The Law of Defence - Essay Example

ESSAY The law of the defences to actions for tortiously inflicted death and serious injury lacks any conceptual coherence. It would be better if the judges were able to decide in every case what is a just outcome, based on the defendants moral culpability The issue in this question requires an analysis in respect of the defences that are available in respect of tortuous actions and whether they have any logical reasoning attached to them or not. Finally the aspect also requires an evaluation of whether the moral responsibility of a defendant should be taken into account when determining his liability, rather than focusing on the stringent principles of defences that have been laid down. Historically, the defences, in particular, contributory negligence, consent, and common employment provided assistance so as to limit the availability of claims in respect of personal injury sustained at work or on highway. However, legislation in respect of this has reduced the scope of such defences. A general analysis of the defences would be made and their effect in respect of what is required would be considered. Prior to the Law Reform (Contributory Negligence) Act 1945, contributory negligence of the Plaintiff would constitute to be a complete defence in respect of claims of negligence. The Act allows courts to allocate responsibility in respect of damage and attribute it accordingly between the defendant and claimant and then to apportion the claimant’s damages, thus making it a partial defence. Contributory Negligence is a defence which makes available a partial defence in respect of a claim in tort. The aspect of this defence is primarily concerned with the fact that the claimant was careless and this was a material cause in respect of the loss that he suffered. The defence therefore operates as a partial exclusion as to liability. The Act has simplified the law in respect of the defence. As said by G.Williams in Joint Torts and Contributory Negligence (1951), 236, that the common law had led to a ‘vast proliferation of case law which added greatly to the hazards of litigation’. Even though it has been argued in respect of the defence that the problem has been resolved by the legislation, there are areas in the defence where problem lays in respect of the modern defence, that is, causation; concept of claimant’s fault; what is the position in respect of special elements in relation to certain claimants and how what they be accounted for; how the loss would be apportioned; and how the defence is to apply in respect of torts apart from negligence. The problem in respect of causation is the fact that the apportionment has to be made in accordance with the causation and takes into account the plaintiff’s carelessness as can be seen in McLew v. Holland and Hannen and Cubitts (Scotland) Ltd.1 whereby it was held that the plaintiff’s act was novus actus interveniens and therefore the chain of causation was broken. The last opportunity rule, even though, been discredited, was used in this case. However, the courts in Reeves v. Commissioner of Police for the Metropolis2 found that even though the deceased committed suicide, the causal link had not been broken. As far as the claimant’s fault is concerned, there is no requirement of a duty of care being owed and the Act merely requires an act or omission and therefore torts, other than of negligence are also covered. After an evaluation of the contributory negligence that court would decrease the damages of the claimant ‘to such an extent as [it] thinks just and equitable having regard to [his] share in the responsibility for the damage’ (Law Reform (Contributory Negligence) Act 1945, s.1. The evaluation in respect of the deduction is therefore left at the discretion of the judges and an evaluation in this respect was made by Lord Denning in Davies v. Swan Motor Co.34 Damage in respect of Contributory Negligence include but is not limited to loss of life and personal injury. Thus it can apply to cases of pure economic loss as well. There have been problems that have been found for apportionment in cases concerning negligent misstatement. The next element where there have been problems that have been found are the civil wrongs of the claimant, negligence being quite clear, but other torts and their applicability has caused problems. Furthermore, in respect of strict liability the application remains unclear. As far as common employment was concerned it stated that there was an implied risk that was assumed by the employee in respect of the injuries or any risk in that respect at work which would be a fellow employee. However, this was abolished by the Law Reform (personal Injuries) Act 1948. As far as the defence of consent is concerned, there has been no statutory changes brought about, however, the courts have limited its implication only to personal injury cases. The defence operated to completely exclude liability for all forms of tortuous liability. There are different approaches in respect of negligence or strict liability as compared with torts that are based on intentional interference. As far as negligence and strict liability are concerned, the court looks into the fact that assumption of risk of damage by the claimant which flowed from the breach of duty of the defendant thereby allocating the risk of loss amongst the parties. As far as negligence is concerned there is an assumption of risk by the claimant in respect of a risk as to injury. Contrary to that, in respect of strict liability, claimant waives any claims for compensation that may result from the injury. Lord Diplock in Wooldridge v. Sumner5 stated that ‘that the consent that is relevant is not the consent to the risk of injury but consent to the lack of reasonable care that may produce the risk’. Inference of knowledge will not validly constitute the defence. As far as intentional torts are concerned the primary concern is whether the claimant consented to such interference. The abolition of common employment and the conversion of contributory negligence has played an important role in respect of the courts limiting the volenti and its operation. In Nettleship v. Weston6 Lord Denning said ‘Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered and, in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant.’ The defence consent in respect of stric liability can be seen in Rylands v Fletcher that is the defence of ‘common benefit’. Unfair Contract Terms Act 1977 has also played a considerable role in respect of use of exclusion or limitations of liability in respect of tortuous liability. It has been argued that where volenti does not apply the defendant can avoid liability by way of exclusion. UCTA 1977 specifically prohibits the exclusion of liability for personal injury or death that is caused due to negligence. As for other losses the test for determination is that of reasonableness. Awareness and agreement of plaintiff is not sufficient. As far as illegality is concerned, it is seen as a rare defence to liability in respect of tort. Finally necessity is also one such defence which can be relied upon and be successful in respect of actions in tort. Taking in view, the defences above and the restrictions that have been placed upon by way of statutes, it is evident, that a coherent system is existent in respect of the defences to actions for tortiously inflicted death and serious injury and even though there had been problems in respect of coherent system before the implementation of statutes, this has been resolved by introduction of the statutes. There are problems in respect of the defences, but these problems have merely allowed the courts and provided them with an opportunity to assess damages and apportion them according to the actions of the defendant and claimant and therefore provided the judges with flexibility to decide upon the circumstances of each case and impose sanctions on the merits rather than the stringent principles of statutes. Thus it can be said that there has been a coherent system which has been established in respect of the defences and that the courts have been provided with adequate leverage to reach a just outcome taking into account the moral culpability of the defendant and assessing upon the torts, defences and apportioning damages in accordance with that. References DEAKIN, S., MARKESINIS, B. S., & JOHNSTON, A. C. (2003). Markesinis and Deakins tort law. Oxford, Clarendon press ELLIOTT, C., & QUINN, F. (2007). Tort law. Harlow, Pearson Longman. WILD, C., WEINSTEIN, S., SMITH, K., & KEENAN, D. J. (2010). Smith and Keenans English law: text and cases. Harlow, England, Longman ROGERS, W. V. H., JOLOWICZ, J. A., & WINFIELD, P. H. (2006). Winfield and Jolowicz on tort. London, Sweet & Maxwell. WEIR, T. (2004). A casebook on tort. London, Sweet & Maxwell Read More