Defences to the Tort of Negligence
Introduction
A tort is a deliberate or accidental wrongful act of a person known as a tortfeasor, which causes damage or injury to another person or property of another, and attracts a civil penalty. The act can be either negligent, assault, battery, trespass, liability of harmful products or emotional injury. Any person who has caused injury or damage may be sued in a court of law to compensate for the loss or damage. However, it is not automatic that when an individual has been sued, he/she must be penalized (Alexander and Alexander 2011). For a negligence action against an individual to succeed in the tort of negligence, the court must be satisfied that all the elements of negligence are proved (Alexander and Alexander 2011). The elements require that Payne must have owed a duty of care to Liz to which he failed, ignored or refused to oblige with and that Liz must have suffered loss or damage from the direct act of Payne. Without proof of these fundamentals of the tort, Payne cannot be held liable to pay for the damages. However, if he is found to have caused damage or loss to Liz, there are various defences available to him.
Defences Available to Payne
There three defences in law which are available to Payne; voluntary assumption of risk, contributory negligence and inevitable accident (Goudkamp 2011). These defences can only be relied upon if Payne as the defendant is able to prove them on a balance of probability against Liz.
Voluntary assumption of Risk
Therefore, the injuries caused to her were intensified by the fact that she was putting on shoes which had potential of causing her injury. This position of the law is illustrated well in the case of ICI Ltd v Shatwell [1965] AC 656, the Plaintiffs were held to have contributed to their injuries caused by detonators in the mining well when they ignored the warning of their employer that they should take shelter before denotation (Montague 2014).
Contributory Negligence
Secondly, Payne can plead contributory negligence by Liz. This defence requires the defendant to prove that the plaintiff partly played part in the action, which caused the damage (Jain 2015). The contribution also determines the damage which is to be paid by the defendant as it will have to be reduced by the percentage contributed to by the plaintiff. The injury caused to Liz could have not been occasioned if she had put on her hearing aid. This could have enabled her to hear when Payne was moving towards her. In other words, Liz could have not failed to hear him run and make way for him. She had failed to take reasonable care to safeguard herself from harm caused by the inability to hear. Liz must had foreseen the dangers she exposed herself to by being in a public and noisy place without her hearing support equipment. Therefore, Payne should not be blamed solely for the injuries Liz had but to the extent of Liz negligence.
Inevitable Accident
Thirdly, the defence of inevitable accident is available to a defendant who can prove that he could not control either or the cause and the result of the accident, which has caused damage or loss to the plaintiff (del Monte 2015). The defendant is simply required to show that he was not negligent in his action, but there was an external force, which caused the wrongful act. In this case, Payne was angered by the argument he had with his fiancé and ran out of stage while not thinking clearly. Therefore, the resultant accident was unforeseeable because he had no control of his emotions at the time of the accident. It is upon Payne to prove that he did not intend to cause injury to any person including Liz, but for the anger, which blinded his reasoning, he hit Liz and she fell down, causing injury to her wrist. This legal principle was elaborated in the case of Boomer v Penn [1966] 1 O.R 119-126, where the defendant caused an accident due to the inability to control his body because there was a change in his blood sugar levels, which affected his ability to drive (del Monte 2015).
Conclusion
In summary, Payne can use the defences discussed above in order to escape liability, which may arise in the action brought against him by Liz. Furthermore, the different defences can either set him free from the tort action or reduce his liability to the injury caused to Liz. The only thing he needs to do is to prove to the court on a balance of probability that either Liz made an assumption of risk by putting on unstable shoes or sitting near the performers or that she had contributed to her injuries by failing to put on hearing aid or that Payne could not foresee the accident happening due to the influence of anger.
Reference List
Alexander, K. and Alexander, M.D., 2011. American public school law. Cengage Learning.
Cohen, A.J., 2013. Toleration. The International Encyclopedia of Ethics. Available from
http://onlinelibrary.wiley.com/doi/10.1002/9781444367072.wbiee164/full
del Monte, D.L., 2015. Defences to intentional torts: An overview. Precedent (Sydney, NSW),
(130), p.4.
Goudkamp, J., 2011. Defences to negligence. Available from
http://ro.uow.edu.au/lawpapers/241/?utm_source=rss&utm_medium=rss&utm_campaign=defences-to-negligence
Jain, S.K., 2015. Introduction. In Economic Analysis of Liability Rules (pp. 1-22). Springer India.
Available from http://link.springer.com/chapter/10.1007/978-81-322-2029-9_1
Montague, J.E., 2013. Q & A Torts 2013-2014. Routledge.
