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11.2 Defences and Limitation of Liability Lecture

Defences provide a way in which a defendant can negate liability either by reference to their own positive behaviour or through pointing out the claimant’s own misdeeds. Some of these defences will only reduce the award of damages, and are thus referred to as ‘partial defences’. Others will dispel all liability, and are therefore known as ‘complete defences’.

It should also be noted that even if these defences do not apply, both claimants and defendants can table aggravating and mitigating factors in an effort to convince the courts that a greater or lesser amount of damages should be awarded. It is also worth acknowledging that where a complete defence fails, the courts might still take the defence into account as a mitigating factor.

Finally, it should be remembered the best defence available will often be an argument that the claimant doesn’t have a case at all (so for negligence claims, that no duty existed etc.)

Contributory Negligence

A contributory negligence defence is quite simply an argument that the claimant, through some action or omission of their own, contributed manifestly to their own injuries, and that this fact should be reflected in the awarded damages. Since it affects the damages, rather than the verdict of the case itself, it is a partial defence.

The effect of a contributory negligence involves asking to what extent a claimant contributed to their own injuries as a percentage, and then taking that percentage off of his or her damages.

The authority for the defence and a description of how it works can be found in s.1(1) of the Law Reform (Contributory Negligence) Act 1945, although the defence itself was developed before then.

There are two main elements of a contributory negligence defence. Firstly, the claimant must be at fault. Secondly, once fault has been established, the extent of blame must be apportioned.

(1) Finding Claimant Fault

As per s.4 of the 1945 Act, claimant fault includes negligence, breach of statute or any other form of tortious liability and (perhaps paradoxically) any other act which gives rise to a defence of contributory negligence. This criterion is important, since it means that contributory negligence will only arise where the claimant’s behaviour can be regarded as giving rise to tortious liability.

An example of the negligent fault principle can be seen in Jones v Livox Quarries [1952] 2 QB 608, where the court held that the claimant was 20% to blame for his injuries because he had acted negligently, and had acted against orders. Lord Denning MR identified the foreseeably requirement: “A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself…”

What is reasonable will depend on the context.

  • Claimants will be expected to wear seatbelts whenever they get into a car, regardless of length or road conditions. This can be seen in Froom v Butcher [1976] 1 QB 286.
  • The same principle applies for motorcycle drivers who do not wear helmets, as per O’Connell v Jackson [1971] 3 WLR 463.
  • The only set rule is that the courts should consider each instance of contributory negligence on the basis of its own facts and circumstances. This principle can be seen at work in the case of Owens v Brimmell [1977] QB 859.

The relevant standard of care can change depending on the characteristics of the claimant. Thus, children will be expected to act less carefully than adults, as in Gough v Thorne [1966] 1 WLR 1387. It should be noted that unless very young, children will rarely be held to be blameless, Morales v Ecclestone [1991] RTR 151.

The situation that the claimant is in will also change the relevant standard of care. Thus in Jones v Boyce [1816] 171 ER 540, the claimant was not held to have contributed to his injuries – whilst he had acted unreasonably by normal standards, he had acted reasonably for someone put in a position of perceived danger. However, there is a limit to when ‘emergency’ behaviour will be considered reasonable, Sayers v Harlow [1958] 1 WLR 623. The court here held that the behaviour was unreasonable, and thus applied a 25% reduction to the claimant’s damages.

(2) Apportionment

Once claimant fault has been established the court will seek to ascertain the contribution the claimant has made to their harm, expressed as a proportion, as per s.1 of the 1945 Act.

It should be noted that courts are prevented from making deductions of 100%, following Pitts v Hunt [1991] 1 QB 24. The bench noted that the function of contributory negligence was not to defeat a claim, but merely to reflect a claimant’s contribution to that claim.

Whilst the reduction in damages will be a matter of factual context, there are two general factors that the court will take into account – fault and causation.

  • Fault refers to the claimant’s lack of care – so not wearing a seatbelt demonstrates a lack of care.
  • Causation refers to the extent to which the claimant’s lack of care affected the damage they sustained.

These two factors are combined.

Consent

Consent refers to situations in which the claimant can be regarded as having consented to a risk which then manifests itself. This is sometimes referred to via the Latin maxim volenti non fit injuria (to a volunteer, injury is not done). Consent is a complete defence – if consent is found, a claim will be defeated.

Consent defences can be broken down into two categories:

  1. In the first are situations of negligence where a claimant agrees that the defendant will not be held liable for any injuries they might incur whilst undertaking a particular activity.
  1. In the second are where the claimant effectively tells a defendant to do something.

Consent is made up of three factors.

(1) Knowledge of Risk

Before consent can be effective, a claimant must know what it is that they are consenting to. This is subjective, so the courts will ask what a claimant knew at the time consent occurred. This can be seen in Morris v Murray [1991] 2 QB 6. The claimant was held to have known of the risk, and thus the defence of consent applied.

It can thus be seen that whilst knowledge is subjective, there is no need for an explicit expression on the part of the claimant that they are aware of the risk they are running. Instead, the court will infer the likely knowledge of the claimant.

Since this requirement is subjective, the defence will fail if the defendant was not aware of a risk, even if they should have been, Smith v Austin Lifts Ltd [1959] 2 Lloyd's Rep 583.

