Introduction

• defendant (D) may raise a defence, once claimant (C) has proved: on the balance of probabilities, D owed duty to C, breached that duty & caused C's loss or harm
• multiple defences can be argued but must be proved on the balance of probabilities to succeed
• general defences apply to all torts & have public policy reasons
• types of defence: absolute defence (completely bars claim) & partial defence contributory negligence (limits D's liability)
• absolute defences: mistake, necessity & limitation, excluded liability consent & illegality

Mistake and Necessity

• mistake: must be reasonable to be a defence: a reasonable man not make unreasonable mistake & to do so is negligent
• necessity: D must have acted as reasonable person would have to avoid real & imminent danger

Limitation

• D can argue C has not brought claim within time limit
• generally 6 yrs for tort but less for personal injury or death claim

  Limitation Act 1980

  • S11: personal injury or death claims must be brought within three years
• practical reasons for limit: lack of relaible evidence & unfairness to D if claims could be allowed substantial time after incident

Excluding liability

• D may argue he excluded or limited his liability to C
• exemption clauses common in contracts but also apply in non-contractual situations (signs or notices)
• statutory limitations on Ds attempting to exclude liability for negligence

  Unfair Contract Terms Act 1977

  S1: Scope of Part I

  • S(1): defines 'negligence' as breach of either(a) contractual obligations or (b) any common law duty to 'take reasonable care or exercise reasonable skill'
  • S1(3) : applies to business liability only

  S2 Negligence liability

  • S2(1): no notice can restrict liability for death or personal injury resulting from negligence
  • S2(2): notice must satisfy reasonableness test to restrict other loss or damage
  • S2(3) person's agreement to or awareness of notice does not indicate his voluntary acceptance of any risk

  S11: The 'reasonableness' test

  • S11(3) it should be fair & reasonable to allow reliance on non contractual notice, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen
  • S11(5): burden of proof lies with party seeking to rely on exemption clause

  S14 : Interpretation of Part I

  • 'notice': announcement (written or unwritten) & other communication or pretended communication
  • 'personal injury': any disease & any impairment of physical or mental condition
• limitations apply only to business liability (s.1(3) UCTA 1977)
• unable to restrict liability for death or personal injury resulting from negligence (s.2 UCTA 1977)
• liability for other loss or damage only be restricted if notice satisfies reasonableness test (s.2(2) UCTA 1977)
• reasonableness test requires limitation to be fair & reasonable & places burden on D to prove ( s.11 UCTA 1977)