Defences and Limitation of Liability Lecture

Just as tort law uses remoteness or lack of duty as mechanisms to control which claims are and are not actionable, defences provide a way in which a defendant can negate liability either by reference to their own positive behaviour or through pointing out the claimant’s own misdeeds. Some of these defences will only reduce the award of damages, and are thus referred to as ‘partial defences’. Others will dispel all liability, and are therefore known as ‘complete defences’.

It should also be noted that even if these defences do not apply, both claimants and defendants can table aggravating and mitigating factors in an effort to convince the courts that a greater or lesser amount of damages should be awarded. It is also worth acknowledging that where a complete defence fails, the courts might still take the defence into account as a mitigating factor. Thus where, for example, a necessity defence fails the courts might still regard the defendant’s behaviour as being well intentioned, and reduce damages accordingly.

Finally, it should be remembered the best defence available will often be an argument that the claimant doesn’t have a case at all (so for negligence claims, that no duty existed etc.)

Contributory Negligence

A contributory negligence defence is quite simply an argument that the claimant, through some action or omission of their own, contributed manifestly to their own injuries, and that this fact should be reflected in the awarded damages. Since it affects the damages, rather than the verdict of the case itself, it is a partial defence.

The effect of a contributory negligence defence is easy to understand. It involves asking to what extent a claimant contributed to their own injuries as a percentage, and then taking that percentage off of his or her damages. Thus if the courts regard a claimant as having made a 40% contribution to their own injuries, the court will reduce their damages by 40%. Because of this mechanism, the defence is not available where the relevant remedy is not damages (because it’s impossible to reduce an injunction by a percentage!).

The authority for the defence and a description of how it works can be found in s.1(1) of the Law Reform (Contributory Negligence) Act 1945, although the defence itself was developed before then.

There are two main elements of a contributory negligence defence. Firstly, the claimant must be at fault (their conduct having fallen short of the expected standard of care). Secondly, once fault has been established, the extent of blame must be apportioned.

Finding Claimant Fault

As per s.4 of the 1945 Act, claimant fault includes negligence, breach of statute or any other form of tortious liability and (perhaps paradoxically) any other act which gives rise to a defence of contributory negligence. This criterion is important, since it means that contributory negligence will only arise where the claimant’s behaviour can be regarded as giving rise to tortious liability.

An example of the negligent fault principle can be seen in Jones v Livox Quarries.

Thus, contributory negligence is not based on being in the wrong place at the wrong time, but rather on whether the claimant had acted reasonably in the circumstances, with ‘reasonable’ defined as taking action to avoid foreseeable harm. It should be noted that reasonable behaviour is not based on acting to prevent any and all foreseeable accidents, but rather just taking precautions to avoid generally foreseeable harm. All that can be asked of claimants is that they take reasonable precautions to self-protect themselves, since the nature and extent of the tort that affects them will be determined by the behaviour of the defendant who has harmed them. In other words, you can wear a seatbelt, but you can’t stop someone from hitting you with their car.

What is reasonable will depend on the context, and a protracted discussion of the reasonable standard of care is discussed in the chapter on breach of duty. There are a few common situations which are worth mentioning, however. Claimants will be expected to wear seatbelts whenever they get into a car, regardless of length or road conditions. This can be seen in Froom v Butcher.

It is perhaps odd that situations in which the entire harm of the accident can be attributed to non-seatbelt wearing only attract a 25% reduction in damages. However, it should not be forgotten that whilst a claimant has a responsibility to wear a seatbelt, they have a greater right to not be hit by a negligent driver. Of course, this only refers to non-seatbelt wearing - it may well be a case that a claimant contributes to an accident in more than one way, and so the contribution will be greater. So a claimant who isn’t wearing a seatbelt and is speeding and on their mobile phone will have their damages slashed beyond 25% for their myriad wrongdoings.

