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Chapter

Cover Tort Law

10. Defences to negligence  

This chapter discusses three key defences in the tort of negligence: voluntary assumption of risk (consent or volenti non fit injuria), contributory negligence and illegality. The defence of voluntary assumption of risk is based on the common-sense notion that ‘one who has invited or assented to an act being done towards him cannot, when he suffers it, complain of it as a wrong’. The defence of illegality denies recovery to certain claimants injured while committing unlawful activities. Contributory negligence is a defence that operates not to defeat the claimant’s claim entirely but rather to reduce the amount of damages the defendant must pay.

Chapter

Cover Tort Law

10. Defences to negligence  

This chapter discusses three key defences in the tort of negligence: voluntary assumption of risk (consent or volenti non fit injuria), contributory negligence and illegality. The defence of voluntary assumption of risk is based on the common-sense notion that ‘one who has invited or assented to an act being done towards him cannot, when he suffers it, complain of it as a wrong’. The defence of illegality denies recovery to certain claimants injured while committing unlawful activities. Contributory negligence is a defence that operates not to defeat the claimant’s claim entirely but rather to reduce the amount of damages the defendant must pay.

Chapter

Cover Essential Cases: Tort Law

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Essential Cases: Tort Law

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover An Introduction to Tort Law

8. Contributory Negligence  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter discusses the law on contributory negligence. In England, contributory negligence denotes only the negligence of the claimant himself, not that of a third party whose negligence contributes to the occurrence of the harm. Under the Contributory Negligence Act 1945, the claimant's damages are reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. The chapter also deals with contributory negligence as a defence that the defendant must plead and prove. It considers two defences. The first is that the claimant consented to the harmful conduct or accepted the risk of ensuing damage; the second that the claim arose out of illicit conduct on the part of the claimant.

Chapter

Cover Essential Cases: Tort Law

Nettleship v Weston [1971] 2 QB 691  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Nettleship v Weston [1971] 2 QB 691. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Lunney & Oliphant's Tort Law

6. Defences to Negligence  

Donal Nolan and Ken Oliphant

This chapter examines the following defences to a claim in negligence: volenti non fit injuria; contributory negligence; exclusion of liability; and illegality. The defence of volenti non fit injuria reflects the common sense notion that ‘[o]ne who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong’. Contributory negligence is a partial defence that operates not to defeat the claimant’s claim entirely but rather to reduce the amount of damages the defendant must pay. A defendant may seek to exclude all potential liability to another person in advance of exposing himself to the risk of a possible claim. The defence of illegality denies recovery to certain claimants on the grounds that their claim is tainted by their own illegal conduct.

Chapter

Cover Tort Law: Text and Materials

6. Defences to Negligence  

This chapter examines the following defences to a claim in negligence: volenti non fit injuria; contributory negligence; exclusion of liability; and illegality. The defence of volenti non fit injuria reflects the common sense notion that ‘[o]ne who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong’. Contributory negligence is a partial defence that operates not to defeat the claimant's claim entirely but rather to reduce the amount of damages the defendant must pay. A defendant may seek to exclude all potential liability to another person in advance of exposing himself to the risk of a possible claim. The defence of illegality denies recovery to certain claimants on the grounds that their claim is tainted by their own illegal conduct.

Chapter

Cover Essential Cases: Tort Law

Nettleship v Weston [1971] 2 QB 691  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Nettleship v Weston [1971] 2 QB 691. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Concentrate Questions and Answers Tort Law

11. General Defences  

Dr Karen Dyer and Dr Anil Balan

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses general defences, covering key debates, sample questions, diagram answer plan, tips for getting extra marks, and online resources. To answer questions on this topic, students need to understand the following: the concept of negligence; the Occupier’s Liability Acts; the defence of volenti non fit injuria; the defence of contributory negligence and the Law Reform (Contributory Negligence) Act 1945; and the defence of illegality—ex turpi causa non oritur action.

Chapter

Cover Tort Law

7. Defences to Negligence  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores three defences to negligence which are also defences to other torts: volenti non fit injuria or willing assumption of risk, the illegality defence (also known as ex turpi causa), and contributory negligence. In relation to contributory negligence, the chapter considers responsibility, which involves questions both of causal influence and of fault, before turning to a discussion of apportionment of responsibility between the parties, and proportionality. In relation to illegality, recent decisions of the Supreme Court are examined. Relevant provisions of the Law Reform (Contributory Negligence) Act 1945 are extracted, together with further extracts from significant cases.

Chapter

Cover Tort Law Directions

6. Defences to negligence  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The claimant has the burden of establishing liability for the tort while the defendant has the burden of establishing the defence. If the claimant establishes a successful cause of action in tort, the defendant must plead one (or more) of the defences available to him. If the defendant establishes a successful defence, either his liability for the damage may be reduced or he may be totally absolved from liability. This chapter examines general defences applicable to all torts but which have particular relevance to claims in negligence, focusing on contributory negligence, volenti non fit injuria, and ex turpi causa non oritur actio.

