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DEFENCES AND REMEDIES IN TORT DEFENCES TO AN ACTION IN TORT

In an action for a particular tort the defendant may be able to rely on a defense applicable to that tort, such as justification in an action for defamation or that he took reasonable care if he sued for negligence. But those particular defenses are not available in every tort action. For example, reasonable care is not defenses in a tort of strict liability. There are, however, general defenses which may be pleaded in any action in tort. Of these general defenses the most important is consent. CONSENT 1. Volenti non injuria (no wrong done to a person who consents to it) is maxim which describes consent as a defense in tort (sometimes abbreviated merely to volenti). It must however be true consent, which is more than knowledge of a risk, and also consent is freely given. 2. In some cases the plaintiff expressly consents to what would otherwise be wrong. For example a hospital patient awaiting a surgical operation is asked to give his written consent to the operation, that is to being cut by the surgeons knife etc. but more often the consent is merely the voluntary acceptance of a risk of injury. ICI V Shatwell 1965 Two experienced short firers were working in a quarry. Statutory rules imposed on them (not their employer) a duty to ensure that all persons nearby had taken cover before making a dangerous test. As their electric cable was too short they decided to make the test without taking cover before doing so. There was a premature explosion and both were injured. They sued the employer. Held: (in the House of Lords) they had consented to the risk. The employer was liable since it had not been negligent nor had it committed or permitted a breach of statutory over safety procedures. The injured men were trained for their work and properly left to carry out safety procedures. The injured men were trained for their work and properly left to carry out safety procedures. The injured men were trained for their work and properly left to carry out safety procedures of which they were well aware. (Lower courts, however, had taken the view that there had been negligence of the employer modified as to 50 per cent by contributory negligence of the employees very much a borderline case). 3. Consent in taking normal risk may be implied. A competitor in a boxing contest or a rugby match gives an implied consent to the risks incidental to the sports played fairly in accordance with its rules even if the actual injury is exceptional. Simms v Leigh Rugby Football Club 1969

Northern rugby league rules required that any wall or other obstacle should be at least seven feet from the touchline. S was tacked fairly but broke his leg against a concrete wall 7ft 3ins from the touchline. He sued the home club. Held: the defendants were not at fault since their pitch complied with the rules. S by playing on such a pitch consented to the risk of injury in these circumstances. 4. When contributory negligence is established as a factor in causing injury. The court determines what percentage of responsibility should be allocated to it (eg. 15 per cent for the motor cyclist without a crash helmet and reduces the damages awarded accordingly). If, of course, the plaintiffs negligence is the sole cause of the accident, he recovers nothing. 5. In the special circumstances of the employer/employee relationship, certain principles relating to contributory negligence have been developed by the courts.

Accident
Accident is a defense only if it could not have been foreseen nor avoided by any reasonable care of the defendant. Stanley v Powell 1891 P a member of a shooting party fired at a pheasant. A pellet glanced off a tree and injured a beater (the plaintiff). Held: P was not liable for the reasons given above. Act of God Act of God, which is a foreseeable catastrophe, is a special type of unavoidable accident. This defence is rarely available. STATUTOYRY AUTHORITY If a statute requires that something be done, there is no liability in doing it unless it is done negligently. If statute merely permits an action it must be done in the manner least likely to cause harm and there is liability in tort, for nuisance, if it is done in some other way. ACT OF STATE If a person causes damage or loss in the course of his duties for the State, he may claim Act of State. But it is not a defence in any case where the plaintiff is a British subject o the subject of a friendly foreign power (e.g. the US).

Buron v Denman 1848 D was captain of a British warship who had a general duty to suppress the slave trade. He set fire to a Spanish ship carrying slaves and released them. The Crown later ratified his act. Held: neither D nor the Crown was liable. NECESSITY An act which causes damage may e intentional if this is so, the defence of necessity may be raised provided: a. The act is reasonable such as shooting a dog to prevent it worrying sheep; and either b. The act was done to prevent a greater evil; or c. It was done to defend the realm MISTAKE An intentional act done out of mistake may occasionally be defendable if it was reasonable. Such a case may be where a person makes a citizens arrest in the reasonable and sincere belief that the plaintiff committed a crime. SELF DEFENCE a) Similarly, self defence is a valid defence if the defendant acted to preserve himself, his family or his property, so long as the act was reasonable and in keeping with the nature of the threat. But if a blow is struck in response only to verbal attack, there is no defence. b) Lastly, no claim for damages will succeed if both plaintiff and defendant were engaged in illegal activity. Hence a burglar could not sue his getaway driver for damages when the latter crashed the car: Ashton v Turner 1980. CONTRIBUTORY NEGLIGENCE If the damage suffered as a result of negligence was partly caused by contributory negligence of the plaintiff his claim is proportionately reduced.

