Defenses in Tort Law

Defenses in Tort Law

Defenses provide lawful justification for acts that would otherwise be unlawful.

  • The defenses for intentional interference and negligence are different but related.
  • The purpose of defenses is to balance individual autonomy with societal and legal interests.
  • In tort law, a successful defense negates liability.

Content Overview

  • Consent
  • Necessity
  • Self-Defense
  • Negligence
    • Limitations Act 1980
    • Contributory Negligence
    • Volenti Non Fit Injuria
    • Ex Turpi Causa

Main Defenses in Trespass

  • Consent: Voluntary agreement to the interference.
  • Necessity: The action was justified to prevent greater harm.
  • Self-Defense: Force used to protect against imminent harm.
  • Must be 'real' (e.g., not induced by fraud or misrepresentation).
  • Can be implied (e.g., participation in sports).
  • Must be given by someone with capacity (e.g., limitations of valid consent for children and those that lack capacity).

Implied Consent

  • Lord Goff in Collins v Wilcock [1984]: People are taken to implicitly consent to contact which is a reasonable, generally accepted, and expected part of normal life.
  • Lord Clarke in Gravil v Carroll [2008] EWCA Civ 689: Players can consent to reasonable injury and the risk of foul play which might cause injury [26], but they cannot tolerate physical contact which occurs outside the scope of the game or after the final whistle has blown [23].

Consent in Medical Treatment

  • General Principle: Any medical procedure without valid consent amounts to battery.
  • If a patient is informed in broad terms of the nature of the procedure, this amounts to ‘real consent.’ Failure to disclose sufficiently the risks inherent in medical treatment may be taken in negligence.
  • Chatterton v Gerson [1981]:
    • 'Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits [a battery].’ as per Cardozo J.
    • Scholendorff v Society New York Hospital (1914)

Patient Autonomy and Bodily Integrity

  • Affirms that a competent adult has the right to choose whether to consent to, refuse, or select among medical treatments, a right not restricted to decisions deemed sensible by others
    • Re T (Adult: Refusal of Treatment) [1993]
  • A competent adult can refuse treatment, even if it's in their best interests or needed to save their life
    • Re MB [1997]
  • Where a competent patient makes it clear that he does not wish to receive treatment which is, objectively, in his best interests, it is unlawful for doctors to administer that treatment. Personal autonomy or the right to self-determination prevails.
    • R v GMC [2005]

Capacity and Consent

  • When potential defendants do not or have limited capacity to consent.
  • A person is assumed to have capacity unless proven otherwise
    • Re KB (Adult) (Mental Patient: Medical Treatment) (1994)
  • Illustrates that necessity can be a defense in cases where an adult patient lacks the capacity to consent to medical treatment
    • MCA 2005 - Re F
  • competent adult has the right to refuse medical treatment, even if that refusal could lead to their death
    • Re F (Mental Patient: Sterilisation) [1990]
    • Airedale NHS Trust v Bland [1993]

Limits and Special Considerations: Can children provide valid consent?

  • Family Law Reform Act 1969
  • Gillick v West Norfolk AHA [1986]
  • In re A (Children) (Conjoined Twins: Surgical Separation) [2001]

Necessity

  • There must be an urgent need to act.

  • It must be impractical to obtain consent.

  • The action must be proportionate to the harm avoided.

  • The Mental Capacity Act 2005

    • Section 5: Provides a defense to a person who does an act in connection with the care or treatment of another if, before doing the act, they take reasonable steps to establish whether the person lacks capacity.

  • Leigh v Gladstone (1909)

  • Re F (Mental Patient: Sterilisation) [1990]

Emergencies

  • In Re F, Lord Goff said:
    • 'To fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person’.
    • ‘Officious’ intervention would not, therefore, be protected, but action taken by rescuers or carers in an emergency would be.
    • Example: Where, following a railway accident, passengers are trapped in the wreckage,’ it is this principle which may render lawful the actions of other citizens, railway staff, passengers, or outsiders, who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is unconscious’.

Self-Defense

  • There must be an urgent need to act
  • It must be impractical to obtain consent
  • The action must be proportionate to the harm avoided
  • Provocation is not a valid defense, and the retaliation must be proportionate to the initial act
    • Lane v Holloway [1968]
  • The defendant must prove that their belief that they were under threat of imminent attack was not only honestly held but also reasonable
    • Ashley v Chief Constable of Sussex Police [2008]
  • The force used in self-defense must be reasonable and proportionate to the threat
    • Cockroft v Smith (1705)
  • The Court of Appeal held that the law did not require the defendant to measure the violence to be deployed with mathematical precision
    • Cross v Kirkby [2000]

Defenses to Negligence

Negligence in England and Wales is a tort where a defendant is liable if they owed the claimant a duty of care, breached that duty, and caused foreseeable harm.

Negligence Checklist

  1. Duty of Care: Legal obligation to avoid foreseeable harm.
  2. Standard of Care: Expected level of caution and competence.
  3. Breach of Duty: Failure to meet the required standard.
  4. Causation: Link between breach and harm suffered.
  5. Remoteness: Limitation on liability for unforeseeable harm.
  6. Defenses: Legal justifications reducing or negating liability.

Key Defenses

  1. Limitations Act 1980: Statutory time limits for bringing legal claims.
  2. Contributory Negligence: Partial defense; claimant’s fault reduces recoverable damages.
  3. Volenti Non Fit Injuria (Consent): Complete defense; claimant voluntarily assumed known risk.
  4. Ex Turpi Causa Non Oritur Actio (Illegality): Complete defense; claim barred due to illegal conduct.

Limitations Act 1980

  • Accrual of the Cause of Action: The limitation period usually begins when the claimant's cause of action accrued.
  • Discoverability: It addresses situations where a claimant is unaware that they have a cause of action.
  • Fraud, Concealment, or Mistake: The limitation period does not run when there has been fraud, concealment, or mistake.
  • s.33: The court has a wider power to disapply the time-limits on actions for personal injury and death.

Limitation Periods (as amended by the Latent Damage Act 1986 and by the Consumer Protection Act 1987)

  • Personal Injury: Three years from the date of injury or date of knowledge.
  • Defective Goods: Three years, with a ten-year long-stop.
  • Other Claims: Six years from the date of damage.
  • Children: Time commences when the claimant turns 18.

Contributory Negligence

  • Law Reform (Contributory Negligence) Act 1945:
    • Section 1(1): Specifies that a claim will not be defeated if the person suffering the damage is partly at fault, but the damages will be reduced to a just and equitable extent based on the claimant’s share of responsibility.
    • Section 4: Defines