Defences and Remedies in Tort Law

I. General Defences in Tort

A. The Meaning of Defence

There are quite a few definitions of a defence that have been

proposed over the years.

(i) On one definition, they include any argument made by D that

persuades the court not to hold him liable. [See, eg,
Chakrarvati v Advertiser Newspapers Ltd [1998] 193 CLR
519, [8] (per Brennan CJ and McHugh J]

(ii) Another use of the word defence refers to any rule of tort law
that serves to reduce or exclude D’s liability. It is a usage one
finds (implicitly if not explicitly) in many tort textbooks. [See,
eg, Giliker, Textbook on Tort ch16]

(iii) A third use refers to any aspect of the case that D must
prove. [The thinking runs as follows: it is for P to make out a
tort; while D’s task, naturally enough, is to establish a
defence. [See, eg, Weir, Introduction to Tort Law (2006) 109]

(iv) A fourth use refers to rules of law that serve to negate

liability. [See, eg, J Goudkamp, Tort Law Defences]

Definition (i) is wrong: it includes ‘absent elements’

Definition (ii) is wrong: it includes contributory negligence, which

is best seen as a rule on damages (see, eg, J Gardner & J Murphy,
“Concurrent Liability in Contract and Tort: A Separation Thesis”
(2020) 137 LQR 77.

Definition (iii) is wrong: D need not prove that the limitation period
has expired, he or she need only raise the prospect of its having
expired and it then falls to P to prove that the action was brought
within the permitted time (as this may be extended here and there).

Definition (iv) is the best available. It involves (a) public policy

defences (eg, limitation of actions) and (b) justifications (eg, self-
defence, and consent).

In our course, then, we proceed on the ground that defences are

rules of law that serve to exclude liability on the part of D that
would otherwise arise.

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B. Consent/Volenti Non Fit Injuria (to one who volunteers, no
harm is done)

Related to, but distinct from, consent, the defence of volenti

involves P having voluntarily assumed the risk of injury.

Volenti captures P’s consent to run the risk of injury at D’s hands
knowing of the nature and the extent of the risk.

Nettleship v Weston [1971] 2QB 691:

The knowledge of the risk is not enough. Nor is a willingness to

take a risk of injury. Nothing will suffice short of an agreement to
waive any claim for negligence. The [claimant] must agree,
expressly or impliedly, to waive any claim for an injury that may
befall him due to the lack of reasonable care by the defendant.

Dann v Hamilton [1939] 1 KB 509

Asquith J said:

There may be cases in which the drunkenness of the driver … is so

extreme and so glaring that to accept a lift from him is like …
intermeddling with an unexploded bomb or walking on the edge of
an unfenced cliff.

Asquith J also distinguished consent:

the consent of the patient relieves the dentist who extracts a tooth
… In these cases the certainty of physical injury is consented to. In
another class of cases, perhaps more numerous, a man is not
courting injury, and wishes to avoid it, but he nevertheless
consents to the risk of its occurrence.

The cases in which this defence succeeds are very few and far
between.

ICI v Shatwell [1965] AC 656.

So far as concerns common law negligence, the defence of volenti

non fit injuria is clearly applicable if there was a genuine full
agreement, free from any kind of pressure, to assume the risk of
loss. (Lord Pearce.)

Generally, the courts will prefer to treat P’s foolhardy conduct as

contributory negligence.

J Gardner, “Rethinking Risk-Taking: The Death of Volenti” [2023]

CLJ (forthcoming).

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Statutory limitations

(a) Control of Exemption Clauses Ordinance (Cap 71)

By s 7(1) – where the liability in question would be business liability

(the statute gives examples of businesses, and you should have
detailed notes on this from contract).

Also, by s 7(2), contract clauses or notices excluding liability for

other loss (eg, property damage) can only do so as long as the
clause or notice satisfies the requirement of reasonableness.

(b) Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap

272)

Section 12 prohibits drivers from excluding liability to passengers:

i.e., it excludes the prospect of volenti being raised.

It probably applies to both express and implied agreements: Pitts v

Hunt [1991] 1 QB 24.

C. Illegality

(1) Introduction

This defence is sometimes referred to as ex turpi causa non oritur

actio and its scope is regrettably uncertain.

However, the Supreme Court in the UK has had made significant

steps towards clarifying its remit and essential components.

