Defences in tort (contributory negligence and consent / volenti non fit injuria) and remedies (compensatory damages, including special and general damages, and injunctions).

What this dot point is asking

OCR Component 2 Section B requires you to know the main defences to a tort claim, contributory negligence and consent (volenti non fit injuria), and the main remedies for a successful claimant, damages and injunctions. The skill is to apply the defences and assess the remedy in a scenario for AO2.

The answer

Defences

Key points on the defences:

• Contributory negligence is very common: in Froom v Butcher the court set guideline reductions for failing to wear a seatbelt (around 25 per cent if it would have prevented the injury, 15 per cent if it would have reduced it). It applies even to children, judged by the standard of a child of that age.
• Consent requires a genuine and free acceptance of the risk. It is excluded by statute where a driver tries to rely on a passenger's knowledge of the risk (s149 Road Traffic Act 1988), and it usually fails where the claimant had no real choice (Dann v Hamilton) or is a rescuer acting under a moral duty (Haynes v Harwood).

Remedies

The principal remedy is compensatory damages, aiming to put the claimant, so far as money can, in the position they would have been in but for the tort (restitutio in integrum). Damages are divided into:

• Special damages: losses that can be precisely calculated up to the date of trial, such as lost earnings, medical expenses and damaged property.
• General damages: losses that cannot be precisely quantified, such as pain, suffering and loss of amenity, and future losses (future earnings and care), assessed using the Judicial College Guidelines and, for future loss, a multiplicand (annual loss) and multiplier (number of years).

The claimant has a duty to mitigate their loss (take reasonable steps to reduce it); an unreasonable failure reduces the recoverable damages. The other main remedy, especially in nuisance, is an injunction: a discretionary court order which may be prohibitory (stop doing something), mandatory (do something) or interim (temporary, pending trial).

Examples in context

A strong answer distinguishes a partial defence (contributory negligence) from a complete one (consent) and assesses the remedy.

Try this

Q1. Explain the defence of consent (volenti non fit injuria) and its limits in the law of tort. [12 marks]

• What the marker wants. Precise AO1: consent is a complete defence where the claimant freely and with full knowledge accepts the risk (ICI v Shatwell), but it is excluded against passengers by s149 Road Traffic Act 1988 and fails for those with no real choice (Dann v Hamilton) or rescuers (Haynes v Harwood).

Q2. A cyclist injured by a careless motorist was riding at night without lights. Advise on the defences available to the motorist and the effect on any damages. [20 marks]

• Cue. An AO2 application of contributory negligence: riding without lights at night is a failure to take reasonable care contributing to the harm, so damages are reduced by a just and equitable percentage under the 1945 Act; the claim still succeeds at a reduced sum.