Concurrent Liability: Contractual and Tortious Obligations Analysis

This report delves into the doctrine of concurrent liability, exploring the circumstances where a defendant can be held liable under both contract and tort law. It examines the conflicts that arise when determining damages, particularly when a breach of contract also constitutes a tort, often involving negligence. The study analyzes various court cases, such as Robinson v Harman, Radford v de Froberville, and Hadley v Baxendale, to illustrate the application of legal principles and the evolution of concurrent liability. It highlights the distinctions between contractual and tortious duties, the importance of foreseeability in determining liability, and the different approaches to calculating damages. The report also discusses the 'consent theory,' the doctrine of laches, and the impact of limitation periods, providing a comprehensive overview of this complex area of law and its implications for legal practitioners and students.

Running head: CONCURRENT LIABILITY- CONTRACT AND TORT
CONCURRENT LIABILITY- CONTRACT AND TORT
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CONCURRENT LIABILITY- CONTRACT AND TORT
Concurrent liability is an English law doctrine by which a defendant can be held liable
under more than one rule of law. Similarly, defendants are also liable to give a proportionate
share to the plaintiff. It is defined as a connection between two simultaneous private law
duties. Concurrent liability can be attracted under both the contract law and Law of torts. The
conflict arises while determining damages in cases that have the attributes of both the
contract and tort. Sometimes the plaintiff asks for damages under the law of contract, but the
defendant claims to consider the case under the tortious liability1. In determining concurrent
cases, courts mostly prefer to consider the presence of tortious liability. This is because most
of the tort liabilities are accountable under the act of negligence. By considering the act of
negligence as a claim, the court measures the duty of care to decide the liability of the
plaintiff to get damages for negligence. This study will mainly scrutinize the cases where a
careless breach of contract may give rise to concurrent liability under the law of contract and
law of tort.
Under the common law, various judgments of the court of law stated that, where the
parties are already under a contractual relationship, there is no scope for tortious liability in
the same case and parties had the discretion to choose between a contractual tortious liability
where both of the attributes are present in a case. However, the plaintiff is bound to present
all related particulars of the case by filing a complaint stating his or her rights against the
defendant2. A claim for damages can arise by either the breach of a contractual duty or
tortious liability. In the case of Robinson v Harman, the court held that the motive of
providing damages is to bring back the plaintiff in the same place where they could have been
if the contract was honored3. Nowadays, the applicability of the 'incident rule' with respect to
the concurrent liability calculating the remoteness of damages is flawed and unpredictable.
1 Cheshire, Fifoot & Furmston’s Law of Contract (Furmston, 2017)
2 C & P Haulage v Middleton [1983] 1 WLR 1461.
3 Robinson v Harman (1848) 1 Exch 850

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CONCURRENT LIABILITY- CONTRACT AND TORT
Damages can be considered on the loss of expectation of one of the parties. In the case of
Radford v de Froberville 4, the court held that even if non-performance of a particular term
does not diminish the value of the contract but it the defendant is duty-bound to perform
everything promised in the contract to avoid a breach of loss of expectation. In another case
of Charter v Sullivan5 , the court held that determining loss or profit in case of damages is a
vital aspect, and the amount to be awarded as damages will rest on the claimant’s capacity to
buy or sell the good in dispute in case of a breach. In the case of Anns v Merton London
Borough Council6, it was alleged by the plaintiff that, according to the 1970's structural
movement, the defendant had a duty to inspect the building in dispute to ensure that it was
made of good quality and according to the plan. Therefore, the defendant was negligent in
exercising their duties. The court held that the legal provision does not impose a duty on the
defendant; rather, the power of inspection is more of discretionary nature. Therefore, the
defendant can partially be held liable for negligence. In another case of Murphy v Brentwood
District Council7, the court held that the liability of the defendant in case of negligence of
tortious duty must not be solely economic, but the presence of material or physical loss of the
claimant also must exist. In respect to negligence, it can be said that tortious liability
voluntarily occurs when the defendant preferred to enter into a contractual relationship with
the plaintiff. In Hadley v Baxendale, the court held that, in determining the tortious liability
of negligence of the defendant, the court must look at whether the loss caused to the plaintiff
by the careless actions of the defendant is foreseeable or not. Therefore, reasonable
foreseeability or knowledge of the loss is an important aspect in determining the liability of
the defendant8. In cases of Reliance loss, damages depend on the breach causes to the loss of
a valuable amenity9
4 Radford v de Froberville [1977] 1 WLR 1262
5 Charter v Sullivan [1957] 2 QB 117
6 Anns v Merton London Borough Council [1978] AC 728
7 Murphy v Brentwood District Council [1991] 1 AC 398
8 Victoria Laundry (Windsor) v Newman Industries [1949] 2 KB 528
9 Farley v Skinner [2001] UKHL 49, [2002] 2 AC 732

