Defence in strict liability

There are 6 defences can be used by defendant in strict liability. First is ‘consent’ of the plaintiff. Consent of the plaintiff means that if the plaintiff either expressly or impliedly consents to the existence of the dangerous thing and the defendant is not negligent in any way, the defendant will not be liable for any escape and resulting damage.

Second defence that can be used is ‘common benefit’ whereby if the dangerous thing is allowed to exist for the common benefit of both the plaintiff and the defendant will not be held liable if it escapes and causes damages.

The third defence under strict liability is ‘act of third party’. The test used to determine whether a person is a third party or otherwise is whether that person acts outside the defendant’s control. However, even if the act is outside the defendant’s control, the defendant may still be held liable if he ought reasonably to have foreseen the act of third party. Generally trespasser and those who act on land does not belong to the defendant are said to be the third parties. The defendant’s workers or employees as well as any independent contractor employed by him will not be regarded as third party.

Next is ‘act of God’ which is an operation of natural forces “which no human foresight can provide against, and if which human prudence is not bound to recognize the possibility”. But this is not to say that the defendant will escape liability merely because the event is not reasonable foreseeable.

Besides, the defence that can be used by defendant under strict liability is the ‘plaintiff’s default’. If the damage caused by the plaintiff’s own action or wrongdoing, he will not be compensated. If the plaintiff contributes to the end of damage he may be held to be contributory negligence under s 12(1) of the Civil Law Act 1956 .


The last defence is ‘statutory authority’. Liability will not be imposed on a defendant who acts under the authority of a statute which excludes liability for such acts. If a statute imposes a duty on the defendant to do something which consequently causes damage to the plaintiff, the defendant will not be held liable. On the other hand if the statue only gives a power of discretion to the defendant, the defendant may still be held liable if he is found to be careless in exercising his discretionary power.:>