The same principle applies for motorcycle drivers who do not wear helmets, as per O’Connell v Jackson [1971] 3 WLR 463. The claimant was injured whilst riding his motorcycle without a helmet. A negligent driver moved into his lane and struck him. The court used the Highway Code as their benchmark for responsibility, and noted that it told motorcyclists to wear helmets. Since the motorcyclist did not contribute to the accident, and the lack of a helmet only caused some but not all of his injuries, damages were reduced by 15%. This case also demonstrates the utility of codes of conduct and guidelines: it can generally be held that someone undertaking a job or activity has read any relevant guidance or codes of practice that pertain to it (after all, that’s why they exist.) Thus such codes or guidelines can form a useful demonstration of what constitutes reasonable behaviour.

It should be noted however that whilst there are generally accepted situations in which contributory negligence will be found, the precedent set by cases such as Froom and O’Connell (and any other case in which contributory negligence is found) is of a soft, rather than a hard nature. The only set rule is that the courts should consider each instance of contributory negligence on the basis of its own facts and circumstances. This principle can be seen at work in the case of Owens v Brimmell [1977] QB 859. The claimant knowingly got into a car with the defendant, with whom he had been drinking with at a pub. He also failed to wear his seatbelt. The defendant negligently caused an accident in which the claimant was injured. Tasker Watkins J noted (at 867) that a substantive body of case law existed regarding such situations, but ultimately, that: “whether [the law] can be relied on successfully is a question of fact and degree to be determined in the circumstances out of which the issue is said to arise”. Thus, not every situation involving a seatbelt has to be decided according to Froom. Of course, a prudent judge will still attempt to maintain the continuity of the law unless the case at hand can be sufficiently distinguished.

The relevant standard of care can change depending on the characteristics of the claimant. Thus, children will be expected to act less carefully than adults, as in Gough v Thorne [1966] 1 WLR 1387. Three siblings aged seventeen, thirteen and ten were waiting to cross a road. A lorry driver slowed down, and beckoned them to cross. They did so, but then a car overtook the lorry via a narrow gap, and hit the two youngest siblings. At trial, the thirteen year old was held to have contributed a third to her injuries, for not checking the road for any other oncoming traffic. On appeal this decision was struck out on the basis that her behaviour was acceptable for a thirteen year old, although negligent if undertaken by an adult. It should be noted that unless very young, children will rarely be held to be blameless, thus in Morales v Ecclestone [1991] RTR 151 an eleven year old was held 75% responsible for running out into a road without looking and getting hit by a car.

The situation that the claimant is in will also change the relevant standard of care, so rescuers attending to an event will be held to a lesser standard of care and those who act quickly when placed in an emergency situation will not be handled as if they were capable of rational, calculating thought. Thus in Jones v Boyce [1816] 171 ER 540, the defendant negligently drove a horse-drawn coach in which the claimant was a passenger. The claimant thought the coach was about to crash, and so jumped from it to avoid the danger, injuring himself. The coach did not crash. Nevertheless, the claimant was not held to have contributed to his injuries - whilst he had acted unreasonably by normal standards, he had acted reasonably for someone put in a position of perceived danger. However, there is a limit to when ‘emergency’ behaviour will be considered reasonable. Thus in Sayers v Harlow [1958] 1 WLR 623the claimant was negligently locked in a toilet cubicle which had no inside handle. In a desperate attempt to escape the claimant stood on the cubicle’s toilet roll holder which gave way, injuring her. The courts held that her behaviour was unreasonable, and thus applied a 25% reduction to the claimant’s damages.

Apportionment

Once claimant fault has been established the court will seek to ascertain the contribution the claimant has made to their harm, expressed as a proportion, as per s.1 of the 1945 Act.

It should be noted that courts are prevented from making deductions of 100%, following Pitts v Hunt [1991] 1 QB 24. The claimant was injured whilst riding on the back of the defendant’s motorcycle. The defendant was driving negligently, and hit an oncoming car, killing himself and permanently disabling the claimant. A variety of different factors were tabled regarding the claimant’s contributory negligence. Both parties were drunk. The defendant had no motorcycle license or insurance. The defendant was driving dangerously, and the claimant was encouraging him to do so, with both parties shouting and jeering at pedestrians. The court of first instance held that the claimant was 100% liable, but on appeal this was reduced by 50%. The bench noted that the function of contributory negligence was not to defeat a claim, but merely to reflect a claimant’s contribution to that claim. This is a perfectly sensible approach - a defendant who is regarded as 0% to blame for a tort isn’t at fault at all.

