bits of law

Main Section

Tort | Negligence

Absolute Defences: Overview

Revision Note | Degree

Download Adobe PDF Icon


  • defendant (D) may raise a defence, once claimant (C) has proved: on the balance of probabilities, D owed duty to C, breached that duty & caused C's loss or harm
  • multiple defences can be argued but must be proved on the balance of probabilities to succeed
  • general defences apply to all torts & have public policy reasons
  • types of defence: 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 to be a defence: a reasonable man not make unreasonable mistake & to do so is negligent
  • necessity: D must have acted as reasonable person would have to avoid real & imminent danger


  • D can argue C has not brought claim within time limit
  • generally 6 yrs for tort but less for personal injury or death claim

    • S11: personal injury or death claims must be brought within three years
  • practical reasons for limit: lack of relaible evidence & unfairness to D if claims could be allowed substantial time after incident

Excluding liability

  • D may argue he excluded or limited his liability to C
  • exemption clauses common in contracts but also apply in non-contractual situations (signs or notices)
  • statutory limitations on Ds attempting to exclude liability for negligence

    S1: Scope of Part I
    • S(1): defines 'negligence' as breach of either(a) contractual obligations or (b) any common law duty to 'take reasonable care or exercise reasonable skill'
    • S1(3) : applies to business liability only

    S2 Negligence liability
    • S2(1): no notice can restrict liability for death or personal injury resulting from negligence
    • S2(2): notice must satisfy reasonableness test to restrict other loss or damage
    • S2(3) person's agreement to or awareness of notice does not indicate his voluntary acceptance of any risk

    S11: The 'reasonableness' test
    • S11(3) it should be fair & reasonable to allow reliance on non contractual notice, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen
    • S11(5): burden of proof lies with party seeking to rely on exemption clause

    S14 : Interpretation of Part I
    • 'notice': announcement (written or unwritten) & other communication or pretended communication
    • 'personal injury': any disease & any impairment of physical or mental condition
  • limitations apply only to business liability (s.1(3) UCTA 1977)
  • unable to restrict liability for death or personal injury resulting from negligence (s.2 UCTA 1977)
  • liability for other loss or damage only be restricted if notice satisfies reasonableness test (s.2(2) UCTA 1977)
  • reasonableness test requires limitation to be fair & reasonable & places burden on D to prove ( s.11 UCTA 1977)
This site is best viewed with style sheets (CSS) enabled and an up-to-date browser.