What defences can reduce or defeat a tort claim, and what remedies can the claimant obtain?
Defences and remedies in tort: the defences of consent (volenti non fit injuria), contributory negligence and necessity, and the remedies of compensatory damages (special and general) and injunctions.
An Eduqas A-Level Law guide to the defences and remedies in tort. Explains consent, contributory negligence and necessity, and compensatory damages and injunctions, with worked scenario answers and the AO2 application the paper rewards.
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What this dot point is asking
Eduqas tort requires you to know the defences and remedies: the defences of consent (volenti non fit injuria), contributory negligence and necessity, and the remedies of compensatory damages (special and general) and injunctions. The skill is to apply the defences and identify the remedy in a scenario (AO2) and to evaluate them (AO3).
The answer
Consent (volenti non fit injuria)
Contributory negligence
Contributory negligence is a partial defence under the Law Reform (Contributory Negligence) Act 1945. Where the claimant has failed to take reasonable care for their own safety and that failure contributed to the damage, the court reduces the damages by the proportion that is just and equitable. Classic examples are not wearing a seatbelt (Froom v Butcher, a reduction of up to about 25 per cent depending on the difference it would have made) and not wearing a crash helmet (O'Connell v Jackson). The claimant still wins, but recovers less.
Necessity and the remedies
Examples in context
A strong answer separates the complete defence (consent) from the partial defence (contributory negligence) and identifies the correct remedy.
Try this
Q1. Explain the defence of consent (volenti non fit injuria) in the law of tort. [10 marks]
- What the marker wants. Precise AO1: a complete defence requiring voluntary acceptance of the known legal risk; its limits for passengers (Road Traffic Act 1988; Dann v Hamilton) and rescuers (Haynes v Harwood).
Q2. A cyclist is knocked off her bike by a negligent driver but was not wearing a helmet and suffers a worse head injury as a result. Advise on the defences and on the damages she may recover. [20 marks]
- Cue. An AO2 application: volenti does not apply; contributory negligence reduces damages because the lack of a helmet worsened the injury (O'Connell v Jackson; Froom v Butcher by analogy); she recovers special damages (expenses, lost earnings) and general damages (pain, suffering and loss of amenity), reduced by the just and equitable proportion.
Exam-style practice questions
Practice questions written in the style of WJEC Eduqas exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
Eduqas Component 2 2022 (scenario)20 marksA passenger accepts a lift from a friend who is obviously very drunk, and does not wear a seatbelt. The friend crashes and the passenger is injured. Advise on the defences the driver might raise. [a scenario in the style of Component 2; the real paper tariff is 25, AO1 and AO2]Show worked answer →
A mainly AO2 scenario on consent and contributory negligence.
Consent (volenti). For volenti the claimant must voluntarily accept the legal risk with full knowledge. Accepting a lift from an obviously drunk driver might suggest consent, but the Road Traffic Act 1988 prevents a driver relying on volenti against a passenger in a compulsorily insured vehicle (and Pitts v Hunt aside, Dann v Hamilton held merely accepting a lift from a drunk driver is not usually volenti). So volenti is unlikely to succeed.
Contributory negligence. Failing to wear a seatbelt is classic contributory negligence (Froom v Butcher), reducing damages (commonly by up to 25 per cent depending on the difference it would have made). Accepting the lift may also reduce damages.
Conclusion. Volenti will probably fail, but the passenger's damages will be reduced for contributory negligence under the Law Reform (Contributory Negligence) Act 1945.
A top answer distinguishes the complete defence of consent from the partial defence of contributory negligence and applies both to the facts.
Eduqas Component 3 2021 (essay)20 marksAnalyse and evaluate the award of damages as a remedy in tort. [an essay in the style of Component 3; the real paper tariff is 25, AO1 and AO3]Show worked answer →
A mainly AO3 essay. Explain damages, then evaluate how well they compensate.
The law. Compensatory damages aim at restitutio in integrum: to put the claimant in the position they would have been in had the tort not occurred. They are divided into special damages (precisely calculable losses to trial, such as lost earnings and expenses) and general damages (estimated losses, such as pain, suffering and loss of amenity and future loss). Lump-sum awards, periodical payments for serious injury, and the duty to mitigate are relevant.
Evaluation. Strengths: damages provide a flexible, enforceable remedy and aim at full compensation. Weaknesses: money cannot truly restore health; lump sums require uncertain predictions about the future (life expectancy, future care), risking over- or under-compensation; awards for pain and suffering are hard to value consistently; and delay and cost reduce their effectiveness.
A top answer explains the types of damages and evaluates how well money compensates for harm, then concludes.
Related dot points
- Liability in negligence: the duty of care (Donoghue v Stevenson and the Caparo test), breach of duty (the reasonable person and the risk factors), and damage (factual causation by the but for test and remoteness under The Wagon Mound).
An Eduqas A-Level Law guide to liability in negligence. Explains the duty of care, breach and the risk factors, and causation and remoteness of damage, with worked scenario answers and the AO2 application the paper rewards.
- Occupiers liability: the duty owed to lawful visitors under the Occupiers Liability Act 1957 (the common duty of care, children, skilled visitors and independent contractors) and the duty owed to trespassers under the Occupiers Liability Act 1984.
An Eduqas A-Level Law guide to occupiers liability. Explains the common duty of care to lawful visitors under the 1957 Act and the conditional duty to trespassers under the 1984 Act, with worked scenario answers and the AO2 application the paper rewards.
- Nuisance and the rule in Rylands v Fletcher: private nuisance (unlawful interference with the use and enjoyment of land, the factors and defences), public nuisance, and the rule in Rylands v Fletcher (a non-natural use, the escape of a dangerous thing and foreseeable damage).
An Eduqas A-Level Law guide to nuisance and the rule in Rylands v Fletcher. Explains private and public nuisance, the relevant factors and defences, and strict liability for an escape, with worked scenario answers and the AO2 application the paper rewards.
- Vicarious liability: the requirement of a relationship of employment (the tests for employee status), a tort committed by the employee, and that the tort was committed in the course of employment (the close connection test).
An Eduqas A-Level Law guide to vicarious liability. Explains the tests for employee status, the requirement of a tort, and the close connection test for the course of employment, with worked scenario answers and the AO2 application the paper rewards.
- The scenario application question (AO2): the IRAC structure (issue, rule, application, conclusion), identifying the legal issues in a factual problem, applying authority to the facts, and reaching a reasoned conclusion.
An Eduqas A-Level Law guide to the scenario application question (AO2). Explains the IRAC structure, identifying the issues, applying the law to the facts and reaching a conclusion, with worked examples and the technique the Component 2 paper rewards.
Sources & how we know this
- Eduqas A Level Law (A150) specification — WJEC Eduqas (2017)