The Contributory Negligence Doctrine: Four Commercial Law Problems

Lloyd's Maritime and Commercial Law Quarterly, Forthcoming

Oxford Legal Studies Research Paper No. 60/2017

25 Pages Posted: 1 May 2017 Last revised: 16 Nov 2017

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: April 29, 2017

Abstract

The law of contributory negligence is often treated as an afterthought by academics. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v. Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence.

Keywords: Tort; Contract; Contributory Negligence; Comparative Fault; Apportionment; Commercial Law

JEL Classification: K12, K13

Suggested Citation

Goudkamp, James, The Contributory Negligence Doctrine: Four Commercial Law Problems (April 29, 2017). Lloyd's Maritime and Commercial Law Quarterly, Forthcoming ; Oxford Legal Studies Research Paper No. 60/2017. Available at SSRN: https://ssrn.com/abstract=2960626

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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