DEFENCES TO AN ACTION FOR PRIVATE NUISANCE 1. Prescription The right to commit private nuisance may be acquired by prescription. The defendant must show that the actions causing the nuisance have been carried on for twenty (20) years. The actions must have been carried on as of right: (neither forcibly, nor secretly, nor with permission). The action must have amounted to an actionable nuisance for the full twenty (20) period. 2. Statutory Authority The defendant may plead that an activity which causes interferences is authorized by statute. He must demonstrate that the interference is inevitable and that he has not been negligent. Negligence here means behaviour without reasonable regard and care for the interests of other persons. 3. Consent Consent may be a defense to an action. 4. Act of God and Act of a third party Act of God or act of a third party may constitute a defense. 5. Coming into the nuisance Coming to the nuisance, a claim that the plaintiff acquired land with knowledge of an existing nuisance, is no defense: Struges v Bridgman (1879). It would be unreasonable to except someone not to purchase a property because a neighbour is committing an actionable nuisance. Remedies for nuisance There are three remedies available to a victim of private nuisance. a. An award of damages may be made. This will be calculated on the same basis as an award of damages for other torts. b. The award of an injunction is, as an equitable remedy, discretionary: Miller v Jackson (1977). In spite of this courts will usually grant an injunction where the nuisance is continuing. Principles have been laid down to determine when damages should be awarded instead of an injunction: Shelfer v City of London Electric Lighting Co. (1895). If the injury to the plaintiffs legal rights is small, and is one which is capable of being estimated in money, and is one which can be adequately compensated by a small money payment, and the case is one in which it would be oppressive to the defendant to grant an injunction, then damages will be substituted.

c. The third remedy is abatement. Abatement can be defined as removal of the nuisance by the victim. This is, as might be expected, not a remedy encouraged by the law. Notice must usually be given to the wrongdoer, except where there is an emergency or where the nuisance can be moved without entering the wrongdoers land, for example to remove tree roots and branches: Lemmon v Webb (1895). REMEDIES IN TORT Damages The amount of damages is based on the principle of compensating the plaintiff for his financial loss and not of punishing the defendant for his wrong. But there are several categories of damages related to the circumstances. (a) Ordinary damages are assessed by the court as compensation for losses which cannot be positively proved or ascertained, and depend on the courts view of the nature of the plaintiffs injury. (b) Special damages those which can be positively proved, such as damages to clothing or cars. (c) Exemplary damages or aggravated damages are intended to punish the defendant for his act, and to deter him and others from a similar course of action in the future. These damages are only rarely awarded for torts where the defendant calculated to make more money from the tort than he would have to pay in damages (as is sometimes the situation in newspaper libel cases), where a government official acts oppressively, arbitrarily or unconstitutionally or where statute permits. (d) Nominal damages are given where the plaintiff has suffered injury, but has suffered no real damage (as in trespass to land without damage to that land). (e) Contemptuous damages are awarded where the court, although finding for the plaintiff, has no sympathy for his action. (f) Parasitic damages are awarded for infringement of a right not otherwise protected, such as a husbands loss or consortium due to his wifes injury. INJUNCTION Injunction is an equitable remedy given by the court which requires an individual to refrain from doing a certain act, or orders him to do a certain act. There are two types of injunction.

(a) An interlocutory injunction is awarded before the hearing of an action so to preserve the status quo. The plaintiff enters into an undertaking to pay the defendant for any loss arising out of the granting of the injunction. (b) A perpetual injunction is granted after the full hearing and continues until revoked by the court. Failure to comply with an injunction is a contempt of court, which then empowers the court to fine the person in default or imprison him until his contempt is purged, when he apologizes and promises not to breach the injunction again.

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