I see no explanation in principle why the exact same strategy ought to not be taken in the present case. The question was whether a contractor, having entered into a contract with its employer, could owe a duty of care in tort not to trigger economic loss and as a result be liable to the employer for a longer limitation period At the time of Murphy v Brentwood, most individuals would almost certainly have answered no” to the question and (save for personal injury or damage to other home) it seemed the law of tort was dead as regards building contracts.
In BG Checo, the Supreme Court of Canada explained the simple rule governing concurrent liability, by saying that where a given wrong prima facie supports an action in contract and in tort, the celebration may sue in either or both, except exactly where the contract indicates that the parties intended to limit or negative the correct to sue in tort” (BG Checo, para 15).
A contract might expressly specify a responsibility which can give rise to a separate and actionable breach of contract. The initially and foremost query should be regardless of whether there is a certain contractual duty produced by an express term of the contract which is co-substantial with the widespread law duty of care which the representee alleges the representor has breached. Hence, no matter if the complete agreement clause excludes Intrawest from liability for negligent misrepresentation is not quickly answered. By contrast, tortious claims permit … Read the rest >>>
Lord 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 >>>