Welcome to Law of Tort: General Defences and Remedies!
Hello future legal experts! This chapter is your final stop in the Law of Tort. Up until now, you’ve learned how to prove a claimant (P) is liable (D) for various harms, like negligence or nuisance. But what if the defendant (D) isn't entirely to blame? And once liability is proven, how does the court decide how much money the claimant gets?
This topic, General Defences and Remedies (Syllabus 4.4), is crucial. It covers the legal escape routes available to defendants and the essential methods courts use to compensate victims. Mastering this topic will allow you to answer the final, critical question in any tort scenario: "What happens next?"
Section 4.4.1: General Defences
A defence is a legal argument used by the defendant (D) to avoid or reduce liability. These are the main "shields" D can use against P's claims.
1. Volenti Non Fit Injuria (Voluntary Acceptance of Risk)
This Latin phrase means: "To a willing person, injury is not done." If the claimant willingly consented to the risk of harm, they cannot sue when that harm occurs. This is a complete defence; if successful, the claimant gets nothing.
Don't worry if the Latin seems tricky! Think of it as: "You knew the danger, and you agreed to take the chance anyway."
Key Requirements for Volenti:
The defence only works if D can prove three things:
- Agreement: P must have agreed to the risk, either expressly (e.g., signing a waiver) or impliedly (e.g., jumping into a moving vehicle).
- Knowledge: P must have had full knowledge and understanding of the precise nature and extent of the risk (Morris v Murray (1991) – drunk pilot).
- Voluntary: P’s agreement must be truly voluntary. If P felt compelled (e.g., by employment necessity), the defence fails (Smith v Baker (1891)).
Application of Volenti in Specific Contexts:
Employment: Volenti rarely succeeds here because an employee accepting a job does not usually voluntarily agree to negligence by their employer. If the risk is essential to the work, the acceptance is not truly voluntary.
Medical Treatment: If a patient agrees to a procedure after being fully informed of the risks, they are generally taken to have consented to the risk of injury, assuming the procedure itself was carried out non-negligently.
Sport: Participants in sports are usually held to accept the risks inherent in the game, such as being tackled in football. However, they do not consent to deliberately malicious fouling or extreme negligence.
Quick Review: For Volenti to apply, the consent must be Voluntary, Informed, and related to the exact Known risk. V.I.K.!
2. Contributory Negligence (Partial Defence)
This is the most common defence used to reduce the amount of damages. It is governed by the Law Reform (Contributory Negligence) Act 1945.
Nature of the Defence: This is a partial defence. It doesn't absolve the defendant of liability, but it allows the court to reduce the damages awarded to the claimant because the claimant’s own lack of care contributed to their injury.
Apportionment of Blame and Reduction of Damages:
Step 1: Establishing P’s Fault: D must prove that P failed to take reasonable care for their own safety (negligence), and this lack of care contributed to the injury suffered (Froom v Butcher (1976) – failure to wear a seatbelt).
Step 2: Apportionment: The court assesses how much P’s fault contributed to the damage. This is expressed as a percentage.
Step 3: Reduction: The total damages are reduced by that percentage.
Example: A driver (D) speeds and hits a pedestrian (P). P was wearing dark clothes and crossing illegally. The court finds D liable but decides P’s failure to cross safely contributed 25% to the injury. If damages were £10,000, P receives £7,500.
Did you know? Before the 1945 Act, if P was found to be even 1% contributorily negligent, they lost their entire claim! The 1945 Act introduced the fairness principle of *apportionment*.
3. Other General Defences
These defences are less frequently successful but are important to know:
- Inevitable Accident: D claims the accident could not have been prevented by taking reasonable care. This is a very high hurdle to clear; it must be completely unforeseeable.
- Act of God: Closely related to inevitable accident, this refers to a natural, unprecedented event (e.g., extreme weather) that D could not have foreseen or guarded against (rarely successful in modern law).
- Statutory Authority: D is immune from tort liability if the harm caused was the inevitable consequence of an action D was authorised (or required) to perform by an Act of Parliament (common in nuisance cases involving utilities or government projects).
- Illegality (Ex Turpi Causa Non Oritur Actio): "No action arises from a disgraceful cause." If P was injured while committing a serious criminal offence, they may be barred from claiming (e.g., two people injured during a bank robbery cannot sue each other).
- Necessity: D committed a tort (e.g., trespass) to prevent a greater evil or save a life (e.g., breaking down a door to rescue a child from a fire). The action must be reasonable in the circumstances.
Key Takeaway for Defences:
Volenti eliminates liability entirely, but it is hard to prove true consent. Contributory negligence is easier to prove and usually results in a reduction of damages rather than a total loss of the claim.
