!!Экзамен зачет 2023 год / tortgendef

A2 Law

General Defences in Tort

1. Consent (Volenti non fit injuria)

The literal translation of the Latin phrase which is often known simply as ‘Volenti’, is ‘actionable harm can not be done to a willing person’.

It can occur either when the claimant agrees to a deliberate tort being committed against him, e.g. a boxer agrees to the torts of assault and battery (trespass to the person) being committed during the course of a fight, or if a person agrees to run the risk of accidental harm by putting himself into a potentially dangerous situation.

The general rule is that the defendant must satisfy the court that the claimant had both genuine knowledge of the risk and that there was genuine consent on the claimant’s part to run the risk of harm.

(a) Consent in the workplace

•Smith v Baker (1891)

•I.C.I. v Shatwell (1965)

(b) Consent in road accidents

The Road traffic Act 1988 provides that not only is insurance compulsory for motorists but also that any attempt to avoid liability to passengers will be ineffective. The courts have interpreted this as meaning that motorists cannot rely upon the defence of volenti when sued by passengers.

•Pitts v Hunt (1991)

(c) Consent in sports

Spectators at potentially dangerous sporting events may agree to run the risk of accidental harm so that volenti may be used as a defence by the organizers of such events.

•Murray v Harringay Arena (1951)

Players of sports consent to run the risk of injuries arising out of the ordinary course of the game. They do not consent to run the risk of injuries arising out of foul play or arising from incompetent control by officials.

•McCord v Cornforth (1996)

•Smolden v Whitworth (1996)

•Vowles v Evans (2002)

•Watson (1998)

(d) Consent by rescuers

Rescuers who are injured during dangerous or hazardous incidents caused by the negligence of the defendants will not be subject to the defence of volenti because in the eyes of the law, they are not giving their genuine consent. They are instead, deemed to be acting under a moral duty to save or protect other human beings.

•Haynes v Harwood (1936)

•Cutler v United Dairies (1933)

N.B. 1 Remember that rescuers who suffer nervous shock as secondary victims have to satisfy the Alcock guidelines.

N.B. 2 Exclusion clauses do not necessarily make people volunteers. See the provisions of the Unfair Contract Terms Act 1977.

N.B. 3 The law on warning signs and notices is stated is as for Occupiers

Liability.

2. Inevitable Accident

This defence which applies when an accident has occurred which no human foresight or precautions could have prevented has probably been overtaken by the development (in the law of negligence) of the concepts of reasonable foreseeability and the requirement that there must be a breach of the duty of care.

•Stanley v Powell (1891)

3. Self Defence

A person may use reasonable force to defend himself or his property. As in

Criminal law, the court must be satisfied that the defendant genuinely believed that he or his property were threatened (this is the subjective element of the defence) and that the level of his response was that of a reasonable person (the objective element).

•Revill v Newberry (1996)

4. Illegality (Ex turpi causa non oritur action)

The literal translation is ‘from a base cause no action will arise’. When the claimant’s claim is connected with the fact that he has committed a criminal act, the defence of illegality may apply.

•Ashton v Turner (1981)

5. Statutory Authority

A defence in Nuisance and Rylands v Fletcher (see notes), but also available as a defence in other torts. E.g. Civil Aviation Act 1982.

6. Necessity

This defence is rarely used but it can be pleaded when the claimant has intentionally committed a tort in order to prevent some greater harm happening to the victim.

•Leigh v Gladstone (1909)

•Cope v Sharpe (1912)

7. Remoteness of Damage

In negligence, this defence is another way of saying that there is no legal causation e.g. the Wagon Mound, Doughty v Turner Manufacturing. It can also be used as a defence in other torts e.g. Rylands v Fletcher – the

Cambridge Water Case.

8. Limitation of Actions

The claimant must bring his own action within the time limits laid down by the

Limitation Act 1980.

(a) Personal Injury

The Act states that actions in tort for personal injury or death must be brought within 3 years of the cause of action coming into being. This usually means the date on which the harm or damage happened. This can cause problems so section 11 of the Act allows actions to be brought outside the normal 3 year period, in that the 3 year period will start to run from the date on which the claimant first had knowledge of the following facts:

•That the injury was significant.

•The identity of the defendant.

•The events or factors which caused the injury.

•Forbes v Wandsworth Health Authority (1996)

N.B. Under section 33 of the Act, the court has a general discretion to allow claims outside the time limit in exceptional circumstances.

(b) Claims for damage to/interference with property or land

The Act states that such claims must be brought within 6 years of the harm or damage occurring.