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It is difficult to distinguish between the characteristics of concurrent liability that,
whether it should be treated as a contractual liability or as a tortious liability. In Balfour
Beatty Construction (Scotland) Ltd v Scottish Power plc10, the court held that as per the
normal rule of damages, the defendant's liability would depend on the reasonable
foreseeability of the defendant while constructing the terms of the contract. In Rowland v
Divall, the court can consider damages more than the actual loss in special cases while
determining remoteness of loss11. The difference between concurrent liabilities can be
understood by the methodical approach of the ‘consent theory,’ which talks about contractual
obligations. This theory helps to understand the voluntary nature of the contractual
obligation, especially in cases of penalty in cases of a contract, which is absent in tort12. It is
evident that law imposes tortious duties, whereas contractual duties arise after the free
consent of the parties. The law of contract nurtures by the doctrine of freedom of contract,
which says that the parties are the finest evaluators of their interests while determining the
nature of a contract. In the case of Ruxley Electronics and Construction Ltd v Forsyth13, the
court believed that, in case of loss of property, the damages awarded could not exceed a
reasonable amount that can cause prejudice to the defendant. To claim the liability under the
law of contract, there must exist a contract between the parties and that must satisfy all
requisites of a valid contract. In a contract, the fundamental conditions must be properly
mentioned and indicate that non-fulfillment of those may cause a breach. The breaching party
is accountable to pay damage to the party suffering from loss due to the breach. Another
factor is that the plaintiff or claimant must take reasonable steps to mitigate the risk of loss14.
In cases of tort, the main factors that can generate tortious liability are intentional acts and
10 Balfour Beatty Construction (Scotland) Ltd v Scottish Power plc [1994] SC (HL) 20
11 Rowland v Divall [1923] 2 KB 500
12 Cavendish Square Holding BV v Talal El Makdessi (2015) UKSC 6
13 Ruxley Electronics and Construction Ltd v Forsyth (1995) UKHL 8,, AC 344
14 British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railway Co of
London Ltd (No 2) [1912] AC 673

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negligence. The onus is on the plaintiff to show the proof of wrongdoing by the tortfeasor
that causes the damage. In the case of Wellesley Partners LLP v Withers LLP 15, the court
held that, in those cases where concurrent duties are allocated in the nature of contractual and
tortious liability, the remoteness test that relates to both of the duties is preventive,
"reasonable contemplation" test under the law of contract, rather than the "reasonable
foreseeability" test under law of tort. The plaintiff must show that there exists a contiguous
relationship between the defendant's act and the plaintiff's loss. The scope of remedy in case
of tortious law is higher than in cases of contractual law. The contract is a covenant between
two parties; during the time of its making, the number of damages is pre-decided in most
cases. This is called liquidated damages16. In cases of determining unliquidated damages for
breach, the amount must not exceed the reasonable standard that can be offered in a similar
situation. The court always prefers to adopt fairness while deciding the amount for
unliquidated damages. In the cases of law of tort, remedies awarded like unliquidated
damages. In cases of the contractual relation, the amount of damage usually amicably decided
between people as both the parties are aware of the consequences that can happen due to
breach. However, in cases of breach, compensatory damages can also be awarded in the form
of monetary damages. In some cases under contract law, specific performance is also
available as a remedy to breach17. It can be seen under the claims of contract that a greater
possibility is required for the surveillance of economic loss than the usual foresight test in the
cases tort. Only in cases of the tort of negligent misrepresentation, retrieval of clean
economic loss is possible18. Under the Contract law compensation for mental distress has
been award in unique cases where mental gratification was the fundamental object of the
case. However, in the cases of law of tort, a mental loss is considered as one of the most
15Wellesley Partners LLP v Withers LLP (2015) EWCA Civ 1146
16 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79.
17 Cheshire, Fifoot & Furmston’s Law of Contract (Furmston, 2017)
18 Hussey v Eels [1990] 2 QB 227.

