Dear all,

 

The UKPC yesterday handed down a second judgment in the Primeo Fund litigation ([2023] UKPC 40), following on from its first judgment on the reflective loss principle ([2021] UKPC 22). There are various points relating to the law of remedies but I am interested in the contributory negligence point. The Board concludes that Vesta v Butcher is good law (at [353]), but that the Bermuda Court of Appeal was wrong to find that it was available in this case because of the particular relationship between the parties (at [371]). The Board reasons at [377]:

 

“the common law recognised contributory negligence as a complete defence in cases involving concurrent duties of care in tort and in contract. This is clear from text-books and practitioner works in the late 19th and early 20th centuries and from a range of authorities. It was clearly understood by Parliament, whose intention accordingly was that section 1(1) of that Act would apply in cases of concurrent duties in contract and tort, ie in category 3 cases”.

 

Unfortunately, this analysis seems to be at too high a level, and the Board appears to overlook the significance of Hedley Byrne in this context (indeed, it only gets a single mention). At the time of the enactment of the 1945 Act, it appeared clear that there was no claim in tort against a professional for negligence (at least outside of a medical context). One’s remedy lay exclusively in contract: Groom v Crocker [1939] 1 KB 194. This distinction was maintained after the enactment of the 1945 Act: Candler v Crane, Christmas & Co [1951] 2 KB 164. Indeed, even after Hedley Byrne, there are numerous decisions on this point (Clark v Kirby-Smith [1964] Ch. 506; Bagot v Stevens Scanlan & Co. Ltd. [1966] 1 QB 197 and Cook v. Swinfen [1967] 1 WLR 457) took until Oliver J’s judgment in Midland Bank v Hett Stubbs & Kemp [1979] Ch 384 for general liability for professionals in tort to be established. The Board does not consider any of these authorities, referring only to the inclusion of various categories of relationship (including doctor and patient and lawyer and client) in Bevan on Negligence (1928) in fairly general terms (at [338]). It does not consider in detail whether Bevan took the view that contributory negligence was a defence in the professional context, or whether that reasoning depended on concurrent liability. Indeed, the final line of the paragraph suggests Bevan only considered it a defence in respects of contracts of carriage.

 

It is no surprise then that when looking at authority, the court does not consider any pre-1945 professional cases or pure economic loss cases. Instead it says (at [341]):

 

“There are many authorities which support this view. It is sufficient to focus on two areas to make the point, the employment relationship (the relationship of master and servant as it was called in the nineteenth century) and the railway cases.”

 

That reasoning simply does not work in this case. Given how the law stood in 1945 (after Groom) there could not have been any contributory negligence defence to a breach of contract in professional services contexts at the time the Act was passed: there was no concurrent liability. That being so, it seems inconceivable to me that one can reason that Parliament intended it be included within the Act applying the test identified in Co-op v Pritchard. The counter arguments offered by the Board don’t work.

 

First, it is said that “there is no doubt that Parliament appreciated that the defence of contributory negligence applied in cases of concurrent duties” (At [350]). True that is, but only the kinds of concurrent duties the law then recognised (as noted above, in respect of carriers and employers). It is plain that Parliament had in mind only ‘accident’ cases, and not pure economic loss in professional contexts. Thus on my read the Law Revision Committee Report does not identify any cases outside of personal injury cases (and nearly all are road traffic accidents). When introducing the Bill, Viscount Simon (whom the Board see fit to quote at [350] when discussing concurrent claims in carriage cases) stated:

 

“To give an example: if a woman is crossing the road carrying a basket or a baby on a windy day and is trying to keep her umbrella up, and if she is run over by a motor car which is being driven recklessly at 100 miles an hour and therefore cannot be stopped in time, the woman cannot recover anything if it is proved to the satisfaction of the Court”

 

The Solicitor General, in the Commons, promoted the legislation as follows:

 

“‘The Bill is one which, we submit, will give fairer compensation to those injured in road and other accidents... At the present time if the person who sues has contributed to the accident by his own default, he fails and recovers nothing, even though his negligence may be very small, and the negligence of the other person very great. That is the rule of law which is applicable to accidents on land… That is the position with which this Bill deals and, generally, the intention and working out of the Bill is to apply the Admiralty rule, which I have described, to accidents on land’”

 

No one in the Commons saw the mischief as being situations where customers of solicitors, architects etc. were losing their cases because of the defence: no such defence was available in that context. They did not intend to extend the application of the defence there. The mischief was the application of the doctrine to personal injury cases.

 

Second (at [351]) is that Parliament removed the clause in the Bill which prevented the application of the defence in contract cases. But that does not take this any further – it was plainly aimed at concurrent liability in workplace accident cases, as the Board’s discussion at [351] evidences.

 

The problem is summed up by the conclusion at [352] that “the 1945 Act was enacted with concurrent claims in contract and tort in mind and with the intention of making the defence of contributory negligence available in circumstances where a concurrent claim existed.” But the Board had nowhere established that concurrent claims did exist outside of the two situations identified – indeed, it was plain from Groom that they did not. As such, this does not show that Vesta is correct, and indeed in my view it should not be followed as persuasive by the English courts.

 

Best,

 

Matthew

 

 

Matthew Hoyle Barrister www.oeclaw.co.uk Switchboard: +44 (0)20 7583 2000         One Essex Court, London Temple London EC4Y 9AR United Kingdom Tel +44 (0)20 7583 2000 clerks@oeclaw.co.uk One Essex Court, Singapore #04-14 Maxwell Chambers Suites 28 Maxwell Road Singapore 069120 Tel +65 6634 1363 singapore@oeclaw.sg           Information in this message is confidential and is likely to be subject to legal professional privilege. If you have received this message in error, please notify me immediately and do not disclose, copy, distribute or retain either the whole or any part of the message or any attachments. If you are not the intended recipient, please telephone (020) 7583 2000 immediately. Regulated by the Bar Standards Board.

 

 

 

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