Contributory Negligence and Electronic Commerce Regulations

This article discusses the defence of contributory negligence and Electronic Commerce Regulations in Commercial Law. It explains the requirements and implications of these regulations for service providers and online retailers. The article covers the key themes behind contributory negligence, the burden of proof, and the impact of small mistakes on damages. It also discusses the Electronic Commerce (EC Directive) Regulations, 2002, which dictate the information that must be provided to consumers during online transactions. The article explains the applicability of these regulations and the exceptions to the country of origin principle. It also covers the minimum information that service providers must provide to consumers.

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Table of Contents
Task 1...............................................................................................................................................3
Task 2...............................................................................................................................................6
References......................................................................................................................................11

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Task 1
When a case of negligence is made before the court, the defendant has the option of raising the
defence of contributory negligence. Negligence denotes the creation of unreasonable risk of
harm on others. Where a person is held negligent, they are liable to pay damages to the injured or
harmed party (Steele, 2017). Contributory negligence is the defence in which the plaintiff is held
liable in a partial manner for the injuries sustained by them. When the court found that the claims
made under the contributory negligence defence are correct, on their own discretion, they reduce
the amount which is awarded to the plaintiff as damages for their injuries or loss, in percentage
to their contribution towards their injuries (Dongen, 2014).
The key theme behind this concept is that the defendant cannot be solely liable for the breach of
duty of care of the plaintiff, which they owed to themselves, in a reasonable manner. At some
instances, contributory negligence has the capacity of cancelling out the entire damage payout to
the plaintiff, and these are cases which include intoxicated driving and the like. However, in the
jurisdiction of England and Wales, the same is not possible. This concept characterizes the
conduct through which the unreasonableness of risk if created by a person towards themselves
(Morissette, 2008).
In order to make a case of contributory negligence before the court of law, there is are two key
requirements, where the defendant has the burden of proof to show that plaintiff had failed in
taking the proper care in the situation present towards their own safety, and secondly that the
failure of the plaintiff in taking care was a contributory factor in causing the damage which had
been suffered (Hodgson, 2008). This doctrine adopts a practical approach where the defendant is

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not unnecessarily burdened for the mistakes of the plaintiff; and at the same time, can prove to be
harsh for the plaintiff, where they unknowingly contribute towards their own injuries (Statsky,
2011).
In the cases of contributory negligence, it is not required to show that negligence resulted from
the breach of duty of defendant, showing that the plaintiff did not take the reasonable care
towards their own safety is enough to raise this defence, as was seen in Davies v Swan Motor Co
[1949] 2 KB 291. Another noteworthy part of this defence is that it does not apply for young
children (Harvey and Marston, 2009). In Gough (an infant) v Thorns [1966] 1 WLR 1387, a
sister and two brothers, who were the age of 13, 17 and 10 respectively had been waiting for
crossing the road while going to swimming. As a lorry slowed down and beckoned them to cross
the road, they did so. At that very instance, the defendant who was driving a bubble car came
through narrow gap and just missed the oldest brother, struck the young brother and rammed in
to the sister, resulting her being seriously injured. The trial judge, owing to the defence raised by
the defence of contributory negligence, blamed her 1/3rd for the incident. However, the Court of
Appeal held otherwise and stated that a 13 year old girl could not be expected to act reasonably.
Thus, with this case, the requirement of the plaintiff acting in a reasonable manner was born. In
other words, the plaintiff would be liable only when they fail to act in a reasonable manner
towards their own safety (E-Law Resources, 2017a).
Another important point is that such failure in taking care by the plaintiff has to be the cause of
the injury or the loss suffered by the plaintiff. For instance, in Froom v Butcher [1976] QB 286,
the plaintiff had been injured due to the car accident caused by the defendant. However, the court
held the plaintiff had contributed to his injuries by not wearing the seat belt. Lord Denning held

