Purposes and criticisms of general defences in tort?

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spurs9393
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What is the purpose of the general defences of: consent, Act of God, necessity and novus actus interveniens?

How well do these defences work and what critics reforms/could be made?

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GeneralStudent95
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I will deal with Consent, or 'Volenti Non Fit Injuria'. This consent consists of two elements:

(1) The claimant was aware of the risks / the tort being committed
(2) The claimant consented to those risks / the tort.

The difficulty is bridging the gap between (1) and (2) because the courts have generally treated knowledge as consent, and have been pretty inconsistent in this regard. Look at the inconsistency with these cases:

Dann v Hamilton
Morris v Murray

Also, look at the defence of illegality. In a recent case of Jetiva v Bilta the Supreme Court stated that they needed to "reconsider this defence urgently with a seven and perhaps even more appropriately a nine member panel of this court." That is a pretty damning indictment of the state of that defence in law.
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spurs9393
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(Original post by GeneralStudent95)
I will deal with Consent, or 'Volenti Non Fit Injuria'. This consent consists of two elements:

(1) The claimant was aware of the risks / the tort being committed
(2) The claimant consented to those risks / the tort.

The difficulty is bridging the gap between (1) and (2) because the courts have generally treated knowledge as consent, and have been pretty inconsistent in this regard. Look at the inconsistency with these cases:

Dann v Hamilton
Morris v Murray

Also, look at the defence of illegality. In a recent case of Jetiva v Bilta the Supreme Court stated that they needed to "reconsider this defence urgently with a seven and perhaps even more appropriately a nine member panel of this court." That is a pretty damning indictment of the state of that defence in law.
Thanks. Could I also mention that the Law Reform (Contributory Negligence Act) 1945 means that in certain situations, it is hard to determine whether a person consented to the risk, or simply partially contributed to his own injury?


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GeneralStudent95
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(Original post by spurs9393)
Thanks. Could I also mention that the Law Reform (Contributory Negligence Act) 1945 means that in certain situations, it is hard to determine whether a person consented to the risk, or simply partially contributed to his own injury?


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Yeah, that is a good argument, although the two defences are quite distinct an argument could be made I suppose.

The supposed distinction between the two is that the courts will look for some active consent, but in the absence of this being enforced as a distinctive part of volenti it does blend into contributory negligence.
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spurs9393
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(Original post by GeneralStudent95)
Yeah, that is a good argument, although the two defences are quite distinct an argument could be made I suppose.

The supposed distinction between the two is that the courts will look for some active consent, but in the absence of this being enforced as a distinctive part of volenti it does blend into contributory negligence.
Thank you for your help. Do you have any ideas regarding novus actus interveniens?


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GeneralStudent95
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(Original post by spurs9393)
Thank you for your help. Do you have any ideas regarding novus actus interveniens?


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Strictly speaking novus actus isn't a defence; it is a causative issue. Under the head of legal causation you consider if there are any intervening acts which would break the chain of causation; although it serves a similar purpose to a defence it is not one, strictly speaking.

If you wish to treat it as such, it is very difficult to know when an intervening act will actually break the chain of causation and you can survey the case law for this; in particular, I would look at Webb v Barclay's Bank which seems to be an odd decision.
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spurs9393
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(Original post by GeneralStudent95)
Strictly speaking novus actus isn't a defence; it is a causative issue. Under the head of legal causation you consider if there are any intervening acts which would break the chain of causation; although it serves a similar purpose to a defence it is not one, strictly speaking.

If you wish to treat it as such, it is very difficult to know when an intervening act will actually break the chain of causation and you can survey the case law for this; in particular, I would look at Webb v Barclay's Bank which seems to be an odd decision.
Thanks.

For the defence of Act of God, could you argue that this defence has allowed defendants who did not take reasonable care to blame this on an act of nature?


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GeneralStudent95
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(Original post by spurs9393)
Thanks.

For the defence of Act of God, could you argue that this defence has allowed defendants who did not take reasonable care to blame this on an act of nature?


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The only instance in which I am aware of that defence is in Rylands v Fletcher liability, so I don't know enough about it to comment on it in more general terms.
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spurs9393
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(Original post by GeneralStudent95)
The only instance in which I am aware of that defence is in Rylands v Fletcher liability, so I don't know enough about it to comment on it in more general terms.
Ok, thank you for your help. A big help 👍


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