3.3 - Tort defences and remedies
This Paper 2 Tort lesson explains how a defendant can reduce or defeat liability, and how a successful claimant turns liability into a practical remedy. It also covers the defences to private nuisance and Rylands v Fletcher and the use of injunctions, so you can move from "is there liability?" to "what result should the court order?" in a full AQA answer.
Scope And Sequence
Defences and remedies come after the main tort has been identified. A defence asks whether liability should be reduced or removed despite the claimant proving the tort. A remedy asks what the court should award if the claimant succeeds.
For AQA Paper 2, this lesson covers:
| Area | Legal job | Usual consequence |
|---|---|---|
| Contributory negligence | Shows the claimant partly caused their own loss | Damages are reduced |
| Consent, or volenti non fit injuria | Shows the claimant freely accepted the relevant legal risk | The claim is extinguished |
| Private nuisance defences | Tests whether an otherwise actionable interference is legally protected or not defeated by a supposed defence | Liability may be defeated, or the "defence" may fail |
| Rylands v Fletcher defences | Limits strict liability for escapes where the escape was outside the defendant's responsibility | Liability may be defeated |
| Compensatory damages | Converts proved loss into money | Physical injury, property damage and recoverable economic loss may be compensated |
| Mitigation | Prevents recovery for loss the claimant should reasonably have avoided | Damages are limited |
| Injunctions | Prevent or restrict continuing interference, especially in nuisance | A total injunction, partial injunction or damages instead may be ordered |
The exam sequence is important. In a scenario answer, do not start with remedies. First establish the tort and the parties, then test any relevant defence, then choose the remedy. For nuisance and Rylands, AQA often asks for "rights and remedies", so a strong answer explains liability, possible defences and then whether damages or an injunction fits the facts.
Common confusion: a defence is not the same as a liability factor. Locality, duration, intensity and malice help decide private nuisance liability. Prescription and statutory authority are defences. Fearn confirms that public benefit may influence the choice between an injunction and damages after liability is established; it does not justify an otherwise actionable nuisance.
Contributory Negligence
Contributory negligence is a partial defence.
Contributory negligence
A partial defence: the claimant's own failure to take reasonable care contributed to the damage, so damages are reduced by a just and equitable amount (Law Reform (Contributory Negligence) Act 1945).
It accepts that the defendant is liable, and the legal consequence is a reduction in damages, not a complete defeat of the claim.
The authority is the Law Reform (Contributory Negligence) Act 1945. For AQA purposes, state the operational rule like this:
- the claimant has suffered damage;
- the defendant's tort helped cause that damage;
- the claimant failed to take reasonable care for their own safety or property;
- that failure made a causal contribution to the damage;
- the court reduces damages by an amount that is just and equitable in view of the claimant's share in responsibility.
The threshold is reasonableness. The question is not whether the claimant was perfect; it is whether the claimant's conduct fell below the standard of a reasonable person protecting their own interests. The defendant must also show causation. If the claimant acted carelessly but that carelessness made no difference to the injury or loss, contributory negligence should not reduce damages.
Froom v Butcher is the useful AQA-level case tool. The defendant caused the road accident, but the claimant's failure to wear a seatbelt worsened the injury. The case shows the point of contributory negligence: the defendant remains liable for the accident, but damages may be reduced because the claimant failed to take a reasonable precaution that would have limited the harm.
Apply the rule element by element. Suppose a supermarket negligently leaves spilled cooking oil on an aisle for a long period. A customer then runs through the aisle while reading a phone, ignores a visible warning cone and slips. The supermarket may still be liable for breach of duty, but contributory negligence is arguable because the customer failed to take reasonable care and that failure contributed to the fall or seriousness of injury. If the warning cone was hidden behind a display, the defence becomes weaker.
Evaluation for AO3 should be legal, not personal. Contributory negligence is fair because it makes compensation reflect shared responsibility. It also avoids the harshness of an all-or-nothing answer. The weakness is uncertainty: percentage reductions can be difficult to predict, so in AQA answers you should normally say "reduced substantially" or "reduced to some extent" rather than inventing a precise percentage unless the facts make it very clear.
Consent Volenti
Consent, traditionally expressed as volenti non fit injuria, is a complete defence.
Volenti non fit injuria (consent)
A complete defence: the claimant, with full knowledge of the nature and extent of the risk, freely and voluntarily agreed to run it. If it succeeds, the claim is extinguished.
