England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
THE HON MR JUSTICE BRIGGS
[2008] EWHC 454(Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2008

President of the Queen's Bench Division:

This is the judgment of the Court.

Introduction

1. In 2006, Mr Calvert, the claimant, was a compulsive gambler. He was a trainer of greyhounds in Sunderland. In 2005 and the earlier months of 2006, he would on occasions stake huge sums of money, mainly on greyhound races, with a succession of bookmakers. Generally speaking during this period his winnings were greater than his losses; and two bookmakers came to decline to accept his bets. Also during this period, his compulsive gambling condition became worse. In May 2006, when he started telephone betting with William Hill Credit Limited, the defendants, he had become a pathological gambler. In periods of calmer lucidity, he was aware that his gambling was at times uncontrolled and potentially destructive.
2. In the summer of 2006, the Gambling Act 2005 had been enacted but was not yet in force. Bookmakers had known, at least since a Government White Paper entitled "Safe Bet for Success" of March 2002, that the Gaming Act 1845 was soon to be substantially revised, so that for example gambling contracts would become enforceable, but under a system of regulation. Part of the regulations would address the problem of compulsive gamblers. In advance of the coming into force of this legislation, William Hill, together with other bookmakers under the aegis of the Association of British Bookmakers and the Remote Gambling Association, had voluntarily adopted Codes of Practice for dealing with problem gamblers. One approach was to offer problem gamblers who had accounts and dealt with the bookmaker on the telephone a form of self-exclusion agreement. Such an agreement might take various forms, but typically could be a request by the problem gambler to close his account, and a further request by him to the bookmaker to agree not to accept telephone bets from him for a period of 6 months. This would not necessarily stop him gambling; for the bookmaker could not prevent him from going to another bookmaker or from betting on the internet. Nor would it in all cases stop the gambler betting with the bookmaker, if, for instance, the self-exclusion agreement related only to telephone betting. But it would at least limit the gambler's opportunity for gambling self-destruction.

Facts

3. On 2^nd May 2006, Mr Calvert opened his first telephone betting account with William Hill. He began to place bets immediately. On 9^th May 2006, he indulged in his first telephone betting frenzy with William Hill. In the space of little over 4 hours, he staked a total of £336,600, with a final bet of £79,600, ending the day £139,200 ahead. All this led him to a "moment of clarity and horror". He made contact with William Hill later that evening to close his account and to ask that it never be reopened again. He spoke to an employee called Elaine, who did close the account, but whose actions significantly departed from William Hill's procedures. In the result, no procedure was in place to stop Mr Calvert from reopening the account, although he thought that he had made a self-exclusion agreement. He did abstain from gambling with William Hill for a fortnight or so until 27^th May 2006, when he telephoned William Hill and asked to reopen his account. He was not prevented from doing so. On 5^th June 2006, he embarked on another betting frenzy, during which he staked an aggregate total of £113,000 on four bets in the space of an hour. He won only on the last of these, leaving him £7,000 ahead. Although Elaine's failure was to be criticised as part of Mr Calvert's claim in these proceedings, no viable claim resulted from it because Mr Calvert did not lose money as a result of it.
4. Later on 5^th June 2006, Mr Calvert made a further self-exclusion agreement with William Hill on the telephone with an employee called John. A transcript of this telephone conversation is reproduced in paragraph 73 of the judgment of Briggs J of 12^th March 2008, from which this appeal is brought by permission of the judge. But John, so it seems, failed to implement this agreement through William Hill's internal systems, so that Mr Calvert's telephone account was not closed and he was not refused further telephone betting with William Hill.
5. Between August and December 2006, he was not stopped from continuing to place what on any view were sometimes huge bets with William Hill. By this time, he was placing bets on other sporting activities than greyhound racing. Sometimes he won, but often he did not. In the result, he claimed in these proceedings to have lost an amount of £2,052,972.18, including interest and other payments on loans to finance his gambling. His losses between 5^th August 2006 and 2^nd December 2006 were particularised as amounting to £1,920,781.78. He claimed this amount, less £136,000 in respect of betting in William Hill's betting shops, as damages against William Hill alleging that they were in breach of a duty of care owed to him in allowing him to continue to operate accounts with them and to place cash and account bets after 9^th May 2006.

The judge's decision

6. Mr Calvert's case before the judge proceeded on two bases. First, counsel on his behalf argued for a broad duty of care by which bookmakers would owe some general duty of care to protect problem gamblers from the consequences of their compulsive problems. The judge rejected this and there is no subsisting appeal against this part of the judgment – this to the mild surprise and perhaps disappointment of Mr Fenwick QC, for William Hill, because the judge's reason for giving permission to appeal was that the case for a wider duty of care than he upheld was an issue of real public importance. The judge wrote that, if the wider duty were established, it was arguable that a resulting causation analysis might have a different outcome. Second, Mr Calvert succeeded before the judge on his narrower case that, on the particular facts, William Hill, through John, assumed responsibility to do what John said in the telephone conversation they would do, and that William Hill were in breach of that duty in failing to implement the agreement. The judge found that William Hill had assumed this responsibility and that they were accordingly in breach of duty. William Hill have a respondent's notice which contingently and, we think, half-heartedly seeks to challenge the finding that they were in breach of a duty which they assumed; but the main battleground of this appeal lies elsewhere.
7. Having held that William Hill were in breach of the limited and particular duty to take reasonable care to prevent Mr Calvert from gambling with them on the telephone for a period of 6 months, the judge held that the particular losses which Mr Calvert sustained between August and December 2006 by reason of his telephone betting with them would not have been sustained but for their negligence. Mr Browne-Wilkinson QC, for Mr Calvert, says that this finding should have concluded the causation analysis and without more entitles Mr Calvert to damages in the net amount of his telephone betting losses during that period.
8. But the judge did not so find. He said that ultimately causation is a matter of common sense. In his opinion, it would fly in the face of commonsense and be a travesty of justice if a problem gambler were able to attribute liability for the financial ruin, which Mr Calvert soon suffered, to a particular bookmaker with whom he had made the relevant financial losses due to their failure to exclude him at his request, if he would, had he been excluded by that bookmaker, probably have ruined himself anyway by betting with one or more of that bookmaker's competitors. The court therefore had to form a view of what would have happened to Mr Calvert's gambling career if he had been excluded from telephone betting with William Hill. If he would still have ruined himself anyway, the claim must in commonsense fail on causation grounds. Having considered various relevant evidence, the judge was satisfied on the balance of probabilities that, even if Mr Calvert had been deprived of the opportunity to pursue his telephone betting with William Hill in the second half of 2006, he would ultimately have ruined himself financially, although at a slower rate, by the end of 2007. It followed that Mr Calvert's claim failed entirely, including his claim that William Hill's negligence made his psychological gambling condition worse. William Hill's negligence merely affected the manner in which, and in particular the rate at which, a pre-existing pathological gambling disorder caused his financial and social ruin, without in any definable way increasing the aggregate amount of either form of harm. No point is taken on this appeal relating to the timing of the financial and social ruin.
9. Upon these findings, the question of quantum did not arise, nor did the question of contributory negligence. But the judge said briefly that, if he had found in Mr Calvert's favour on causation, there would have been a "very large reduction" of any award on the grounds of contributory negligence. The judge did not quantify this reduction.

