The question whether a defaulting party to a contract is allowed to counterclaim contributory negligence has been the subject of legal debate in previous times as deponents of this right support that in doing so we might be blurring the lines between tort and contract law.
Advocates against the concept of suing someone for contributory negligence under a breach of contract have argued that doing so would undermine the very certainty the law of contract aims to provide. More specifically, the party in default would be able to claim any wrong in the book so as to defeat the claimants action under contract as an escape route to their own contractual responsibilities. It is further claimed that this tactic would have an adverse effect on the dealings between business men and open the floodgates for a series of abusive counter-claims, totally out of base with the concepts and rationale which the law of contract aims to promote. This is why the Law reform Act 1945 aimed to correct this grey area between tort and contract law and restore faith in the these two popular areas of civil law.
The Law reform Act 1945 drew a middle line between these the legal factions and their arguments and made explicit that when a breach of an obligation is purely contractual then the relevant Act will not assist a claim for breach of negligence. Nevertheless when the claim brought is for negligence then the party in default may rightfully counterclaim for a contributory negligence claim.
In the recent case of Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2013] EWHC 237 (TCC) (22 February 2013 the defaulting party argued that the damages claimed should be reduced because the obligations breached where not purely contractual, citing to this effect the case of Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488 (Hobhouse J), [1989] AC 852 (CA). However, the high court steered clear of these argument by stating that since the 4 obligations claimed to be breached by the claimant (Mueller) did not depend on reasonable care and skill then they fall to be strictly contractual, thus not entitling the defendant to claim contributory negligence.
It further stated that whilst there was an underlining duty to exercise reasonable care and skill regarding obligation (b) ” “[Central] … will within its scope of Work promptly take all reasonable and necessary precautions against risk of loss, theft or damage by vandalism, sabotage or otherwise, to all or any part of the Work.”, obligation (a) “[Central] will conduct all operations under the Contract Documents in a manner to avoid … risk of loss, theft or damage by vandalism, sabotage or otherwise, to all or any part of the Work” was not limited to just taking promptly reasonable precautions but to more than that. Hence, it required a lower threshold thus indicative of purely contractual obligations, of breach than the one concerning reasonable care and skill. Instead of the High court focused on the principles of causation in order to decide which was the dominant cause of the breach of contract.
