I'm with Adam, for several reasons.

(1) When suing for professional negligence, you talk interchangeably as regards the duty in contract or tort: you should be able to do the same thing re remoteness.

(2) There's already authority that when there's a limited, modulated contract duty the courts shouldn't make the tort duty go further. If this is right, they equally shouldn't allow the plaintiff an end run around the rules of contractual remoteness.

(3) I'm not sure there's any respectable authority that liability for consequential loss was ever substantially different in tort. The reason why it was said in cases like The Heron II that tort remoteness was less restrictive than contract was actually concerned with a logical problem over direct liability. In order to establish a duty of care in tort, a fairly low degree of foreseeability sufficed: much less demanding than under Hadley v Baxendale. But it would have made a nonsense if, having decided that the defendant owed a duty to the plaintiff the latter couldn't sue after all because the damage was too remote under the Hadley rules.

(4) OK: there are a few remaining differences: notably, limitation and (where contractual liability for fault doesn't overlap with tort) contributory negligence. Big deal: I wouldn't be too sad to see these technical differences go. We certainly shouldn't be expanding them, which is what the first instance judgment said we were constrained to do.

Andrew
 

Adam,

With respect, why is it so clearly right? (Please feel free to refer
me to relevant articles etc. if you would be so kind.)

I have to say I found the decision at first instance persuasive on this issue.

Kind regards

Ger

On 11/21/15, Adam Kramer <akramer@3vb.com> wrote:

Thanks Philip. On the question of principle of remoteness and concurrent
liability in contract and tort, it decides that the contractual test applies
to both causes of action, with a dictum expressing the view that the
contract test would apply even in a tort-only Hedley Byrne case. This is all
plainly right (I and many others have banged this drum before) and a welcome
clarification. Best, Adam


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From: Phillip Morgan
<phillip.morgan@york.ac.uk<mailto:phillip.morgan@york.ac.uk>>
Date: Thursday, 19 November 2015 13:15
To: "obligations@uwo.ca<mailto:obligations@uwo.ca>"
<obligations@uwo.ca<mailto:obligations@uwo.ca>>
Subject: EWCA: Remoteness of Damage & Concurrent Liability.

Dear All,

Those interested in remoteness of damage in the context of concurrent
liability in contract and tort, may be interested in the decision of the
Court of Appeal in Wellesley Partners LLP v Withers LLP [2015] EWCA Civ
1146, which was handed down last week.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1146.html

Kind regards,

Phillip

--

_______________________



Phillip Morgan,

Lecturer in Law,

York Law School,
The University of York,
Freboys Lane,
York,
YO10 5GD,
United  Kingdom,

https://www.york.ac.uk/law/staff/morgan/
https://www.york.ac.uk/law/



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