Principles of Tort Law

INTRODUCTION

The defences available in negligence comprise the following: (1) contributory negligence, i.e., that C carelessly contributed to his own injury; (2) volenti, i.e., that C fully and freely assumed the risk of injury created by D's breach; (3) illegality, i.e., that C was engaged in an illegal purpose when harmed by D; (4) exclusion clauses, i.e., that D can take advantage of a limitation of liability clause in his agreement/contract with C; (5) therapeutic privilege, i.e., that D withheld information about material risks from C, because disclosure might harm C's health and well-being; and (6) necessity, i.e., that D's negligence was committed because it was necessary to save life, limb or property.

The burden of proof rests with D (e.g., for necessity, see Southport Corp v Esso Petroleum Co Ltd). It is not for C to prove that no defence applies; D bears the persuasive burden to convince the court that it does.

All but one – contributory negligence – is a complete defence. Contributory negligence is a partial defence, and (probably) cannot serve as a complete defence.

This chapter does not traverse other ‘defences’, such as the doctrines of ‘inevitable accident’ and res ipsa loquitur, which are relevant to the proof of breach (as discussed in Chapter 7). These doctrines arguably do not shift the burden of proof from C, but are ways in which breach may be (dis)proven. Nor does the chapter re-examine the doctrine of ‘common employment’, which did provide an effective defence for an employer until its abolition, when the Law Reform (Personal Injuries) Act 1948 was passed (see ‘Employers’ liability’, an online chapter).

CONTRIBUTORY NEGLIGENCE

Preliminary matters

The defence of contributory negligence has operated in its present statutory form in England from the mid-20th century.