This makes it much more powerful, and usually harder to prove, than contributory negligence.
To succeed, the defendant should show:
- the claimant had actual knowledge of the nature and extent of the relevant risk;
- the claimant freely and voluntarily agreed to run that risk;
- the risk accepted was the risk that caused the damage, including the risk that the defendant might act negligently where that is the pleaded claim.
The legal threshold is real consent, not mere awareness. A claimant can know a situation is dangerous without agreeing to give up legal protection. That is why the defence is narrow in employment, rescue and other pressure situations.
Smith v Baker is the case tool for the difference between knowledge and consent. A worker knew stones might be swung over him by a crane, but that did not mean he had freely agreed to waive his claim if injured. Morris v Murray points the other way: a passenger who chose to fly with a visibly drunk pilot after drinking with him was treated as having accepted the obvious risk.
Use the cases as contrasts:
| Situation | Likely legal analysis |
|---|---|
| Claimant merely knows the activity is dangerous | Usually not enough for volenti |
| Claimant has little real choice, such as work pressure | Consent is difficult to prove |
| Claimant freely joins an obvious, serious and specific risk | Volenti becomes stronger |
| Claimant accepts ordinary risks of sport or recreation | Does not automatically consent to negligent conduct outside that accepted risk |
A statutory qualification matters for road passengers: section 149 of the Road Traffic Act 1988 prevents an agreement or willing acceptance of risk from defeating the driver's liability to a passenger for injury where compulsory motor insurance applies. Contributory negligence remains possible. Do not transfer the Morris v Murray aircraft outcome automatically to a road-car passenger.
Suppose a claimant sees that a friend is so drunk that they cannot stand steadily, but still chooses to ride as a passenger while the friend drives a speedboat at night. The defendant would argue actual knowledge and free acceptance of the specific risk of negligent operation. If the claimant was trapped, pressured or unaware of the extent of the drunkenness, the defence would be weaker. If volenti succeeds, there is no damages award; if the facts show only careless self-exposure, contributory negligence may be the better defence.
Private Nuisance Defences
Private nuisance is an unreasonable indirect interference with the claimant's use or enjoyment of land. Once that interference is established, the defendant may try to rely on a defence. AQA expects these defences to be handled separately from the ordinary nuisance factors such as locality, duration, malice and sensitivity; public benefit belongs in the remedy decision.
The central nuisance defences and non-defences are:
| Point | Rule | Authority or AQA use | Consequence |
|---|---|---|---|
| Prescription | A defendant may acquire the right to continue a nuisance if it has been carried on openly, continuously and as of right for at least 20 years against the claimant's land | Sturges v Bridgman helps show that time runs from when the activity becomes a nuisance to the claimant's land | Liability may be defeated |
| Statutory authority | If an Act of Parliament authorises the activity and nuisance is the inevitable result of carrying out that authority with reasonable care, this can defeat liability | AQA examiner material warns that a local council contract is not the same as statutory authority | Liability may be defeated |
| Coming to the nuisance | The claimant moving to the area is not normally a defence | Sturges v Bridgman; Coventry v Lawrence treats the point with nuance but not as a simple automatic defence | Usually no defence |
| Planning permission or local approval | Planning permission may affect the character of the locality in some cases, but it does not automatically authorise a nuisance | Coventry v Lawrence is the case tool for avoiding an over-simple answer | Not an automatic defence |
Prescription needs careful application. It is not enough that the defendant has carried on the activity for 20 years. The activity must have been an actionable nuisance to the claimant's land for that period. If a workshop has operated noisily for 30 years in an industrial area, but the claimant only recently built a home extension next to the machinery and only then did the noise interfere, the defendant may struggle to show 20 years of nuisance against that affected use.
Statutory authority is also narrow. The defendant needs genuine legal authorisation, usually from legislation, and the nuisance must be an inevitable result of carrying out the authorised activity with reasonable care. A commercial contract, licence, planning permission or popularity with local residents is not automatically a defence. Those facts may still be relevant to reasonableness or remedy, especially if the court is considering a partial injunction.
"Coming to the nuisance" is a common trap. If the defendant says, "the claimant moved next door after the noise began", do not stop there. Ask whether the claimant has a legal interest in land, whether the interference is unreasonable in its locality, and whether any real defence such as prescription applies. The fact that the claimant moved in later may be relevant to the factual and remedial context, but it does not automatically destroy the claim.
Continue this lesson.
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