Linklaters

Concurrent LiabilityThis is a sample of our (approximately) 7 page extended Concurrent Liability Vicarious Liability notes, which we sell as component of the Torts Law Notes collection, a 78 package written at University Of New South Wales in 2009 that consists of (about) 121 pages of notes across 16 unique documents. Finally, the respective tests for remoteness demonstrate further distinctions involving claims in tort and in contract. The tort duty as modified by the contractual agreement in between 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.

To illustrate the similarities and variations amongst actions in contract and tort, I will be taking two potential claims for a case study: construction negligence (primarily based upon a failure to take care when constructing a creating) and solicitor negligence (based upon a failure to advise concerning the existence of third party rights on a piece of land).

In scenarios of concurrent liability in tort and contract, however, it would appear anomalous to award a different level of damages for what is basically the exact same incorrect on the sole basis of the type of action selected, although, of course, certain circumstances or policy could dictate such a course. The significant overlap involving the causes of actopm seems to erode away the traditional distinctions among tort and contract when reasonable care” duties are concerned. Whereas, in tort the date of accrual is the date of harm, or the date when the claimant suffered damage for relying on the details offered.

V. British Columbia Hydro and Energy Authority, 1993 CanLII 145 (SCC), 1993 1 S.C.R. 12 and Cognos, that breach of pre-contractual representations could be actionable as both a breach of contract and negligent misrepresentation, with clear exceptions arising from the express terms of the contract. This conclusion possessing been reached, a single would anticipate that the quantum of damages in tort and contract would be equivalent because the components of the bargain unrelated to the misrepresentation are reintroduced.

The usual rule in relation to clauses excluding liability is that if liability can be based on negligence or on some other ground, and if the clause does not especially state that liability for negligence is excluded, then liability for negligence is not excluded. The second attainable bring about 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 suggests not providing the plaintiff compensation for any losses not associated to the misrepresentation, but resulting from such elements as the plaintiff’s own poor efficiency, or marketplace or other forces that are a regular element of enterprise transactions.