As, on
the facts, there was only one source of any assumption of responsibility,
the contract between the parties, it is obviously right that there can only be
one answer as to its scope. There was not a contractual assumption of
responsibility and a separate tortious one which was somehow different. If no
claim was possible under the terms of the agreement, that is the end of the
matter (subject to UCTA).
That
said, the attempt to confine Henderson v Merrett to cases of 'professional
relationships' [83], seems to me to be most unwise. If the building work had
been carried out gratuitously so that no contract action strictu sensu could be
brought, then there should be a claim based upon Hedley Byrne for any
consequential economic loss suffered as a result of the work not being carried
out carefully. It would be ridiculous if the limitation period applicable to the
claimant without a contract was more generous than that applicable to the party
with a contract. The House of Lords in Henderson avoided this by allowing a
contracting party to assert a claim in the alternative as a breach of the Hedley
Byrne-type duty. It would be very odd if the rule were different in
building cases and professional services cases.
Burnton LJ's statement that
"The duty of care in contract extends to any
defect in the building, goods or service supplied under the contract, as well as
to loss or damage caused by such a defect to another building or goods. The duty
of care in tort, although said to arise from an assumption of liability, is
imposed by the law. In cases of purely financial loss, assumption of liability
is used both as a means of imposing liability in tort and as a restriction on
the persons to whom the duty is owed."
Is
doubly unfortunate first it seems to imply that outside of the contractual
context the notion of an assumption of responsibility is just a fiction (which
it is not), and second because I have no idea how an assumption of
responsibility can operate as a restriction on the persons to whom the duty is
owed. It can only ever be a basis for finding a duty, not a reason for excluding
it.
RS
A sound decision, as it seems to me (the suggestion of the claimant
being, in effect, that the existence of a contract between him and the defendant
builder almost automatically went to create a duty in tort as well -- which
can't be right). I also liked Jackson LJ's throwaway line in his judgment
referring to the 1970s and 1980s as having been a "heroic age" of the law of
torts.
Andrew
On 18/01/11 12:57, Morgan P. wrote:
Dear List Members,
The Court of Appeal of England and Wales has
today handed down a decision that analyses concurrent liability in contract
and tort, in the context of a defective building: James Andrew Robinson v.
P E Jones (Contractors) Ltd, http://www.bailii.org/ew/cases/EWCA/Civ/2011/9.html.
The
case looks at the role of assumption of responsibility, economic loss, and
discusses the different origins and functions of tortious and contractual
duties. It also comments on the Unfair Contracts Terms Act 1977,
upholding in the context of economic loss, a term of term of a contract with a
consumer which limits liability to contractual liability only (based on the
National House-Building Council’s standard form of Agreement), and excludes a
claim in tort.
Kind
regards,
__________________________
Phillip Morgan
Lecturer
in Contract and Tort Law
Senior Tutor (Year 2)
School of
Law
University of Southampton
Highfield
Southampton SO17 1BJ
Phillip.Morgan@soton.ac.uk
http://www.law.soton.ac.uk/
http://www.soton.ac.uk/law/staff/academicstaff/morgan_phillip.html
--
Andrew
Tettenborn
Professor of Commercial Law, Swansea
University
School of Law, University of Swansea
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Price Building
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Lawyer
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