(2) Patel v Mirza

Patel v Mirza [2016] UKSC 42

Lord Toulson gave the leading speech and he said two key things of
note:

First: Looking behind the maxims, there are two broad discernible policy
reasons for the common law doctrine of illegality as a defence to a
civil claim. One is that a person should not be allowed to profit
from his own wrongdoing. The other, linked, consideration is
that the law should be coherent and not self-defeating,
condoning illegality by giving with the left hand what it takes with
the right hand.

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Also: The essential rationale of the illegality doctrine is that it would be
contrary to the public interest to enforce a claim if to do so
would be harmful to the integrity of the legal system. In
assessing whether the public interest would be harmed in that
way, it is necessary (a) to consider the underlying purpose of
the prohibition which has been transgressed and whether that
purpose will be enhanced by denial of the claim, (b) to consider
any other relevant public policy on which the denial of the
claim may have an impact and (c) to consider whether denial
of the claim would be a proportionate response to the
illegality, bearing in mind that punishment is a matter for the
criminal courts.

These paragraphs seem to break down into a two-part test.

Part 1: Would allowing P to claim result in (a) P profiting

from her own wrongdoing or (b) the law becoming
incoherent?

(a) Defence can be used to stop P profiting by wrongdoing (past

examples)

Hewison v Meridian Shipping [2002] EWCA Civ 1821

(b) Defence can be used to prevent the law becoming incoherent.

Gray v Thames Trains Ltd [2009] 1 AC 1339

[T]he criminal law has taken him to be responsible for his actions,
and has imposed an appropriate penalty. He should therefore bear
the consequences of the punishment, both direct and indirect. If
the law of negligence were to say, in effect, that the offender was
not responsible for his actions and should be compensated by the
tortfeasor, it would set the determination of the criminal court at
nought. (Lord Hoffmann)

Henderson v Dorset Healthcare University NHS Foundation Trust

[2020] UKSC 43

Patel concerned a claim in unjust enrichment, but there can be

little doubt that it was intended to provide guidance as to the
proper approach to the common law illegality defence across civil
law more generally… [however we must not] disregard the value of
precedent built up in various areas of the law to address particular
factual situations giving rise to the illegality defence. Those
decisions remain of precedential value unless it can be shown that
they are not compatible with the approach set out in Patel (Lord
Hamblen).

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Part 2 Is there some countervailing consideration that
means that P should be allowed to sue notwithstanding
the fact that Part 1 is satisfied.

(a) Defence to be rejected because it would undermine the point of

the prohibition that has been abrogated.

Stoffel & Co v Grondona [2020] UKSC 42

[One] underlying purpose of the prohibition against mortgage

fraud is … protection of the public, and in particular mortgagees
… [Thus] not only was the required registration of the transfer to
the respondent in the interests of the respondent … it was also in
the interests of the mortgagee … [since] it was in … [the lender’s]
interest that the respondent should have assets with which to
meet her liability if sued [Lord Lloyd-Jones].

(b) Defence to be rejected if it would undermine other public

policies

Stoffel & Co v Grondona (supra)

Important countervailing public policies in play in the present case are

that conveyancing solicitors should perform their duties to their clients
diligently and without negligence and that, in the event of a negligent
breach of duty, those who use their services should be entitled to seek a
civil remedy for the loss they have suffered. [Lord Lloyd-Jones]

(c) Defence to be denied if it would be out of proportion to P’s

criminality?

Stoffel & Co v Grondona [2020] UKSC 42

In the present case it is significant that ... the essential facts founding the
claim can be established without reference to the illegality. The
respondent’s claim for breach of duty against her solicitors is
conceptually entirely separate from her fraud on the mortgagee [Lord
Lloyd-Jones].

3. Quasi-criminal Conduct by the Claimant?

Les Laboratoires Servier v Apotex [2015] AC 430

The ex turpi causa principle is concerned with claims founded on

acts which are contrary to the public law of the state and engage
the public interest. The paradigm case is, as I have said, a criminal
act. In addition, it is concerned with a limited category of acts
which, while not necessarily criminal, can conveniently be

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described as “quasi-criminal” because they engage the public
interest in the same way. [So it catches] some anomalous
categories of misconduct, such as prostitution, which without itself
being criminal are contrary to public policy and involve criminal
liability on the part of secondary parties; and the infringement of
statutory rules enacted for the protection of the public interest and
attracting civil sanctions of a penal character. [eg, withdrawing a
licence to run a betting shop because you have been letting
children place bets when such shops are strictly for people aged
18+] (Lord Sumption, at [25].)

© John Murphy
August 2023