Whilst the reduction in damages will be a matter of factual context, there are two general factors that the court will take into account - fault and causation. Fault refers to the claimant’s lack of care - so not wearing a seatbelt demonstrates a lack of care. Consider two drivers who are hit from behind whilst driving, both of who suffer the exact same damage. The first is not wearing a seatbelt (a moderately careless act), whilst the second has failed to repair a broken brake light (a minor careless act). The courts will regard the first driver more harshly, because they have been more careless, even if the resulting damage is the same.

Causation refers to the extent to which the claimant’s lack of care affected the damage they sustained. Consider two drivers, neither of whom are wearing seatbelts. The first is involved in an accident which is made a lot worse by the lack of a seatbelt. The second is involved in an accident the result of which is only made slightly worse by the lack of seatbelt. The courts will regard the first driver as more culpable (this is essentially the Froom decision).

These two factors are combined, so a very foolish act or omission which makes an accident massively worse will result in a far higher reduction in damages then a minor omission which only makes an accident a little worse.

Consent

Consent refers to situations in which the claimant can be regarded as having consented to a risk which then manifests itself. This is sometimes referred to via the Latin maxim volenti non fit injuria (to a volunteer, injury is not done). Consent is a complete defence - if consent is found, a claim will be defeated.

Consent defences can be broken down into two categories. In the first are situations of negligence where a claimant agrees that the defendant will not be held liable for any injuries they might incur whilst undertaking a particular activity. So an individual might sign a waiver in which they consent to any risk of injury that might occur when they bungee jump. In the second are where the claimant effectively tells a defendant to do something. So an individual who tells another to burn down his house cannot sue that person for damaging his property.

Consent is made up of three factors. The claimant must have a knowledge of the nature and extent of the risk they consented to, the claimant’s consent must be voluntary, and they must be shown to have agreed to the risk.

Knowledge of Risk

Before consent can be effective, a claimant must know what it is that they are consenting to. This is subjective, so the courts will ask what a claimant knew at the time consent occurred. This can be seen in Morris v Murray.

It can thus be seen that whilst knowledge is subjective, there is no need for an explicit expression on the part of the claimant that they are aware of the risk they are running. Instead, the court will infer the likely knowledge of the claimant (although they will of course pay attention to any explicit evidence that the claimant knew of a particular risk).

Since this requirement is subjective, the defence will fail if the defendant was not aware of a risk, even if they should have been. Thus in Smith v Austin Lifts Ltd [1959] 2 Lloyd's Rep 583 the claimant was injured by a risk that he reasonably should have known about. Nonetheless, a consent defence failed, because the claimant wasn’t aware of the extent of the risk he was exposing himself to.

Voluntariness

Key to the employment of a consent defence is that the claimant must have been given true freedom of choice before they can be said to have consented. This can be seen in Bowater v Rowley Regis Corp.

This case also demonstrates a couple of other points. Firstly, employees can rarely be described as consenting to risk, where that risk comes about as part of their employment. Since the actions of employees are usually dictated by a manager, it is the manager who is effectively making the choices in such scenarios. This can be seen in Smith v Baker & Sons [1891] AC 325. The claimant was injured on a building site when a stone fell from a crane. Whilst he was aware of this risk, and continued to work on the site, this was not effective consent - he had no control over the risk, and thus no choice over whether he was exposed to it or not (outside of his general consent to employment on the site). This principle also fits into wider legal views of the employer-employee relationship, which tend to emphasise the duty of employers to avoid harm and their ability to bear losses via organisational coffers or insurance policies. There exists an exception to this principle, however, where an employee is paid ‘danger money’ to undertake a particularly risky activity - since such payments are predicated on an employee consenting to undertake a particularly risky activity, this can be considered effective consent (unless of course, the choice was between taking on the extra risk and becoming unemployed).

