“The relationship between tort and contract is both very close and controversial to each other”.Explain

1. Introduction

The law of tort is derived from the concept of wrongdoing.[1] Anyone who has suffered loss or harm, from an unfair behavior or action of another person, which are not necessarily illegal can come in action due to law of tort.

On the other hand, the law of contract is specific between two parties who are bound by a contract made by the parties so that it benefits on both sides.

The relationship between tort and contract is both very close and controversial to each other. However, since the question says to explain tort based on contract, I am assuming that I have to discuss the law of tort based on contract and law of contract. Thus I have discussed what law of tort is, then what the general concept of contract is and then a discussion of tort based on contract is given.

1. Law of tort:

The word “Tort” (or the Latin equivalent ‘Tortum”) is a derived from the concept of a wrong.[2] It is a matter of civil law, which deals with situations where a plaintiff[3] has suffered loss or harm due to unfair behavior or action from another person, tortfeasor. The law of tort provides protection for a wide range of interests. These issues include:

1. Protection for a person’s personal security
2. Protection of a person’s reputation
3. Protection for a person’s property
4. Protection for a person’s interest in the life of another.[4]

 2.1 Emergence of Law of Tort

Not until the famous case of Donoghue v Stevenson[1932] that a general principle was firmly established for determining the existence of a duty of care[5]. In this case, the plaintiff bought a bottle of ginger beer from a public bar in Paisley[6] and drank from it. Later she realized that the bottle also contained a decomposed snail inside. As she saw this, she suffered from severe shock and became very ill as a result of drinking from that bottle of ginger beer. So, the court brought in an action in tort against the manufacturer, where it was held that the manufacturers of the beer owed a duty of care to the plaintiff as the defendant should have taken reasonable care to ensure that the bottle did not contain some substance which was likely to cause injury to health of its customer.

In response to this case, according to the landmark judgment of  Lord Atkin, we can understand that a person must be responsible to anyone who is being affected by his or her action.

“ In English law there must be, and is, some general conception of relations giving rise to duty of care,… the rule that you are to love your neighbor becomes, in law, you must not injure your neighbor,.. Who, then is my neighbor? .. you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor,.. persons who are closely and directly affected by my act that I ought to be reasonably to have them in contemplation as being so affected when I an directing my mind to the acts or omissions which are called in question”.

In this speech , which is later known as Neighborhood Principle, addressed the duty of care to be extended as a general principle, giving rise to the unifying framework for the tort of negligence. [7]

 2.2 Categories of Law of Tort

The law of tort is categorized in different methods. One of the most common way to divide them into:

• Negligence
• Intentional Torts
• Quasi Torts

The tort of negligence has been defined by as “negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff”. Negligence actions include claims, which originate primarily from car accidents, different kinds of personal injury accidents, all of which includes clinical negligence, worker’s negligence and so forth.

The intentional tort includes claims of certain torts arising from the occupation or use of land. The tort of nuisance, which is when a person has intentionally acted in a ways that harms another, is included in this category of tort.[8]

Quasi-torts are cases which allow recovery under certain circumstances without the need to demonstrate negligence. It is where “the development of tort law has spurred lawmakers to create alternative solution to disputes.” In some cases, the legal commentary had led to the development of new causes of action outside the traditional common law torts.[9]

Further discussions of these categories are given below.

 2.2.1 Negligence

The tort of Negligence is the most important amongst all, and is very substantial. The Tort of Negligence has been defined by as “negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff”. [10]

Thus, this statement shows that the tort consists of three distinct elements.

1. The defendant must owe to the plaintiff a duty of care.
2. The defendant must breach the duty of care, which he owes to the plaintiff.
3. The plaintiff must suffer damage as a result of the defendant’s breach of his duty.

Thus, the two main principle discussed here is that the defendant’s negligence must have caused the damage to the plaintiff and the damage which the plaintiff suffered must not be too remote a consequence of the defendant’s negligence.

