Defences

What "Defences" covers

• Contributory negligence under the Law Reform (Contributory Negligence) Act 1945 reduces damages to the extent that is just and equitable, but does not bar the claim.
• The claimant's fault must have contributed to the damage suffered, not necessarily to the accident itself (Sayers v Harlow, seatbelt cases).
• Volenti non fit injuria (voluntary assumption of risk) is a complete defence requiring full knowledge of the risk and free, genuine agreement to accept it.
• Volenti rarely succeeds against employees or rescuers, and s.149 Road Traffic Act 1988 prevents its use against motor passengers.
• Illegality (ex turpi causa) may bar a claim where allowing it would be contrary to public policy, applying the Patel v Mirza factors.
• Consent can negate liability for what would otherwise be a trespass to the person.
• Statutory limitation periods (generally three years for personal injury, six years for other torts) can extinguish an otherwise valid claim.

Key cases & statutes

The authorities and provisions most likely to matter for this subtopic:

How it's tested in SQE1

SQE1 uses single best answer questions: a short factual scenario, one precise question, and five options of which only one is the best answer on the law applied to the facts. For defences, expect to be asked what the correct legal position is, what a party may or must do, or which outcome follows — with more than one option looking arguable. Reading the facts carefully and eliminating the near-misses is the skill that earns the mark.

Where candidates lose marks

• Treating contributory negligence as a complete defence rather than a reduction in damages.
• Applying volenti to employees, rescuers, or motor passengers where it is excluded.
• Overlooking the structured public-policy approach to illegality in Patel v Mirza.

FAQ

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