General defences and remedies
4. Law of Tort – General Defences & Remedies
In tort law, a defendant can avoid or reduce liability by showing that the claimant’s own conduct contributed to the harm, or that the claimant voluntarily accepted the risk. These are called defences. Once a defence is successful, the court may also decide on the appropriate remedy – the type of relief given to the claimant.
General Defences
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Contributory Negligence ⚖️
If the claimant was also negligent, the damages are reduced in proportion to their fault. Think of it as sharing a pizza: if you ate more, you owe more.
Example: A cyclist fails to signal and is hit by a car. The cyclist’s negligence reduces the driver’s liability.
💡 Exam tip: Look for words like “contributory” or “comparative” and calculate the percentage reduction.
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Assumption of Risk 🚫
When a claimant knowingly accepts a danger, the defendant may not be liable. Imagine a roller‑coaster ride: you sign a waiver and accept the risk.
Example: A person climbs a cliff without safety gear and is injured; the climber assumed the risk.
💡 Exam tip: Check if the claimant was aware of the risk and voluntarily accepted it.
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Consent 📝
If the claimant gave permission for the conduct, the defendant may be exempt. Think of a doctor giving consent for a surgery.
Example: A sports club member consents to a contact sport; a tackle that causes injury is usually not actionable.
💡 Exam tip: Look for explicit or implied consent; assess if it was informed.
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Statutory Defence 📚
Certain statutes provide immunity for specific conduct. For instance, a police officer acting within the scope of duty may be protected.
Example: A police officer uses reasonable force to arrest a suspect.
💡 Exam tip: Identify the relevant statute and whether the action was within its scope.
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Self‑Defence 🔍
When a defendant protects themselves from imminent harm, they may be exempt from liability. Picture a student defending themselves from a bully.
Example: A person pushes a stranger away to avoid being hit by a car.
💡 Exam tip: Evaluate if the force used was proportionate to the threat.
| Defence | Key Feature | Typical Example |
|---|---|---|
| Contributory Negligence | Damage reduced by claimant’s fault | Cyclist fails to signal |
| Assumption of Risk | Claimant knowingly accepts danger | Cliff climbing without gear |
| Consent | Permission given for conduct | Sports club contact sport |
| Statutory Defence | Protected by law | Police use of force |
| Self‑Defence | Protection from imminent harm | Defending against a bully |
Remedies for Tort Claims
Once liability is established, the court decides on the remedy. The main types are:
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Compensatory Damages 💰
Money to cover actual losses (medical bills, lost wages) and sometimes pain & suffering.
Example: A person receives $5,000 for hospital costs after a car accident.
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Nominal Damages 🏷️
Small amount awarded when a right is infringed but no real loss occurred.
Example: A person wins a case for a minor breach of privacy.
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Injunctions ⛔
A court order preventing the defendant from continuing the harmful conduct.
Example: A company is ordered to stop using a trademarked logo.
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Restitution 🔄
Restoring the claimant to the position they were in before the tort.
Example: Returning a stolen item to its rightful owner.
💡 Exam tip: When asked to suggest a remedy, consider the nature of the harm and the defendant’s conduct. Use the phrase “the court would likely award …” to show understanding of judicial discretion.
| Remedy | Purpose | Typical Scenario |
|---|---|---|
| Compensatory Damages | Compensate actual loss | Medical costs after injury |
| Nominal Damages | Acknowledge a breach | Minor privacy violation |
| Injunction | Prevent ongoing harm | Stop trademark infringement |
| Restitution | Restore original state | Return stolen goods |
Exam‑Ready Checklist
- Identify the tort (e.g., negligence, nuisance).
- Check for any applicable defence.
- Determine the level of liability (full, reduced, none).
- Choose the most appropriate remedy.
- Use clear legal reasoning and cite relevant cases or statutes.
Revision
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