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that even though the negligent driver held far greater share of responsibility, and had been the
prime reason for causing the entire damage, but in considering the factors which could have
resulted in lessening of the damages, the plaintiff’s not wearing seat belt had to be considered.
This was even though a slight negligence of the plaintiff, but it was never the less present. He left
open the chances of changes being brought to this ruling by stating that where evidence can show
that such failure made no difference, damages should not be reduced at all. Thus, this case gives
a chance to the plaintiffs to show that even though contributory negligence did take place on
their part, the same made no difference and so the damages should not be reduced. However, this
becomes hard to proof in real life, particularly when cases like Davies v Swan Motor Co dictate
that it is enough to show that contributory negligence did take place. This brings ambiguities to
the cases, which lead to more case being referred to the court (Barnett and Harder, 2014).
Even the smallest of details are analysed when it comes to such claims. In Capps v Miller [1989]
1 WLR 839, even though the plaintiff was wearing a helmet when the defendant caused the
accident, the plaintiff was held liable for contributory negligence, which led to the damages
being brought down by 10%. The reason for this was that even though the plaintiff was wearing
the helmet, he had not fastened the same, while he was stationary at the centre of the road (E-
Law Resources, 2017b). Thus, a normal slip of mind could result in damages being reduced
through the contributory negligence, which makes it crucial for the plaintiff to avoid making
mistakes for making such a claim of negligence where the awarded amount is not reduced.
The contributory negligence can also operate in three party situations. And in such
circumstances, there is a need for the court to assess the degree to which the plaintiff made
contributions towards their own injuries before the responsibility of the tortfeasor is assessed, as

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was seen in Fitzgerald v Lane [1989] 1 AC 328. In this case, the plaintiff was walking on a
pelican crossing and he was struck initially by the first defendant and subsequently by the second
defendant. The plaintiff could not show that the tetrapleagia he subsequently suffered was due to
the first or second impact. The court held that since the plaintiff could not show which impact
resulted in him getting tetrapleagia, the defendants had to show that they did not cause the same
and where they could not show this, the defendants would be jointly liable (E-Law Resources,
2017c).
Thus, it becomes clear that contributory negligence is a defence which is relied upon by the
defendants in order to bring down the sum which they have to pay to the plaintiff for the
negligence undertaken by them. By relying on the established case laws and by presenting the
smallest of mistakes of the plaintiff, the defendant can make the plaintiff liable for contributory
negligence. At times such claims can prove to be harsh, particularly when the plaintiff is injured
severely owing to the negligence of the defendant, and a small mistake results in the awarded
damages being brought down. But in the sense of justice and fairness, it is important to give fair
and just ruling to the defendant, which requires holding the plaintiff liable for the mistakes made
by them, and for their failure in upholding the duty which the plaintiff owed to himself. All
which has to be done by the defendant is to show that the plaintiff had being negligent
themselves, based on the requirements covered in the previous segment to raise the defence of
contributory negligence.

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Task 2
The Electronic Commerce (EC Directive) Regulations, 2002 is a key piece of legislation through
which the legal rules are given for the service providers and the online retailers and these have to
be complied by them when they deal with the consumers in the European Union’s twenty seven
member nations. Through this directive, the information which has to be provided to the
consumers with the online transactions is dictated. Where there is a failure on part of the service
or retail provider in provider this information, as is required based on this directive, the contract
of such provider with its consumer could become invalid and could result in the contravention of
the retail laws of the member state (Kolah, 2013). Even though the business of an entity may or
may not be online, they are most likely to be affected by these regulations which came to force
back in 2002 in the United Kingdom. And these regulations cover more than just the ecommerce.
This directive had been introduced for clarifying and harmonising the rules of online business
across EU and the aim of this regulation was to boost the consumer confidence (Fuller, 2010).
Nearly every commercial website gets covered through these regulations. These regulations refer
to the information society service and cover any service which is provided at a distance for
remuneration by using electronic equipment for processing and storing data at the request of an
individual on receipt of service. The reason for not restricting this directive to buying and selling
online stems from the DTI guidance on Regulations, as the UK's Department of Trade and
Industry provided the same. In the case of Google France SARL, Google Inc v Louis Vuitton
Malletier SA and others (2010) (C-236/08), the Court of Justice of EU was asked by Court of
Cassation, which is a court of France, regarding whether the Google search also fell in the limits
of this “information society service”. It was held by the CJEU that the internet referencing