Grounds of appeal

10. The main subsisting ground of appeal is that the judge's finding, that but for William Hill's negligence Mr Calvert would not have sustained his particular telephone betting losses with William Hill between August and December 2006, was sufficient to entitle him to succeed in his claim for damages in the net amount of those losses; and that the judge was wrong to take account of what would have happened otherwise so as to deny Mr Calvert any recovery. These losses, which Mr Calvert did sustain, were the losses which he claimed; and the judge, explicitly applying the usual but for test for causation, held that he would not have sustained them but for William Hill's negligence.
11. Subsidiary grounds of appeal are that:

a) if, contrary to the main ground of appeal, it was relevant to consider what would have happened if William Hill had not been in breach of duty, the inquiry should not have been on a balance of probability, but an assessment of the extent to which it was likely that Mr Calvert would have suffered financial ruin. To the extent that there was a chance that he would not have suffered financial ruin, he should be entitled to recover.

b) the conversation with John on 5^th June 2006 gave rise to a fiduciary obligation of loyalty entitling Mr Calvert to an account and recovery of William Hill's profits derived from his telephone betting in the relevant period. This ground of appeal would entail persuading the court to permit Mr Calvert to amend his particulars of claim to plead a case which he did not advance before the judge.

c) the judge's descriptive assessment of Mr Calvert's contributory negligence was wrong, and there should be either no contributory negligence or a much smaller percentage than that description implies. Both parties pragmatically invited this court to place a percentage figure on any finding of contributory negligence to avoid further costs.

The judgment

12. The judge's very long and careful judgment has the citation number [2008] EWHC 454 (Ch) and may be referred to for much detail which this judgment need not repeat.
13. The judge recognised, by way of introduction and with reference to the opinion of Lord Hoffmann in Reeves v Commissioner for Police [2000] 1 AC 360 at 368, that the claim to recoup gambling losses was mainly a claim for economic loss. Recognition of a common law duty to protect a problem gambler from self-inflicted gambling losses would involve a journey to the outermost reaches of the tort of negligence in the realm of the truly exceptional. He noted the complication that the losses claimed occurred during a period of gestation of a radical change in the attitude of the law to gambling. Section 18 of the Gaming Act 1845 was still in force. But the Government were moving towards a new statutory and regulatory framework for gambling. This was implemented by the Gambling Act 2005, which came into force on 1^st September 2007. The new licensing requirements would impose conditions intended to promote socially responsible gambling. This would include the identification and treatment of problem gamblers. Licensees were to be required to put in place procedures for self-exclusion and to take all reasonable steps to adhere to these procedures. In anticipation of this, bookmakers' associations published in 2006 a Social Responsibility and Good Practice Code in association with Gamcare, a charitable body set up by the gambling industry to provide help to problem gamblers. Details of these and related activities appear in paragraphs 3 to 11 of the judgment.
14. Paragraphs 12 to 24 of the judgment describe the relevant internal organisation of William Hill, its telephone betting division, and the way in which it created and handled customer accounts, with Risk Managers in a Betting Control Department monitoring and regulating the taking of bets from customers. Paragraphs 25 to 38 describe the practical implementation of William Hill's social responsibility policy and their procedures for self-exclusion. These procedures were supposed to take effect in various ways if, for instance, a customer stated that he could not control his gambling or asked for his account to be closed and that he should be excluded from further gambling. One important purpose of a self-exclusion policy is to enable a problem gambler to take advantage of a moment of clarity, characteristic to those with such problems, by seeking his bookmaker's help so that restraint would be available when his own resources of self-control should later fail. The judge identified a significant structural weakness in William Hill's internal arrangements, in that an excluded customer who had closed his account could simply open a new account with a different debit or credit card. As it turned out, this structural weakness did not feature centrally in Mr Calvert's case. There was in any event a difference between merely closing an account, leaving the customer free to reopen it or open another one, and a self-exclusion which was supposed to operate initially for 6 months. During this period, William Hill would refuse to accept telephone bets from the customer. The standard self-exclusion agreement contained an express term releasing William Hill "from any liability or claims whatsoever in the event that they failed to comply with this voluntary exclusion". The effectiveness in law of this term – or indeed of the whole self-exclusion agreement – was not tested in these proceedings, because William Hill and Mr Calvert did not enter into such an agreement. But Mr Fenwick QC relies on it in passing to submit that, if William Hill had done what John told Mr Calvert they would do, there would have been in place an agreement which excluded their liability.
15. Paragraphs 39-54 of the judgment give an account of Mr Calvert and his betting activities before he became a customer of William Hill. He had been a successful greyhound trainer for several years. By 2000, he had become a successful gambler with annual winnings from 2000 to 2005 in the order of £50,000 a year. He describes himself as in control of his betting up to 2004. Initially he gambled only on greyhounds. But, as his ability to bet on greyhounds reduced, he started to bet on other events. His growing success as a trainer of and gambler on greyhounds had led bookmakers to place restrictions on his betting. He also turned to telephone betting. Between August 2005 and March 2006, he placed bets with Pagebet, Stan James and Ladbrokes. He was eventually restricted from further telephone betting by Pagebet and Ladbrokes for commercial reasons and, at his request, was self-excluded from Stan James. In the period between 19^th January 2006 and 20^th March 2006, he staked an aggregate of £1,392,619 with Ladbrokes, yielding net winnings of £609,311.
16. There is an extended account of Mr Calvert's telephone betting with William Hill in paragraphs 55-105 of the judgment. This began on 2^nd May 2006. Highlights included 9^th May 2006, when he had a betting frenzy. Later that evening, as we have already mentioned, he spoke with Elaine who closed his account at his request, but whose actions did not prevent him from reopening it. Then on 5^th June 2006, having reopened the account, he had another betting frenzy, at the conclusion of which, and after a telephone conversation with another employee of William Hill, Mr Calvert had the conversation with John whose transcript the judge reproduced in paragraph 73 of the judgment. John established that Mr Calvert wanted to close the telephone betting account. He asked if Mr Calvert wanted to self-exclude, "which means that you will not be able to open the account with us again within 6 months." Mr Calvert said that he wanted to do this. John said that he would pass on all the relevant information; that the account would now be closed; and that Mr Calvert would not be able to open it for 6 months. The money in the account (which an earlier telephone conversation had established was about £150,000) would be sent to Mr Calvert that night or first thing in the morning and "the account will now be closed for the next 6 months. You will not be allowed to open it under any circumstances. You will not be allowed to bet over the phone with William Hill."
17. Regrettably none of this happened. Paragraph 80 of the judge's judgment is as follows:

