Defences and Remedies in Tort

This final lesson on the AQA A-Level Law tort module examines the defences available to defendants in tort and the remedies available to successful claimants. Understanding defences and remedies is essential for both problem and essay questions — a complete analysis of any tort scenario must consider whether the defendant has a defence and what remedies the claimant may obtain. This lesson covers contributory negligence, volenti non fit injuria (consent), illegality (ex turpi causa), and the main remedies of damages and injunctions.

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Part 1: Defences

1. Contributory Negligence

Contributory negligence is a partial defence — it does not defeat the claim entirely but reduces the damages awarded to the claimant. It applies where the claimant's own negligence contributed to their loss or injury.

The statutory basis is the Law Reform (Contributory Negligence) Act 1945, section 1(1):

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person... the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

This means:

• The claim succeeds, but damages are reduced by the percentage of the claimant's own fault
• The court assesses both the causative potency (how much the claimant's conduct contributed to the damage) and the blameworthiness (how far the claimant fell below the standard of a reasonable person)
• The reduction can be any percentage — from a small reduction (e.g., 10%) to a very large reduction (e.g., 75% or more)

Key Cases on Contributory Negligence

Sayers v Harlow Urban District Council [1958]

Aspect	Detail
Facts	Mrs Sayers was trapped in a public lavatory because the lock was defective. She tried to climb out by standing on a toilet roll holder, which rotated, causing her to fall and injure herself.
Decision	The council was liable for the defective lock, but Mrs Sayers' damages were reduced by 25% for contributory negligence because her attempt to climb out was partly responsible for her injuries.
Principle	Where the claimant's own unreasonable conduct contributes to the injury, damages are reduced proportionally.

Froom v Butcher [1976] — The claimant was injured in a car accident caused by the defendant's negligence. The claimant was not wearing a seat belt. Lord Denning MR held that damages should be reduced:

• By 25% if wearing a seat belt would have prevented the injuries entirely
• By 15% if wearing a seat belt would have reduced the severity of the injuries
• By 0% if wearing a seat belt would have made no difference

Jayes v IMI (Kynoch) Ltd [1985] — A factory worker who failed to use safety guards on machinery had his damages reduced by 100% (effectively barring the claim) because his contributory negligence was so extreme. However, 100% reductions are extremely rare and controversial.

Contributory Negligence and Children

Children are judged by the standard of a reasonable child of the same age. A young child cannot be expected to show the same level of care as an adult.

Gough v Thorne [1966] — A 13-year-old girl stepped into the road after a lorry driver beckoned her across. She was hit by a car that overtook the lorry. Lord Denning held that there was no contributory negligence — a child of 13 could not be expected to exercise the same judgment as an adult in traffic.

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2. Volenti Non Fit Injuria (Consent)

Volenti non fit injuria ("to a willing person, no injury is done") is a complete defence — if successful, the claimant's claim is entirely defeated and they receive no damages at all.

The defence applies where the claimant freely and voluntarily consented to the risk of injury. The defendant must prove:

1. The claimant had knowledge of the nature and extent of the risk
2. The claimant freely and voluntarily agreed to accept the risk (not merely knowledge of the risk, but positive consent to it)

flowchart TD
    A["Does the defence of<br/>VOLENTI apply?"] --> B{"Did C have KNOWLEDGE<br/>of the risk?"}
    B -- No --> Z["Volenti FAILS<br/>— not a defence"]
    B -- Yes --> C{"Did C FREELY and<br/>VOLUNTARILY agree<br/>to accept the risk?"}
    C -- No --> Z
    C -- Yes --> D["Volenti SUCCEEDS<br/>— complete defence<br/>— no damages"]

    style A fill:#1a5276,color:#fff
    style D fill:#27ae60,color:#fff
    style Z fill:#c0392b,color:#fff

Key Cases on Volenti

ICI Ltd v Shatwell [1965]

Aspect	Detail
Facts	Two brothers, both experienced shotfirers, deliberately ignored safety regulations and tested detonators without taking proper precautions. An explosion occurred, and both were injured. One brother sued his employer (ICI) on the basis of vicarious liability for the other brother's negligence.
Decision	The House of Lords held that the defence of volenti succeeded. Both brothers had full knowledge of the risk and freely chose to ignore the safety rules. The claimant had consented to the risk.
Principle	Where the claimant freely and voluntarily accepts a known risk, volenti is a complete defence.

Smith v Baker & Sons [1891]

Aspect	Detail
Facts	Mr Smith worked in a quarry. He was aware that stones were swung over his head by a crane during his work. A stone fell and injured him. The employer argued volenti.
Decision	The House of Lords rejected the defence. Mere knowledge of the risk is not sufficient — the claimant must have freely and voluntarily agreed to accept the risk. Mr Smith had no real choice — he had to work near the crane to do his job. His continued working was not voluntary consent.
Principle	Knowledge of the risk ≠ consent to the risk. The claimant must have a genuine choice.

Morris v Murray [1991] — The claimant accepted a lift in a private plane with a pilot who was extremely drunk. The plane crashed. The Court of Appeal held that volenti succeeded — the claimant knew the pilot was drunk, the danger was obvious, and the claimant freely chose to get on the plane.

Volenti and Road Traffic

Section 149 of the Road Traffic Act 1988 provides that volenti cannot be raised as a defence by a driver against a passenger in a vehicle that is required to be insured. This reflects the policy that road accident victims should be protected by the compulsory insurance system.

Therefore, even if a passenger knowingly gets into a car with a drunk driver, the driver cannot rely on volenti as a defence. However, the passenger's damages may be reduced for contributory negligence.

Volenti in Sport

Participants in sport are taken to consent to the ordinary risks of the game — a rugby player consents to being tackled, a boxer consents to being punched. However, there is no consent to risks outside the normal rules of the sport.

Smoldon v Whitworth [1997] — A rugby player was injured when a scrum collapsed due to the referee's failure to enforce the laws of the game. The referee was liable — the player had not consented to the risk of improperly supervised scrums.

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3. Illegality (Ex Turpi Causa Non Oritur Actio)

The defence of illegality (or ex turpi causa) provides that a claimant cannot base a claim on their own illegal or immoral conduct. If the claimant was engaged in criminal activity at the time of the injury, the court may refuse to allow the claim.