4.4 General Defences and Remedies

2026 Syllabus Objectives

By the end of this topic, you should be able to:

Defences (4.4.1)

  • Explain volenti non fit injuria — what consent means, why knowledge and understanding matter, and how it applies in employment, medical treatment, and sport
  • Explain contributory negligence — why it is only a partial defence, how blame is shared, and how damages are reduced
  • Explain the defences of inevitable accident, Act of God, statutory authority, illegality, and necessity

Remedies (4.4.2)

  • Explain the purpose of damages in tort, how they are calculated, and the difference between special and general damages
  • Explain non-compensatory damages
  • Explain damages for personal injuries, including future losses and death
  • Discuss policy issues and possible reforms relating to damages
  • Explain equitable remedies in tort, particularly injunctions
  • Distinguish between mandatory, prohibitory, and interlocutory injunctions
  • Explain damages in lieu of an injunction
  • Evaluate the use of injunctions in tort

Part 1 — Defences in Tort

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A defence is a legal argument that a defendant (the person being sued) can use to avoid liability, or to reduce the amount they have to pay. Even if a claimant (the person suing) can prove all the elements of a tort, the defendant may still escape full or partial liability by successfully raising a defence.

4.4.1 — Volenti Non Fit Injuria

What Does It Mean?

Volenti non fit injuria is a Latin phrase meaning "to a willing person, no injury is done." In simple terms, it means that if a person freely agrees to accept a risk, they cannot later sue someone for the harm that results from that risk.

This is a complete defence — if it succeeds, the defendant pays nothing at all.

The Two Key Requirements

For this defence to work, the defendant must prove two things:

  1. Knowledge — The claimant must have known about the specific risk involved. Vague or general knowledge is not enough. They must have understood exactly what danger they were agreeing to.

  2. Consent (Voluntary Agreement) — The claimant must have freely and voluntarily agreed to accept that risk. If they had no real choice, or were pressured, they have not truly consented.

Important distinction: Knowing about a risk is not the same as consenting to it. A person might know a risk exists but still not agree to accept it. Both knowledge and genuine consent must be present.

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