All Posts in "Concurrent Liability"

Concurrent LiabilityThe case of Robinson -v- P E Jones (Contractors) Ltd 2011 EWCA Civ 9 deals with the issue of tortious liability operating concurrent to contractual liability. The courts traditionally appear at the view that the accurate part of tort is to compensate these who have created a loss…read far more. The mere truth that the parties have dealt with a matter expressly in their contract does not imply that they intended to exclude the correct to sue in tort. Claims for defective or poorly performed building perform have in the previous been commonly created each in contract and below the general law of tort” (or delict” as it is recognized in Scotland) which imposes liability for particular negligent acts. Concurrent tortious liability can occasionally supply an advantage over contractual liability.

The court assumed that parties contract on the basis that their liability will be restricted to harm of such sort that is in their affordable contemplation. The court placed particular emphasis on the reality that when entering into a contract parties have the chance to assess regardless of whether there are particular situations which could lead to losses outdoors the usual contractual rule as to remoteness. From the analysis, it can be concluded that reasonable care claims in both contract and tort have incredibly related scope.

The practical implication of the difference in accrual date is varying limitation commencement dates for tort and contract which can have a considerable influence on the expiry of limitation in a number of instances. … Read the rest >>>

Joshua Brown by — September 24, 2015 in Concurrent Liability

Concurrent LiabilityLiability in tort might arise separately but will sit alongside a contractual suitable (hence concurrent). In Henderson v. Merrett , Lord Goff laid down the present English position on concurrent liability, by holding that the existence of a contract involving parties does not necessarily exclude the concurrent existence of liability in tort. Here, the plaintiff could seek to sue concurrently or alternatively in tort to safe some advantage certain to the law of tort (such as a much more generous limitation period) (BG Checo, para 19).

The courts traditionally look at the view that the true role of tort is to compensate those who have made a loss…read a lot more. The mere truth that the parties have dealt with a matter expressly in their contract does not mean that they intended to exclude the proper to sue in tort. Claims for defective or poorly performed building operate have in the past been typically produced both in contract and beneath the general law of tort” (or delict” as it is known in Scotland) which imposes liability for particular negligent acts. Concurrent tortious liability can from time to time offer an advantage more than contractual liability.

The sensible implication of the distinction in accrual date is varying limitation commencement dates for tort and contract which can have a substantial impact on the expiry of limitation in a quantity of circumstances. Right here, the parties are unlikely to sue in tort, given that they could not recover in tort for the greater … Read the rest >>>

Joshua Brown by — September 13, 2015 in Concurrent Liability

Concurrent LiabilityLord Justice Jackson has referred to as on the government to generate a single core limitation regime” for all claims in contract and tort, as advisable by the Law Commission. A contract may well expressly specify a duty which can give rise to a separate and actionable breach of contract. The initial and foremost question really should be regardless of whether there is a specific contractual duty designed by an express term of the contract which is co-extensive with the frequent law duty of care which the representee alleges the representor has breached. Hence, whether the complete agreement clause excludes Intrawest from liability for negligent misrepresentation is not very easily answered. By contrast, tortious claims permit all losses to be recovered which are reasonably foreseeable at the time the tort occurred.

In Henderson v. Merrett , Lord Goff laid down the present English position on concurrent liability, by holding that the existence of a contract involving parties does not necessarily exclude the concurrent existence of liability in tort. Here, the plaintiff might seek to sue concurrently or alternatively in tort to secure some advantage distinct to the law of tort (such as a much more generous limitation period) (BG Checo, para 19).

This selection will likely be influenced by the relationship among the tort duty and the contractual duty. The conventional distinction involving 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. … Read the rest >>>

Joshua Brown by — June 25, 2015 in Concurrent Liability

Concurrent LiabilityOne particular frequently hears the term ‘joint tortfeasors’ in relation to claims involving a number of defendants. The question was no matter whether a contractor, having entered into a contract with its employer, could owe a duty of care in tort not to bring about financial loss and hence be liable to the employer for a longer limitation period At the time of Murphy v Brentwood, most individuals would most likely have answered no” to the question and (save for individual injury or harm to other property) it seemed the law of tort was dead as regards developing contracts.

Section five and section two of the Limitation Act 1980 state that the limitation period for an action in basic contract or tort, respectively, is six years from the date on which the cause of action accrued”. The final crucial distinction is that the applicability of statutes relating to contribution and apportionment among concurrent wrongdoers might depend on no matter if both wrongdoers are tortfeasors, or regardless of whether one particular is a tortfeasor and one particular merely in breach of contract (Feldthusen, pg 99). Tort: the plaintiff is to be place in the position it would have been in had the misrepresentation not been made.

For instance, in the building contract, if it is specified that a developing would have a certain feature and did not once constructed or in the solicitor’s contract it was agreed that assistance would be offered on a distinct aspect and it was not. If … Read the rest >>>

Joshua Brown by — June 17, 2015 in Concurrent Liability

Concurrent LiabilityIn Component II of this post, I discuss negligent tort liability under the CISG in the context of selection-of-law theories, informed by application of Articles 4 and 5 of the CISG. The usual rule in relation to clauses excluding liability is that if liability can be primarily based on negligence or on some other ground, and if the clause does not specifically state that liability for negligence is excluded, then liability for negligence is not excluded. The second possible lead to of action in contract is breach of a term implied by statute, namely section 13 of the Provide of Goods and Solutions Act 1982. This implies not providing the plaintiff compensation for any losses not related to the misrepresentation, but resulting from such elements as the plaintiff’s own poor overall performance, or marketplace or other forces that are a regular element of company transactions.

The essential issues are (1) will a given pre-contractual misrepresentation assistance a claim in contract and tort concurrently and (2) what consequences outcome from concurrent liability. In Holt LJ said that: ‘…if the similar parties enter a contractual connection involving far more limited obligations than these imposed by the duty of care in tort. On the facts of Glanzer, supra, then, the scope of the defendant’s liability could readily be delimited and indeterminacy, for that reason, was not a concern.

The proper to sue in tort is not extinguished, nonetheless, and might stay critical, as exactly where suit in contract is barred by expiry of … Read the rest >>>

Joshua Brown by — June 15, 2015 in Concurrent Liability