Defences in Tort Law

• Defences in tort claims

  • Limited defences
  • Contributory negligence
  • Volenti
• Defences specific to certain torts


  • Occupiers' liability
  • Nuisance
• Contributory negligence


  A partial defence where the defendant argues the claimant was partly responsible for the injuries, so the damages owed will be reduced
• How contributory negligence operates

  1. Judge sets full damages as if no contributory negligence

  2. Decides percentage claimant responsible

  3. Reduces damages by this amount

  4. Claimant's act or omission must have helped cause the injuries
• Cases where contributory negligence reduced damages

  • O'Connell v Jackson (1972): 25% reduction
  • Froom v Butcher (1976): 25% reduction
  • Jayes v IMI (Kynoch) Ltd (1985): 100% reduction
• Volenti non fit injuria


  No injury is done to one who consents to the risk (full defence)
• How volenti operates


  1. Defendant must show claimant knew precise risk, exercised free choice, and voluntarily accepted risk

  2. Restricted for road traffic accidents by S.149 Road Traffic Act 1998
• Cases where volenti failed

  • Smith v Baker and Sons (1891): Claimant aware of danger but not colleague's lack of care
  • Haynes v Haywood (1935): Policeman not acting voluntarily but under duty
• Defendant can claim both contributory negligence and volenti, and if volenti fails damages may still be reduced