Documentation:Torts/Defences
Defences
A defendant can avoid civil liability by establishing a defence to the tortious conduct alleged against them by the plaintiff. Some defences, such as that the plaintiff consented to the alleged wrong, are relevant to all kinds of torts. Some defences are associated with specific torts, such as the defences particular to the tort of defamation.
Defences that justify the defendant's conduct negate liability entirely and so operate as complete defences. Arguments that merely serve to lessen the scope of a defendant's liability or that reduce the damages owing may be characterised as partial defences or excuses.[1]
Foundational concepts
| Distinguishing between denials, justifications, and excuses |
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| For an illustration of the difference between denials, justifications, and excuses, see 21:55 in this lecture by Professor John Goldberg.[2]
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Professor John Goldberg explains how a defendant might respond to a plaintiff's cause of action in different ways: by pleading a denial, a justification, an excuse, or that they lacked capacity to commit the tort.[3] These concepts play distinct roles.
Denials refer to situations in which the defendant disputes that an element of an alleged tort has been established. They claim they have "not committed the wrong(s) [they are] alleged to have committed."[4]
A claim of general incapacity may be made if the defendant was too young or too mentally incapacitated understand their actions. It "is an effort to establish that the alleged wrongdoer is not an appropriate candidate for legal accountability even though her behavior meets the definition of the alleged wrong."[5]
Both justifications and excuses "assume or concede that one’s conduct meets the definition of a specified wrong, and that one is eligible to be held responsible for one’s wrongs."[5] In pleading a justification, the defendant claims that their "conduct was permissible, all things considered."[5] Thus, a defence like self-defence is considered to be a justification.[5] Conversely, in pleading an excuse, the defendant accepts that the conduct was wrongful, but that the circumstances perhaps warrant lessening (but not eliminating) the scope of their liability.[6]
Topics in the law of defences
Common tort defences include:
| Defences to intentional torts |
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| In this episode of the Australian podcast Just Torts, host Brent Liang discusses defences in tort law with Nam Kiet Nguyen and Patrick Hendy.[7]
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Apportionment of liability is a doctrine that allows defendants to lessen their own liability by sharing liability with co-defendants (who may be jointly and severally liable) or with the plaintiff (who may have contributed to their own damage).
Consent is a defence that applies when the plaintiff has agreed to the defendant's conduct or to the risk of the type if harm that eventuates.
Defamation defences such as truth, honest opinion, and qualified privilege negate a defendant's liability for statements that are allegedly defamatory.
Defence of property is engaged when a defendant is justified in interfering with another person or their property in order to protect their own property.
Illegality may bar a plaintiff from recovering damages if they seek to profit from their illegal or immoral acts.
Legal authority justifies a defendant's conduct toward a plaintiff when it is authorized and privileged by law.
Limitation periods are public policy defences that bar the litigation of causes of action after a statutorily prescribed period of time.
Necessity may justify or excuse a defendant's conduct taken in emergency circumstances.
Self-defence justifies the use of force against a plaintiff who poses a threat to the defendant or another person.
- ↑ "Defences and Limitation of Liability Lecture". Law Teacher. November 2018.
- ↑ Harvard Law School (13 December 2013). "Prof John Goldberg on 'Inexcusable Wrongs'". YouTube.
- ↑ See e.g. Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 470–73. (§6.1).
- ↑ Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 470. (§6.1).
- ↑ 5.0 5.1 5.2 5.3 Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 471. (§6.1).
- ↑ Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 472. (§6.1).
- ↑ Liang, Brent (27 Oct 2017). "Defences to Intentional Torts". Just Torts – via SoundCloud.