Section 4.4.2: Remedies in Tort
Once the court has established that D is liable to P, the next step is determining the remedy. The primary aim of tort law remedies is to restore the claimant, as far as money can, to the position they would have been in had the tort not occurred.
1. Damages (Common Law Remedy)
Purpose: The main purpose of damages in tort is compensation.
Calculation and Types of Compensatory Damages:
Compensatory damages are usually split into two categories:
a) Special Damages
Definition: Financial losses that are quantifiable exactly up to the date of the trial.
Examples:
- Lost earnings between the date of injury and the trial.
- Medical expenses already paid.
- Damage to property (cost of repair or replacement).
b) General Damages
Definition: Financial losses and non-financial losses that are not precisely quantifiable and must be estimated by the court.
Examples:
- Pain and Suffering: Physical and mental discomfort caused by the injury.
- Loss of Amenity: Loss of enjoyment of life (e.g., inability to play sport or engage in hobbies).
- Future Losses: (e.g., loss of future earnings, future medical care costs).
Non-Compensatory Damages:
These damages are awarded for reasons other than simply compensating P’s loss.
- Nominal Damages: Awarded when P's rights have been infringed but they suffered no actual financial loss (e.g., in trespass cases which are actionable per se). The amount is usually very small (e.g., £1).
- Exemplary (Punitive) Damages: Very rare. These are intended to punish D and deter similar conduct, usually only awarded when D's actions were oppressive, arbitrary, or unconstitutional (e.g., by government officials).
- Aggravated Damages: Awarded when D’s conduct was particularly insulting, humiliating, or outrageous, increasing P's distress. They compensate for the injured feelings, not just the injury itself.
Policy Issues and Reforms regarding Damages:
Calculating damages for future loss (especially lifelong care or loss of future earnings) is difficult and complex. Policy issues often revolve around:
- Lump Sum vs. Periodical Payments: Traditionally, damages were paid in a single lump sum. The Courts Act 2003 allows for Periodical Payment Orders (PPOs), which are regular payments, often preferred for severe injuries as they manage the risk that the lump sum might run out.
- The Discount Rate: Used to calculate future losses. Since a lump sum is invested, the court "discounts" the future loss to account for interest earned. Setting this rate (often called the Ogden rate) is a major political and economic policy issue.
Common Mistake to Avoid: Confusing Special and General Damages! Remember: Special = specific receipts; General = general estimate (pain, future loss, etc.).
2. Equitable Remedies in Tort: Injunctions
Unlike damages (which are a right if liability is proven), equitable remedies are discretionary—the court decides whether or not to grant them based on fairness and justice.
An injunction is a court order requiring D to either stop doing something or start doing something. Injunctions are most common in torts affecting land (nuisance or trespass).
Types of Injunctions:
- Prohibitory Injunction: An order forbidding D from doing a specific act (e.g., preventing a factory from running noisy machinery late at night).
- Mandatory Injunction: An order compelling D to perform a specific act (e.g., forcing a trespasser to remove illegally dumped rubbish).
- Interlocutory (Interim) Injunction: A temporary injunction granted quickly before the full trial takes place, usually to preserve the status quo until the matter can be fully heard (often subject to the *American Cyanamid Co v Ethicon Ltd (1975)* guidelines).
Damages in Lieu of an Injunction (The Shelfer Test):
The court may award damages instead of an injunction. This is often done where granting an injunction would be disproportionately harsh on D compared to the benefit P would receive.
The criteria for awarding damages in lieu were set out in the case of Shelfer v City of London Electric Lighting Co (1895), which includes:
- The injury to P’s legal rights is small.
- The injury is capable of being estimated in money.
- The injury can be adequately compensated by a small money payment.
- It would be oppressive to D to grant an injunction.
Evaluation of the Use of Injunctions in Tort:
Pros: Injunctions are vital because they stop the harm immediately (or prevent it from starting), offering a more effective solution than money alone, especially in ongoing torts like nuisance.
Cons: They are discretionary, meaning P is not guaranteed one. They can be difficult to enforce (especially mandatory injunctions) and may restrict D’s personal freedom or legitimate business activities, leading to conflict between parties.
Key Takeaway for Remedies:
Damages compensate for past losses; injunctions regulate future conduct. A successful defendant will always aim for a defence, and a successful claimant will always aim for compensation (damages) or cessation of harm (injunctions).
Quick Review Box: Defences & Remedies
Defences:
- Volenti: Complete defence. P consented (knowingly and voluntarily).
- Contributory Negligence: Partial defence. P’s damages reduced by their percentage of fault (Law Reform Act 1945).
- Damages (Compensatory): Special (quantifiable loss up to trial) + General (estimated loss and future costs).
- Injunctions (Equitable): Discretionary orders (Prohibitory/Mandatory/Interlocutory) used to control D’s future actions, often in property torts.