Secondly, freedom of choice does not mean merely ‘it was possible to avoid the risk’. So in Bowater the employee had the freedom to refuse the order to use the dangerous horse and potentially run the risk of dismissal or disciplinary action. Still, it would be disingenuous to assert that the claimant had a free choice between using the horse and not. To put it another way, a choice between fighting a bear or jumping off a cliff is not a freely made choice.

Agreement

Agreement can take one of two forms - express and implied.

Express agreements include explicit forms of consent such as the eponymous consent form, or else an explicit agreement between claimant and defendant. Since written consent is effectively a form of contract, it is subject to relevant statutes, such as the Unfair Contract Terms Act 1977. Most notable is s.2(1) which notes that it is impossible, in law, to exclude or restrict liability for negligently caused personal injury or death. This provision does not cover property damage - that can be excluded, and similarly it is perfectly legitimate to exclude non-negligently caused personal injury or death. So a paintballing accident, for example, which is not caused by negligence but results in the loss of an eye, can be excluded via the proper contract terminology. Express agreements are, overall, much more simple than implied agreements, since they will usually make it clear what the consent pertains to.

Implied consent includes situations in which a claimant can reasonably be held to have consented to a particular risk, but do not make this consent explicitly known (after all, the phrase ‘I consent to that risk’ is hardly a common phrase in everyday life). However, the courts are relatively reluctant to imply consent unless it is very clearly (but not explicitly) in place, since this is effectively putting words into the claimant’s mouth. The situations in which it tends to be found are those in which a claimant is aware of an obvious danger but presses on regardless. This can be seen in Imperial Chemical Industries Ltd v Shatwell (also discussed in employers’ statutory breach).

However, unless a danger is staggeringly clear (thus in Imperial Chemical Industries, there were explicit warnings in place) the courts will not imply consent. This can be seen in a series of cases where passengers have knowingly ridden in the vehicles of drunk drivers. Thus in Dann v Hamilton [1939] 1 KB 509, the defendant went drinking in a variety of different pubs with the claimant and a third party. The trio got into the defendant’s car (defendant driving), but after a short while the third party declared the defendant to be drunk, and got out. The claimant stated that she would accept the risk of an accident occurring. A negligently caused accident did occur, injuring the claimant. Nonetheless, a consent defence was not accepted - the claimant was not held to have consented to absolve the defendant from any acts of negligence. The same principle can be seen in Owens v Brimmell(discussed in contributory negligence.) Again, although the claimant passenger knew that the defendant driver was drunk, a consent offence did not apply.

These cases can be contrasted with Morris v Murray (drunken pilot), in which the danger was held to be so incredibly obvious and extreme that consent could succeed. Thus, unless a danger is overwhelmingly apparent and grievous, consent will usually not be implied by the courts.

It should be noted that statute now prohibits a consent defence being used against passengers in cars, as long as the situation is one in which insurance is required (so certain private property activities aren’t covered etc.), as per s.149 of The Road Traffic Act 1988.

Authorisation

As noted in previous chapters, statutory authorisation can render ordinarily tortious activities legal. Examples include police searches under the Police and Criminal Evidence Act 1984, mental health detentions under the Mental Health Act 1983, and noisy aircraft flight under the Civil Aviation Act 1982. There are dozens and dozens of such acts and so it is impossible to cover them all. The key thing to note that certain instances of negligence are held to go beyond the authorisation of statute, and thus can still give rise to tort. However, this is a matter of public/administrative law, rather than tort.

Necessity

The complete defence of necessity applies in cases of trespass (personal, property or goods), and has been discussed as such in the relevant chapter. Whilst the defence is technically open for use in other areas of tort, it tends not to appear (for example, it is difficult to argue that a defendant has been negligently careless out of necessity).

