ABSTRACT
Barclays Bank plc v Fairclough Building Ltd [1995] QB 214, CA, p 228 Beldam LJ: Section 4 of the 1945 Act defines ‘fault’. It is generally agreed that the first part of the definition relates to the defendant’s fault and the second part to the plaintiff’s, but debate has focused on the words ‘or other act or omission which gives rise to a liability in tort’ in the first part and ‘other act or omission which ... would, apart from this Act, give rise to the defence of contributory negligence’ in the second part. It has been argued that, merely because the plaintiff frames his cause of action as a breach of contract, if the acts or omissions on which he relies could equally well give rise to a liability in tort, the defendant is entitled to rely on the defence of contributory negligence. Examples frequently cited are claims for damages against an employer or by a passenger against a railway or bus company where the plaintiff may frame his action either in tort or in contract and the duty relied on in either case is a duty to take reasonable care for the plaintiff’s safety. Contributory negligence has been a defence in such actions for many years. So it is argued that, in all cases in which the contractual duty broken by a defendant is the same as and is co-
extensive with a similar duty in tort, the defendant may now rely upon the defence. An opposing view based upon the second part of the definition is that if the plaintiff framed his action for breach of contract, contributory negligence at common law was never regarded as a defence to his claim and so cannot be relied on under the 1945 Act.
