so damages were reduced by 20 per cent.

Key Comment

The judgment was at a time when reduction in damages was being used to persuade people to wear seat belts. The introduction of criminal charges has undoubtedly been more of a deterrent to failing to wear seat belts. Lord Denning’s apportionment of blame also seems quite arbitrary.

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