Defences to Tort Claims
Produced in partnership with Aileen McErlean of Hardwicke Chambers
Defences to Tort Claims

The following Dispute Resolution practice note Produced in partnership with Aileen McErlean of Hardwicke Chambers provides comprehensive and up to date legal information covering:

  • Defences to Tort Claims
  • Defending a tort claim—general considerations
  • Contributory negligence as a defence to a claim in tort
  • Consent or volenti non fit injuria as a defence to a claim in tort
  • Excluding or limiting liability in tort—UCTA etc
  • Guidelines on reasonableness are provided in UCTA 1977, s 11
  • Claimant wrongdoing preventing recovery in tort—the ex turpi causa principle
  • Necessity and self-defence as lawful justification to a claim in tort

Defending a tort claim—general considerations

In reality, many claims are ‘defended’ on the basis that the defendant either did not owe the claimant a duty, or there was no breach of duty or there was a break in the chain of causation.

In each of those cases, the claimant has failed to establish that the defendant is prima facie liable.

This Practice Note considers the defences, which may exculpate a defendant from liability where liability has prima facie been established.

For guidance on limitation defences in tort claims, see the Practice Notes:

  1. Limitation—tort claims

  2. Limitation—professional negligence claims—Date of accrual in tort

  3. Limitation—Latent damage

Contributory negligence as a defence to a claim in tort

Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 (LR(CN)A 1945) provides that where a claimant suffers damage partly as result of their own fault and partly as a result of the fault of the defendant, the court shall reduce the claimant’s damages to such an extent as it thinks just and equitable. Where the fault of both the claimant and the defendant contributed to the damage, the court must apportion the damage between the parties.

Although most often invoked in negligence claims, contributory negligence is also available as a defence in claims for:

  1. breach of statutory duty (Caswell v Powell Duffryn)

  2. nuisance on a highway (Trevitt v Lee). It has been assumed to be a defence

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