ABSTRACT
It could be argued that neither Refiners’ breach of statutory duty nor Alan’s breach of common law duty caused Brian’s injury; rather, it was Brian’s carelessness in failing to note the damaged overalls that caused the injury – that is, that this action by Brian constituted a novus actus interveniens that broke the chain of causation. A subsequent act of the claimant may amount to a novus actus where his conduct has been so careless that his injury can no longer be attributed to the negligence of the defendant. An examination of the two leading cases in this area, McKew v Holland and Hannen and Cubitts (1969) and Wieland v Cyril Lord Carpets (1969), shows that the test the courts apply is whether the claimant’s conduct was reasonable or not and, if it is unreasonable, it will break the chain of causation, an approach considered in Spencer v Wincanton Holidays (2009). However, the claimant’s damages in that case were reduced by one third on the grounds of his contributory negligence. It does not seem unreasonable of Brian, who normally has no need to wear overalls, to assume that those provided by Refiners are in good condition. Also, as regards Refiners’ breach of statutory duty, in Westwood v Post Office (1974), it was held that the fact that the plaintiff was himself at fault did not allow the defendants to act in breach of their statutory duty, and that the plaintiff was entitled to assume that the defendants would comply with their statutory obligations. Thus, Westwood would dispose of this argument (if it were to be decided that this case fell outside of Gorris). It is more likely that a defence of contributory negligence might succeed in reducing Brian’s damages if it could be shown that Brian had taken insufficient care for his own safety (Jones v Livox Quarries (1952)). As there seems to be no emergency as in Jones v Boyce (1816), contributory negligence cannot be ruled out.
