The Law Reform Act 1945 and Breaches of Contract
| Author | P.L. Newman |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01804.x |
| Published date | 01 March 1990 |
| Date | 01 March 1990 |
The Law Reform Act
1945
and Breaches of Contract
P.L.
Newman*
The almost complete judicial silence concerning the application of the Law Reform
(Contributory Negligence) Act 1945 (‘The 1945 Act’) to breaches of contract has been
broken in the last few years by a handful of cases. Whilst an attempt has been made at
a systematic breakdown of the types of breach to which the 1945 Act should apply, it
seems that it has not been completely accepted, and it is a pity that in the two most recent
Court
of
Appeal cases on the subject
-
Forsikringsaktiselskapet
Vesta
v
Butcher’
and
Tennant Radiant Heat
v
Warrington District Council2
-
the House
of
Lords has not
been called upon to consider the matter.
There can be no doubt that the 1945 Act should apply in a contractual context at least
to some extent, and that it does
so.
Given that the received view is that there is no common
law defence of contributory negligence to a breach of
ont tract,^
its application is
necessary to avoid the iniquitous situation whereby a negligent plaintiff
can
avoid his partial
liability by electing to sue in contract rather than in tort, reminiscent of Mrs Letang’s
attempt to circumvent the Limitation Act by suing in trespass rather than in negligen~e.~
On the other hand, the language of the 1945 Act does not lend itself to the view that
the defence of contributory negligence is open to all breaches of contract; it calls for ‘fault’
on both sides,5 and
so
is unsuitable for non-negligent breaches of contract.
Thus, two different situations arise, each calling for different applications of the 1945
Act: when the contract is breached in such a way as to render it tortious, it should be
treated as such for the purposes of the 1945 Act; where, however, the breach has occurred
without fault by the defendant, he cannot plead that the damages should be reduced by
the plaintiff under the 1945 Act. This leads to the illogical situation whereby the greater
the culpability of the contract-breaker, the less he may have to pay the party injured (albeit
partly through this own fault): innocent breaches may cost the defendant dear,
notwithstanding the plaintiff‘s own negligence. However, this is the only means of
reconciling the wording of the 1945 Act with the situation, although a solution may be
forthcoming from other branches of the rules as to damages.6
Hobhouse
J,
sitting at first instance in
Vesta
v
Butcher,’
was the first English judge
to lay down categories of case for the purpose of applying the 1945 Act to breaches of
contract:
1.
Where the defendant’s liability arises from a contractual provision which does not depend
on negligence on the part of the defendant.
2.
Where the defendant’s liability arises from a contractual obligation which is expressed in
terms of taking care (or its equivalent) but does not correspond to a common law duty to take
care which would exist in the given case independently
of
contract.
3.
Where the defendant’s liability in contract is the same as his liability in the tort of negligence
independently
of
the existence of any contract.
*LLM Candidate, Harvard Law School.
1
2 [I9881
1
EGLR41.
3
[I9881 3
WLR
565.
Affirmed on appeal on different grounds:
[1989] 2
WLR
290
H.L.
Vaile Brothers
v
Hobson
Lrd,
(1933) 149
LT
283;
Vesta
v
Butcher,
n.
1
above at
589
per
Sir Roger
Ormrod;
James
Pry
Lrd
v
Duncan,
[
19701
VR
705, 722
per McInerney
J;
cfwilliams,
Joinr
Torts
and
Conrriburory
Negligence,
s
59;
Spowart Taylor,
(1986) 49
MLR 102,
103.
Lerung
v
Cooper,
[1965]
1
QB
232.
4
5 1945
Act,
s
l(1).
6
See below p.204.
7
8
[I9861
2
All
ER 488.
At p.
508.
He was not the first proposer of such categcries, see Swanton,
(1981) 33
ALI
278.
The
Modern Law Review
53:2
March
1990 0026 7961
20
1
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