Date: Tue, 8 Apr 2008 01:53

From: Neil Foster

Subject: Contract, Consideration and Tort Duties

Dear Jane and others

Thanks for raising a very interesting question!

(1) Assume you have promised to pay me £100 if I do not defame you in a particular upcoming article, and I presumably have made the promise not to defame. Of course this sounds like blackmail on my behalf, and so we may in an iffy "public policy" sort of area - is there a general exception to the enforcement of contracts due to blackmail? Is this an area where we can invoke ex turpi causa non oritur actio?

Putting this to one side for the moment (though it may be important), one could take the view that my promise has the effect of not only allowing me to be bound by the general law of torts not to defame you, but also providing a contractual penalty of £100. This sounds like something of some value - it enables you to know you will at least receive something, it enables you to decide at that point whether or not it is worth arguing defamation as a tort claim. So why would the court not enforce my promise, by requiring me to pay you?

(2) The second example seems clearer, perhaps because we move away from intentional torts. As others have noted, Fred has promised a number of things by accepting the appointment - to do the job at all, to do it on a specific day - but of course he has also promised to carry out the job with "due care and skill". Was he under a pre-existing obligation to you to do this? Not at all. Before he entered the contract he was under no particular obligation to take any care or skill with your teeth.

Of course it is true that once he "enters upon the work" (as Windeyer J puts it in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85) he takes on the obligation in tort to do it carefully. This added obligation (on top of his implied contractual promise to do the same thing) can be relied on where for some reason the contractual obligation cannot – e.g. he does something which only emerges in a toothache after the contract limitation period expires. But there seems no reason why you cannot, while the limitation period has not expired, sue in contract. His contractual obligation was a promise he made before his tort obligation arose.

As Peter has noted, the High Court in Astley v Austrust had no problems with acknowledging that both obligations existed. In that brief period after Astley before all the States changed their legislation, some workers succeeded in arguing that the obligation of their employers to provide a safe workplace arose from contract rather than tort alone, and hence that while Astley stood their own contributory negligence did not reduce the contract damages - see Jones v Persal & Co [1999] QDC 189, a decision of McGill J in the Queensland District Court, and Wylie v The ANI Corporation Limited [2000] QCA 314 in the Queensland Court of Appeal.

It is perhaps worth noting that the relevant legislation in the Australian States now formally recognises that there are "concurrent" duties - “wrong” is now defined to include “a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort”. (See e.g. in NSW the Law Reform (Miscellaneous Provisions) Act 1965 s 8, para (b).)

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 7/04/08 10:30 >>>

On behalf of Jane Stapleton:

  

Dear Colleagues,

I throw myself at your feet in the hope that you will be able to show me a flaw in the following reasoning and where I might find authority on the point.

As I understand orthodox contract doctrine in England and the Commonwealth [I leave Scotland aside], a promise to perform a duty that would be owed anyway is not good consideration. So, for example, if I promise to pay you £100 in return for your promise not to defame me in your up-coming law review article, you cannot sue me in contract for the £100 when you publish your article without any defamatory mention of me. In exchange for my promise of the £100, you gave me nothing more than I would have had in any case: in publishing your article to a third party you were under an obligation not to defame me, an obligation imposed by the law of torts.

The scenario in which I am interested is where you do defame me: clearly I can sue you in the tort of defamation. But I do not think I can sue you in contract because there was not a binding contract between us.

Next, I presume obligations are severable: I promise my dentist Polly £10,000 pounds in return for her promise to extract my upper wisdom teeth on Tuesday 8th April 2008. This is an enforceable exchange of contractual promises.

I also promise my dentist Fred £12,000 pounds in return for his promise to extract my lower wisdom teeth on Wednesday 9th April 2008.

Now, it is obvious that whenever any dentist, even those acting pro bono, extracts teeth that dentist owes a duty of care to the patient: this obligation need not be bought, it is imposed by the law of torts for free. [Indeed, as Cardozo noted, it is even the case that “the surgeon who operates without pay, is liable though his negligence is the omission to sterilize his instruments”.]

On Wednesday 9th April 2008 Fred extracts my lower wisdom teeth carelessly and I suffer a personal injury. I know I can sue Fred in the tort of negligence for compensation for that injury. But I do not see on what basis I could also sue Fred in contract for compensation for my personal injury: Fred was under the obligation of care to me in any case.

This suggests that in relation to most duties of care owed by defendants in relation to their own misfeasance [I leave aside areas such as obligations to affirmatively control the conduct of third parties] the obligation is not concurrent in tort and contract, but arises solely in the law of torts. Or, much more likely, the problem is that I do not understand the rule in contract about when and why a promise to perform an already owed duty does not constitute the consideration needed to support the contractual enforceability of a promise given in exchange.

If I have simply dug myself a hole, please help me out of it!

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