Barclays v Fairclough Building Ltd

Barclays Bank plc v Fairclough Building Ltd (No.1) [1995] Q.B. 214

Contract law – Breach of contract – Contributory negligence

Facts

B employed F to clean a roof which was made of corrugated sheets. F did not take any safety precautions when cleaning. The premises were contaminated with asbestos and needed extensive work to repair the damage. B brought an action in damages for the cost of the repair work on the basis of F breaching contractual terms. F argued that B had contributed to the negligence as B had not supervised F during the cleaning. B counter-argued that their claim was brought under contract law and therefore could not trigger a negligence claim under tort law. The trial judge held that F was at fault but that there was an implied duty to take reasonable care and therefore the defence of contributory negligence could be successful. The trial judge found that B was 40% at fault and that damages would be owed as per the Law Reform (Contributory Negligence) Act 1945, section 1 and section 4. B appealed this decision.

Issue

The issue for the court was whether the contractual agreement between the parties could extend into tort law. If so, F would be able to raise the defence of contributory negligence which would limit the liability for contaminating the building during the process of cleaning the roofs.

Decision/Outcome

The appeal of the bank was allowed and therefore F’s defence of contributory negligence was rejected. It was held that in circumstances where the defendant is in breach of a strict contractual clause, damages could not be reduced on the basis of contributory negligence.