CIVIL LIABILITY: DEFENCES, QUANTUM AND EXTINCTION OF LIABILITY : I  DEFENCES When a claimant has made out a case by establishing that the defendant owed a duty of care, that he has broken that duty and the breach has caused actionable damage, the defendant may raise a defence to reduce – or even

doi:10.4324/9781843140504-119

Chapter

CIVIL LIABILITY: DEFENCES, QUANTUM AND EXTINCTION OF LIABILITY

ABSTRACT

When a claimant has made out a case by establishing that the defendant owed a duty of care, that he has broken that duty and the breach has caused actionable damage, the defendant may raise a defence to reduce – or even escape – liability. Pleading a defence must be distinguished from seeking to exclude liability by relying on a notice or a contractual term. As has been noted, exclusion of liability for death or personal injury negligently caused is prohibited by s 2(1) of the Unfair Contract Terms Act 1977. This section is concerned with pleading a defence to establish that liability has not arisen at all or is less than the claimant is alleging.