Contributory Negligence In A Strict Contractual Claim


Contributory negligence was defined by Lord Justice Denning in the case of Jones v. Livox Quarries Ltd (1952) 2 QB 608.615, which was relied on in the case of Santhanaletchumy A/P Subramaniam v. Zainal Bin Saad & Anor [1994] MLJU 422, as follows:-


"Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the possibility of harm to others, so contributory negligence requires the foreseeability of harm to oneself. 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 reckoning he must take into account the possibility of others being careless."


"Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults were there which caused the damage? Was his fault one of them?"


Contributory negligence is recognized in Section 12(1) of the Civil Law Act as follow:-


Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that—

  1. this subsection shall not operate to defeat any defence arising under a contract;     and
  2. where any contract or written law providing for the limitation of liability is applicable to the claim the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.



Section 12(6) of the Civil Law Act defines ‘fault’ as negligence, breach of statutory duty or other act or omission which give rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.


We are pretty aware of cases where contributory negligence was used as a Defence in tortious claims, but can it be applied in a strict contractual claim? Below are a few cases which were decided by the Commonwealth Countries’ Courts on this particular issue.


(a)     Forsikringsaktieselskapet Vesta v.Butcher[1989] AC 880 (HL)


A three-fold categorization was defined by the learned Judge, in respect of the applicability of apportionment legislation in cases which involved claims under both contract and tort of negligence, and they were:


(1) Those where liability arises from a contractual provision which does not depend on negligence on the part of the defendant;

(2) Those where the liability arises from a contractual obligation which is expressed in terms of taking care but does not correspond to a common law duty of care which would exist in the given case independently of contract; and

(3) Those where the liability in the contract is the same as the liability in the tort of negligence independently of the existence of any contract.

The House of Lord, in affirming the decision given by the Court of Appeal, held that the Court has a power to apportion the fault between parties in a category (3) case even though the claim is made in contract; and the power to apportion only arises where the defendant is liable in tort and concurrently liable in contract, in accordance with the Law Reform (Contributory Negligence) Act,1945.


(b)     Barclays Bank plc v. Fairclough Building Ltd and Others [1995] 1 ALL ER 289


The Court held that contributory negligence was not a defence to a claim for damages founded on a strict contractual obligation. Accordingly, where a party's liability arose from breach of a contractual provision which did not depend on a failure to take reasonable care, contributory negligence did not apply, even though the defendant might at the same time have a parallel liability in tort for such a failure. Therefore, if the Defendant has breached a strict contractual obligation, the doctrine of contributory negligence is not applicable.


 (c)    Astley and Ors v. Austrust Ltd [1997] HCA 6


The High Court in Australia, in determining that contributory negligence was not established in that case, suggested that contributory negligence would not arise where the loss sustained is ‘the very kind of loss’ against which the defendant should have protected the plaintiff.

The Court in that said case further stated that:-

“[80] The fact that contributory negligence was not a defence to an action in contract points irresistibly to the conclusion that the apportionment legislation is concerned only with actions in tort and does not affect awards of damages based on breach of contract. To what, other than a common law action in tort, can s27A(3) be referring when it says that a claim in respect of damage "shall not be defeated by reason of the fault of the person suffering the damage"? It makes no sense now, and it made even less sense when the legislation was passed, to speak of an action in contract being defeated by "negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence".

[81] The purpose of the enactment of the apportionment legislation was to allow recovery of damages in cases where contributory negligence would defeat an action in tort. The enactment in the United Kingdom of the 1945 Act followed the recommendations made in 1939 in the Eighth Report of the Law Revision Committee97 which had been chaired by Lord Wright98. The Report referred to the position in Admiralty where loss was equally divided between the vessels responsible and, after the change made by s1 of the Maritime Conventions Act 1911 (UK), in proportion to the degree to which each vessel was in fault99. Reference also was made100 to Canadian legislation which had adopted the Admiralty principle. The first Canadian statute had been the Contributory Negligence Act 1924 (Ont)101. The object of that law had been102:

"to abate the rigour of the rule of common law at present so well established that where from the concurring negligence of two parties, one party suffers all the injury, he must bear the whole loss, although the other party may have been equally or even more negligent".

It would be strange if a rule introduced to do away with an absolute defence to a claim in negligence, diminished the rights of a plaintiff who sued in contract.”



Although the Commonwealth countries’ cases are not binding upon the Malaysia Court, but they are highly persuasive and the applicability of Section 12 of the Civil Law Act in Malaysia ought to be in accordance with the principles set forth as per the cases referred above.


Based on the cases discussed above, it shows that the applicability of contributory negligence in cases where the co-extensive duties/liabilities in respect of contract and tort arises concurrently based on the same obligations that were supposed to be carried out by the Defendant and the apportionment legislation was applicable when the Defendant had breached the implied term of the contract; such implied term is similar with their liability in tort. Hence, it is arguable that contributory negligence may not to be raised as a Defence in a strict contractual claim.