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Tort | Negligence

Absolute Defences: Overview

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Absolute Defences: Overview

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  • D must prove defence on balance of probabilities
  • absolute defence: completely bars claim / partial defence: contributory negligence (limits D's liability)
  • absolute defences: mistake / necessity / limitation / excluded liability / consent / illegality

Mistake and Necessity

  • mistake: must be reasonable / necessity: reasonable person / to avoid real & imminent danger


  • C not brought claim within time limit / general: 6yrs / personal injury & death: 3 yrs (s11 Limitation Act 1980)
  • practical reasons limited: lack of reliable evidence/ unfairness to D

Excluding liability: Unfair Contract Terms Act 1977

  • S(1): 'negligence' breach (a) contractual obligations or (b) any common law duty / to take reasonable care or exercise reasonable skill
  • S1(3): UCTA 1977 applies to business liability only
  • S2(1): no restriction liability / death or personal injury / resulting from negligence
  • S2(2): notice must satisfy reasonableness test / to restrict other loss or damage
  • S2(3): C's agreement or awareness of notice / not indicate voluntary acceptance of any risk
  • reasonableness test: S11(3) fair & reasonable to allow reliance on non contractual notice in all circumstances / S11(5): D's burden of proof
  • S14: 'notice': announcement (written or unwritten) & other or pretended communication / 'personal injury': any disease / any impairment of physical or mental condition
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