Contributory Negligence

The Law Reform (Contributory Negligence) Act 1945 provides as follows:

1. Apportionment of liability in case of contributory negligence

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage...

4. Interpretation

"fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

5. Application to Scotland

... the expression "fault" means wrongful act, breach of statutory duty or negligent act or omission which gives rise to liability in damages, or would, apart from this Act, give rise to the defence of contributory negligence.

Do these provisions, well known in the law of delict, also apply to claims of damages for breach of contract? The statute also applies in England, and there it has been held at appellate level that contributory negligence can only be pleaded by the defendant in cases where the breach consists in negligence by the defendant which can be characterised as either breach of an implied contractual term imposing an obligation to take care or as a failure to take care under a tortious duty of care - that is to say, in cases where liability in contract and tort is concurrent. The defendant cannot plead contributory negligence where his breach is in relation to a term imposing a strict liability, or where the law of tort could not have imposed liability in the same circumstances (for example, for breach of a contractual duty of care where tort liability is excluded). In a case of negligent breach of contract, therefore, the plaintiff will argue that his claim is purely contractual, while in order to reduce the damages by bringing in contributory negligence, the defendant will argue that liability arises in both contract and tort. See Forsikringsaktieselkapet Vesta v Butcher (No 1) [1989] AC 852; Barclays Bank plc v Fairclough Building Ltd [1995] QB 214. The basis for this approach is found in section 4 of the 1945 Act (above) defining fault. Section 1 requires that two parties both be at fault, each contributing to the damage of one. The definition of fault has two limbs. The first refers primarily to the fault of the defendant which leads to the loss suffered by the injured plaintiff, and ends with the phrase "gives rise to a liability in tort". So the defendant’s fault must give rise to a liability in tort (albeit that the action is in fact brought for breach of contract). But it has never been necessary for contributory negligence to be conduct which, had it injured the defendant rather than the plaintiff himself, would have given the defendant an action. Hence the second leg of section 4 requires to be wider than the first, and can only refer to the fault of the plaintiff.

In Scotland the issue has been considered in only two reported cases in the Outer House of the Court of Session. In Lancashire Textiles (Jersey) Ltd v Thomson Shepherd & Co Ltd 1986 SLT 41 a carpet supplier sued the manufacturer in respect of defective carpets which had been previously rejected by a customer of the supplier. The claim was for breach of the implied terms about quality in the Sale of Goods Act 1979, so the liability for breach was strict. The manufacturer pleaded that the supplier had been contributorily negligent in the way in which he had laid the carpet in the customer’s premises. Lord Davidson held that before contributory negligence could be pleaded against a pursuer in a breach of contract case his claim had to be based on fault; since the claim here was not based on fault, the plea was irrelevant. In Concrete Products (Kirkcaldy) Ltd v Anderson and Menzies 1996 SLT 587, two companies sued accountants for negligent breach of contract in auditing the companies’ books. The negligence lay in the failure to check the books to detect frauds by the companies’ employees. In their defences the accountants pleaded inter alia that the companies had been contributorily negligent. The companies argued that a plea of contributory negligence was irrelevant in any case of breach of contract. Lord Dawson held that the averments were not clearly irrelevant where the breach of contract involved negligence and the contractual obligation broken was co-extensive with a delictual duty of care.

These cases appear to be in line with the English authorities. Yet a questioning note may be raised if the Scottish definition of fault in section 5 of the 1945 Act is considered. Like the English section 4, section 5 has two limbs in its definition of fault, the second of them concerned with what will constitute fault on the part of the pursuer only (i.e. the part specifically referring to the defence of contributory negligence). The first limb, primarily concerned with the defender’s fault giving rise to the claim of breach of contract, is different from the English first leg in that it contains no express reference to delict. Instead it talks about "wrongful act", which is distinct from "negligent act", and limits these only by saying that must give rise "to a liability in damages". Now any breach of contract, and not just those equally actionable as a delict, could be regarded as a wrongful act which gives rise to a liability in damages, thus making contributory negligence universally applicable.

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15 September 2000 14:13:34 +0100