"In my judgment John failed to discharge his responsibilities not merely by failing to pass on the claimant's self-exclusion request to the appropriate department, but by assuring the claimant, in advance of his having been contacted by Customer Services, and having signed a self-exclusion agreement, that he was, then and there, excluded from telephone betting with William Hill for six months. The claimant was left with a clear impression (entirely contrary to William Hill's policy and procedures) that he need do nothing further to obtain self-exclusion."

18. The outcome of Mr Calvert's self-exclusion request on 5^th June 2006 was that his account No. 1 was not closed at all. Up to this point he had made net winnings in his telephone betting with William Hill of £298,391. He did not place further telephone bets with William Hill between 5^th June and 5^th August 2006. Nevertheless in late July he opened an internet account with Betfair and, despite an unusual betting pattern investigation by them, made a profit in excess of £114,000 on a horse he backed to lose. The judge regarded the Betfair episode as a very unsatisfactory aspect of Mr Calvert's evidence resulting in "a serious cost to his credibility" (paragraph 86). The judge considered evidence of other gambling during this period. He referred to evidence, from Mr Calvert's bank statements for the period June to early August 2006, of substantial round sum receipts and payments consistent with continued gambling. The judge considered that Mr Calvert did more gambling during this period than he was prepared to reveal.
19. On 5^th August 2006, Mr Calvert resumed telephone betting with William Hill. Staggering details of his subsequent gambling are in paragraphs 95-105 of the judgment. Some of this was cash betting in betting shops, not telephone betting. Brief details are as follows.
20. Mr Calvert successfully opened a new account No. 2 on 5^th August 2006 and proceeded to gamble over a period of 8 days. During that period, most of the bets he placed each day lost. Individual stakes ranged between £2,000 and £70,000. The aggregate stakes were £751,000 and the aggregate loss was £416,000. By this time, he had run out of money. He had had a healthy cash position in excess of £400,000 on 21^st July. His bank statement showed that this was reduced to a cash credit of less than £12,000 by 17^th August.
21. On 20^th August 2006, Mr Calvert opened account No. 3 with William Hill. This was a cash account which he funded by physical delivery of enormous amounts of cash to William Hill's betting shops, often in large sacks, before placing bets with that cash by telephone. On 21^st September 2006, Mr Calvert staked an aggregate of £523,333 on 7 bets, with a net loss of £519,999. Three of those bets were cumulative bets on America to win the Ryder Cup in a total of £347,333. This was the largest bet ever received by William Hill on a golf event and was well publicised at the time, although the name of the punter was kept anonymous.
22. On 10^th October 2006, Mr Calvert telephoned William Hill to close his accounts, asking for them never to be reopened. After further discussion with a team leader, he chose not to self-exclude, preferring simply to close his accounts. Eight days later he reopened them, but placed no further bets that month. He resumed betting during November 2006 and continued to make losses. By mid December 2006, he had run out both of his money and of all sources of borrowing from friends and was forced to stop his gambling altogether.
23. The judge heard evidence from two psychiatrists both of whom were of the opinion that, in the period between June and November 2006, Mr Calvert showed most of the relevant diagnostic criteria for the identification of a pathological gambler, rather than merely a problem gambler. The judge found that he had become a problem gambler by the beginning of 2006. By May 2006, that is by the time he started telephone betting with William Hill, he had already become a pathological gambler. During the last quarter of 2006, he had become a severe pathological gambler. By an amendment to his claim, Mr Calvert claimed damages for personal injury, as well as for pure economic loss, constituted by the deterioration of his gambling disorder caused, he said, by William Hill's breach of duty.
24. Mr Calvert's first case as advanced before the judge included the wide general contention that a bookmaker might owe a common law duty of care to a customer known or suspected of being a problem gambler. This, in advance of the Gambling Act 2005, would have been a decidedly novel proposition of law, hard to reconcile with the terms of section 18 of the Gaming Act 1845, which remained in force, and scarcely incremental from decided cases. The judge rejected this broad duty of care. He did so in an extended discussion of authorities starting with Customs and Excise Commissioners v Barclays Bank [2007] 1 AC 181 and with reference to other English cases including Reeves v Commissioner of Police, from which the judge had derived a starting point that the law imposes no general duty upon a person to prevent his neighbour from harming himself. We shall make further reference to Reeves later in this judgment. The judge also considered Jebson v Ministry of Defence [2000] 1 WLR 2055 and Barrett v Ministry of Defence [1995] 1 WLR 1217, both cases in which this court held that the Ministry of Defence had assumed a responsibility to drunken servicemen who had been killed or seriously injured as a result of their own self-induced drunkenness; and Watson v British Boxing Board of Control [2001] 2QB 1134, where the Board was held to have assumed responsibility to a boxer who suffered brain damage, because the Board had complete control over arrangements for ringside medical treatment.
25. The judge said at paragraph 151:

"These and other cases show that exceptional circumstances may give rise to a common law duty of care to prevent or mitigate the consequences or aggravation of self-inflicted harm. Such circumstances may include the assumption of control over a person while vulnerable to the consequences of self-inflicted harm, or the assumption of some responsibility for the care of, or provision of assistance to, such a person. In every such case the three stage [Caparo] test will be an important part of the analysis whether the circumstances are sufficiently exceptional."

