One particular of the most critical inquiries involving qualified liability is the extent to which a contractual client alleging lack of care and talent is capable to sue in the tort of negligence besides any action for breach of the contract itself. A pre-contractual misrepresentation will lead to concurrent liability where a offered wrong prima facie supports an action in each contract and tort, and the contract does not indicate that the parties intended to limit or negate the tort duty. The court’s choice renders broader tortious guidelines inapplicable in such cases and adds to earlier developments restricting the usefulness in a construction context of parties bringing concurrent claims in tort as properly as contract.
Conversely, the test for remoteness in tort is set out in The Wagon Mound (No 1) 1961 AC 388 which held that remoteness was satisfied if the loss is reasonably foreseeable”. A claim in tort may (in some situations) have the benefit of a longer limitation period. In favouring the contractual rules as to remoteness, the Court of Appeal has removed one particular cause for potentially bringing concurrent claims in tort and contract.
If claiming for pure financial loss, a claim can only be in breach of contract unless there has been a negligent misstatement. Offered the similarities of the reasonable care” duties below contract and tort, this nuance is very important and further illustrates the value, for potential claimants, of pleading each causes of action. Though the claim in this circumstance will be pleaded below breach of contract the duty to take affordable care” is distinctly similar to the duty below negligence in tort. All that Lord Goff was clarifying was that the existence of a contract did not, by itself, exclude tortious liability.
Nevertheless, just before turning to these two important concerns, a short discussion of the significance of concurrent liability is presented. An issue not addressed by the court, but which arises potentially by way of analogy, is no matter whether the broader guidelines as to causation which ordinarily apply in tortious claims are also to be aligned with the narrower contractual position in situations of concurrent liability.
In contract the accrual date is the date of breach: when the solicitor/surveyor failed to take reasonable care and gave wrongful advice. A selection of the Court of Appeal final week has deemed the correct method to remoteness in situations where there is concurrent liability in contract and tort. The appropriate to sue in tort will not be excluded merely since the parties have dealt with the matter expressly in their contract.
