How can a defendant defend a tort claim, and what remedies can a successful claimant obtain?
Defences and remedies in tort: the defences of contributory negligence and consent (volenti non fit injuria), and the remedies of compensatory damages and injunctions.
A focused answer to the AQA A-Level Law defences and remedies in tort topic, covering the defences of contributory negligence and consent (volenti non fit injuria) and the remedies of compensatory damages and injunctions.
Reviewed by: AI editorial process; not yet individually human-reviewed
Have a quick question? Jump to the Q&A page
Jump to a section
What this dot point is asking
AQA wants you to explain the two main general defences in tort, contributory negligence and consent, and the two main remedies, damages and injunctions, applying them to the substantive torts you have studied.
Defences
For contributory negligence, the defendant must show the claimant failed to take reasonable care and that this contributed to the damage. In Sayers v Harlow UDC damages were reduced where the claimant was injured escaping a locked toilet, and in Froom v Butcher damages were cut for failing to wear a seatbelt. The reduction can be substantial (up to 100 per cent in extreme cases, though the courts now treat total reduction with caution).
For consent (volenti), three elements are needed: the claimant had knowledge of the precise risk, freely agreed to run it, and voluntarily accepted it (ICI v Shatwell). It does not apply where the claimant had no real choice, to rescuers acting under a moral or legal duty (Haynes v Harwood), or where statute prevents reliance on it (for example against drivers under the Road Traffic Act).
Remedies
Damages may be paid as a lump sum or, increasingly in serious personal injury cases, as periodical payments that provide a guaranteed income for life and remove the risk of a lump sum running out. The court applies a multiplier and multiplicand method for future loss: the annual loss (the multiplicand) is multiplied by a figure (the multiplier) reflecting the number of years and adjusted by the statutory discount rate to allow for early receipt and investment. Damages can be reduced by a successful plea of contributory negligence and by the duty to mitigate, for example a claimant who unreasonably refuses recommended medical treatment.
An injunction is discretionary and equitable. It may be prohibitory (restraining a continuing wrong such as a nuisance) or mandatory (requiring positive action), and may be interim (granted before trial to hold the position) or final. The courts will sometimes award damages in lieu of an injunction where the harm is small and can be adequately compensated in money (Shelfer v City of London Electric Lighting, considered in Coventry v Lawrence). Because injunctions are equitable, the usual bars apply, including delay and the claimant's own conduct.
How defences and remedies are examined
This topic is examined as part of a wider problem question, applied to the substantive torts. Examiners reward clearly distinguishing the partial defence of contributory negligence from the complete defence of volenti, applying each to the facts, and explaining the correct measure of damages or the availability of an injunction.
Exam-style practice questions
Practice questions written in the style of AQA exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
AQA 201910 marksNadia is injured when a colleague drops a load she had been warned to stand clear of, but she was also not wearing the hard hat she had been given. Discuss the defences her employer might raise. [10 marks]Show worked answer →
Apply the two defences to Nadia. Consent (volenti) requires that she had knowledge of the precise risk, freely agreed to run it, and voluntarily accepted it (ICI v Shatwell). A mere warning to stand clear is unlikely to amount to full free consent, so volenti probably fails.
Contributory negligence is more promising: failing to wear the provided hard hat is a failure to take reasonable care for her own safety that contributed to the harm (compare Froom v Butcher on seatbelts). The court would reduce her damages by a just and equitable proportion under the Law Reform (Contributory Negligence) Act 1945. Markers reward distinguishing the complete defence of volenti from the partial defence of contributory negligence and applying each to Nadia with a conclusion.
AQA 20214 marksExplain the difference between special damages and general damages in tort. [4 marks]Show worked answer →
Special damages are losses that can be calculated precisely up to the date of trial, such as lost earnings already incurred, medical expenses and damaged property. General damages are losses that cannot be calculated precisely and are estimated by the court, such as future loss of earnings and non-pecuniary loss like pain, suffering and loss of amenity. Markers reward the precise-versus-estimated distinction and an example of each, with the overall aim of putting the claimant in the position they would have occupied had the tort not happened.
Related dot points
- Negligence: the duty of care and the Caparo test, breach of duty and the standard of care, causation and remoteness of damage, and the rules on pure economic loss and psychiatric injury.
A focused answer to the AQA A-Level Law negligence topic, covering the duty of care and the Caparo test, breach and the standard of the reasonable person, factual and legal causation, remoteness, and the special rules on psychiatric injury and pure economic loss.
- Occupiers' liability: the duty owed to lawful visitors under the Occupiers' Liability Act 1957 and the duty owed to trespassers under the Occupiers' Liability Act 1984.
A focused answer to the AQA A-Level Law occupiers' liability topic, covering the duty owed to lawful visitors under the Occupiers' Liability Act 1957 and the more limited duty owed to trespassers under the Occupiers' Liability Act 1984.
- Private nuisance and the rule in Rylands v Fletcher: the elements of private nuisance, relevant factors, the strict liability rule in Rylands v Fletcher, and the available defences.
A focused answer to the AQA A-Level Law nuisance and Rylands v Fletcher topic, covering the elements and factors of private nuisance, the strict liability rule in Rylands v Fletcher and its requirements, and the defences available to each.
- Vicarious liability: the requirement of a relationship of employment or one akin to it, the requirement that the tort be committed in the course of employment, and the justifications for the doctrine.
A focused answer to the AQA A-Level Law vicarious liability topic, covering the relationship of employment or one akin to it, the requirement that the tort be in the course of employment, the close connection test, and the justifications for the doctrine.
- Rules and theory of tort: the nature and purpose of tort law, the relationship between tort and fault, the aims of compensation and deterrence, and policy considerations.
A focused answer to the AQA A-Level Law rules and theory of tort topic, covering the nature and purpose of tort law, the relationship between tort and fault, the aims of compensation and deterrence, and policy considerations such as the floodgates argument.
Sources & how we know this
- AQA A-level Law (7162) specification — AQA (2017)