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256 NEGLIGENCE: CAUSATION AND CONTRIBUTORY NEGLIGENCE

a "scatter-brained" child—would have taken any morę care than did claimant.²¹

Identification

6.47 If the injury is due partly to the negligence of the child's parent or guardian in failing to look after it and partly to the negligence of the defendant the child may still recover his whole loss against the defen-dant, for he is not "identified" with the negligence of his parent or guardian²² and the case follows the normal rule that a claimant may sue and execute judgment against either of two concurrent tortfeasors for the whole sum.²³ In practice, however, the impact of this rule was sub-stantially changed by the introduction of contribution between concurrent tortfeasors,²⁴ for the defendant may now join the negligent parent or guardian as a third party and hołd him responsible for a proportion of the damages.²⁵ If the parent or guardian is insured²’’ this may be a matter of indifference, but if he is not, the result, for obvious practical reasons, is likely to be a settlement which makes a deduction for his share in the blame for the accident. In a fatal accident case the dependants of the deceased are identified with his contributory negligence.²⁷ In Gorham v. British Telecommunications pic²⁸ the defendant insurers were held to owe a duty of care to the family of the deceased with regard to pension provi-sion which he madę with them²" and to have been in breach of that duty. The majority of the Court of Appeal held that the failure of the deceased to take corrective action after he discovered the truth broke the chain of causation. What would have been the result if the conduct of the deceased had been only contributory negligence? The fatal accidents legislation does not apply because the defendants have not caused the death of the deceased and the 1945 Act only allows a reduction for the contributory fault of the claimants, that is to say the members of the family. Sir Murray Stuart-Smith thought that the court would be entitled to make a reduction at common law.

As between the claimant and the defendant each is identified with any third person for whom he is vicariousIy responsible. The rule that the negligence of a servant in the course of his employment is imputed to his employer applies whether the latter is the claimant or the defendant. But the contributory negligence of an independent contractor for whom the

» (1966] 1 W.I_R. 1387 .11 1391. ytr Solmon LJ. cf. ttusln/ v. Marsluill (1977) S.A.SK 456 at 458.

²² The contrary view was exploded in Oliw v. Birmingham, etc., Omnibus Co. Ud 11933] 1 K B. 33. following The Bernina (1888) 13 App.Cas. 1. ci. the position of master and servant, below. A minor exception to the non-identification rule is found in the Congenital Disabilities (Civil Liability) Act 1976 para. 24.14, below. ^a Sec Chap. 21, below.

²* See Chap. 21, below.

²⁵ Jones v. Wtlkins. The Times, February 6,2001; McCallion v. Dodd |1%6J WZ.L.R. 710. See para. 24.3, below For the parental duty of care. see para. 3.21. above.

*    As where the claimant is a passenger in his parent's car.

“ See para. 23.16, below.

*12000] 1 W.L.R. 2129.

*    On this aspect of the case, see para. 5.30, above.

claimant is not responsible does not affect the claimant's action. If X has charge of the person or property of A, A is not for that reason identified yyjth X, hence if an accident happens owing to the negligence of X and a third person, Y, A may sue Y and recover in fuli, even though X could not.³⁰

VVork accidents

It has been suggested that in actions by workers against their employ-ers for injuries sustained at work the courts are justified in taking a morę lenient view of careless conduct on the part of the claimant than would otherwise be justified, and that it is not for every risky thing which a worker in a factory may do that he is to be held to have been negligent. Regard must be had to the dulling of the sense of danger through familiarity, repetition, noise, confusion, fatigue and preoccupation with work.³¹ Where, however, the operation leading up to the accident is divorced from the bustle, noise and repetition that occurs in such places as factories these considerations cannot apply and, indeed, it may be that they are only relevant where the worker's cause of action is founded upon his employer's breach of statutory duty.³² Where the claimant's case rests upon an unsafe system of work it would be rare for the claimant's acquiescence in this to amount to contributory negligence.³³

It was settled by the House of Lords in 1939 that contributory negligence is a defence to an action for breach of statutory duty,³⁴ and the generał principles of contributory negligence are the same as where the cause of action is founded upon negligence. In practice, however, espe-cially where the sta tutę creates an absolute obligation to secure the existence of a certain State of affairs, questions of contributory negligence may be treated rather differently. It has often been stated that safety legislation exists to protect workers from the consequences of their own carelessness,³³ and the courts will, therefore, be slow to hołd a worker guilty of contributory negligence where the defendant is in breach of his

^xThe Bemina, above; France v. Parkinson (19541 1 W.L.R. 581.

* Flower v. Ebbai Vale Steel. Iron and Coal Co. Ud (19341 2 K.B. 132 at 139-140. per Lawrence cited with approval by Lont Wright, (19361 A.C. 206 at 214: Caswell v. Pourll Duffryn Collieries Ud |1940| A C. 152 at 166, per Lord Atkin ibid., at 176-179, per Lord Wright; Grant v. Sun ShippingCo. (1948) A.C 549 at 567, per Lord du Parci); Hawkins o. lan Ross (Caslings) Ud (1970| 1 AU E.R. 180

^u Staoeley v. Iron tr ChamcaI Co. V. fones |1956| A.Ć. 627 at 642. per Lord Reid, at 647-648, ;vr Lord Tuckcr; Hicks v. British Transport Commission (195811 W.L.R. 493; Qutntas v. National Sntdlmg Co. 1196111 W.LR. 401 at 411, per Willmer L) cf. ibid., at 408—109, /ier Sellers L.J Disobedience is not necessarily contributory negligence: Westwood v. Post Office (19741 A.C I.

"State Kailuoy Authonty v. Wiegold (1991) 25 N.S.W.R 500. Kor the court’s attitude to a plea of oolenti non fit in jurta in this context, see para. 25.11, below.

¹⁴ Casuell v. Poteell Puffryn Associated Callienes Ud 119401 A.C. 152 (Factories Act); Sparks o. Fduord Ash Ud (19431 K.B. 223 (Pcdestrian Crossing Places Rcgulations). For the action for breach of statutory duty, see Chap. 7, below.

"Staoeley Iron A Chamca! Co. c. fones (1956) A.C. 627at 648, per Lord Tucker; Hutchinson o. L & N.E. Ry 11942] 1 K B. 481. cf. Mullard v. Ben Lnie Steamers Ud (19701 1 W.L.R. 1414.