Liability in tort might arise separately but will sit alongside a contractual suitable (hence concurrent). 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 could seek to sue concurrently or alternatively in tort to safe some advantage certain to the law of tort (such as a much more generous limitation period) (BG Checo, para 19).
The courts traditionally look at the view that the true role of tort is to compensate those who have made a loss…read a lot more. The mere truth that the parties have dealt with a matter expressly in their contract does not mean that they intended to exclude the proper to sue in tort. Claims for defective or poorly performed building operate have in the past been typically produced both in contract and beneath the general law of tort” (or delict” as it is known in Scotland) which imposes liability for particular negligent acts. Concurrent tortious liability can from time to time offer an advantage more than contractual liability.
The sensible implication of the distinction in accrual date is varying limitation commencement dates for tort and contract which can have a substantial impact on the expiry of limitation in a quantity of circumstances. Right here, the parties are unlikely to sue in tort, given that they could not recover in tort for the greater contractual duty (BG Checo, para 17).
For instance, in the building contract, if it is specified that a constructing would have a certain feature and did not once constructed or in the solicitor’s contract it was agreed that suggestions would be provided on a distinct aspect and it was not. If a given wrong does provide for concurrent liability, then the plaintiff will have a selection as to how to frame the action.
This is illustrated by consideration of the 3 situations that may well arise when contract and tort are applied to the exact same wrong. It can clearly be argued that the leaseholder’s interest was within the affordable contemplation of the parties when the contract was produced: it was specified. Contractors, consultants and their insurers will welcome this reassurance as to the level of loss recoverable in tort where there is a concurrent claim in contract. On the other hand, guarantee period in the contract had expired, so contractor not held responsible.