The law of negligence is of vital significance in English Law because of it’s foundation of the Duty of Care concept. Through the duty of care concept, the court has sought to limit and control the circumstances in which liability may be imposed upon a defendant for the consequences of his negligence.[11]

There are three factors which determine whether or not the courts is to impose a duty of care in a novel case:

1. The loss must be foreseeable

In reference to Bourhill v Young [1943], it is said that if the plaintiff cannot show that it was reasonably foreseeable that he or she would suffer loss as a result of negligence of the defendant, then he or she cannot succeed in an action in negligence against the defendant.[12]

1. There must be a ‘proximate relationship’ between the plaintiff and the defendant

In reference to the Hill v Chief Constable of West Yorkshire [1989], it is said that the courts are looking for a relationship of proximity, however in a case where a plaintiff suffers from physical injury, the court do not insist on the pre-existing relationship of proximity between the plaintiff and the defendant.[13]

1. It must be ‘fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”

The case related to this is Ann v Merton London Borough Council [1978][14]. Lord Wiberforce suggested the two-tier approach, which had been criticized for various factors. However, the second stage of the approach, that was adopted is that it explicitly recognized that considerations of policy play a significant role in determining whether or not a duty of care is held to exist.

These three criteria, if is established in a court, then the reporting defendant should be held responsible for loss to the fund caused by that negligence which harmed the plaintiff.

2.2.2 Intentional torts

Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another’s enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation[15], where false information is broadcast and damages the plaintiff’s reputation.[16]

 2.3Types of liability

There are several types of liability within in law of tort.

When two or more breaches of duty by different defendants cause the plaintiff’s injury, the liability is such cases could be described as one of the three:

1. 1.      Independent liability

It is where the fault of one cannot be remedied by fault of another, i.e.  each tortfeasor is liable only to the fault, for which the plaintiff is hurt, and not to bear the fault of another defendant.[17]

1. 2.      Several liability

In this case, each tortfeasor is separately liable in respect of the damage, but the plaintiff can only recover the damages once. This is in regard to The Koursk [1924].[18]

1. 3.      Joint Liability.

Joint liability exists where two tortfeasors inflict damage on the plaintiff. In Brooke v Bool[1978], one of the tortfeasor had committed a wrong with the full consent of the other tortfeasor. In this case, they both are to be held as a joint tortfeasors. [19]

1. The Vicarious liability also falls in this category.

The vicarious liability is when a person is rendered liable for the tort of another, who is a employee to the former, and the employer pays for the damage. A lot of factors determines when a case is a vicarious liability, and when it is not. Such factors[20] include:

• Negligent and careless acts: if the mode of doing a job by the employee is wrongful and unauthorized, in most cases, the employer would still be vicariously liable.
• Express prohibition: if the employee is specifically prohibited from doing something, in most cases, the employer is not vicariously liable.
• Intentional wrongful acts: this includes assault, theft and fraud. For example, in Heasmans v Clarity Cleaning Co. Ltd [1987], the defendant’s employee was told to clean the telephones, however, the employee used to do unauthorized calls for his personal benefit. In such cases, the employer is not vicariously liable.

Another form of liability, opposite to that of vicarious liability, is that of liability from independent contractors. When an employer has hired a independent contractor, if the independent contract performs a tort, the employer is not liable for the case of tort. The traditional justification is that the employer does not control the independent contractor, and so there is no justification for imposing liability upon the employer for the tort of the independent contractor. This is regarding the D and F estates Ltd v The Church Commissioner for England [1989].[21]

However, there are also some exception to this general rule of independent contractors, where the employer is held liable. Such factors[22] include:

• if the employer has authorized the independent contractor to commit a tort, as per Ellis v Sheffield Gas Consumers Co (1853).
• If the employer has chosen someone, who is not competent to carry out the job, as per Pinn v Rew(1916).
• If the employer had delegated performance to an independent contractor, and so on.

Thus, these are the different types of liability associated in the law of tort. Now, moving on,  further details of law of contract are given below.

 2.4 Remedies:

The general principle regarding the award is that the object of damages in tort is to restore the victim to the position which he was in before the tort was committed, to the extent that can be provided through an award of damages. One of the significant principle functions may be detected from here regarding remedies. It is the fact that the victim is to be compensated of civil wrongs. Here, the emphasis is upon compensation rather than upon punishment. This can be regarded to the case of Cassell v Broome [1972].[23]

3. Law of contract

The law of contract is based on the principle expressed in the Latin phrase “pacta sunt servanda”, which is usually translated as “agreements to be kept“. [24]

According to legal scholar Sir John William Salmoned, a contract is “an agreement creating and defining the obligations two or more parties”. Thus, a contract is in agreement between two or more competent parties in which an offer is made and accepted, and each party benefits So a contract consists of three ingredients: an agreement, a consideration, an intention to create a legal relationship.[25]

 Since the question is to discuss tort based on contract, further discussion of law of contract is rested, and discussion of law of tort in relation of contract is to be continued.

