Although the laws of tort and contract both deal with obligations, it is possible to distinguish between them on the basis that in the case of a contract the parties are voluntarily assuming obligations whereas tortious liability is compulsorily imposed by law. Thus, for example in respect of the ldquo general rdquo tort of negligence, the law imposes an obligation not to breach the duty of care as defined in the leading case of donoghue v stevenson. Poole opines that ldquo it is ironic that a marked distinction is maintained between contract and tort since the action for breach of contract was originally a sub species of an early form of action for tort rdquo. At the beginning of the thirteenth century, the royal courts did not hear actions arising from breaches of contract preferring to leave resolution of such issues to specialist or local jurisdictions such as those maintained by the merchants in the instances of early forms of insurance contracts. When the royal courts began to assume contractual jurisdiction, they did so not by developing the law in relation to contracts themselves but by relying upon an early form of tort said to be the forerunner of the modern law of negligence known as ldquo trespass on the case rdquo.

The distinction between tort and contract can often become blurred especially where somewhat artificial analysis is used to justify the inclusion of a particular obligation under one heading as distinct from another. A classic example of this is dick bentley productions ltd v harold smith motors ltd. Misrepresentation is a leading category of action giving rise to liability in tort. The difficulty with this decision is that the statement was made before the conclusion of the contract and it is by no means certain that it became a term of the contract. Salmon lj somewhat disingenuously argued that the representation, although not a term of the contract, became in effect a collateral contract.

Markesinis amp deakin comment that contract theory was here advancing into the pre contract stage achieving results almost identical to those of a negligence action. There is a strand of judicial reasoning which militates against a finding that liability can exist simultaneously in both jurisdictions. Lord scarman asserted that there was nothing ldquo to the advantage of the law rsquo s development in searching for a liability in tort where the parties are in a contractual relationship. The view was expressed that ldquo the common law is not antipathetic to concurrent liability. Rdquo he concluded: ldquo i do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him subject only to ascertaining whether the tortuous duty is so inconsistent with the applicable contract that hellip the parties must be taken to have agreed that the tortious remedy is to be limited or excluded. Rdquo but note however, the interrelationship between tort and contract regulated by the statutory provisions relating to contractual exclusion clauses such as the unfair contract terms act 1977.

Melting Pot Essay

Despite such blurring of the distinction, substantial differences remain which will bear upon the choice by a prospective claimant between jurisdictions. The traditional example given as to why contract might be preferred over tort concerns the issue of recovery of pure economic loss. In cases of contract, damages might be recovered for loss of profit whereas in tort the assessment of damages involved a calculation oif what was required to restore the claimant to the position in which he found himself before the tort occurred. However, even here there can be difficulty in distinguishing the operation of the tort jurisdiction from that of contract in relation to a specific set of facts. Just as in dick bentley productions supra a contractual resolution was reached to a problem which would appear to have been more at home within the tort jurisdiction, in hedley byrne amp co ltd v heller and partners limited economic loss caused by negligent misstatement.

Lord devlin referred to special relationships which are ldquo equivalent to contract rdquo where there is ldquo an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract. Rdquo a significant factor influencing the choice of jurisdiction may be the operation of the limitation act 1980. Under this act, a standard limitation period of 6 years applies in both tort and contract save personal injury cases in which it is 3.

However, there is a profound difference in that in contract the time begins to run from the date of the breach whereas in tort it only begins to run from the date on which the damage is suffered. Of course, in many cases, these dates will be identical but there will be instances in which the inconsistency may operate to the disadvantage of the defendant. Lord mustill condemned this principle as offensive to common sense: ldquo in most if not all cases a plaintiff will be better off framing his action in tort whereas, in our judgment, if a contract is in existence this is the natural vehicle for recourse. Rdquo a final consideration which may influence claimants is the distinction between the respective tests for establishing whether damage is too remote to be recoverable. The test is one of ldquo reasonable contemplation rdquo whereas that in tort is one of ldquo reasonable foreseeability rdquo.

Thus it has been traditional to assert that the test in contract is the more stringent. Parsons livestock ltd v uttley ingham amp co ltd in which the court of appeal was unable to agree upon a distinction in relation to remoteness stating that the appropriate distinction was not between contract and tort per se but between losses based upon expectation and physical losses based upon reliance. 2003 advise the various parties to their rights and obligations in relation to the two scenarios below. The school grounds were considered to be one of the most beautiful sites in the area. Steve x0027 s principal responsibilities were to keep the grounds in order and to ensure that the girls did not stray onto the parts of the grounds that were cordoned off. Vicky and mandy, both 12, often strayed onto the prohibited areas and, on one occasion, steve used force to remove them, badly bruising vicky x0027 s arm in the process. In defiance of the school x0027 s express instructions, steve often sought the aid of his brother, mike, in policing the grounds.

One evening when patrolling the grounds, mike carelessly left a lighted cigarette on a pile of papers kept in one of the outhouses, setting it alight. Our writers can help get your essay back on track, take a look at our services to learn more about how we can help. Essay writing service essay marking service place an order 2 brenda worked for one of the few remaining coal suppliers until she retired on the grounds of ill health in feb of this year. She was, for the 15 years of her employment, involved in mainly manual work, loading coal into bags and trucks for delivery to the firm x0027 s many business and private customers. Her father and grandfather had been heavy smokers and had both died of lung cancer. Brenda x0027 s union representative advised her that several scientific studies had linked lung cancer to exposure to coal dust. Such studies suggested that employees could alleviate such risks by allowing employees 30 minutes of fresh air after every three hour shift.

1 it is assumed that both vicky and mandy are pupils at the school for the purposes of this answer. In this case it is necessary to prove that vicky and mandy are owed a legally recognised duty of care by the defendant. Next, a breach of that specified duty must be proven on the balance of probabilities. Fourth it must be shown that the injury sustained came about as a direct result of the breach identified. Lastly it must be proved that the damage is not excluded in law on the ground of being remote. It must be shown that the damage identified was reasonably foreseeable in the circumstances of the case each of these conditions must be satisfied before vicky and mandy can be advised they have a sound case for to be compensated. Lord atkins described the range of the duty of care in negligence by way of a formulation that has been adopted and applied in numerous cases: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

How to Write Tort Law Essays Text

Melting Pot Essay

Music While Writing Papers