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252 NEGLIGENCE: CAUSATION AND CONTKIBUTORY NEGLIGENCE

dust cart,^H7 or rides with a driver whom he knows to have taken sub-stantial quantities of alcohol.¹* It is, however, essential that the claimanfs lack of care should be a contributory factor to his damage, and this means not only that his fault should be a cause in fact of his loss, but that the loss is within the broad scope of the risk created by his fault. In Jones v. Livox Qunrries Ud,^{1 2} the claimant was riding on the towbar at the back of a "traxcavator" vehicle in order to return from his place of work to the canteen when the driver of another vehicle negligently drove into the back of the traxcavator and caused him injury. Though the obvious danger arising from riding on the towbar was that of being thrown off, it was held that the risk of injury from the traxcavator being run into from behind was also one to which the claimant had exposed himself and his damages were reduced accordingly. The result would have been other-wise if, for example, he had been hit in the eye by a shot from a negligent sportsman.⁹⁰ In that case his presence on the towbar would have been only part of the history.⁹¹

The power to apportion damages under the Act certainly meant that we were freed from some of the artificiality of the old law and there is no longer the same temptation to avoid finding a smali element of contributory negligence on the part of the claimant.⁹² However, we should guard against the assumption that merely because the acts of the claimant and the defendant combine in a factual sense to cause the injury that the case is one for apportionment, for the intention of the Act was to alter only the legał consecjuences of contributory negligence and not the generał rules for determining whether a case of contributory negligence exists.⁹³ What was the legał cause of the event involves an enquiry of the same naturę as existed before the Act.⁹⁴ Thus, it is still perfectly possible for a court to come to the conclusion that as a matter of legał cause the fault of the claimant is so overwhelming that he must bear the whole loss. This is typified in a series of cases where employers were guilty of breaches of strict statutory duty but the breaches were brought about solely by the

failure of the claimants, experienced workmen, to carry out elear safety procedures in which they had been properly instructed.³³

Duty of care

The existence of a duty of care is, of course, essential to a cause of action 6.43 for negligence, but for contributory negligence it is quite unnecessary that the claimant should owe a duty of the defendant.³’ Ali that is required is that the claimant should have failed to take reasonable care for his own safety.³⁷ One sometimes comes across references to the claimant owing himself a duty to take care of his own safety,^u,i but strictly speaking this, like the "duty" to mitigate, is a contradiction in terms.

Standard of care

If what is alleged is negligence by the claimant, the standard of care 6.44 expected of him for his own safety is in generał the same as that in negligence itself^* and is in the same sense objective and impersonal,¹ though, as there, some concession is madę towards children² and probably towards other persons suffering from some infirmity of disability¹ rendering them unable to come up to the normal standard.⁴ Putting aside such exceptional cases, a "person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself and in his reckonings he must take into account the possibility of others being careless."' The degree of want of care which will constitute contributory negligence varies with the

1

Darte* v. Swatt Motor Co. 11949} 2 K.B. 291. The fact that the contributory negligence need not contribute to the accident means that it may be verv difficuit to distinguish it from the duty to mitigate damage Before the Act. the courts seem to have regarded contributory negligence as something that relntcd to the occurrencc of the initial injury and mitigation as relating to the time after that occurrence. Failun to mitigate would debar the claimant from any recovery for additional loss suftered by reason of that failure but would have no effeet on his ołher loss. The Act probably does not appły to failure to mitigate. but for a powerful argument that it should sec Williams, op. cit.. Chap. 11 ^w Oiłytjs v. BrimmH (1977| Q.B. 859. See also Gregory v. Kelly 119781 R.T.R 426 (knowledge of defectm brakes).

^[19521 2 Q.B. 608

For a somewhat morę colourful example. see Moor v. Nolan (1960) 94 I.L.T.R. 153.