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service formed this as it covered storage of information supplied by advertiser (Monateri, 2017).
Thus, time and again, clarity has been brought on the applicability this directive, to be clear on
what all is covered under it.
There has been emphasis by the court regarding the service to fall in this definition needs to
show that service features the requisite elements of the definition. In 2009, the High Court of UK
asked CJEU for providing a preliminary ruling on a range of issues in the matter of L'Oreal v
eBay (2011) C-324/09. In this case, litigation had been started by L’Oreal against eBay and its
seller who were selling the products of L’Oreal without the consent of L’Oreal. Amongst the
different questions was the potential liability of eBay. It was accepted by the High Court of UK
that eBay was an operator of online marketplace which made it an information society service
(Dinwoodie, 2017).
This regulation does not address who can sue or be sued; also, it does not apply to data
protection, gaming or lotteries, betting, representation of client, cartel laws, and activities of
public notary. This regulation is applicable only upon the acts of Parliament which had been
passed before the date on which the regulation was made. For the legislation which came after
this regulation, the same is implemented on case to case basis. Some acts cover the relevant
provisions of e-commerce regulations, and an example of this is Equality Act, 2010. The most
recent example of supplementary provisions being applied was in Electronic Commerce
Directive (Trafficking People for Exploitation) Regulations 2013 (Out-Law, 2013).
These regulations are applied on the basis of country of origin principle, which means that so
long as the businesses of UK comply with the provision of this regulation, they can ignore the
laws of the other member states where something has been stated on same matter (eRadar, 2011).

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These regulations are not applied on the basis of country of origin principle based on the
consumer contracts’ terms. This means that the terms and conditions of the e-commerce sites
have to follow the legislations of each member state where the products can be brought by the
consumers, and following the laws of UK would not suffice. Due to the exception of consumer
contract, any such website which sells to the consumers of France (or any other member state for
example purposes), have to provide the terms and conditions in French for complying with the
consumer laws of France (Out-Law, 2013).
Consumer contracts are not just the only exception to this country of origin people rule, as
copyright and other IP rights are also excluded from this, along with the unsolicited commercial
emails and real estate transfers. There are cases where the member state can override the country
of origin principle for imposing their laws against another member state’s supplier, but such
measures have to be appropriate. In eDate Advertising DmbH v X and Martinez v Mirror Group
(2011) C-509/09 and C-161/10, it was instructed by CJEU that only the situations in which
derogations provided applied upon the e-commerce service provider could such provider be
subjected to stringent requirements in comparison to the ones provided by substantive law
applied by member state in which the service provider was established (EUR-Lex, 2010).
The service providers, based on this regulation, have to provide the minimum information which
has to be made directly, easily and permanently accessible. These include the service provider
name which has to be given at a place which is accessible in an easy manner on the site. This can
be different from the trading name and when such happens the difference has to be explained.
There is also a need to give geographic address of the service provider; the details of service
provider including email address so as to allow for effective and direct communication. This

