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 all losses to be recovered which are reasonably foreseeable at the time the tort occurred.
There are critical consequences to figuring out no matter whether 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 might be sued upon. If the claim is based upon a failure to take affordable care, both breach of contract and negligence are accessible. This bring about of action arises if the professional’s conduct breaches a specified term of the contract.
It is also clear, however, that parties may well arrange their affairs to exclude liability in tort by which includes valid exclusion clauses in their contract. Even though that case did not involve an action against auditors, comparable issues about indeterminate liability have been, nonetheless, clearly relevant. In Robinson v Jones, the claimant was a residence owner who had entered into a contract with the contractor to obtain a property from him and to enter into an NHBC Agreement.
