Defences to liability in tort

Abstract

The thesis seeks to investigate the familiar subject of 'tort' from a fresh point of view. Rather than considering the notion of tort from the standpoint of the plaintiff, the thesis strives to analyse the applicability of the law of tort from the defendant's perspective. The thesis therefore attempts to provide an answer to questions such as: Is a person always bound to make good for damage that results from his own acts? When can a person, even though prima facie legally responsible for the damage caused, be exempt from liability or have his liability reduced? The first four chapters examine the principal defences available to a prima facie legally responsible defendant who pleads exemption or reduction of liability, namely: Self-defence, Necessity, Volenti non fit Injuria and Contributory Negligence. These defences are examined from the perspective of comparative law and Maltese jurisprudence with the ultimate aim of identifying the prevailing Maltese position. The final chapter, which is intended as a complement to the principal defences identified in the first four chapters, seeks to identify and analyse several other defences, specifically: the defence of self-help, ex turpi causa non oritur actio, contractual exclusion or reduction of liability, authority conferred by law, protection of public interest and limitation of action. A notable feature that emerges from the thesis is the fact that Maltese tort law, which is primarily based on the Civilian general clause whereby every person is liable for the damage that occurs through his fault, has introduced Common law concepts in the application of certain defences, such as in the case of volenti non fit injuria and contributory negligence. The thesis strives to illustrate all the above in a manner that benefits academics and practitioners alike in addition to offering the casual reader insight into this significant branch of Civil law.