The judge than gave extended consideration to four Australian gambling cases, whose thrust he considered to be generally discouraging to Mr Calvert's case. As we say, the judge rejected the case based on a broad duty of care in discussion in paragraphs 163 to 174 of his judgment. There is no subsisting appeal against this part of his decision.

26. The narrower case for a duty of care was based on John's assurances to Mr Calvert on 5^th June 2006. The judge regarded the exchange in the telephone conversation as tantamount to a contract except for the absence of consideration. Mr Calvert presented himself as a problem gambler in need of help and was assured that he would be given it. The judge considered that the facts disclosed a sufficient voluntary assumption of responsibility by William Hill, to exclude Mr Calvert from telephone gambling with them for 6 months, to give rise to a duty to implement that exclusion, subject to the application of the three stage test and a cross-check of incrementalism. Having undertaken that analysis, the judge found on the narrower basis that William Hill did assume responsibility to implement the assurances given by John on the telephone, and that a duty of care arose, of which on the facts William Hill were plainly in breach. Taken in isolation as a compartmental analysis alone, we are inclined to think that, on the special facts of the case, the judge was right to hold that William Hill assumed a tortious duty to implement John's assurances. It does not follow that this was a duty whose scope embraces the loss claimed in these proceedings.
27. There is a Respondent's Notice from which Mr Fenwick would seek to argue points in opposition to the existence of the duty of care as found by the judge on grounds which failed before the judge. These points were said only to arise if this court is against William Hill on the causation appeal. We shall therefore address the main ground of appeal on the assumption that the judge was correct to find a limited duty of care, without examining possible reasons why that might not have been correct.
28. As to causation, the judge held that, notwithstanding his impulsive and unpredictable nature and condition, if Mr Calvert had been offered a self-exclusion agreement by William Hill's Customer Services on 6^th June 2006, he would probably have signed it. Its exclusion clause would have protected William Hill from any subsequent carelessness. The real question was whether, if he had signed the agreement, he would have been excluded from gambling with William Hill and for how long. The judge considered that he would have been excluded from telephone gambling for 6 months. It was on balance less than probable that he would have been excluded from other forms of gambling – at betting shops or on the internet. The conversation with John and the resulting duty of care only extended to an exclusion from telephone betting.
29. The two paragraphs 195 and 196 of the judgment, critical to Mr Calvert's main ground of appeal, are as follows:

"195. It follows of course that the particular losses which the claimant sustained between August and December 2006 by reason of his telephone betting would not have been sustained, but for William Hill's negligence. But that by no means concludes the causation analysis. Although in a sense the claimant's case is that he was harmed by the aggregate outcome of the particular bets which he placed with William Hill, his complaint is that by failing to exclude him from gambling, William Hill caused his financial and social ruin and an aggravation of his gambling disorder.

196. However unsatisfactory this may be to philosophers and legal academics, causation is, as applied by the courts, ultimately a matter of common sense: see Galoo Ltd v. Bright Graham Murray [1994] 1 WLR 1360, applying dicta from Australia in Alexander v. Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 and March v. E & MH Stramare Pty Ltd (1991) 171 CLR 506. It would in my opinion fly in the face of common sense and be a travesty of justice if a problem gambler were able to attribute liability for his financial ruin to a particular bookmaker which with whom he had made the relevant losses due to their failure to exclude him at his request, if he would, had he been excluded by that bookmaker, probably have ruined himself by betting with one or more of that bookmaker's competitors. The position would of course be otherwise if the problem gambler had sought to exclude himself from betting at any bookmakers by separate arrangements with each, since it would be no answer by one bookmaker to a claim for compensation for negligence to say that, but for his negligence, the gambler would have been harmed in the same way by the negligence of another."

30. It was therefore essential for the court to form a view about what would have happened to Mr Calvert's gambling if he had been excluded from telephone betting with William Hill. Mr Calvert, through his lawyers, did not treat this as irrelevant, but contended evidentially that, if he had been excluded by William Hill, he would not have been ruined by his addiction. The judge concluded otherwise, holding that he would have sought other avenues for large scale betting and that he would have continued gambling on a lesser daily scale. He took account of evidence of Miss Smyth, who conducted a theoretical exercise in early 2008 directed to finding out the maximum bets which Mr Calvert was likely to be permitted to make on a football match at betting shops in the North East of England. The judge regarded the value of her evidence as severely limited by the restrictions upon her brief. It by no means closed off the avenues by which, had he been excluded from telephone betting with William Hill, Mr Calvert might otherwise have pursued his gambling.
31. The judge was satisfied that, on a balance of probabilities, Mr Calvert would ultimately have ruined himself anyway by the end of 2007. In brief, the judge's reasons for this conclusion were that Mr Calvert was already a pathological gambler; that, not only did gambling give him a "buzz", but his personal and business lifestyle depended to a substantial extent on gambling profits; that his attempt at self-exclusion from William Hill did not stop him gambling elsewhere before he returned to William Hill in August 2006; that the substantial round sum credits to and debits from his bank account after June 2006 were probably in connection with further gambling which he had chosen not to reveal; and importantly that there must have come a time when Mr Calvert realised that William Hill had not implemented his requested self-exclusion. On 10^th October 2006, he declined a self-exclusion offer. It followed that Mr Calvert's claim failed entirely, because William Hill's negligence "merely affected the manner in which, and in particular the rate at which, a pre-existing pathological gambling disorder caused the financial and social ruin and the psychological harm which form the basis of his claim, without in any definable way increasing the aggregate amount of either form of harm."

