Defences in tort

What you'll learn

• How a defendant uses a defence after the claimant has shown the tort.
• How contributory negligence reduces damages under s1(1) Law Reform (Contributory Negligence) Act 1945.
• How volenti non fit injuria (“no injury is done to a willing person”) can completely defeat a claim.
• Which defences are available — and not available — in private nuisance and Rylands v Fletcher claims.

The starting point: what is a defence?

In tort, the claimant is the person bringing the claim, and the defendant is the person being sued. Usually, the claimant must first prove the elements of the tort: for example, duty, breach, causation and damage in negligence.

A defence is different from simply saying, “the claimant has not proved the tort.” A defence usually says: “Even if the tort is made out, the defendant should not pay all — or any — of the damages.”

Some defences are complete: the claimant gets nothing. Others are partial: the claimant wins, but damages are reduced.

Here is the big picture before we look at each defence in detail.

Contributory negligence

Contributory negligence is a partial defence. It applies where the claimant’s own lack of reasonable care contributed to the damage they suffered.

The key statute is s1(1) Law Reform (Contributory Negligence) Act 1945. It allows the court to reduce damages to an amount it thinks is “just and equitable”, having regard to the claimant’s share in responsibility.

How it operates

The defendant must show:

• the claimant failed to take reasonable care for their own safety or property;
• that failure contributed to the damage, not just to the situation generally;
• the court should reduce damages by a fair percentage.

Useful authorities:

• Jones v Livox Quarries (1952): a worker rode on the tow-bar of a vehicle and was injured in a collision; contributory negligence requires the claimant’s fault to contribute to the damage.
• Froom v Butcher (1976): a car passenger failed to wear a seatbelt; damages may be reduced where a safety precaution would have prevented or reduced injury.
• Sayers v Harlow UDC (1958): a woman trapped in a public toilet climbed out and fell; the council was liable, but damages were reduced because her escape attempt was partly careless.

Volenti non fit injuria

Volenti non fit injuria means “no injury is done to a willing person.” It is a complete defence: if it succeeds, the claimant receives no damages.

How it operates

The defendant must prove both:

• knowledge of the nature and extent of the risk; and
• free and voluntary acceptance of that risk.

This is a high test. Mere awareness of danger is not enough.

Useful authorities:

• Smith v Baker (1891): a quarry worker knew stones might fall from a crane but continued working; knowledge of risk did not equal consent, especially in an employment context.
• Morris v Murray (1991): the claimant went flying with a visibly drunk pilot and was injured in a crash; volenti succeeded because he knowingly and freely accepted an obvious extreme risk.
• Haynes v Harwood (1935): a police officer was injured stopping runaway horses; rescuers are not usually treated as consenting to injury.

Defences in private nuisance

Private nuisance is an unlawful, indirect interference with a claimant’s use or enjoyment of land. Typical examples include noise, smells, vibrations or escaping substances.

Defences available

The main available defences are:

• Prescription: the defendant has carried on the nuisance openly and continuously “as of right” for at least 20 years after it became actionable. Sturges v Bridgman (1879) involved noisy confectionery equipment near a doctor’s consulting room; the defence failed because the nuisance had not been actionable for 20 years against that use of the land.
• Statutory authority: Parliament has authorised the activity, and the nuisance is the inevitable result of carrying it out properly. Allen v Gulf Oil Refining (1981) involved an oil refinery authorised by statute; statutory authority defeated the nuisance claim.
• Consent: the claimant genuinely agreed to the interference, for example through a legal right or permission. This is not the same as merely moving near the nuisance.
• Contributory negligence: damages may be reduced if the claimant’s own fault contributes to the loss.

Defences not available

Some arguments sound tempting but are not true defences:

• Coming to the nuisance is not a defence. Sturges v Bridgman (1879) also shows that a claimant is not barred just because they moved to the area after the defendant’s activity began.
• Public benefit is not, by itself, a defence. Miller v Jackson (1977) involved cricket balls landing on neighbouring property; the public value of cricket affected the remedy, but did not automatically defeat liability.
• Planning permission is not the same as statutory authority. Wheeler v JJ Saunders Ltd (1996) shows that planning permission for pig units did not automatically authorise a private nuisance.

Defences in Rylands v Fletcher

Rylands v Fletcher (1868) creates liability where the defendant brings something dangerous onto land, makes a non-natural use of the land, and it escapes causing foreseeable damage. In Rylands v Fletcher (1868) itself, water escaped from a reservoir into the claimant’s mine; the principle is strict liability for dangerous escapes from land.

Modern cases narrow the tort:

• Cambridge Water v Eastern Counties Leather (1994): chemical seepage into groundwater was not foreseeable at the time; foreseeable damage is required.
• Transco v Stockport MBC (2003): ordinary domestic water pipes were not a non-natural use; the tort is limited to exceptional or extraordinary uses of land.

Defences available

The main defences are:

• Act of God: an extraordinary natural event no human foresight could reasonably anticipate. Nichols v Marsland (1876) involved exceptional rainfall bursting artificial lakes; the defence succeeded.
• Act or default of the claimant: the claimant’s own actions cause the escape or damage. Ponting v Noakes (1894) involved a horse eating poisonous leaves by reaching over a fence; the defendant was not liable.
• Act of a stranger: an unforeseeable act of a third party outside the defendant’s control. Rickards v Lothian (1913) involved an unknown person blocking a sink and causing flooding; the defence succeeded.
• Consent or common benefit: the dangerous thing is kept with the claimant’s consent or for mutual benefit. Peters v Prince of Wales Theatre (1943) involved a sprinkler system for common benefit; no liability without negligence.
• Statutory authority: the activity is authorised or required by statute. Green v Chelsea Waterworks (1894) involved a burst water main maintained under statutory authority; no liability without negligence.
• Contributory negligence: damages may be reduced if the claimant’s own fault contributed to the loss.

AO3 evaluation: are these defences fair?

These defences show tort law balancing competing interests.

Advantages: contributory negligence is flexible because it shares loss fairly instead of using an all-or-nothing rule. Volenti respects personal autonomy where someone truly accepts a risk. In nuisance and Rylands v Fletcher, defences like statutory authority and act of God stop defendants becoming insurers against every loss.

Disadvantages: contributory negligence percentages can feel uncertain. Volenti is harsh because it is a complete defence, so courts apply it narrowly. Statutory authority can seem unfair to individual claimants who suffer loss for the public benefit.

Balancing interests: tort law aims to compensate claimants, deter unreasonable behaviour and distribute losses fairly. Contributory negligence often supports those aims well. Volenti is more controversial because it can defeat compensation entirely. In land-based torts, the law tries to balance private property rights against socially useful activities.