This is an outline of how to answer a Vicarious liability form dilemma question in an exam. Iacobucci J. concludes that a contract among the parties may preclude the possibility of suing in tort for a provided wrong where there is an express term in the contract dealing with the matter. In effect, outdoors of negligent misstatement a claim in contract can be considerably wider and facilitates a broader claim of damages. At trial the plaintiff relied mostly on fraudulent misrepresentation, with its claim in contract being in the alternative to the claim in tort.
It is only to the extent that this private ordering contradicts the tort duty that the tort duty is diminished … In so far as the tort duty is not contradicted by the contract, it remains intact and may well be sued upon. If so, absent any overriding considerations arising from the context in which the transaction occurred, the plaintiff can’t bring a concurrent action in tort for negligent misrepresentation and is confined to what ever treatments are accessible beneath the law of contract. The rule is not that 1 can’t sue concurrently in contract and tort exactly where the contract limits or contradicts the tort duty.
The question was regardless of whether a contractor, possessing entered into a contract with its employer, could owe a duty of care in tort not to trigger financial loss and thus be liable to the employer for a longer limitation period At the time of Murphy v Brentwood, most people would probably have answered no” to the query and (save for private injury or harm to other house) it seemed the law of tort was dead as regards constructing contracts.
For instance, in the construction contract, if it is specified that a building would have a certain function and did not once constructed or in the solicitor’s contract it was agreed that advice would be offered on a distinct aspect and it was not. If a provided incorrect does give for concurrent liability, then the plaintiff will have a choice as to how to frame the action.
If the standard rule above is satisfied (i.e. a given pre-contractual misrepresentation does prima facie assistance an action in each tort and contract, and the contract does not indicate the parties’ intention to limit or negate the suitable to sue in tort) then the plaintiff will have a selection of actions. If either fails to take enough care and this final results in loss to the claimant there is also adequate ground for the basis of a tort claim.
