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Defences to Tort Claims

Defending a tort claim—general considerationsIn 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:•Limitation—tort claims•Limitation—professional negligence claims—Date of accrual in tort•Limitation—Latent damageContributory negligence as a defence to a claim in tortSection 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...

Did the claimant consent to the risk of injury?

The essence of a defence of volenti non fit injuria (‘to a willing person, no injury is done’) is that the claimant understands the danger of the situation and willingly consents to the risk of injury. In such circumstances, should injury occur, the claimant has no reason for complaint.The defence is often shortened to volenti.If established, volenti is a complete defence. The justification is that it is not possible to apportion consent and say that a claimant agreed to run certain risks but not others. As such, the defence will only be successful in clear cases.The volenti defence will rarely be available in claims for breach of statutory duty.Requirements for bringing the defenceThree factors must be present in order to run the defence:•capacity•knowledge and willingness•agreement (express or implied)CapacityThe claimant must have the capacity to give their consent in the relevant way. Children and those suffering from mental illnesses may be found to lack the appropriate capacity to consent to the risk of injury.Knowledge and willingnessThe courts have held that simple...

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Defence alleging volenti non fit injuria in sporting injury claim

Defence alleging volenti non fit injuria in sporting injury claim [ In the High Court of Justice OR In the COUNTY COURT AT [insert] ] [ [Specify division] ] [ [Specify Specialist court] ] [ [Insert location] District Registry ] Claim No: Between [A B]        Claimant and [X Y]        Defendant ________________________________________________ Defence ________________________________________________ 1 Paragraph numbers in this Defence refer to paragraphs in the Particulars of claim dated [insert date]. 2 Paragraph 1 is admitted. 3 Paragraph 2 is denied. It is denied that the Defendant was negligent as alleged in paragraph 5 of the Particulars of Claim or at all. 4 The accident occurred around 20 yards outside the penalty area in the Defendant’s half of the pitch. The Defendant, who was playing in the position of Centre Back, had jumped for a header in competition with the Claimant. In the process of winning the ball, the Defendant inadvertently struck the Claimant with his elbow and rendered him unconscious. 5 The referee awarded a free...