5. Definition, Defences

• A tort is a civil wrong independent of contract, for which the remedy is an action for unliquidated damages, typically in the form of compensation to the person wronged.
• Common defences in tort law allow a defendant to avoid or reduce liability for a tortious act by showing justifications or excuses recognized by law.

Meaning and Definition of Tort

• The word "tort" is derived from Latin (tortus), meaning "twisted" or "wrong," and from the French word for "wrong".
• A tort is an act or omission (other than breach of contract) that results in injury or harm to another, giving rise to a civil liability for compensation.
• The person committing the tort is called the "tortfeasor," and the person injured is the "plaintiff".

Notable definitions:

• "A civil wrong, other than breach of contract, for which the remedy is an action for unliquidated damages".
• "A wrongful act or violation of a right, excluding breach of contract, which causes loss, harm, or injury to another party".
• The law of tort deals with various wrongs such as assault, negligence, defamation, trespass, and nuisance.

Types of Torts

• Intentional Torts: Wrongful acts done intentionally, e.g., assault, battery, false imprisonment.
• Negligent Torts: Wrongful acts resulting from failure to exercise reasonable care; the most common type.
• Strict Liability Torts: Liability without fault or intention, commonly seen in cases involving dangerous activities or defective products.

General Principles of Liability in Tort

• Liability in tort is primarily imposed to compensate the injured party for harm suffered.
• The standard of proof is a "preponderance of the evidence," i.e., the plaintiff must convince the court that their version of events is more probable than not.
• Tort law is concerned with private wrongs rather than public wrongs, focusing on compensation rather than punishment.

Common Defences in Tort

• Defences in tort law are mechanisms by which a defendant can avoid or mitigate liability for alleged wrongs.
• These are broadly classified as general defences, available irrespective of the type of tort, and special defences, relevant to specific torts only.
• Key general defences include:

1. Volenti Non Fit Injuria (Consent)

• Means "to a willing person, no injury is done."
• If the plaintiff willingly exposes themselves to a risk, they cannot claim damages for harm arising from that risk.
• Commonly used in sports or activities with inherent risks (e.g., injuries during a football match after signing a waiver).
• Consent must be free, informed, and without coercion; implied consent may be established by conduct.

2. The Plaintiff as Wrongdoer (Ex Turpi Causa)

• If the plaintiff is themselves engaged in a wrongful or illegal act, they may be barred from recovering damages.
• For example, a participant injured during the commission of a crime cannot sue a co-conspirator for injury.

3. Inevitable Accident

• The defendant claims the event was unavoidable despite taking reasonable care; liability cannot arise from circumstances beyond one's control.
• Requires proof that no reasonable measures could have prevented the harm (e.g., a sudden mechanical failure despite proper maintenance).

4. Act of God

• Covers harm caused by natural forces beyond human control, such as earthquakes, floods, or storms.
• The event must be unforeseeable and not preventable by human intervention.
• Example case: Flood damages not attributable to negligent construction, but to extraordinary natural causes.

5. Private Defence

• Permits reasonable force to defend person or property from imminent harm, provided it is proportionate and necessary.
• If the defendant acted in self-defence or defence of their property, their liability may be negated.
• Excessive force, however, will not be justified and may result in liability.

6. Mistake

• In rare cases, a genuine mistake of fact (not law) may excuse liability if the defendant can demonstrate it was honest and reasonable.
• Does not generally excuse torts unless the mistake is foundational and not due to negligence.

7. Necessity

• The defendant may plead necessity if their act was needed to prevent a greater harm (e.g., trespass to save life during a disaster).
• Must show that no reasonable alternative existed and the act was proportionate to the need.

8. Statutory Authority

• Acts permitted or mandated by law (statute) are protected from tort liability even if harm results.
• Example: Construction authorized by governmental authority, despite inconvenience caused to nearby residents.

Other Notable Defences

• Contributory Negligence: If the plaintiff contributed to their own injury, damages may be reduced proportionally.
• Illegality: Any claim arising from illegal activities may be barred on grounds of public policy.
• Judicial and Executive Acts: Certain acts carried out under judicial, executive, parental, or public authority may be shielded from liability.
• Slight Harm: Some minor injuries, especially where the injury was insignificant or not actionable, may not constitute a tort.

Application of Defences in Case Law

• Courts examine the facts thoroughly, including behaviours of both defendant and plaintiff, when considering defences.
• Landmark cases illustrate the use and limits of defences, such as the requirement for good faith in necessity or genuine consent in volenti non fit injuria.

Summary Table: Common Defences in Tort

Conclusion

• In the law of tort, the defendant may raise various defences to escape or limit liability for a civil wrong.
• These common defences—ranging from consent, act of God, private defence, inevitability, mistake, necessity, statutory authority, and contributory negligence—are crucial for balancing individual rights against overarching principles of justice and public policy.
• Each defence is context-dependent and subject to strict judicial scrutiny, often illustrated through case law that guides the application of principles in real-life disputes.