What Defences Are Commonly Raised in Public Liability Claims

In a public liability claim in England and Wales, a claimant must show that someone else's negligence or breach of a duty of care caused injury, loss or damage. Defendants (often occupiers of property, employers, local authorities or event organisers) commonly raise legal defences to avoid liability or reduce the amount of compensation they must pay. Understanding these defences is crucial for anyone involved in a claim, whether as a claimant, defendant, solicitor or student.

This article explains the most commonly raised defences in public liability claims, how they work under UK civil law, and what practical effects they may have on outcomes.

What Defences Mean in Public Liability Claims

A defence in civil liability law is an argument the defendant uses to challenge the claimant's case. If successful, a defence can either:

• Defeat a claim entirely so no compensation is payable; or
• Reduce the amount of compensation the claimant receives.

The defendant bears the burden of proving the defence on the balance of probabilities once the claimant has established a prima facie case of negligence or breach of statutory duty.

Contributory Negligence: The Most Common Partial Defence

What It Is

Contributory negligence arises where the claimant's own lack of reasonable care contributed to their injury or loss. Originally a complete defence, this rule was reformed by the Law Reform (Contributory Negligence) Act 1945, which allows the court to reduce damages proportionately rather than bar recovery entirely.

How It Works

To succeed, the defendant must show:

• The claimant failed to take reasonable care for their own safety; and
• That failure contributed to the claimant's harm.

The judge then decides what proportion of blame lies with the claimant and reduces the damages accordingly. For example, if a claimant is found 30 % responsible for their own injury, their final award will be reduced by 30 %.

Typical Examples

Common scenarios where contributory negligence is raised include:

• A visitor slipping on a floor while distracted by their phone.
• A pedestrian failing to use a designated crossing.
• A claimant ignoring obvious safety warnings or guidance.

Contributory negligence is routinely raised in public liability claims because it allows a defendant to argue that the claimant did not act reasonably in all the circumstances.

Volenti Non Fit Injuria (Assumption of Risk)

Core Principle

The Latin maxim volenti non fit injuria (“to a willing person, no injury is done”) is a complete defence to a negligence claim. It applies where the claimant voluntarily and knowingly accepted the specific risk of harm.

When It Applies

To be effective, the defendant must show the claimant:

• Had full knowledge of the nature and extent of the risk; and
• Freely chose to accept that risk.

This defence is more likely to arise in activities with obvious inherent risks, such as sporting or recreational events.

Practical Limitations

It is rarely successful in typical public liability claims where the claimant did not explicitly agree to the risk. Courts are cautious about accepting implied consent based solely on attendance or participation without clear evidence that the claimant appreciated the danger.

Lack of Duty Owed or No Breach

Denial of Legal Duty

A defendant may argue that they did not owe a duty of care to the claimant in the circumstances. In public liability cases, statutory duties (such as under the Occupiers' Liability Act 1957) often provide the basis for liability, but establishing that basis is part of the claimant's obligation.

No Breach of Duty

Even if a duty of care is accepted, the defendant may contend they did not breach that duty. They may argue that:

• They took reasonable precautions;
• The risk was so obvious that no additional warnings were necessary; or
• The claimant's injury was caused by factors outside the defendant's control.

For example, courts have held that occupiers are not obliged to warn about dangers that are obvious to a reasonable person.

Illegality (Ex Turpi Causa)

Principle

The defence of illegality (also known under the Latin maxim ex turpi causa non oritur actio) can be raised where the claimant's own illegal conduct is so closely connected to the injury that it would be inappropriate to allow them to recover damages.

Application in Claims

This defence may arise if the claimant was engaged in criminal or seriously unlawful activity at the time of injury. However, for it to succeed, the illegal conduct must have a causal connection with the loss claimed. It does not apply lightly and is subject to careful judicial scrutiny.

Acts of Third Parties or Unforeseeable Events

Third‑Party Acts

A defendant may argue that the injury was primarily caused by the actions of a third party wholly outside their control. If successful, this may break the causal chain between the defendant's conduct and the claimant's loss.

Acts of God or Extraordinary Events

Occasionally, a defence may be based on events that were entirely unforeseeable and unavoidable, often described as “Acts of God”. Courts will assess whether reasonable foresight or precautions could have prevented the harm.

Procedural and Technical Defences

Beyond substantive legal defences, defendants sometimes raise procedural arguments to challenge a claim, such as:

• The claim was brought outside the statutory time limit (limitation period).
• The wrong party was sued.
• Errors in how the claim was commenced or served.

Procedural defences can result in a claim being dismissed without considering its merits.

Common Situations Where Defences Are Raised

Slip, Trip and Fall Claims

In common scenarios such as slips and trips, typical defences include:

• Contributory negligence where the claimant failed to take reasonable care.
• Obvious risk where a hazard was apparent and should have been avoided.
• Reasonable steps taken where the defendant argues that adequate precautions were in place.

Claims Involving Recreational Activities

In claims arising from activities with inherent risks (e.g. adventure sports), the defendant is more likely to explore volenti defences, especially where the claimant received information about risks.

Practical Considerations for Claimants

• Early evidence gathering: Strong evidence of breach of duty and causation can make defences less persuasive.
• Challenge contributory negligence: A claimant's own actions must be carefully contextualised to argue against reduction of damages.
• Assess warnings and signage: Documentation of inadequate warnings can undermine defences based on obvious risks.

Solicitors often address these issues in pre‑action correspondence to clarify the strength of defences before litigation.

Key Takeaways

In public liability claims in England and Wales, defendants commonly raise legal defences to avoid or reduce liability. The most frequently encountered defences include:

• Contributory negligence, where the claimant's own carelessness contributed to their loss, reducing compensation proportionately.
• Volenti non fit injuria, where the claimant voluntarily accepted a known risk, potentially defeating the claim altogether.
• Denial of duty or breach, asserting no duty of care existed or that reasonable precautions were taken.
• Illegality, where the claimant's unlawful conduct undermines their right to recover.
• Third‑party acts or unforeseeable events, and procedural issues, which can also bar or limit claims.

Understanding these defences helps claimants and solicitors assess the strengths and weaknesses of a public liability claim and prepare for effective negotiation or litigation.