The main ground of appeal

32. The main ground of appeal is that the judge failed to adopt the correct approach to the issue of causation as explained in recent decisions of the House of Lords in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 350; Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360; Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883; and Chester v Afshar [2005] 1 AC 134. He mischaracterised Mr Calvert's case as to the losses he had suffered. Mr Calvert was not claiming that William Hill caused his financial and social ruin. He was claiming specific losses directly caused by William Hill's breach of duty and which, but for the breach of duty, he would not have suffered. The judge's resort to commonsense was misplaced because (a) an appeal to commonsense is a judicial excuse for not undertaking a tight process of reasoning; or (b) commonsense should in the event enable Mr Calvert's claim to succeed. If a person undertakes to do something and they fail to do it, commonsense dictates that they should be held responsible for the direct consequences. The judge's own finding in paragraph 195 of his judgment - see paragraph 28 above - was sufficient to dispose of the case.
33. Mr Browne-Wilkinson derives a number of propositions from the four authorities to which he mainly refers, with further reference to a paper by Lord Hoffmann entitled Causation in [2005] LQR at page 603. He submits that the court decides as a matter of law what causal connection the law requires, and then decides as a question of fact whether the claimant has satisfied the requirement of the law (Kuwait Airways at 1106B-D). You cannot give a commonsense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule (Environment Agency at 31E; Kuwait Airways at 1092D-E). We interpose to say that we are not concerned in this case with a rule, so much as a very particular assumption of responsibility. Thus we need to identify the purpose and scope of the responsibility which William Hill assumed.
34. Mr Browne-Wilkinson submits that, where the duty owed is to prevent a claimant from injuring himself, such a voluntary act of the claimant will not break the chain of causation (Reeves at 368C-D). The court will not apply a test of causation which would have the effect of stripping the duty of all practical force and content (Chester v Afshar at 162H to 163A).
35. Mr Fenwick submits that the judge came to the right conclusion for the right reasons. It is obvious that Mr Calvert was the cause of his own losses. On his own case about his addiction to gambling, he would have gone on betting with other bookmakers, if he had been excluded from telephone betting by William Hill, until he ran out of money. The judge was correct to ask and answer the question what would have happened to the claimant's gambling career if he had been excluded from telephone betting by William Hill. Certainly Mr Calvert lost money on telephone betting with William Hill. But the question was whether he would have lost the same sums through betting but for the breach. The judge found that he would. William Hill did not assume any responsibility to prevent Mr Calvert from gambling with other bookmakers nor in other ways than telephone betting with themselves. He could have gambled with other bookmakers, at betting shops or on the internet; and he did in fact do so, on the judge's findings, in June 2006. He caused his own losses, which were losses he would have incurred anyway, even if William Hill had complied with his request to exclude him from telephone betting with them. It would have been different, Mr Fenwick agreed, if the finding had been that Mr Calvert would have spent all his money on drink.
36. Mr Fenwick says that the judge answered the question on causation which both parties agreed arose, that is what the outcome would have been on the balance of probabilities if the breach of duty had not occurred. It was a matter of pure factual causation. It is certainly correct that the judge answered this question as a finding of fact, which incidentally in our view is not amenable to appeal in this court. It is also correct that Mr Calvert made a case before the judge in opposition to this. But we were not persuaded that counsel on behalf of Mr Calvert conceded that this alone was the question which arose for decision on the facts.
37. Mr Fenwick cites Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428, a case in which the widow of a night watchman who had drunk tea containing arsenic established negligence on the part of the hospital medical casualty officer in sending the deceased home; but failed to recover damages for his subsequent death, because he would have died of the poisoning even if he had been admitted to hospital five hours before his death and treated with all care. The loss would have occurred anyway. Thus Mr Calvert had to establish what would have happened with his gambling but for William Hill's failure to exclude him from telephone betting. He is entitled to be put as nearly as possible "in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation or reparation" – Lord Blackburn in Livingstone v Rawyards Coal Company (1880) 5 at App Cas 25 at 39. Mr Fenwick referred also to Swingcastle v Gibson [1991] 2 AC 221 as an example of the application of the Livingstone principle where the House of Lords held that the successful claimant's damages for negligence could be measured by reference to what would have happened but for the breach of duty see page 239B-C. To determine what Mr Calvert's position would have been, Mr Calvert cannot require the court to look at part only of the evidential position, to the exclusion of other facts and events, within the scope of the responsibility which William Hill assumed, which would have occurred but for their breach of duty. It would be a travesty, said Mr Fenwick, if Mr Calvert were able to gamble at no cost or risk.
38. In Reeves, a man in custody in a police cell, who was of sound mind, committed suicide. The first instance judge held that the police were in breach of a duty of care to take reasonable steps to prevent his suicide. In a claim by his widow as administratrix of his estate, the House of Lords, upholding a majority decision of this court, held (Lord Hobhouse of Woodborough dissenting) that a deliberate and informed act, intended to exploit a situation negligently created by a defendant, did not negative causation where the defendant was under a specific duty imposed by law to guard against that very act. The deceased's act in taking his own life did not entitle the defendant to rely on principles to the effect that his suicide was an overriding intervening cause or his own deliberate act. There was however contributory negligence by the deceased, and the House of Lords apportioned responsibility equally between the deceased and the defendant.
39. Lord Hoffmann referred at page 368A to Environment Agency as giving examples of cases in which liability has been imposed for causing events which were the immediate consequence of the deliberate act of third parties, but which the defendant had a duty to prevent or take reasonable care to prevent. Counsel for the Commissioner accepted this principle when the deliberate act was that of a third party, but not when it was the act of the plaintiff himself. Deliberately inflicting damage on oneself had to be an act which negatived causal connection with anything which had gone before. Of this submission, Lord Hoffmann said:

"This argument is based upon the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me to be self contradictory to say that the breach could not have been a cause of the harm because the victim caused it himself."

See also Lord Jauncey of Tullichettle at page 374F; and Lord Hope of Craighead at page 381A-E.

