Comparative And Jurisprudential Perspectives (2)

Concurrent LiabilityConcurrent liability is the principle that many defendants can be liable for the same harm. 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 certain emphasis on the truth that when getting into into a contract parties have the chance to assess whether or not there are special situations which could lead to losses outside the usual contractual rule as to remoteness. From the analysis, it can be concluded that affordable care claims in both contract and tort have very comparable scope.

A lot more recently, the courts have in a quantity of instances restricted the ability of parties to rely on concurrent tortious duties in establishing a claim, specially in building disputes. Remoteness in contract is governed by the decision in Hadley v Baxendale (1854) 9 Ex 341 which held that heads of loss would only be allowed if they have been in the contemplation of the parties” at the time the contract was produced. The leading case on concurrent liability for pre-contractual misrepresentation is BG Checo International Ltd. For instance, where the contractual limitation on the tort duty is partial, a tort action founded on the modified duty may lie.

The proper to sue in tort is not extinguished, nonetheless, and may well stay important, as exactly where suit in contract is barred by expiry of a limitation period. Subsequent circumstances indicated very first that specialists (see Henderson v Merrett ) and then contractors themselves (for instance, see Tesco v Costain ) could be liable in tort concurrently with their duties in contract as regards defects.

Plainly stated, adding additional requirements to the duty of care test gives a implies by which policy issues that are extrinsic to basic justice – but that are, nonetheless, fundamentally important – could be taken into account in assessing no matter whether the defendant ought to be compelled to compensate the plaintiff for losses suffered.

The essential problems are (1) will a provided pre-contractual misrepresentation help a claim in contract and tort concurrently and (two) what consequences result from concurrent liability. In Holt LJ mentioned that: ‘…if the identical parties enter a contractual partnership involving additional limited obligations than those imposed by the duty of care in tort. On the information of Glanzer, supra, then, the scope of the defendant’s liability could readily be delimited and indeterminacy, consequently, was not a concern.