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important factors while deciding the number of damages19. However, there are certain criteria
for claiming damages under the mental distress category. In the case of Addis v Gramophone
Co Ltd, the plaintiff was wrongfully dismissed from his job and a new manager was
appointed before he left office. The court held that a plaintiff is not liable to get damages
under mental distress as this was a case of the tort of defamation20. There is a certain
exception to the no damages for distress rule. In the case of Perry v Sidney Phillips & Son21,
if the contract was for relaxation of mind and breach of which caused loss, then it is believed
that remedy in the nature of contractual damages was pre-concluded while contract-making.
In the case of tort, the court apprehended that punitive reimbursements can be awarded for
breach of tortious liability if; the defendant's behavior was focused on ensuring a profit for
himself or herself, where any action of the government servant (defendant) is unjust, arbitrary
and unconstitutional, or where the provision to award punitive damage is there in the
statute22. However, in the cases of contributory negligence, the plaintiff is supposed to take
rational care to lessen the risk. In both the cases of contractual and tortious liability of
contributory negligence, the court usually awards damages with a reduced amount where the
plaintiff also had a contractual duty of care.
In the case of a contractual claim, the debt does not disappear by the ending of the
limitation period. However, the defendant can use this expiry of the limitation period as a
defense of not to pay off the debt. In the case of Donovan v Gwentoys Ltd [1990]23, the court
held that the primary objective by providing a period of limitation period in a contract is to
provide a safeguard to the defendant from the injustice of a flat claim, which he never
expected to have to deal. However, in the case of equitable remedy, asking for the claim has
no limitation unless there is an unreasonable delay. This is called the’ doctrine of laches.’ In
19 Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468
20 Addis v Gramophone Co Ltd [1909] AC 488
21 Perry v Sidney Phillips & Son [1982] 1 WLR 1297
22 Rookes v. Barnard [1964] AC 1129 (HL).
23 Donovan v Gwentoys Ltd [1990] 1 WLR 472

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the case of Fisher v Brooker & Onward Music Ltd, the court held that mere passage of time
does not take away a plaintiff’s right under the doctrine of laches in copyright cases24.
Therefore, it can be concluded from the discussion stated above, that the existence of
a contractual connection between the parties cannot prevent the plaintiff from the shelter
under tort law. A similar decision is upheld by various court judgments in different
concurrent liability scenarios. Similarly, some restrictions upon concurrent tort assertion are
necessary not only to meet the regulation of contract but also to avoid an unjustified
interruption of tort law.
Reference:
Books& Journals:
Cheshire, Fifoot & Furmston’s Law of Contract (Furmston, 2017)
24 Fisher v Brooker & Onward Music Ltd [2006] EWHC 3239 (Ch); [2007] EMLR 256; [2007] FSR 12

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CONCURRENT LIABILITY- CONTRACT AND TORT
Furmston, M. (2017) Cheshire, Fifoot & Furmston’s Law of Contract, 17th edn, Oxford,
Oxford University Press.
Cases:
Addis v Gramophone Co Ltd [1909] AC 488
Anns v Merton London Borough Council [1978] AC 728
Balfour Beatty Construction (Scotland) Ltd v Scottish Power plc [1994] SC (HL) 20
British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railway Co
of London Ltd (No 2) [1912] AC 673
C & P Haulage v Middleton [1983] 1 WLR 1461.
Cavendish Square Holding BV v Talal El Makdessi (2015) UKSC 6
Charter v Sullivan [1957] 2 QB 117
Donovan v Gwentoys Ltd [1990] 1 WLR 472
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79.
Farley v Skinner [2001] UKHL 49, [2002] 2 AC 732
Fisher v Brooker & Onward Music Ltd [2006] EWHC 3239 (Ch); [2007] EMLR 256; [2007]
FSR 12
Hussey v Eels [1990] 2 QB 227.
Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468
Murphy v Brentwood District Council [1991] 1 AC 398
Perry v Sidney Phillips & Son [1982] 1 WLR 1297
Radford v de Froberville [1977] 1 WLR 1262

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Robinson v Harman (1848) 1 Exch 850
Rookes v. Barnard [1964] AC 1129 (HL).
Rowland v Divall [1923] 2 KB 500
Ruxley Electronics and Construction Ltd v Forsyth (1995) UKHL 8,, AC 344
Victoria Laundry (Windsor) v Newman Industries [1949] 2 KB 528
Wellesley Partners LLP v Withers LLP (2015) EWCA Civ 1146