Chapter

Cover Poole's Textbook on Contract Law

9. Misrepresentation  

Robert Merkin, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. False statements of fact that induce a contract are known as actionable misrepresentations. In case of a misrepresentation, there are different legal remedies for breaches of contract. A misrepresentation renders the contract voidable (liable to be set aside using the remedy of rescission) so that the contract will be treated as if it had never been made, whereas a breach of contract will have no effect on the existence of the contract (in the absence of a repudiatory breach that will terminate the contract when future contractual obligations will be discharged). The chapter identifies actionable misrepresentations and, in particular, loss in instances where there is a duty of disclosure in English law. There are three types of actionable misrepresentations, dependent upon the state of mind of the one who makes the false statement: fraudulent, negligent, and innocent. This chapter looks at the legal remedies for actionable misrepresentations such as rescission, the availability of damages for different types of misrepresentations, and the provisions of the Misrepresentation Act 1967. It also examines the effect of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as amended on this area of law, the criminal offences and civil remedies for consumers, as well as the relationship of misrepresentation to other areas of law. Finally, it looks at clauses that seek to exclude or limit liability for misrepresentation or to deny any actionable misrepresentation, e.g. ‘non-reliance clauses’.

Chapter

Cover Street on Torts

8. Defences to negligence  

This chapter examines several defences in negligence cases, including contributory negligence (failing to take care of your own interests), voluntary assumption of risk, express exclusion or limitation of liability, and illegality (a plea by the defendant that the claimant should not be able to make a claim because the claim requires reference to the claimant’s own illegal acts). It explains that the plea of voluntary assumption of risk and the defences of express exclusion of liability and illegality can help the defendant reduce liability or avoid liability altogether. The chapter notes that contributory negligence is by far the most important of these defences in practical terms.

Chapter

Cover Poole's Textbook on Contract Law

9. Misrepresentation  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. False statements of fact that induce a contract are known as actionable misrepresentations. In case of a misrepresentation, there are different legal remedies for breaches of contract. A misrepresentation renders the contract voidable (liable to be set aside using the remedy of rescission) so that the contract will be treated as if it had never been made, whereas a breach of contract will have no effect on the existence of the contract (in the absence of a repudiatory breach that will terminate the contract when future contractual obligations will be discharged). The chapter identifies actionable misrepresentations and, in particular, loss in instances where there is a duty of disclosure in English law. There are three types of actionable misrepresentations, dependent upon the state of mind of the one who makes the false statement: fraudulent, negligent, and innocent. This chapter looks at the legal remedies for actionable misrepresentations such as rescission, the availability of damages for different types of misrepresentations, and the provisions of the Misrepresentation Act 1967. It also examines the effect of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as amended on this area of law, the criminal offences, and civil remedies for consumers, as well as the relationship of misrepresentation to other areas of law. Finally, it looks at clauses that seek to exclude or limit liability for misrepresentation or to deny any actionable misrepresentation, e.g. ‘non-reliance clauses’.

Chapter

Cover Complete Contract Law

10. Remedies Part II: Principles That Can Limit the Damages Awarded Following a Breach  

This chapter studies the principles that can limit the damages awarded following a breach of contract. It starts with the principle of causation. The idea here is that the breach must have caused the loss. A related issue is the limited application of contributory negligence. Where relevant, damages can be reduced to reflect any fault on the part of the innocent claimant. Both of these factors are of fairly minor importance. The main limiting factor is the principle of remoteness. It is a principle that limits liability to the risks the party in breach appeared to accept. Finally, the chapter looks at the duty to mitigate losses. This requires the innocent party to take reasonable steps to reduce (and not unreasonably increase) the loss suffered after a breach. Depending on the facts, disputes can involve any or all of these limitations.

Chapter

Cover Casebook on Tort Law

9. Defences to negligence  

This chapter considers three defences. It begins with a discussion of the principle of contributory negligence. It presents cases showing that the rules for establishing contributory negligence on the part of the claimant are not the same as the rules for establishing liability for negligence on the part of the defendant. It then turns to voluntary assumption of the risk or consent (sometimes referred to as volenti non fit injuria) which provides a complete defence to an action. The defence is based on the view that a person cannot sue if he consents to the risk of damage. Finally, the chapter considers the defence of illegality, which arises when the tortious action is in the context of the claimant’s and/or defendant’s participation in an unlawful act.

Chapter

Cover Contract Law Directions

11. Damages  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter examines the principles by which contractual damages are assessed. The discussions cover the aim of contractual damages, the difference between damages in contract and in tort; the relationship between the expectation interest and the reliance interest; cost of cure and difference in value; remoteness of damage; foreseeability and assumption of risk; non-pecuniary losses; mitigation; contributory negligence; and penalties, liquidated damages and forfeiture.

Chapter

Cover Contract Law Directions

11. Damages  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter examines the principles by which contractual damages are assessed. The discussions cover the aim of contractual damages, the difference between damages in contract and in tort; the relationship between the expectation interest and the reliance interest; cost of cure and difference in value; remoteness of damage; foreseeability and assumption of risk; non-pecuniary losses; mitigation; contributory negligence; and penalties, liquidated damages and forfeiture.

Chapter

Cover Tort Law Concentrate

16. Defences and limitation  

This chapter first discusses the defence of contributory negligence, voluntary assumption of risk, and illegality. Contributory negligence occurs when the claimant has contributed to his own damage, and permits damages to be apportioned according to what is just and equitable. Voluntary assumption of risk is a complete defence, on the basis that the claimant freely agreed to run the risk of damage. Illegality is a complete defence, on the grounds that the law will not reward or appear to condone an illegal act. The chapter then turns to limitation periods, which restrict the amount of time within which legal actions must be commenced. The main statute is the Limitation Act 1980.