Contractual and Tortious Liability

In many cases, a person voluntarily binds himself by a contract to perform some duty, which already lies upon him independently of any contract. The breach of such a contract is also a tort. For example, the right of injured railway passenger to sue the Railways either for breach of contract of safe carriage or for negligence (tort) in carrying him.

Similarly, if a person leaves his horse with his neighbour for a week and go out and the neighbour allows the horse to die of starvation, there is breach of contract in as much as the bailee has failed to exercise due care and the bailee has also committed tort of negligence.

In such cases of concurrent liability in tort and contract, the plaintiff can’t claim the damages twice over but either to sue for breach of contract or for the commission of tort. A doctor or surgeon is under a concurrent liability in tort and contract, but not an architect or a solicitor.

According to the definition of tort, it is the violation of a right conferred by law. No contract between private parties is capable of curtailing or modifying the law, and therefore, no exemption clause in a contract is capable of exempting a party from tortious liability [White v John Warrick & Co. (1953) 2 All ER, 1021 (CA)]. In this case, a contract of hire of a carrier tricycle provided that: “Nothing in this agreement shall render the owners liable for any personal injuries to the riders of the machine hired.” The machine was defective, and the hirer was thrown off and was injured Their Lordships observed that the said accident was due to the negligence and, or breach of contract of the owner, their servants or agents. Held, 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 co-existence 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 (Donoghue v Stevenson) The claim for negligence in this case is founded independently in tort and not on contract

In Donoghue v Stevenson (1932) A.C. 562, held that the action in tort is independent of a contract and the rule that the privity of contract is essential for an action in tort is highly irrelevant and unjust. Thus, a consumer could bring an action against the manufacturer even though there was no contract between the manufacturer and consumer. The manufacturer of chattels owes a duty to the ultimate user or consumer. This duty had its origin in the law of tort and not in the law of contract. Whatever the contract, it was only between the manufacturer and the retailer. “The absence of a contract between the parties is, but one of the factors to be considered in determining whether liability in tort exists.”

Thus, where A purchased woolen garments from a retailer B which was manufactured by MA M. and Sons, and A suffered dermatitis after wearing the garments, A can claim damages from M/s M. and Sons (Grant v Australian Knitting Mills Lid. 1936 A.C. 85).

Misfeasance Non feasance and Mai feasance:

Misfeasance means doing a lawful act in an improper manner. (Cases in master and servant). Nonfeasance means not performing or omitting to do that which must be legally done (cases of negligence). Malfeasance means doing an unlawful act e.g. trespass.