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Date: Mon, 7 Apr 2008 16:41 From: Peter Radan Subject: Contract, Consideration and Tort Duties
In relation to Jane's first question relating to the promise not to defame, I would venture to suggest that the issue can be made clearer by asking whether I could sue Jane could for $100, if I write an article where I have not defamed her. To sue I would need to have provided good consideration. I would suggest that I have. The question of whether the promise not to defame is sufficient consideration can be addressed in the light of cases dealing with whether a promise to perform an existing public law duty is good consideration. In Collins v Godefroy, a promise to give evidence in a court case, where the promisor had already been served with a subpoena, was held not to be sufficient consideration because the promisor was under a public law duty, having been served with a subpoena, to give evidence in the case. Other instances of public law duties include police providing protection where such protection is part of their normal policing duties. The same could also be said about fireman. The issue to be determined in Jane's example is whether the duty not to defame is a public law duty in the same sense that is the duty to attend court in answer to a subpoena. I would venture to say that it is not. Thus, a promise not to defame would be good consideration. I do not agree with the suggestion that the Williams v Roffey Brothers line of cases supports this conclusion. Those cases were clearly in the context of whether performance of an existing contractual obligation also owed to the promisor can be good consideration, i.e. variations to an existing contract. The usual case is where the performance of work is promised in return for the payment of $X, and there is a subsequent promise to pay an additional $Y for the performance of the same work. Williams v Roffey says that the promise of extra money is enforceable, due to the 'practical benefit' flowing to the promisor. Jane's example, however, is not a variation case. In relation to the dentist examples I don't see the problem with suing in tort or contract. There are legions of cases of concurrent liability. The tortious basis is, as Jane states, in negligence. However, the contractual basis is on there being a term imposing the same duty of care on the dentist. These cases typically arise in the case of professional liability involving lawyers, engineers etc. In the case of lawyers, their liability for incompetence was originally based in contract (the retainer). It has only been more recently, i.e. since cases such as Hedley Byrne, that the courts have held that incompetent advice attracts liability in negligence, thereby creating a situation of concurrent liability. The concern for many in this area, as far as I can see, is not the fact that there is concurrent liability, but the fact that the measure of compensation recoverable by the plaintiff may well vary depending upon whether one pursues the case in contract or tort. If one pursues the contract case, the stricter remoteness rules means that potentially some loss suffered would be seen as too remote and not compensable, whereas if one sues in tort that same loss could be compensated for. In Australia, there was a similar result, but in reverse, in relation to the relevance of principles of contributory negligence. As was held in Astley v Austrust the statutory contributory negligence provisions (as they stood at the time) did not apply to contract cases, so there would no apportionment as there would be if one went down the tort route. However, recent changes to the relevant legislation in all (I think) Australian states says that in cases of concurrent liability, contributory negligence applies, irrespective of whether you sue in tort or contract. As a further point, as I trundle through the cases, it is clear that there is no longer such a thing as a pure contract or tort case any longer. Plaintiffs sue on multiple alternative bases. It is common to see a claim based in contract, or in the alternative, negligence, or in the alternative in equitable estoppel (as developed in Australia), or in the alternative on the basis of breaches of statute - in Australia, especially s 52 of the Trade Practices Act (prohibition of misleading or deceptive conduct). It also clear that in many cases the plaintiff would succeed on more than one of these claims. And of course, if monetary compensation is the essence of the relief sought, each of these claims has its own principles that determine the calculation of the sum to be awarded. I hope this helps.
Peter Associate Professor Peter Radan
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