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requirement was confirmed in the case of Bundesverband v Deutsche Internet Versicherung
(2008) C-298/07, where it was stated that for responding to the consumers in a prompt manner,
the companies need to provide methods of communication which were beyond just email and
postal address. There is a need to provide details of register, registration number, particulars of
pertinent supervisory authority where they are subjected to authorisation scheme, details of
professional body, a VAT number, and the prices on website need to be unambiguous and clear
(Out-Law, 2013).
Before an order is placed, the seller is required provide the different technical steps which have
to be followed for concluding the contract; whether the same needs to be filed by the service
provider and whether the same is accessible; the languages offered for concluding contract; and
the technical means for the identification and correction in input errors before the order is placed.
There is also a need to indicate the relevant codes of conduct by the service provider which it
subscribes to, along with providing the information on how such codes can be accessed in an
electronic manner, preferably with their link (Out-Law, 2013).
The requirement covered in the previous paragraph is not obligatory where the contract
concludes exclusively through emails of private communications which are equivalent to it.
Apart from this, the service provider has to send the terms and conditions which are applicable to
the contract on the recipient and these have to be made available in a manner which allows for
their storing and reproduction (Out-Law, 2013). Where any of these requirements are not meant,
the statutory duty of the service providers is deemed to have been contravened (Tech Target,
2017).

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Thus, in the preceding parts, a discussion was undertaken regarding the different provisions of
Electronic Commerce (EC Directive) Regulations, 2002. This is an important statutory
instrument in terms of the online transactions and becomes important to be adhered to in e-
commerce business. The discussion also highlighted the manner, in which this regulation
imposes a duty on the online retailers to comply with its provisions. There was also the
discussion on how this principle is to be applied and in which cases it would not be applied.
Thus, an overall holistic approach on its applicability on the electronic communication was
undertaken successfully.

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References
Barnett, K., and Harder, S. (2014) Remedies in Australian Private Law. Victoria: Cambridge
University Press.
Dinwoodie, G.B. (2017) Secondary Liability of Internet Service Providers. London: Springer.
Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston:
Brill Nijhoff.
E-Law Resources. (2017a) Gough (an infant) v Thorns [1966] 1 WLR 1387 Court of Appeal.
[Online] E-Law Resources. Available from: http://www.e-lawresources.co.uk/Gough-%28an-
infant%29-v-Thorns.php [Accessed on: 12/12/17]
E-Law Resources. (2017b) Capps v Miller [1989] 1 WLR 839 Court of Appeal. [Online] E-Law
Resources. Available from: http://www.e-lawresources.co.uk/Capps-v-Miller.php [Accessed on:
12/12/17]
E-Law Resources. (2017c) Fitzgerald v Lane [1989] 1 AC 328 House of Lords. [Online] E-Law
Resources. Available from: http://www.e-lawresources.co.uk/Fitzgerald-v-Lane.php [Accessed
on: 12/12/17]
eRadar. (2011) The Electronic Commerce (EC Directive) Regulations 2002. [Online] eRadar.
Available from: https://www.eradar.eu/the-electronic-commerce-ec-directive-regulations-2002/
[Accessed on: 12/12/17]

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EUR-Lex. (2010) Joined Cases C-509/09 and C-161/10. [Online] EUR-Lex. Available from:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009CJ0509:EN:HTML
[Accessed on: 12/12/17]
Fuller, G. (2010) Purchasing Contracts: A Practical Guide. London: Spiramus Press Ltd.
Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford
University Press.
Hodgson, D. (2008) The Law of Intervening Causation. Hampshire: Ashgate Publishing, Ltd.
Kolah, A. (2013) Essential Law for Marketers. 2nd ed. London: Kogan Page Limited.
Monateri, P.G. (2017) Comparative Contract Law. Cheltenham, Glos: Edward Elgar Publishing
Limited.
Morissette, E.L. (2008) Personal Injury and the Law of Torts for Paralegals. New York: Aspen
Publishers.
Out-Law. (2013) The UK's E-Commerce Regulations. [Online] Out-Law. Available from:
https://www.out-law.com/page-431 [Accessed on: 12/12/17]
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Steele, J. (2017) Tort Law: Text, Cases, and Materials. 4th ed. Oxford: Oxford University Press.
Tech Target. (2017) Electronic Commerce (EC Directive) Regulations 2002. [Online] Out-Law.
Available from: http://whatis.techtarget.com/definition/Electronic-Commerce-EC-Directive-
Regulations-2002 [Accessed on: 12/12/17]