TORT AND CONTRACT
The distinction between a tort and a contract is clearly brought forth by the definition of tort given by Winfield, which states: “Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”
Thus, while in tort, the duties are fixed by law, in a contract, they are fixed by the parties themselves. In a contract, one party owes duty only to another contracting party (Principle of Privity of Contract), while in tort, the duty imposed by law is not towards any specific individual or individuals but towards the world at large.
Both in tort and contract, the remedy available is damages. However, while in a contract,travelling the damages are liquidated (i.e., predetermined by the parties), in tort, the damages are unliquidated, meaning they are not predetermined by the parties but are awarded by the court.
In certain cases, the same incident may give rise to liability both in contract and tort. For example, when a passenger is injured while traveling with a ticket due to the railway company’s negligence, the company is guilty of a wrong that is both a breach of contract and a tort.
In Edwards v. Mallan (1908 KB), it was held that a dentist who contracts to pull out a tooth is liable for breach of contract if he injures the patient through unskillful extraction. He is also liable for the tort of negligence, as everyone who professes skill in a calling is bound by law, agreement or no agreement, to show a reasonable amount of such skill.
In such cases where the same fact results in both a breach of contract and a tort, the plaintiff cannot claim damages twice over. He can either sue for the breach of contract or for the commission of the tort.
The contractual duty may be owed to one person and the legal duty (duty by law) independently of the contract to another. For example, a surgeon called by a father to operate on his daughter owes a contractual duty to the father to take care. If he fails in that duty, he is also liable for a tort against the daughter. In Pippin v. Sheppard (1822), a surgeon was called in by a husband to treat his wife. The court held that the husband could sue the surgeon for breach of contractual duty, while the wife could maintain an action in tort.
Thus, liability in tort is fixed by the law irrespective of any contract between the parties, although it is possible that in certain circumstances, liability in tort may be modified by contract.
PRIVITY OF CONTRACT AND TORTIOUS LIABILITY
Under the doctrine of privity of contract, no one except the parties to a contract can sue for a breach of it. Earlier, it was thought that this principle of the law of contract also prevented any action being brought under tortious liability. For example, if there was a contract between A and B, and A breaks his contract in such a way as to commit a tort to C, it was wrongfully thought that C could not bring an action against A. This fallacy has now been dispelled by the House of Lords in the famous case of Donoghue v. Stevenson (1932 AC 562).
In Donoghue v. Stevenson, a manufacturer of ginger beer sold the product to a retailer. The bottle, unbeknownst to anyone, contained the decomposed remains of a snail, which had found its way into the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend, to its contents. Due to the darkness of the glass, nothing of the snail was visible until X refilled the plaintiff’s glass. As a consequence, partly of what she had drunk and partly of what she saw, she became very ill. She sued the manufacturer for negligence. There was no contractual duty on the manufacturer's part towards her. Still, a majority of the House of Lords held that he owed her a duty to ensure the bottle did not contain noxious matter and that he was liable if that duty was broken.
Lord Macmillan stated: “The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract does not exclude the coexistence of a right of action founded on negligence as between the same parties independently of the contract, though arising out of the relationship in fact brought about by the contract.”
The Privy Council affirmed the principle of the Donoghue v. Stevenson case in Grant v. Australian Knitting Mills Ltd. (1936 AC 85). Thus, contractual liability is completely irrelevant to liability in tort.
In a recent decision, the Delhi High Court elaborated on this point. In Klans Mittelbachert v. East India Hotels Ltd. (AIR 1997 Delhi), there was a contract between Lufthansa, a German airline, and Hotel Oberoi Inter-continental of Delhi for the stay of the Lufthansa crew as guests in the hotel. The plaintiff, Klans Mittelbachert, a co-pilot in Lufthansa, stayed in the hotel for a few days. During his stay, as the plaintiff took a dive in the swimming pool in the hotel, due to the defective design of the swimming pool, his head hit the bottom of the pool.
WHATSAPP CHANNEL -
https://chat.whatsapp.com/KFqEQu2XzFa8RvSg42N9rM
TELEGRAM CHANNEL - https://t.me/learnwithsakshi03
LinkedIn account -
Instagram -
https://www.instagram.com/_sakshinchaos_?igsh=MTRobXA5eG9jY3AzMw%3D%3D&utm_source=qr
FOR ANY QUERY, EMAIL US ON - hustlinglearning@gmail.com
Post a Comment