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Tort | Negligence

Absolute Defences: Overview

Study Note | Degree

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A defendant may raise several defences to a Negligence claim. First a claimant must prove, on the balance of probabilities, that the defendant owed a duty, which he breached and that the breach caused the claimant's loss or harm. Multiple defences may be raised by a defendant but a defence must be proved on the balance of probabilities in order to succeed.

Defences exist in the law of tort in order to absolve defendants of liability when there was a good reason for their conduct and will often arise for public policy reasons. General defences apply to all torts and there are some defences which only apply to specific torts. There are two types of defence: an absolute defence which will act as a complete bar to the claim and the defence of contributory negligence which will limit the defendant's liability.

A defendant may raise consent or illegality as an absolute defence. Alternatively a defendant may also try to show liability is excluded, if he does so successfully then the claim will fail. In addition, there are three other absolute defences: mistake, necessity and limitation.


A mistake made by a defendant, whether in law or to a fact, is not a general defence. In the context of Negligence only a reasonable mistake will lead to a defence. This is because by definition, a reasonable man would not make an unreasonable mistake and therefore, to do so is negligent.


Necessity is not often used a defence. However, in order to succeed a defendant must have acted as a reasonable person would have done to avoid a real and imminent danger.


Limitation may provide a defence, in that it requires certain claims to be brought within time limits and therefore, a defendant may argue that a claimant has delayed too long before bringing the claim. There are statutory time limits for making a claim and generally a claim in tort must be brought within six years, however, there is shorter time frame for bringing a claim for personal injury.

S11 Special time limit for actions in respect of personal injuries

This section means that personal injury claims must be brought within three years.

This limit on claims for personal injury has been introduced for practical reasons. The limit is deemed necessary from the point of collecting evidence, especially because witnesses to an accident will be less reliable over time and it may be practically difficult to obtain all the relevant paperwork. This also relates to the issue of fairness in relation to the defendant as it may be difficult for him to provide suitable evidence to rebut a claim long after the event. In addition, it avoids placing the defendant under the risk of possible liability for a substantial period, which would itself be unfair.

Excluding liability

A defendant may argue that he excluded or limited his liability to the claimant. It is common to find exemption clauses in contracts but can also apply in non-contractual situations, such as statements displayed on notices purporting to exclude liability.

The Unfair Contract Terms Act 1977 (UCTA 1977)

There are statutory limitations on defendants attempting to exclude liability for negligence.

S1: Scope of Part I

S(1) For the purposes of this Part of this Act, 'negligence' means the breach -
S(1)(a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract;
S(1)(b) of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
S(1)(c) of the common duty of care imposed by the Occupiers' Liability Act 1957 or the Occupiers' Liability Act (Northern Ireland) 1957.

S1(3) In the case of both contract and tort, sections 2 to 7 apply (except where the contrary is stated in section 6(4)) only to business liability, that is liability for breach of obligations or duties arising -
S1(3)(a) from things done or to be done by a person in the course of a business (whether his own business or another's); or
S1(3)(b) from the occupation of premises used for business purposes of the occupier;

S2: Negligence liability

S2(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

S2(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

S2(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person's agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

S11: The 'reasonableness' test

S11(3) In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.

S11(5) lt is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.

S14 : Interpretation of Part I

In this Part of this Act -
'business' includes a profession and the activities of any government department or local or public authority;
'negligence' has the meaning given by section 1(1);
'notice' includes an announcement, whether or not in writing, and any other communication or pretended communication; and
'personal injury' includes any disease and any impairment of physical or mental condition.

The limitations to a purported exemption of liability under UCTA 1977 applies only to business liability (s.1(3)). Under s.2 UCTA 1977, a person is unable to exclude liability for death or personal injury resulting from negligence. Therefore, a defendant is not able to argue liability was excluded, for example by a notice, if the claimant has suffered personal injury or is making a claim in relation to a victim who has died. Furthermore under s.2(2) UCTA 1977, liability for other loss or damage can only be excluded if it satisfies the reasonableness test, set out in s.11 UCTA 1977.

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