40. Mr Browne-Wilkinson points out that the judge in the present case cited this paragraph from Lord Hoffmann's opinion, but omitted the final sentence. He submits that Reeves, properly understood and applied, is indistinguishable from the present case and should determine the issue of causation in the present appeal. The duty which William Hill assumed was a duty to prevent Mr Calvert from harming himself. The difference in the type of harm is not relevant. The House of Lords did not in Reeves go on to consider whether the deceased would have committed suicide anyway on another occasion if the police had not been in breach of duty. He says that the present case is stronger than Reeves. Mr Calvert was suffering from a compulsive illness and his actions cannot properly be said to have been deliberate; and because the deceased's estate succeeded in Reeves when the deceased had killed himself, whereas Mr Calvert's financial ruin was only speculative. The claim succeeded in principle in Reeves because otherwise the duty would have no effective content. The same should apply in Mr Calvert's case.
41. Mr Fenwick says that the facts of the present case are quite different from those in Reeves. Mr Calvert was a pathological gambler before he ever gambled with William Hill. In Reeves the deceased was suicidal because he was in police custody. No issue arose as to whether he may have committed suicide otherwise. Mr Fenwick points to the recent House of Lords decision in Corr v IBC Vehicles [2008] 2 WLR 499 as another case where a widow administratrix succeeded in a claim for damages which included the consequence of her husband's suicide, which was the direct and foreseeable consequence of depressive illness, itself the consequence of severe head injuries caused by an accident and work caused by his employer's negligence and breach of statutory duty. The chain of causation in the preceding rather long sentence was not broken by the deceased's suicide. Lord Bingham of Cornhill, addressing the issue of the scope of the duty which the employers owed, said that the deceased acted in a way which he would not have done but for the injury from which the employer's breach caused him to suffer.
42. In submitting that the judge's resort to commonsense in the present case was wrong, Mr Browne-Wilkinson points to Lord Hoffmann's opinion in Kuwait Airways at paragraph 128, where he said that there is no uniform causal requirement for liability in tort. Instead there are varying causal requirements depending on the basis and purpose of causation. One is never simply liable; one is liable for something. The rules which determine what one is liable for are as much part of the substantive law as the rules which determine what acts give rise to liability. Liability involves applying the rules which determine whether an act is tortious to the facts of the case. The question of causation is decided by applying the rules which lay down the causal requirements for that form of liability to the facts of the case. Mr Browne-Wilkinson also points to Lord Hope's opinion in Chester v Afshar at paragraph 83, where he said that commonsense on its own, and without more guidance, was no more reliable as a guide to the right answer in that case than an appeal to the views of the traveller on the London Underground.
43. Lord Hoffmann's dissatisfaction with commonsense as a guide to the nature of causation carried through into his paper on Causation in [2005] LQR. He referred to Causation and the Law published by Professors H.A.L. Hart and A.M. Honoré in 1959, who showed that when judges say that causation is a matter of commonsense, they usually mean that it accords with ordinary moral notions of when someone should be regarded as responsible for something which has happened. Most of the analysis is concerned with the standard criteria, by which we say that the defendant caused the relevant harm if, but for his act, it would not have happened; and if there has been no other intentional human act or subsequent natural occurrence without which the harm would not have happened. But the standard criteria may not serve equally well in all circumstances; as where liability is based on strict liability which may enlarge the consequences for which one is liable (as in Environment Agency), where the answer depended on the extent of liability which the judges thought Parliament was intending to impose; or where the House of Lords thought it unfair to make a negligent valuer liable for the fall in the property market, so that the consequences for which the valuer could be liable were more restrictively confined (South Australia Asset Management Corp. v York Montague [1997] AC 191). Thus the terms and policy of the rule imposing liability may enlarge or restrict the consequences for which one is liable. In the South Australia case, the restriction followed the scope of the duty of care in the particular case. There is a close link between the nature of the duty and the extent of liability for its breach.
44. There should, wrote Lord Hoffmann, be a causal connection prescribed by law between the negligent act and the damage or injury for which one is held liable. This is usually the standard criteria, because it usually accords with our moral notions of responsibility. There are reasons why the law sometimes deviates from the standard criteria. There may be a different rule intended to penalise fraud (see Smith New Court Securities v Citibank [1997] AC 254); or a relaxed causal requirement as in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 and Chester v Afshar, but not in Gregg v Scott [2005] 2 AC 176. Lord Hoffmann had himself dissented in Chester v Afshar, but it was an illustration of how the causal requirement which the law prescribes for liability may vary from the standard criteria when the courts think that the basis upon which liability is imposed requires such a difference. Lord Hoffmann ended by saying that there is nothing special or mysterious about the law of causation. One decides, as a matter of law, what causal connection the law requires; and one then decides, as a question of fact, whether the claimant has satisfied the requirements of the law.

Discussion

45. As Lord Hoffmann's article makes clear, the search for the causal connection which the law requires cannot be undertaken without reference to the liability which the defendant has undertaken and the damage which the liability is taken to have caused. The causal connection which the law prescribes is in a sense only a link. Negligence claims are habitually analysed compartmentally by asking whether there was (a) a duty of care, (b) breach of that duty, and (c) damage caused by the breach of duty. But damage is the essence of a cause of action in negligence, and the critical question in a particular case is a composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the claimant claims to have suffered. As Lord Bridge of Harwich says in Caparo v Dickman [1990] 2 AC 605 at 627:

"It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless."

Lord Oliver of Aylmerton emphasised the same point in Murphy v Brentwood District Council [1991] 1 AC 398 at 486 when he said:

"The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such … that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained."

This question necessarily subsumes the question whether the acts or omissions of the defendant caused the relevant damage.

