Concurrent liability The term concurrent liability is applied to describe the predicament exactly where the parties have a contractual and tortious liability. It is only to the extent that this private ordering contradicts the tort duty that the tort duty is diminished … In so far as the tort duty is not contradicted by the contract, it remains intact and could be sued upon. If so, absent any overriding considerations arising from the context in which the transaction occurred, the plaintiff can’t bring a concurrent action in tort for negligent misrepresentation and is confined to whatever treatments are offered below the law of contract. The rule is not that 1 can not sue concurrently in contract and tort exactly where the contract limits or contradicts the tort duty.
Suppose a claimant pursues a claim against a solicitor, in the contract the parties specify that the solicitor should verify if any pre-current leaseholders have existing interest in the land. Lord Justice Jackson also examines Lord Goff’s speech in Henderson and points out that not every contract is held to lead to an assumption of responsibility. It is only to the extent that this private ordering contradicts the tort duty that the tort duty is diminished.
This selection will probably be influenced by the partnership amongst the tort duty and the contractual duty. The regular distinction between tort and contract was that an obligation in contract was from the agreement or will of the parties, and an obligation in tort was imposed by law. The present case is the very first to consider the applicable guidelines as to remoteness in instances of concurrent liability in tort and contract.
If the standard rule above is happy (i.e. a provided pre-contractual misrepresentation does prima facie help an action in each tort and contract, and the contract does not indicate the parties’ intention to limit or negate the suitable to sue in tort) then the plaintiff will have a decision of actions. If either fails to take adequate care and this final results in loss to the claimant there is also adequate ground for the basis of a tort claim.
Beneath the law of contract, a loss is ordinarily recoverable only if it could reasonably be supposed to have been in the contemplation of both parties at the time they created the contract as the probable outcome of a breach. The judge at first instance had held that such a loss would be also remote for a claim in contract, but would be recoverable via a claim in tort.