In my last blog post, we looked at some of the defences that can be used against a claim under tort law. This time, we will be continuing with this topic, considering some other defences that can be used and what the defendant will need to show for these to be accepted. However, we will start by first looking at what the general tests are to establish a claim in tort law, then move on to consider what the defences are.
Duty of Care
For there to be any claim under tort law, a duty of care must first be established from the defendant to the claimant. If there is no duty of care, the defendant cannot be found liable. The current test for finding a duty of care is the Caparo test.
The first part of the Caparo test looks at whether the harm was reasonably foreseeable. Next, the court asks whether there was a relationship of proximity between the two parties, either in relationship, time and space, or both. Finally, is it fair, just and reasonable to impose a duty of care? This allows the court some discretion over what should and shouldn’t become law.
As well as using Caparo to test for a duty of care in areas of existing law, courts can also use an incremental approach for new areas, taking into account similarities to existing law. This is to avoid unnecessary distinctions and keep the law coherent.
Causation
For a claim to succeed, the claimant must also prove factual causation i.e., that the defendant actually caused the harm. This is proved using the “but for” test. This asks whether the harm would have occurred but for the defendant’s action. If it would have happened anyway, the chain of causation is broken, and the defendant will not be liable.
There must also be legal causation, which asks whether the loss was a foreseeable consequence of the defendant’s act. Damage must not be too remote and should be a direct consequence of the negligence. If not, there will not be causation and so the defendant will not be liable. We will now consider some things that can break or alter the chain of causation, which can be used as a defence.
Contributory Negligence
Contributory negligence is where the claimant is, at least to some degree, responsible for the losses they have suffered. The Law Reform (Contributory Negligence) Act 1945 sets out the rules for this. In essence, the defendant must show that the claimant’s action, or inaction, contributed to the losses suffered.
The claimant must have behaved in a way that was unreasonable, which is an objective test based on what a reasonable person would do in the claimant’s situation. For example, a claimant might choose to cross a road at a busy junction and get hit by a car, when there is a pedestrian crossing nearby. A reasonable person would have used the crossing, so the claimant would have contributed to their own loss.
Contributory negligence is only a partial defence. The effect is to reduce the claimant’s damages by the amount they have contributed to the loss. Therefore, if they are found to be 20% responsible for their loss, then their damages will be reduced by 20%.
Consent
The claimant may have consented to take the risk that led to the loss. This consent can be express or implied and will mean that the claimant understood the risk involved and agreed to it anyway. The defendant must be able to consent, which will likely mean that they have to be above a certain age and have the mental capacity to give informed consent.
An example of this would be the claimant signing a document saying that they understand the risks before using a trampoline park. The park would then not be responsible for injuries that they received while using the trampolines, provided it was otherwise safe. However, if there was a broken trampoline that the claimant injured themselves on, the park would once again be liable as the claimant would have consented on the grounds that the park kept the equipment in good condition.
Consent is a full defence to the tort committed and so the claimant will not be found liable. This also means that they don’t have to pay any damages or offer any other remedy.
Illegal Activity
In some cases, the claimant will be found to have been partly or wholly responsible for their own losses due to their illegal activity. This is the principle of ex turpi causa non oritur actio, meaning that from a dishonourable cause an action does not arise. Essentially, if the claimant was breaking the law and this was a contributing factor to the loss they suffered, the defendant may not be liable or will only be liable for a percentage of the loss, similar to contributory negligence.
Wrapping Up
I hope that this helps you when you are considering tort problem scenarios or writing about the defences available in tort law. In my next blog post, we will be considering the separation of the three branches of power, so come back in two weeks for that!
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