4. Tort and contract

The tort and contract are very close to each other, in terms of controversy. It is seen that where there is  the absence of law of contract, the law of tort stands. This can be further backed by the case of Donoghue v Stevenson, where the plaintiff was, at first, unable to proceed to the manufacturer, because there was no contract between the parties. This is also called the “contract fallacy”, which means that the manufacturer had entered into a contractual relationship with one person (the owner of the public bar in Paisley), which means he could not owe a duty of care to a third party (the plaintiff) as the third party was not privy to that contract. After the verdict was given, it was held that it was irrelevant to the plaintiff’s action in that she was not privy to a contract with the defendants for the sale of the ginger beer. The existence of a contractual relationship with the purchaser of the ginger beer did not preclude the existence of liability in tort to the plaintiff, who was not a party to the contract. The law of tort was freed from the contract fallacy after the case, which gave rise to the law of negligence.[26]

Furthermore, contract is based on contractual relation, whereas in tort a proximate relationship is looked for. Mentioned above, in  Hills, it is seen that is Lord Keith had said that relationship of proximity is a very important ingredient for a test of liability in negligence. However, in a contract, a contractual relation[27] is required, rather than a proximate relationship.

Similarly, in tort, there is a specification that the imposition duty of care must be fair, just and reasonable. There is no such thing in contract. In a contract, the words of the parties which have been agreed upon. No further reasoning of whether the contract was fair and just or not is made by the parties once the agreement is signed upon full consent by the parities. In contract, the literal word between the parties is more important rather than the concept of fair and just, which is practiced in tort.

The thrive for justification goes further more detailed in tort. It has been already discussed about vicarious liability and liability of independent contractors. In a case of vicarious liability, it is seen that the employer is held responsible for the tort of the employee, as the employee is under the control of the employer in the former’s course of employment. The contract is not made between the employer and the customer, however, due to tort, the employer is held liable to provide justice.

On the other hand, in case of liability from independent contractors, the employer is not held liable for the tort of independent contractors, even though there is a contract in between them that holds that the employer is in charge of the work done. Since, the independent contractor is in control of himself, the liability of tort for the work done by him, is held liable to him.

Similarly, in cases of defamation, nuisance and false imprisonment, the law of tort comes for justice to be prevailed, when there is no contract.

That’s it is seen that where the law of contract fails to give the justice, the law of tort approaches.

5. Conclusion

Thus, it has been established that although tort and contract have both derived from the civil law, these two represent two complete different branch of obligation. However, they are very close to each other, as in the absence of one is where the other stands. Where the law of tort is an obligation for a care of duty to neighbors, the law of contract is the obligation between only two parties in a contract. Thus, the law of tort has provided the criteria of duty of care, which enabled the jurisdiction where the law of contract fails.

5. References

Books and Articles from Website:

1. 1.       Cracknell,D.G. (Ed) (1997). Obligation: The Law of Tort (3^rd ed.). (pp 1–68).London,UK:Old Bailey Press
2. To Create a Contract There Must be a common intention of the parties to inter into legal obligation”- Explain & Illustrate .(2011, 10 July). Retrieved from http://www.lawyersnjurists.com/resource/articles-and-assignment/%E2%80%9Cto-create-a-contract-there-must-be-a-common-intention-of-the-parties-to-inter-into-legal-obligation%E2%80%9D-explain-illustrate/
3. Law of Tort.(nd) Retrieved from http://en.wikipedia.org/wiki/Tort

Judicial Cases:

1. Donoghue v Stevenson[1932]
2. Bourhill v Young [1943]
3. The Hill v Chief Constable of West Yorkshire [1989]
4. Ann v Merton London Borough Council [1978]
5. The Koursk [1924]
6. Brooke v Bool[1978]
7. Heasmans v Clarity Cleaning Co. Ltd [1987]
8. Cassell v Broome [1972]
9. the D and F estates Ltd v The Church Commissioner for England [1989]
10. Ellis v Sheffield Gas Consumers Co (1853)
11. Pinn v Rew(1916)