Concurrent Liability in Contract and Tort: A Separation Thesis
![handle is hein.journals/lqr137 and id is 77 raw text is: CONCURRENT LIABILITY IN CONTRACT AND TORT: A
SEPARATION THESIS
Jodi Gardner'
Lecturer; Faculty of Law; Fellow, St John's College, Cambridge
John Murphy
Professor of Law, Lancaster University
I. Introduction
Prior to the landmark decision in Henderson v Merrett Syndicates Ltd,' there were
conflicting lines of authority on the question of whether there could be concurrent
liability in tort and contract for pure economic loss in English law. Their Lordships
in that case put an end to this uncertainty by making clear that there could indeed
be such liability.' Yet so holding naturally prompted jurists to consider whether
there might also be concurrent liability in other areas, such as where contract and
equity overlap, and where contract and unjust enrichment coincide. Those broad
questions have now been tackled ably enough by others, along with the issue of
whether concurrent liability should generally be welcomed (given that it can blur
the boundaries between the familiar legal categories according to which the common
law is ordinarily learned and applied).' None of these matters, however, concern
us here. Instead, we address a series of narrower questions that arise in connection
with concurrent tortious and contractual liability.
Before we enumerate those narrower questions, however, it is perhaps helpful
to make clear from the outset the central argument of this article. This is that,
notwithstanding the concurrency of liability, the available actions in tort and
contract should be regarded as sufficiently different that, ordinarily, there will be
no transposition of incidental rules concerning, or elements of, one action to the
other. So, for example, we resist the idea that it is appropriate routinely to apply
the contractual remoteness rules to a negligence action; and, equally, we see no
general warrant for allowing tort defences to be invoked in connection with actions
for breach of contract. That said, we are not completely hostile to the occasional
transposition of aspects of tort law to contract (and vice versa). It is, rather, that
Thanks to Paul Davies, James Goudkamp, Sarah Green, William Lucy, Barbara MacDonald and the anonymous
referee for detailed comments on various drafts. We are also grateful to Donal Nolan, as well as participants at
seminars in Sydney and Singapore for discussion of some of the issues. The usual caveat applies.
[19951 2 A.C. 145; [1994] 3 All E.R. 506.
2 Notable cases in which there was actual or obiter rejection of such liability include Groom v Crocker [1939] 1
K.B. 194; [1938] 2 All E.R. 394; Bagot v Stevens Scanlon [1966] 1 Q.B. 197; [1964] 3 All E.R. 577 and Tai Hing
Cotton Mill Lid v Liu Chong Hing Bank [1986] A.C. 80 at 107; [19851 2 All E.R. 947 at 957 (Lord Scarman). By
contrast, cases containing dicta accepting such a possibility include Midland Bank Trust Co v Hell Stubbs and Kemp
[1979] Ch. 384; [1978] 3 All E.R. 571; Ross v Caun/ers [1980] Ch. 297; [19791 3 All E.R. 580 and
Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All E.R. 488; [1986] 2 Lloyd's Rep. 179.
3 Henderson v Merrett Syndicates Ltd [ 1995] 2 A.C. 145 at 194.
4See e.g., A. Burrows, Solving the Problem of Concurrent Liability (1995)48 C.L.P. 103: P.S. Davies, Concurrent
Liability: A Spluttering Revolution in S. Worthington et al (eds), Revolution and Evolution in Private Law (Oxford:
Hart Publishing, 2018), at p.273; R. Jackson, Concurrent Liability: Where Have Things Gone Wrong? (2015) 23
Tort L. Rev. 3; A. Taylor, Concurrent Duties (2019) 82 M.L.R. 17.
(2021) 137 L.Q.R. January 0 2020 Thomson Reuters and Contributors
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Concurrent Liability in Contract and Tort: A Separation Thesis
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