‘In the case of fraudulent misrepresentation . . . there is no common law defence of contributory negligence . . . It follows that . . . no apportionment under the 1945 Act is possible.’
Lord Hoffmann at [18].
‘[I]n short, liability under the Misrepresentation Act 1967 is essentially founded on negligence, in the sense that the defendant, the representor, did not have reasonable grounds to believe that the facts represented were true. (Of course, if he did not believe the facts represented were true he will be liable for fraud.) This being so, it would be very odd if the defence of contributory negligence were not available to a claim under that Act. It would be very odd if contributory negligence were available as a defence to a claim for damages based on a breach of a duty to take care in and about the making of a particular representation, but not available to a claim for damages under the Act in respect of the same representation.’
Nicholls V-C at 573.
By parity of reasoning with the Forsikrings case, which held that ‘the Act of 1945 applies to a case where there is a claim for damages for negligence at common law even if, in addition, there is a claim in contract to the same effect’, Nicholls V-C concluded that ‘the Act of 1945 applies in the present case where there are concurrent claims against Richcliff in negligence in tort and under the Act of 1967.’
But Nicholls V-C went on (at 574) to rule that it would not be just and equitable to make any reduction in GG’s damages.
‘Richcliff intended, or is to be taken to have intended, that Gran Gelato should act in reliance on the accuracy of the answers provided by Gershon Young. Gran Gelato did so act. In those circumstances it would need to be a very special case before carelessness by Gran Gelato, the representee, would make it just and equitable to reduce the damages payable to compensate Gran Gelato for loss suffered by it in consequence of doing the very thing which, in making the representation, Richcliff intended should happen, viz., that Gran Gelato should rely on the representation. In principle, carelessness in not making other inquiries provides no answer to a claim when the plaintiff has done that which the representor intended he should do. This is a well established principle when misrepresentation, whether innocent or fraudulent, is being relied on as a ground for seeking rescission of the ensuing contract.’
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