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250 NECLIGENCE: CAUSATION AND CONTRIBUTORY NEGLIGENCE

1979) or from a contractual obligation which is expressed in terms of taking care but which does not correspond to a common law duty to take care which would exist in the given case independently of contrach⁶⁹ Where, however, the defendant's liability, though framed in contract, is the same as his liability in the tort of negligence independently of the existence of any contract, the Act is applicable.⁷¹¹ This would be the case, for example, in a claim for personal injuries by a patient against a doctor giving private treatment, by passenger against carrier or by visitor against occupier/¹ and in a claim against a solicitor or valuer.⁷² What if the defendant is liable in tort to the claimant but the claimant has committed a breach of contract which cannot be framed as a liability in tort (for example, breach of a strict repairing covenant in a lease)? The 1945 Act is inapplicable because the claimant's conduct is not "contribu-tory negligence", but it has been held that the court has power to appor-tion, based on causation.⁷³ The difference in principles applicable to contributory fault in contract and tort has, like limitation of actions, been a significant source of litigation over the boundary between those two heads of liability, particularly where economic loss is in issue,⁷¹ and the position worked out by the courts does go some way towards preventing a purely tactical approach to cases. However, it is difficult to see why a regime of apportionment should be inapplicable to a duty to take care which arises in contract only, and the Law Commission has recorn-mended legislation on similar lines for such contractual duties.⁷⁵ How-ever, notwithstanding the applicability of the 1945 Act to some instances of "strict" liability in tort, it is not proposed that the new provisions should extend to strict contractual duties, for example those arising under section 14 of the Sale of Goods Act 1979.

6.41 Turning to the conduct of the claimant to which the Act applies, it is not confined to contributory negligence. Where the claimant intends to do harm to himself and that does not break the chain of causation entirelv, the Act is applicable, so that in Reeves v. Metropolitan Police Commissioner,⁷¹' where the defendants were in breach of duty to prevent the sane deceased

Forsikringsaktiaelskapct Vesta v. Bulcher [1988) 3 W.LR. 555 (affirmed [19891 A.C. 852); Raflatac Lid o. ladę [ 1999) 1 Uoyd's Rep. 506. It seems that in contract the matter is tu bc dealt with as one of causation so that the claimant recovers his whole loss unless his fault is the substantial cause of the accident. in which case he recoeers nothing. In Ijtmherl v. Leuns [19821 A.C. 268 a pariy's negligence was held to be the eflective cause of his loss rather than the breach of warianty of the dealer who had supplied him thus preventing recoverv of a contractual indemnity. See also para. 26.10. below, "negligence" in the (.imitation Act 1980, S.14A.

** Forsikringsakl ieselsknpet Usta u Bulcher. above; Youcll v. Blond Welch & Co. Ud (No. 21 (19901 2 1 lovd's Rep 431.

⁷¹ Sayers ;>. Harlow U.D.C [195811 W.LR. 623. Hence the claimant guilty of a smali degreeof contributory negligence cannot avoid a reduction by pleading his claim only in contract. cf. Aslleu t>. Austrust lid (1999) 161 A.LR. 155. In Pilmcr t>. Duke Group Ud [20011 HCA 31, (180) A.LR. 249 the court declined to apply the contributory negligence legislation to breach of fiduciary dutv.

⁷³ UCB Bank pic v. Hepherd Winstanley & Pugh |1999| Uoyd's Rep. P.N. 963

' Tennanl Radmnt Heni Ud v. Warrington Deoelopment Corporation (19881 11 E G. 71. In Bank uf Nora Scotta o. Hellenie Mulimi War Knk< Afsocialion 11990) I Q.B. 818 it was said that the "scope and extent •<( this .. case will have to be a matter of substantial argument" in a futurę case.

‘ See. e.g. Barclaus Bank v. Fairclougli Building Ud (No. 2) [ 1995J I.R.I..R. 605.

Law Ćom. No. 219 (1993)

** 120001 I A.C. 360.

killing himself, the damages were reduced by 50 per cent. Some may think it odd that his death was not wholly his own fault¹; it would certainly have been very odd to say that his decision played no part at all in his death,^{2 3} even if tire result does look like a rather unprincipled compromise.⁷⁴ Intentional wrongdoing by the claimant came up in another form in Standard Chartered Bank v. Pakistan National Shipping Corp (No. 4).⁴ Shipowners knowingly presented to the claimant Bank an incorrectly dated bill of lading and the claimant Bank (not having noticed the falsity) paid the seller of the goods under a letter of credit issued by a Vietnamese bank. The claimant Bank then presented the various shipping documents to the Vietnamese bank, concealing the fact that some of these did not eon form with the letter of credit. The Vietnamese bank noticed discrepancies and refused to pay the claimant Bank on the letter of credit. When the claimant Bank sued the shipowners for deceit the latter contended that sińce the claimant Bank had themselves unsuccess-fully attempted to deceive⁵' the Vietnamese bank, their loss^{6 7} was at least partly their own fault under the 1945 Act. The majority of the Court of Appeal⁸ rejected this argument: even if the deceit by the claimants could be "contributory negligence"⁹ the law's approach to causation in cases of deceit precluded any recognition of contributory causes.

Causation of damage

In the majority of cases the claimant's negligence will have contributed 6.42 to the accident which led to his injury (as where a driver or pedestrian fails to keep a proper iook-out or an employee omits to tum off a machinę before cleaning it) but this is not necessary for a finding of contributory negligence: what is essential is that the claimant's conduct contributes to his damage. Thus, there may be a reduction where a motor cyclist fails to wear a crash helmet,⁸ where a passenger in a car does not wear his seat belt,¹⁰ or where a man rides in a dangerous position on the outside of a

1

See para. 6.37, above.

2

*This is a robust interpretation, but given the way the Act looks back to what the common law would have said beton? 1945 (when such matters lud probably never been considered) the court must indulge in some creative history.

3

Another "compromise" may be RcińU r. Newbery (19%J Q.B. 567, where the defence of illegality (para 25.20, below) was rejected in a claim by a burglar shot by the landowner but there was a two thirds reduction under the 1945 Act.

4

120011 Q.B 167.

5

*’ Was the claimants' deceit in any way causative ot their loss? In earlier proceedings (Standard Chartered Bank p. Pakistan National Shipping Corporation (No 2) 12000] 1 Lloyd's Rep 218) it had been held to be so because. although the sellers had already been paid, it was an integral part of the decision to do so that the claimant Bank would deceive the issuing bank. But Aldous and Ward LJJ. in No. 4 at 184 and 198 seem to say the contrary.

6

u. the amount of the payment under the credit, less whatever was reahsed by the sale of the cargo

7

¹⁰ Sir Anthony Evans would have applied the Act.

8

•* OConnd v. lacknon 119721 1 Q.B. 270; Cappś v. Miller 119891 2 All E R. 333.

9

^M Which Wart! L.J. was prepared to accept by analogy with Reeots: (2001] Q.B. at 194.

10

** Frootn v. Bulcher 119761 Q.B. 286, para. 6.44. below.