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Concurrent Liability:
The fact that there is a contract relationship between the parties which may give rise to an
action for breach of contract, does not exclude the co-existence of a right of action founded
on negligence as between the same parties, independently of the contract, through arising out
of the relationship in fact brought about by the contract. Donoghue v Stevenson [1932]
AC 562
Contract can expressly curtail tortious liability to which a party to that contract would
otherwise be exposed. Can be effective.
Theres also equitable field of liability, which isnt a contract or tort. There is also
statutory liability.
Mason, Wilson and Dawson JJ in Gates v City Mutual Assurance Society Ltd
In contract, damages are awarded with the object of placing the plaintiff in the position in
which he would have been had the contract been performed he is entitled to damages for
loss of bargain [expectation loss] and damage suffered, including expenditure incurred, in
reliance on the contract [reliance loss]. In tort, on the other hand, damages are awarded with
the object of placing the plaintiff in the position in which he would have been had the tort not
been committed.
Contract damage is putting you in the position had the obligation between performed
Nominal damages: Recognise breach of right but havent suffered substantial loss. .
i.e. minor assault. This is uncommon. Cost would outweigh nominal damages.
i.e. suffered loss, but on point of law, not compensable. May award nominal damages.
o In torts, damage is the gist of the action (for non-actionable per se like
negligence). If you fail to prove damages, no award of damages.
o In contracts, if you prove breach of contract, youre entitled to damages.
Statute of Limitation
Actions in contract and negligence are both subject to a 6-year general limitation
period, and a three-year limitation period in personal injury cases (irrespective of how
it is pleaded: contract or negligence).
But in negligence, time starts to run when damage/loss is suffered, whereas in
contract time starts to run at the date of breach. In actionable per se trespassory act,
limitation period commences when the act occurs.
o No limitation period for torts, only particular torts.
o Plead a case in one way rather than another where statute barred.
Choice of Law
Choice of law (or private international law) arises where private/civil disputes have
an international dimension
In tort, an action will be governed by the law of the place where the tort was
committed
o Questions of foreign law is proven by question of fact (need evidence).
In contract, an action will be governed by the proper law of the contract this can be
specified in the contract expressly, or it can be decided by the court.
H Parsons.
o Distinguish between claim for loss of profit consequent on breach (strict
criteria) and claims for compensation for physical damage caused by breach
(criterion for tortious claims application: any loss of expense which he ought
reasonably to have foreseen at the time of the breach as a possible
consequence).
Contributory Negligence
In contract, if Ps own carelessness breaks the chain of causation between the breach
and the loss or damage the P will fail. The common law did not recognise CN as a
defence in an action for breach of contract.
o Statute now permits award for breach of contract reduced on basis of CN in
some circumstances.
In torts, a P will fail completely in relation to any claim relying on loss or damage
resulting in part from Ps own carelessness. CN is a complete defence