Due to the fact the Higher Court selection in Astley v Austrust Limited (Astley), a lot has been written as to the manner in which apportionment of liability may possibly nonetheless be achieved in actions exactly where there is alleged concurrent liability in contract and tort on the aspect of the defendant and some fault on the aspect of the plaintiff. Plainly stated, adding additional requirements to the duty of care test supplies a signifies by which policy issues that are extrinsic to basic justice – but that are, nevertheless, fundamentally significant – may possibly be taken into account in assessing regardless of whether the defendant should be compelled to compensate the plaintiff for losses suffered.
Certainly in Clay v Clump (1964), the Court of Appeal had no difficulty in imposing liability on an architect in relation to negligent statement causing physical harm, due to the fact the class of claimant was limited. The query of when a offered predicament will facilitate both tort and contract actions is crucial because there may be a number of essential variations in between the actions that could influence the plaintiff’s choice of action. In that case, the parties are hardly probably to sue in tort, due to the fact they could not recover in tort for the larger contractual duty.
Lastly, the respective tests for remoteness demonstrate additional distinctions among claims in tort and in contract. The tort duty as modified by the contractual agreement amongst the parties may well be raised in a case exactly where the limitation period for an action for breach of contract has expired but the limitation period for a tort action has not.
There are important consequences to figuring out no matter if an action for pre-contractual misrepresentation lies concurrently in tort and contract. In so far as the tort duty is not contradicted by the contract, it remains intact and may possibly be sued upon. If the claim is based upon a failure to take reasonable care, both breach of contract and negligence are accessible. This lead to of action arises if the professional’s conduct breaches a specified term of the contract.
In this predicament, like the initial, there is small point to suing in tort simply because the tort duty (and consequently any tort liability) is limited by the precise limitation agreed upon by the parties (BG Checo, para 18). The influence for a potential claimant is that they might have a lot more achievement in bringing a claim in tort than they would in contract if it is unclear no matter if the parties had viewed as a prospective outcome. Following a construction error or the wrongful assistance, there are two possible avenues for pursuing a breach of contract claim.