General defences and remedies

Law of Tort – General Defences and Remedies (Cambridge 9084)

1. Introduction

When a claimant brings a tort claim, the defendant may rely on a range of defences. A defence can be:

• Complete – it extinguishes liability altogether.
• Partial – it reduces the amount of damages payable.

If liability is established, the court may award various remedies, the most common being damages, but also equitable remedies such as injunctions.

2. General Defences (syllabus 4.4.1)

2.1 Volenti non fit injuria (Consent) – (a)

• Key elements (syllabus wording)
  • Knowledge of the risk – the claimant understands the nature and extent of the danger.
  • Free and informed consent – consent is given without duress, mis‑representation or mistake.
  • Scope – the defence applies only to the activities for which consent was given.
• Statutory basis – none (common‑law defence).
• Leading authority
  • Ashdown v Royal Bank of Scotland (1998) – consent to the normal risks of a contact sport.
  • Morris v Murray (1991) – participants in a rugby match consent to ordinary contact.
• Effect if successful: complete defence – no liability.

2.2 Contributory Negligence – (b)

• Statutory basis: Law Reform (Contributory Negligence) Act 1945.
• Essential elements
  • The claimant was negligent.
  • The claimant’s negligence contributed to the loss (causation).
• Leading authority
  • Froom v Butcher (1976) – apportionment of 25 % liability to the claimant.
• Effect if successful: damages are reduced in proportion to the claimant’s share of responsibility.

2.3 Illegality (Ex turpi causa) – (c)

• Key requirement – the claim must arise out of the claimant’s own illegal act and the illegal act must be closely connected to the tortious act.
• Statutory basis – none (common‑law principle).
• Leading authority
  • Ashton v Turner (1971) – claim barred because the loss stemmed from the claimant’s illegal activity.
• Effect if successful: the claim is barred.

2.4 Necessity – (d)

• Essential elements
  • Imminent danger to persons or property.
  • The act is reasonable and proportionate to the danger.
  • The defendant did not create the danger.
• Statutory references (where relevant)
  • Police and Criminal Evidence Act 1984 – gives police powers to act in emergencies.
  • Fire Services Act 1947 – permits fire‑fighters to enter premises to extinguish a fire.
• Leading authority
  • Wooldridge v Sumner (1963) – a motorist’s emergency stop to avoid a collision was justified.
  • Southwark London Borough Council v Mills (1999) – fire‑fighter’s entry onto private land to put out a fire.
• Effect if successful: complete defence for the emergency act.

2.5 Inevitable Accident – (e)

• Essential elements
  • The accident was truly inevitable – no negligence on the part of the defendant.
  • All reasonable precautions had been taken.
• Statutory basis – none (common‑law defence).
• Leading authority
  • Hughes v Lord Advocate (1963) – a train derailment caused by a sudden landslide that could not have been foreseen.
• Effect if successful: complete defence.

2.6 Act of God – (f)

• Essential elements
  • A natural event of extraordinary force (e.g., flood, earthquake, storm) that could not have been anticipated.
  • The defendant took all reasonable steps to protect against the risk.
• Statutory basis – none (common‑law defence).
• Leading authority
  • Baker v Bolton (1808) – a house destroyed by an unprecedented flood where the owner had complied with building regulations.
• Effect if successful: complete defence.

2.7 Statutory Authority – (g)

• Requirements
  • The act must be expressly authorised by a statute.
  • The statutory purpose must be legitimate and the defendant must act within the powers conferred.
• Statutory basis – varies with the activity; examples include:
  • Environmental Protection Act 1990 – powers to demolish dangerous structures.
  • Highways Act 1980 – powers to close a road for safety.
• Leading authority
  • R v Secretary of State for the Environment, ex parte Hughes (1984) – statutory power to demolish a dangerous building defeats a negligence claim.
• Effect if successful: no liability for the act authorised by statute.

2.8 Summary of General Defences (syllabus 4.4.1 a‑g)

3. Remedies in Tort (syllabus 4.4.2)

3.1 Damages – the principal remedy

Damages aim to put the claimant “as far as possible” in the position they would have been in had the tort not occurred.

3.1.1 Compensatory (pecuniary) damages

• Special damages – quantifiable losses such as medical expenses, loss of earnings, repair or replacement costs.
• General damages – losses that cannot be easily quantified, e.g., pain and suffering, loss of amenity.
• Future losses – projected losses discounted to present value; often dealt with by structured settlements.
• Damages for death – pecuniary loss to dependants (loss of support) plus a statutory bereavement award (e.g., under the Fatal Accidents Act 1976).

3.1.2 Non‑compensatory damages

• Nominal damages – awarded when a legal right has been infringed but no loss can be proved (normally £1).
• Punitive (exemplary) damages – awarded only in rare cases of malicious, oppressive or recklessly indifferent conduct; limited to intentional torts (e.g., R v Brown – but only where the conduct is deemed sufficiently egregious).

3.1.3 Policy considerations & current debate

• Fairness – damages should restore the claimant, not provide a windfall.
• Deterrence vs. compensation – punitive damages are restricted to avoid excessive punishment.
• Reform proposals
  • Caps on personal‑injury awards to control insurance premiums.
  • Greater use of structured settlements for long‑term loss.
  • Impact of “no‑win, no‑fee” arrangements on access to justice.

3.2 Equitable Remedies – Injunctions

Injunctions are discretionary orders used where damages are an inadequate remedy.

• Prohibitory injunction – orders the defendant to refrain from a particular act (e.g., stop a nuisance).
• Mandatory injunction – orders the defendant to take positive steps to remedy the wrong (e.g., remove an encroaching fence).
• Interlocutory (temporary) injunction – granted pending trial to preserve the status quo.
• Damages in lieu of injunction – where the court is satisfied that a monetary award can adequately compensate the claimant for the loss that would have been avoided.

Evaluation of injunctions

• Advantages
  • Provides immediate protection; stops ongoing or imminent harm.
  • Effective where the loss is difficult to quantify (e.g., breach of privacy).
• Disadvantages
  • Can be restrictive and interfere with legitimate activities.
  • Enforcement may be costly and may require ongoing supervision.
• Balancing test – the court weighs the adequacy of damages against the need to prevent future injury and the proportionality of the order.

3.3 Other equitable remedies (brief note)

Restitutionary remedies, declaratory relief and specific performance are generally outside the core A‑Level syllabus for torts, but they exist in equity and may appear in higher‑level examinations.

3.4 Summary of Remedies (syllabus 4.4.2)

4. Key Points for Revision

1. Distinguish complete defences (volenti, necessity, inevitable accident, act of God, statutory authority) from partial defences (contributory negligence).
2. Remember the policy rationale behind each defence:
   • Autonomy – volenti.
   • Fairness – contributory negligence.
   • Public policy – illegality.
   • Emergency response – necessity.
   • Limits of liability – inevitable accident, act of God.
   • Statutory purpose – statutory authority.
3. For damages, be able to:
   • Separate special and general damages.
   • Explain how future losses are quantified (discounting, structured settlements).
   • Identify when nominal or punitive damages are appropriate.
   • Discuss current policy debates (caps, structured settlements, “no‑win, no‑fee”).
4. When assessing injunctions, always consider:
   • Whether damages are an adequate remedy.
   • The balance between the claimant’s need for protection and the defendant’s right to conduct.
   • Whether “damages in lieu” is a more appropriate remedy.