Deceit
This tort, which is also known as fraud, consists of know-
ingly or recklessly making a false statement to another
person who acts on it to his detriment.
Passing-off
This tort protects a trader whose competitors pass off
their goods as the trader’s. Examples of passing-off in-
clude using another’s trade name and imitating another’s
goods, for example by using similar wrappings or con-
tainers. Passing-off will be considered in more detail in
Chapter 15.
Defences
There are several defences which are available generally
to a defendant facing an action in tort. These general
defencesare:
■consent;
■contributory negligence;
■statutory or common law justification;
■necessity;
■illegality.
Consent
Consent – or assumption of risk, as it is sometimes
known – is a complete defence to an action in tort. Con-
sent may arise either from an express agreement to run
the risk of injury or may be implied from the claimant’s
conduct. An example of express agreement is where a
patient signs a consent form before an operation. If this
formality were not carried out, the surgeon could be
sued for trespass to the person (battery). Implied con-
sent is often referred to as volenti non fit injuria(no
harm is done to one who is willing). Participants in
a boxing match, for example, are deemed to have con-
sented to the intentional infliction of harm which would
otherwise amount to a trespass. The defence of consent
was of greater importance in the 19th century when it was
used by employers to defeat claims by their employees
for injuries suffered during the course of employment
caused by the employer’s negligence. However, the signi-
ficance of the defence in employment cases diminished
greatly as a result of the decision of the House of Lords
in Smithv Baker & Sons(1891). Their Lordships held
that an employee who continued working despite know-
ing that he ran the risk of injury from stones falling from
an overhead crane was not volenti. Consent cannot be
inferred from knowledge of the risk: it must also be
shown that the claimant freely and voluntarily accepted
the risk. So, to establish the defence today, the defendant
must prove that the claimant not only had full knowledge
of the risk but also freely consented to running the risk.Part 3Business transactions
352
Morrisv Murray(1990)The claimant and defendant had engaged in a prolonged
drinking session before taking a flight in a light aircraft
piloted by the defendant. The plane crashed, the defend-
ant pilot was killed and the claimant was seriously
injured. The Court of Appeal held that the claimant’s
action against the deceased pilot’s estate was barred by
volenti.Conduct which might give rise to the defence of con-
sent is also likely to involve contributory negligence (see
further below). These days the courts are more likely to
make a finding of contributory negligence which has the
effect of apportioning fault between the parties, rather
than consent which is a complete defence.
The defence of consent is not normally available in
what are known as ‘rescue cases’. These are situations
where a claimant is injured while attempting to rescue
someone or something from a dangerous situation
caused by the defendant’s negligence. Provided that the
claimant’s actions are reasonable in the circumstances,
the defences of consent and contributory negligence will
not apply.Haynesv Harwood(1935)The claimant policeman was injured trying to stop run-
away horses pulling a van along a crowded street. The
defendant had left the horses and van alone and a boy
had caused them to bolt. It was held that the claimant
could recover damages for his injuries. The defences
of volentiand contributory negligence (below) did not
apply.Contributory negligence
Before 1945 contributory negligence was a complete
defence to liability in tort. However, the Law Reform
(Contributory Negligence) Act 1945 modified this harsh