46. It may, of course, be necessary for a consideration of a tortious claim that parts of the composite question are looked at separately; but not in isolation from the other parts or the composite whole. Thus Mr Fenwick is, in our judgment, correct to examine the scope of the duty for which William Hill assumed responsibility and to link it to the damage which the law will entitle Mr Calvert to claim for breach of that duty. Mr Calvert is not, in our judgment, entitled to require the court only to address a loss which he chooses to claim, if the proper loss which the scope of the duty embraces is different. In some cases, the scope of the duty of care may not sustain the full loss which a claimant claims. In other cases, the scope of the duty of care may take the inquiry beyond the point where the claimant would have it stop. In our judgment this is such a case.
47. William Hill did not assume responsibility to prevent Mr Calvert from gambling. They assumed a responsibility not to allow him to place telephone bets with them. They did not assume a responsibility to prevent him from gambling in other ways – in betting shops or on the internet – nor with other bookmakers. As a matter of fact as found by the judge, he did gamble in other ways and with other bookmakers even during the time when he was betting on the telephone with William Hill. The scope of their duty was to help him to control his gambling. The harm from which their duty was intended to help protect him was gambling; it was to go some way to protect him from his gambling propensity. It follows, in our judgment, that the quantification of his loss for breach of a duty of this scope cannot as a matter of law ignore the other probable consequences of his gambling propensity. Thus the law should apply Lord Blackburn's principle in Livingstone to those parts of Mr Calvert's activities which were or would have been within the ambit of the scope of William Hill's duty. As Mr Fenwick rightly submitted and as the judge in substance rightly held, William Hill did not assume a responsibility to enable Mr Calvert to gamble free from all risk.
48. It follows, in our judgment, that Mr Calvert's case over-concentrates on the causation element of the composite whole. The case is not, on analysis, determined by or analogous with Reeves. The damage in Reeves was the deceased's suicide and its consequences, and there was no question but that this was the nature and scope of the loss in issue. The issue of causation was whether the deceased's deliberate act of suicide intervened to break the chain of causation between that loss and the breach of duty by the police. Mr Calvert's claim does not fail, in our judgment, because his continued gambling with William Hill was his own deliberate act breaking a chain of causation; but because the scope of William Hill's duty of care did not extend to prevent him from gambling, and because the quantification of his loss cannot ignore other gambling losses which Mr Calvert would probably have sustained but for their breach of duty. The law not only prescribes the appropriate causal connection, but also the scope of the duty and the scope of the loss which the causal connection links.
49. For these reasons, the main ground of appeal fails.

Fiduciary duty

50. Mr Calvert wishes to amend his Particulars of Claim to allege that William Hill owed him fiduciary obligations, and, in breach of those obligations, permitted him after 5th June 2006 to gamble with them, and William Hill thereby made profits from dealing with him without his informed consent. He wishes to amend to claim that William Hill must account to him for those profits. Mr. Browne-Wilkinson made it clear that the alleged fiduciary duty arose out of the telephone conversation on 5th June 2006.
51. We refuse permission to amend to include this claim since, irrespective of any other consideration of lateness and additional cost, the allegation of breach of fiduciary duty has no merit.
52. Mr Browne-Wilkinson points out, correctly, that fiduciary obligations may arise alongside the common law duty of care. He relies on the judge's findings that Mr Calvert presented himself to John in the telephone conversation on 5th June 2006 as a problem gambler and so a person of some vulnerability, who asked for help, and help was offered and accepted in the form of a voluntary assumption of responsibility by William Hill to exclude him from telephone gambling with them for 6 months. The case is that, by agreeing in that telephone conversation to prefer his interests to their own interests, the "key indicator" of a fiduciary obligation was present and a fiduciary obligation arose.
53. A fiduciary is someone who has undertaken to act for or on behalf of another in circumstances which give rise to a relationship of trust and confidence, a distinguishing characteristic of which is an obligation of loyalty: Millett LJ in Bristol and West Building Society v Mothew [1988] Ch 1 at 18B. In a commercial setting, fiduciary obligations are most commonly owed by partners, agents, commercial co-venturers, and those holding assets on trust for others.
54. The telephone conversation on 5th June 2006 relied upon by the Mr Calvert arose in a commercial context. It is common ground that there was no fiduciary relationship between William Hill and him while the business of placing and receiving bets on the telephone was continuing. The effect of the telephone conversation was or would have been to bring to an end that business, at least for the period of the exclusion. It is simply impossible to contend that the agreement of William Hill to terminate that business relationship and not to resume it for the period of exclusion created a new continuing relationship of trust and confidence. Unlike the usual commercial setting for fiduciary duties, the telephone conversation envisaged commercial disengagement between William Hill andMr Calvert, rather than a continuing relationship, let alone one of trust and confidence and a duty of loyalty.
55. Further, if the facts gave rise to the narrow common law duty of care found by the judge, there is no good reason to strive to find in addition obligations in equity, and sound policy reasons to be cautious about doing so in a commercial setting. If the facts did not give rise even to that narrow common law duty, it is difficult to see how in the present case there could be any scope for arguing on the same facts for the existence of fiduciary duties.

The loss of a chance

56. The judge, having found that William Hill was in breach of a duty of care to Mr Calvert, approached the issue of damages by forming a view as to what, on the balance of probabilities, would have happened to Mr Calvert's gambling career if he had been excluded from telephone betting with William Hill, and, in particular, whether he would have carried on betting with other bookmakers and with what consequences. Mr Calvert contends that that approach was misconceived and that consideration of the possibility of such other gambling is legally irrelevant to his claim.
57. If, as we have held, Mr Calvert is wrong on that point, he wishes to be able to claim that his damages should be assessed on the basis that he lost a real and substantial chance that he would not have sustained, through gambling, the losses he in fact sustained in telephone betting with William Hill after 5^th June 2006. He wishes to amend his Particulars of Claim accordingly.
58. We refuse that application for permission to amend.
59. The judge specifically asked Mr Calvert's counsel during the trial whether this was a loss of a chance case, and she stated that it was not. She expressly confirmed that the judge's task was to decide, on the balance of probabilities, what would have happened if there had been no breach. That exchange is reflected in paragraph 201 of the judgment, in which the judge records that neither counsel sought to argue that this was a loss of a chance case.
60. Counsel agree that the loss of a chance approach is fact dependent. The judge did not make all the findings of fact required by such an approach, and we are not in a position to do so. The case would, therefore, have to be remitted to the judge if the amendment was permitted. This would give rise to additional delay, cost and complexity. Permission to amend would, in the circumstances, be contrary to the Overriding Objective.

