DEFENCES UNDER TORTS

1. Mistake and inevitable accident

Mistake is no defence to intentional torts e.g if a defendant intended to drive his lorry to
As piece of land, then his reasonable mistake, that the land was his own will be no
defence

Mistake must be distinguished from inevitable accident

If the defendant shows that the tractor entered the claimants land solely because of a
defect in the steering which no amount of care could have prevented , he will not be
liable.

He had no intention nor could he have avoided doing so by taking every care.

2. Consent
He who comes to equity must come with clean hands
Common law does not allow a claimant who expressly consents to an invasion of his
interest in a manner that constitutes a tort to sue.
Consent can either be express or a claimant may be willing to run the risk of injury
from a particular source of danger of which the claimant is fully aware of the nature
and extend of the risk
Assumption of risk - Volenti non fit injuria (no wrong is done to one who consents)
Consent can either be express or implied
Arthur v. Anker (1997) QB 564
Held: where a person had unlawfully parked his car on anothers land, knowing that
the owners asserted a right to wheel-clamp trespassing vehicles and charge for their
release, he had impliedly consented not only to the otherwise unlawful detention of
his car (so that there was no trespass to goods) but also to being required to pay a
reasonable fee to ensure the un-clamping of the vehicle
R v. Dica (2004) QB 1257
The claimant consented to sex with the defendant. Contracted HIV and Aids
Does the consent to sexual intercourse include being infected?
Held: Consensual sexual intercourse does not exclude the possibility of a man being
convicted to grievous bodily harm if he unknowingly or recklessly transmits HIV to a
woman
Consent obtained under duress is no consent
3. Self defense
Proof of a threatening attack
The defendant must prove that in the circumstances it was reasonable that he should
defend himself and that the force used by him was reasonable.
Cockroft v. Smith (1705) 2 Salk 642
The clerk of a court sued an attorney for biting off his forefinger in a scuffle in court.

Held: It was no defence that C had run his fingers towards Ds eye. For a man must not,
incase of a small assault, give a violent or an unreasonable return
What is reasonable is a question of fact to be determined in each case
Suppose A pins B against a wall and repeatedly kisses her against her wish. Suppose
also that the only means whereby B can compel A to desist is by lacerating his hands
with scissors, having failed to push him away because of his superior strengthIt is not
certain that her defence will fail simply because the wounding is more severe than the
unwanted kisses.
Defence of another person: person A may strike person B in defence of another
Defence of ones property: person A may use reasonable force to defend land and
goods in his or her possession against threatened trespass.
Defence of a anothers property
4.Necessity
Defence to property presupposes that the claimant is prima facie a wrong doer
Necessity contemplates the infliction of harm on an innocent claimant
If a defendant, barricades his land against flood-water and, in consequence, the claimants
land is flooded, the defence of necessity may lie against the claimant who is in no way
responsible in creating the threat of danger
In the context of medical treatment?
Diverting pests away from anothers land which damage a neighbours land?
5. Illegality / Ex turpi causa
No cause of action should arise from illegal acts
One can base a claim squarely on the basis of injury sustained by virtue of ones own
illegal act claim rejected on ground of illegality
E.g A enters into an illegal contract with B. B refuses to honour his side of agreement. A
is barred by the illegality from seeking a remedy in contracts.
A person having committed crime X but bases his claim on another persons quite
independent tort.
While driving a stole car X is injured in a collision caused entirely by negligent driving of
Y. X is certainly a wrongdoer but his claim against Y is firmly based on a tort, not his
own wrong. In such a case, there may be reluctance on the court allowing X to claim in
such circumstances
When a tort action is either arising from, or in connection with, the claimants illegal act.
The defence arises even if the claimant's act is not strictly a criminal offence.
Clunis v. Camden and Islington Health Authority (1998) 3 All ER 180
Clunis had a history of mental illness. After his release from detention in a mental hospital, and
having missed four appointments with his doctors, he made an unprovoked attack on a Man.
Clunis was convicted for manslaughter. He sought to sue the health authority responsible for his
care in negligence failure to provide him with adequate treatment
Held: the basis of his claim was as a result of his own criminal act. While the criminal act
was not per se the basis of his claim, it was sufficiently closely bound up with it for ex
turpi defence to be allowed
4. Contributory Negligence

While it is available in battery its not available in proceedings founded on conversion

or an intentional trespass to goods
Not a complete defence but reduces the damages to the extent to which the claimant
has been contributorily negligent
Butterfield v. Forester (1809) 11 East 60

D partially obstructed the highway by putting a pole across part of it. C riding very rapidly at
dusk, did not observe the pole and ran into it, suffering injury. Had he been using ordinary
care, he would have seen and avoided the pole

Obstruction in the road lack of ordinary care to avoid the injury

In recent cases, ( Fookes v. Slaytor [1979] 1 All ER 137) a defendant seeking to rely on
contributory negligence must prove:

The injury of which the claimant complains resulted from the particular risk to which the
claimant exposed himself by virtue of his own negligence

ii. The negligence of the claimant contributed to his injury

iii. There was fault or negligence on the part of the claimant

7. Statutory Authority
-Authority emanating from Statute that offers a defence for the commission of specific torts.