(2) Voluntariness

Key to the employment of a consent defence is that the claimant must have been given true freedom of choice before they can be said to have consented.

This can be seen in Bowater v Rowley Regis Corp [1944] KB 476 where the claimant could not be regarded as willing since he had no real choice in the matter, and thus consent did not apply.This case also demonstrates a couple of other points. Firstly, employees can rarely be described as consenting to risk, where that risk comes about as part of their employment, Smith v Baker & Sons [1891] AC 325. Secondly, freedom of choice does not mean merely ‘it was possible to avoid the risk’.

(3) Agreement

Agreement can take one of two forms – express and implied:

  • Express agreements include explicit forms of consent such as the eponymous consent form, or else an explicit agreement between claimant and defendant. Since written consent is effectively a form of contract, it is subject to relevant statutes, such as the Unfair Contract Terms Act 1977. Most notable is s.2(1) which notes that it is impossible, in law, to exclude or restrict liability for negligently caused personal injury or death.
  • Implied consent includes situations in which a claimant can reasonably be held to have consented to a particular risk, but do not make this consent explicitly known. However, the courts are relatively reluctant to imply consent unless it is very clearly in place, since this is effectively putting words into the claimant’s mouth. The situations in which it tends to be found are those in which a claimant is aware of an obvious danger but presses on regardless.

This can be seen in Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 where the courts allowed a consent defence to succeed, on the basis that the claimants were clearly in full knowledge of the risks and decided to press ahead anyway.

However, unless a danger is staggeringly clear the courts will not imply consent. This can be seen in a series of cases where passengers have knowingly ridden in the vehicles of drunk drivers. See Dann v Hamilton [1939] 1 KB 509, and Owens v Brimmell (discussed in contributory negligence.) These cases can be contrasted with Morris v Murray (drunken pilot), in which the danger was held to be so incredibly obvious and extreme that consent could succeed.

Authorisation

As noted in previous chapters, statutory authorisation can render ordinarily tortious activities legal. Examples include police searches under the Police and Criminal Evidence Act 1984, and mental health detentions under the Mental Health Act 1983.

Necessity

The complete defence of necessity applies in cases of trespass, and has been discussed as such in the relevant chapter. Whilst the defence is technically open for use in other areas of tort, it tends not to appear.

Illegality

Illegality, sometimes referred to as ‘ex turpi causa’ (from a foul cause), is a complete defence essentially asserting that the claimant’s harm occurred whilst in pursuit of a criminal endeavour. This should not be regarded as a rule that prevents all claims from succeeding. Instead, the defence tends to only by applied by the courts when it is just to do so, and as a prerequisite the harm must be closely linked to the criminal act that the claimant is engaged in. See Cummings v Granger [1977] QB 397.

The same principle can be seen at work in Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218 where the claim failed on the basis that the claimant’s criminal enterprise precluded the imposition of a duty of care. The three primary elements of an illegality defence were identified as being that the harm must be linked inextricably to the claimant’s criminal enterprise, the defence must be justified by public policy, and the criminal conduct must be sufficiently serious.

The defence is rooted in public policy and is available to the judiciary to use, rather than one which the defendant can actively rely upon.

Limitation of Liability

The law dictates that there is a limit on how much time can pass after a claim arises before it becomes inactionable.

The primary body of law on this matter is found within the Limitation Act 1980, the most important part of which is s.2, dictating that actions founded on tort expire after six years have passed from the date on which the cause of action accrued. In general, the date of accrual is the date the damage occurs, but there are important exceptions to this rule.

As per s.4A, claims for defamation are subject to a time limit of one year.

Non-Personal Injury Damage Caused by Negligence

In the case of non-personal injury damage, the six-year limit will start when the damage occurs, as long as the damage is readily apparent. As per s.14A(4)(b), if damage is latent (i.e. not readily apparent) then the same six-year timer will start running from the point of damage, but a second three-year timer will run from the point at which damage becomes reasonably apparent. There is, however, a hard limit to these time limits – no action can be brought after 15 years have passed since the original damage (so in the case of the chimney, 15 years after it has been built).

Knowledge of damage is objective – so the courts will ask at what point the damage would have become apparent to the reasonable person, based on the facts available, as per s.14(A)(7).

Personal Injury Damage

As per s.11 and s.14, where the damage is personal injury, the time limit will be only three years running from the point the damage occurred, or if later, from when the claimant became reasonably aware of the information needed to lodge a claim. Again, this is based on a reasonable claimant, so if and individual is in possession of enough facts to ascertain these three things, then the clock will start running.

Exceptions to All the Rules

As per s.28, 28A and 38(2), the courts are able to ignore the above time limitations if the claimant was a minor or lacked mental capacity at the time the action accrued.

As per s.32, if the defendant has deceived the claimant as to the validity of their claim in some way, then the clock will only start running once the deception is discovered (or else ended.)

As per s.33, if the tort is one involving personal injury or death, the court has an ability to overturn any involved time limits if it is equitable to do so. The factors that the court will have regard to are listed under s.33(3). Such exceptions are rarely applied (else the time limits would be undermined).


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