The Relationship Between Contract and Tort Legal
Essay Preview: The Relationship Between Contract and Tort Legal
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In principle, the tortious liability runs in parallel to liability in contract. Subject to the rules of privity of contract, one who has entered into a contract can sue or be sued on the contract which will set out the terms of the service to be provided by the professional person, and if there is no express term to this effect, there will be an implied term that the service will be performed with reasonable care and skill, per s13 Supply of Goods and Services Act 1982. The standard of care required to satisfy this contractual obligation is the same as in negligence, but the circumstances in which each liability may arise differ in that contracts are voluntarily created between the parties, while the duty of care is imposed by operation of law. However, suppose that a solicitor contracts with a medical expert to prepare a report for the purposes of personal injury litigation. The beneficiary of this work will be the client but there is no direct contractual relationship between the expert and the client. It may therefore be argued that since the parties have decided to arrange their relationships to avoid direct contractual obligations, the client should not be permitted to sue in tort, bypassing the privity rule and any exclusion clauses in the contract.
In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 the potential effectiveness of this argument was acknowledged in a case where there was a formalised structure of agent and sub-agent, but the general scope of this potential limitation remains unclear. However, it is clear that if there is concurrent liability in contract and tort, the quantum of damages is limited to the actual loss suffered and does not increase because there are two causes of action.
In Thake v Maurice [1984] 2 All ER 513 a railway guard and his wife had five children living in a three-bedroomed council house and were unwilling to have further children. Thake consulted the surgeon who made it clear that a vasectomy was final and that Thake after the operation would become permanently sterile. Although the vasectomy was properly performed, the effect of this operation was naturally reversed and, not unexpectedly, Mrs. Thake conceived and a daughter was born. It was held that, applying the objective standard, the surgeon had contracted not merely to perform a vasectomy but had contracted to make Mr. Thake irreversibly sterile. The judge relied on the consent forms which stated that the vasectomy would be final. The claim was brought in contract and in tort. Peter Pain J. found that there was no reason why public policy prevented the recovery of expenses arising from the birth of a healthy child. He awarded damages in respect of the expenses of the birth and the mothers loss of wages but refused damages for the pain and distress of labour holding that these were off set by the joy occasioned by the birth. He did, however, award