Lloyd's Maritime and Commercial Law Quarterly
THE CONTRIBUTORY NEGLIGENCE DOCTRINE: FOUR COMMERCIAL LAW PROBLEMS
James Goudkamp*
The law of contributory negligence is often treated as an afterthought by academics. This tendency is particularly pronounced in the sphere of commercial law, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is to advance learning with respect to the contributory negligence doctrine by engaging with four issues that arise in relation to it in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority, with the result that
apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence.
I. INTRODUCTION
The law of contributory negligence, while often treated cursorily in textbooks and university courses, is of immense practical significance. As WVH Rogers put it, “[c]ontributory negligence is a core element in tort law in England … [It] is of considerable, day to day importance”.1 Paradoxically, the impact of this area of the law has increased considerably since the abrogation of the common law all-or-nothing
* Fellow and Tutor of Keble College, Oxford; Associate Professor of Law, University of Oxford; Associate Academic Fellow, the Honourable Society of the Inner Temple; Senior Honorary Research Fellow, Faculty of Law, University of Western Australia; Professorial Fellow, School of Law, University of Wollongong; Barrister, 7 King’s Bench Walk.
1. WVH Rogers, “Contributory Negligence Under English Law”, in U Magnus and M Martín-Casals (eds), Unification of Tort Law: Contributory Negligence (Kluwer, The Hague, 2003), 57 (footnote omitted). Similarly, Jenny Steele writes that the law of contributory negligence “is used on a daily basis. It is applied regularly by courts, but is used much more frequently by parties (including of course insurers) negotiating settlements”: J Steele, “Law Reform (Contributory Negligence) Act 1945: Collisions of a Different Sort”, in TT Arvind and J Steele (eds), Tort Law and the Legislature (Hart, Oxford, 2013), 165.
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