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In conclusion, where a claimant establishes a successful cause of action in tort it is open to the defendant to plead one (or more) of the defences available. We have seen that the burden of establishing liability for the tort is on the claimant whereas the burden of establishing the defence is on the defendant. Where, on the balance of probabilities, a successful defence is established, the defendant’s liability for the damage may be reduced or he may be totally absolved from liability. You should note that not all possible defences to an action in tort are covered in this chapter because some defences are specific to particular torts: for example, the defence of justification in the tort of defamation; self-defence in trespass to person; and statutory authority in the case of nuisance. Here, we are concerned with the defences having particular relevance to claims in negligence. The relevant defences are:
1) contributory negligence;
2) volenti non fit injuria, or consent ; and
3) ex turpi causa non oritur actio, or illegality.
The first of the defences, contributory negligence, operates where the claimant’s own fault has contributed to the damage suffered and the damages payable are reduced by the judge in proportion to the claimant’s degree of fault, as regards the causation of the injury. The Law Reform (Contributory Negligence) Act 1945 governs this defence, which rarely applies to young children. You should not confuse contributory negligence with the process of ‘contribution’ whereby one defendant joins another defendant to an action for which they both bear some responsibility.
The second defence be examined was volenti non fit injuria, or consent, which means that no wrong is done to one who consents. A claimant who voluntarily agrees to undertake a risk of incurring harm is not permitted to sue for the consequent damage of taking that risk. It is important to note that volenti is a complete defence and if it succeeds the claimant gets nothing. For this reason, it rarely applies where an employee brings an action against his employer and is prohibited by statute for the vast majority of road traffic claims.
The third defence was ex turpi causa non oritur action, more commonly known as illegality. This means that no right of action arises from a disgraceful or base cause, and this applies in circumstances where the claimant was participating in an unlawful act. The effect of this defence is to completely absolve the defendant of liability for damage. There has been much uncertainty around the use of defence, and thus it has been considered by the Law Commission and in a number of key cases, such as Grey v Thames Trains.
It is important that you understand these defences as they must be considered in any negligence problem question which you encounter.