Contributory Negligence

61. In paragraph 218 of his judgment, the judge held that, had he been persuaded that Mr Calvert had suffered loss as a result of William Hill's negligence, he would have made "a very large reduction" of any award on the ground of contributory negligence. He gave two reasons; first, that even the most seriously affected problem gamblers "have periods of relative clarity in which they could, if they wished, take steps not limited to self-exclusion, in order to try to deal with their habit". Second, he would have regarded Mr Calvert "as being mainly responsible for any loss which had been proved, because he was already a pathological gambler as a result of conduct for which he was entirely responsible before William Hill undertook, still less breached, any duty of care towards him". The judge did not put a figure on the reduction he would have made.
62. Mr Calvert contends that judge's approach on contributory negligence was wrong, and that, if the appeal succeeds, there should be either no deduction for contributory negligence or any deduction should be extremely modest in view of the judge's finding that the Appellant was in the grip of a compulsive disorder at the time of the relevant events.
63. In view of our dismissal of the appeal, the question of contributory negligence does not strictly arise. Both sides have, however, asked us to the deal with the issue in case there is a further appeal which is successful. They have asked us to place a figure on any deduction for contributory negligence.
64. Mr Calvert relies on Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 and Reeves. Those were both cases in which the Court ordered damages for breach of the defendant's duty to take reasonable steps to prevent the suicide of a person detained in custody. In Kirkham the deceased was held to be not of sound mind as he was suffering from clinical depression and his judgment was impaired: no deduction was made for contributory negligence. In Reeves, the deceased was of sound mind, and a deduction of 50% for contributory negligence was made.
65. In Corr v IBC Vehicles at paragraphs 64 and 65, Lord Neuberger referred to a nuanced approach, in which a spectrum should be recognised, at one extreme end of which is a case like Reeves, concerning a person of sound mind, and another where the deceased's will and understanding were so overborne by his mental state that he had effectively lost his personal autonomy altogether.
66. Mr Calvert contends that his case is similar to Kirkham since, at the time that he entered into the transactions he ought to have been prevented from entering, he was in the grip of mental disorder.
67. William Hill's case on this issue is that this court should not interfere with the judge's view because he made no error of legal principle and he made his assessment having heard the evidence, including the medical experts, and so was able to make an informed assessment as to Mr Calvert's degree of responsibility for his losses in all the circumstances. Mr. Fenwick relied on Jebson v Ministry of Defence [2000] 1 WLR 2055 and Barrett v Ministry of Defence [1995] 1 WLR 1217, in which the Court of Appeal held that servicemen who had sustained injury while drunk should have their damages for the defendant's breach of duty of care reduced by 75% and two-thirds respectively.
68. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 Act provides:

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons … the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage …"

69. In applying this test the court must have regard both to blameworthiness and to what has been called causal potency: Corr at paragraph 44 (Lord Walker of Gestinthorpe); Ryan St George v The Home Office [2008] EWCA Civ 1068. The latter case, which had not been decided when the judge gave judgment in the present case, concerned a claim for damages for severe injury suffered in prison by the claimant, who had been an abuser of alcohol and drugs for many years, in consequence of falling from a top bunk bed as a result of a seizure brought on by his withdrawal from alcohol and drugs. The prison officers were aware of his abuse of alcohol and drugs and that he had previously had withdrawal seizures. This court dismissed the appeal of the Home Office and upheld the judge's finding of breach of duty of care. This court allowed the cross-appeal against the judge's finding that the claimant's damages should be reduced by 15% for contributory negligence to reflect the claimant's fault in his addiction to heroin and alcohol which was the result of his own lifestyle decisions. The court held that there should be no reduction because the claimant's addiction was not a potent cause of his injury. Dyson LJ, with whom the other members of the court agreed, gave the analogy of a claimant who seeks medical treatment for a condition from which he is suffering as a result of his own fault, such as lung cancer caused by smoking or cirrhosis of the liver caused by excessive consumption of alcohol, and who sustains injury as a result of the negligent treatment: paragraph 58. Dyson LJ said that, in the alternative, it was not just and equitable to reduce the claimant's damages having regard to his share in the responsibility for the injury: paragraph 60. Having regard to what the prison officers knew about the claimant and his history, Dyson LJ compared the position of the claimant to that of a patient who is admitted to a rehabilitation clinic for the express purpose of being weaned off his addiction to drugs, and is placed in a top bunk and suffers a withdrawal seizure and injury as a result of a fall to the floor. He considered that counsel for the Home Office had rightly accepted that the claim for damages would not be reduced for contributory negligence in those circumstances: paragraph 61.
70. In our judgment, the fact that Mr Calvert became a pathological gambler as a result of his lifestyle decisions before William Hill undertook any duty of care toward him would not be a ground for reducing his damages for contributory negligence. The assumption of responsibility by William Hill for excluding him from further telephone betting with them arose precisely at the moment and because he sought William Hill's assistance as a problem gambler. A reduction of damages for the fact that he had brought about his own compulsive state would negate the very duty that arose when, and as a consequence of the fact that, he sought William Hill's help to control the effects of his compulsion. That would not be just and equitable.
71. On the other hand, we agree with the judge that a deduction would fall to be made for contributory negligence as a result of Mr Calvert continuing to gamble despite periods of clarity which he would have had, and when he could have taken steps, not limited to self-exclusion, to try to deal with his habit. In that connection, it was not until some time in the last quarter of 2006 that he became a severe pathological gambler who had lost control of his gambling, rather than merely suffering an impairment of control: paragraph 134 of the judgment. Moreover, on 10th October 2006, in a moment of clarity, he was expressly offered to opportunity to self-exclude and he declined to take it.
72. Having regard to all those matters, and to the pattern of Mr Calvert's gambling and losses in the period 27th May to December 2006, we consider that, if Mr Calvert were otherwise correct in his claim, a reduction of 30% of the damages would have been a proper reflection of his share in the responsibility for the loss he suffered through telephone gambling with William Hill during that period.

Conclusion

73. In the result, the appeal fails. If we had concluded that the appeal succeeded, we would have modified the judge's conclusions on contributory negligence.