119521 2 Q.B. at 616. per Denning L.j. See also, ibid., at 612, per Singleton L.J., at 618. per Hodson L.J

2

Boy Andrew (Oicmers) v. St Rognuald (Owners) [19481 A.C. 140 at 155. per Lord Porter; Sauer* v. Harlou U.D.C. [19581 1 W LR. 623 at 630. /*t Lord Hvershed M.R **'Otrute* v. Sioan Motor Co. I1949J 2 K.B. 291 at 310, per Bucknill L.J.. at 322. per Denning L.j.

Slaphy v. Gyptuni Mntes Ud [1953] A.C. 663 at 677. 681, 684, 687 (two miners abandoned attempt to bring down unsafe pari of roof; one of them killed m subsetjuent fali, widów suing employers as vicariously responsible for fault of ołher miner). This case proroked much judicial disagreement during its passage. The deasion that the fault of both men contributed to the accident was fóllowed on somewhat similar facts in I.C.I Ud v. Shaturll [19651 A.C 565 but the House of Lords in that case was able to come to a different conclusion by the application of the defence of włertti non fil m jurni. para 25.9, below.

3

Rushiott v. Turner Bros [19601 1 W. LR. %; Gin ty v. Behnont Building Supp/ies Ud [1959] 1 AU E.R. 414;

Home v. Lec Refrigeration Ud [19651 2 Ali E.R. 898; Jayes v. LM.I. (Kynoch) [198511.C.R. 155 ("cra/.y thing to do") cf. Rais v. Associated Portland Cement Manufacturers Lid 11964] 1 W.LR. 768. For rivil liabiłity for breach of sta tu tory duty in factories, etc., see Chaps 7 and 8, below.

** Nevertheless, ił will ofłen be the case, as where there is a collision between two vehides, that the daimant does owe a duty of care to the defendant. A duty is essential if the defendant wishes to counterclaim against the daimant in respect of his own damage. In the unusual case of la Planie u. La Plante (1995) 125 D.LR (4th) 569, C was jointly and severnlly liable with A to B but was not guilty of contributory negligence in relation to his claim against A. ^w Hance v. British Columbia Electric Ry [19511 A.C. 601 at 611. per Viscount Simon; Dames v. Swan Motor Co.

[1949] 2 K.B. 291 for a fuli discussion.

'^me.g. langley v. Dray [19981 P.!.Q.R. 1*314 at 320.

** Billings & Sons Ud u. Riden [1958] A.C. 240. "Fault" in the Act of 1945 does not include some lault taliing short of negligence; Jones v. Phce [19631 C L.Y. 2316.

¹    See para. 5.53, above.

²    See below.

'Not self-induced intoxication: Owens v. Brimmell [1977J Q.B. 859

*Daly v. Liwrfwl Carjt [1939| 2 Ali E.R. 142; M Kiblwi v. Glasgow Corp 1920 S.C. 590; cf. Baitcr v. Wcolcoml>ers (1963) 107 S.J. 553. The proposition is. indeed, implicit in Haley v. London Electncity Board [19651 A.C. 778 sińce a sighted person would have had no difficulty in avokling the danger. On the other hand, an infirm person may act in such an unpredictable way that there is no breach of duty bv the defendant: Bourhtll p. Young [19431 A.C. 92 at 109; Bames r. Flucker, 1985 S.L.T. 142.

⁵ Jones v. Uvox Quamcs Ud [19521 2 Q.B. 608 at 615. per Denning LJ. See also Grant r. Sun Shipping Co [19481 A.C. 549, /*7 Lord du l*areq. cf. Haickms v. lan Ross (Castings) Ud [1970| 1 AU E.R. 180. Equallv. however, the defendant should bear in mind the possibility that his actis^ritv may distract persons from looking after their own safety. A bizarre example is Eduwrds v. Trący Starr s Shows (EdmontonI Ud (1984)

13 D.L.R (4th) 129 (patron of "burlesuue show" taliing over unseen obstruction).