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To: Robert Stevens <robert.stevens@ucl.ac.uk>
From: Prof Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Date: 01/18/2011 06:19AM
Cc: "'Morgan P.'" <Phillip.Morgan@soton.ac.uk>, "'ODG'" <obligations@uwo.ca>
Subject: Re: Concurrent Liability

I see Robert's point about the gratuitous building work, but I'm not so sure about the unwisdom of denying a duty. If you give me a car which it then turns out is dangerous to drive and will cost me zillions to make safe, I see no reason whatever why I have any legitimate ground of complaint. On the contrary: you shouldn't look a gift horse in the mouth, and the law shouldn't encourage people to do so. And if that's right, I don't see it should make any difference that your gift was a built house and not a car. My rights should be limited to suing for personal injury if the house collapses around my ears, and possibly for my squished BMW in the integral garage (and whether I deserve the latter is rather doubtful).

OK: that leaves professional services. But I think they're different. Essentially they're concerned with advice, and there's already an exception to tort liability for informal advice given as a favour. If the defendant can't invoke that exemption, then he's done the next best thing to assuming responsibility, assuring me I can rely on the advice as professionally given, and hence liable accordingly.


Andrew

On 18/01/11 13:46, Robert Stevens wrote:

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

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From: Prof Andrew Tettenborn [mailto:a.m.tettenborn@swansea.ac.uk]
Sent: 18 January 2011 13:18
To: Morgan P.
Cc: ODG
Subject: Re: Concurrent Liability

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

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Andrew Tettenborn Professor of Commercial Law, Swansea University School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)

 

 

Sent from a Microsoft-free zone -- keeping computing free

--

Andrew Tettenborn Professor of Commercial Law, Swansea University School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)

 

 

Sent from a Microsoft-free zone -- keeping computing free