Illegality

Illegality, sometimes referred to as ‘ex turpi causa’ (from a foul cause), is a complete defence essentially asserting that the claimant’s harm occurred whilst in pursuit of a criminal endeavour. This should not be regarded as a rule that prevents all claims from succeeding - if this were the case then every road user not wearing a seatbelt or speeding would have their claims in tort barred. Instead, the defence tends to only by applied by the courts when it is just to do so, and as a prerequisite the harm must be closely linked to the criminal act that the claimant is engaged in. See Cummings v Granger [1977] QB 397. The claimant was a burglar who was in the process of robbing a scrap yard. Unbeknownst to the claimant, an untrained Alsatian was loose in the yard to deter intruders. The dog bit the burglar, who then sued the defendant. The claim was denied by the courts on the basis that the claimant was in the process of a criminal enterprise, and his injury could be connected to it.

The same principle can be seen at work in Vellino v Chief Constable of Greater Manchester Police.

It is notable that Stuart-Smith notes that the defence is rooted in public policy - this essentially means it is a defence which is available to the judiciary to use, rather than one which the defendant can actively rely upon. Whilst this provides the judiciary with a lot of discretion, it also allows the defence to be used even when the defendant has themselves acted poorly. In essence, it allows the court to throw out a claim because it would be unjust to allow the claimant to use tort law in such a manner (as in Vellino).

Limitation of Liability

The law dictates that there is a limit on how much time can pass after a claim arises before it becomes inactionable. This is generally ascribed to two factors. Firstly, the more time that passes after a claim arises, the harder it is to deal with them. Injuries heal, damage is repaired, and records of events are destroyed (particularly in a post-Data Protection Act world) or forgotten by witnesses. This makes such claims onerous and expensive to deal with inside of the legal system. Secondly, defendants have a right to eventually consider themselves finished with a particular dispute or conflict, and it is just to expect claimants to bring a case in a timely manner (and to prevent them from holding the potential claim over the heads of defendants, or using it as a tool to economically harm someone when they are most vulnerable).

The primary body of law on this matter is found within the Limitation Act 1980, the most important part of which is s.2, dictating that actions founded on tort expire after six years have passed from the date on which the cause of action accrued. In general, the date of accrual is the date the damage occurs, but there are important exceptions to this rule.

As per s.4A, claims for defamation are subject to a time limit of one year.

Non-Personal Injury Damage Caused by Negligence

In the case of non-personal injury damage, the six year limit will start when the damage occurs, as long as the damage is readily apparent. So if a car crashes into a house and smashes down a wall, the action will accrue from the point the car crashes into the house. As per s.14A(4)(b), if damage is latent (i.e. not readily apparent) then the same six year timer will start running from the point of damage, but a second three year timer will run from the point at which damage becomes reasonably apparent. So if a builder negligently builds a chimney with a defect, which only becomes apparent ten years later, the claimant will have two windows to lodge a claim - the first six years after the chimney is built (although this naturally won’t happen because the defect isn’t apparent), and then for three years after the defect becomes reasonably apparent. There is, however, a hard limit to these time limits - no action can be brought after 15 years have passed since the original damage (so in the case of the chimney, 15 years after it has been built).

Knowledge of damage is objective - so the courts will ask at what point the damage would have become apparent to the reasonable person, based on the facts available, as per s.14(A)(7)

Personal Injury Damage

As per s.11 and s.14, where the damage is personal injury, the time limit will be only three years running from the point the damage occurred, or if later, from when the claimant became reasonably aware of the information needed to lodge a claim. This information is made up of three things:  knowledge of injury; knowledge that the injury was caused by negligence, nuisance or breach of duty; and knowledge of the defendant’s identity. Again, this is based on a reasonable claimant, so if and individual is in possession of enough facts to ascertain these three things, then the clock will start running.

Exceptions to All the Rules

As per s.28, 28A and 38(2), the court are able to ignore the above time limitations if the claimant was a minor or lacked mental capacity at the time the action accrued. For people in such situations, the clock will only start running when the person becomes an adult, or mental capacity is achieved, or in either case if the claimant dies (this might be relevant for the claimant’s estate).

As per s.32, if the defendant has deceived the claimant as to the validity of their claim in some way, then the clock will only start running once the deception is discovered (or else ended).

As per s.33, if the tort is one involving personal injury or death, the court has an ability to overturn any involved time limits if it is equitable to do so. The factors that the court will have regard to are listed under s.33(3). Such exceptions are rarely applied (else the time limits would be undermined).

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