CONTRACTUAL AND TORTIOUS LIABILITY FOR PROFESSIONAL NEGLIGENCE

     Contractual and Tortious Liability for Professional Negligence

Author: Jyoti Pathak, Gautam Buddha University, Greater Noida

Abstract

This  article analyses whether, and to what extent, the law permits a choice between finding liability in contract and in tort. The answer to this question is important because the outcome of a case may differ depending on whether the claim for damages is based on a breach of contract or on a violation of a tortious duty.finding liability in tort is not precluded if the damage is caused by or related to the (non-) performance of a contractual obligation. This contribution traces the historical development of these approaches and explains their differences by looking at the underlying structure of these systems of private law. It also shows that the resoluteness of both solutions has softened over time, as a result of judicial and legislative interventions. To support this argument, recent developments in case law and legislation are discussed. In this article . Indeed , what this article ultimately seeks to achieve is evaluating the liability of contractual and tortious in professional negligence

Introduction

Professional Negligence is a violation between professionals and their clients in the responsibility in treatment. A common law agreement where the individual assumes a degree of integrity and expectations generally held by those in the industry is the duty of treatment. For the wider definition of negligence that may exist within every professional field, professional negligence is a more descriptive term. Professional negligence examples include, legal mistakes in the event of wrong legal advice, Medical malpractice in the event of a delayed diagnosis, Accounting negligence in the case of errors in computing, IT failures, such as improperly protected information that results in data breaches. Professional negligence happens when a professional in the business sector fails his or her duty of responsibility to a consumer. The duty of care in every sector is more readily described as the general expectations that you would expect from a professional. Each industry has different standards, and practitioners, either by certification criteria or through supervisory boards, commissions or associations that determine that standard, are kept to a particular standard.

Difference between Contractual Liability and Tortious Liability

It is now becoming clear that a professional may be liable to a client in both tort and contract in respect of the same act done or omission made in the course of the professional employment. This development in the general law has out-paced thought on the application of statutes allowing contribution among joint tort-feasors and modifying the defence of contributory negligence. At law, the distinction between actions arising ex contract and those arising ex delicto is unclear at the margin. Indeed, at the fundamental level of form, there was no marginal distinction in Blackstone’s time. Both tortious negligence and breach of contract were pleaded as actions on the case; although, formally, an action on a simple contract would allege some “assumes it” (undertaking), given for consideration by the defendant, which the defendant had breached.

The later development of tortious liability was distinct from the development of liability on contracts, especially insofar as contract law purported to abstract from the particular circumstances of each case and raised breach of a contractual term to strict liability. Because an action in contract now differs conceptually from an action on the case, the law may imply a tortious duty of care, on the part of the professional, which is owed to his client, irrespective of contractual relations. The contract merely provides the circumstances wherein liability might be found in tort. “Here, the duty of care arose by reason of the contract, and the plain-tiff has sued in tort for breach of that duty. The contract is of significance only in creating the legal duty, and the negligence of the defendant should not be considered as a breach of contract, but as a tort governed by tort rules.”

The overlap between the laws of contract and tort does not give rise to problems as long as application of the rules produces the same outcome. However, the laws of contract and tort vary in certain ways, which may lead to different results, depending on the basis of the claim for damages. On a fundamental level, this may be caused by the different aims of the laws of contract and tort. Generally speaking, the law of tort protects persons and their property, while the law of contract promotes their development. In practice, the most important differences relate to the establishment and scope of liability, to questions of limitation or prescription and to questions of jurisdiction. The first category concerns the conditions that are required to establish liability.

For the outcome of the case, the following are determining factors: the elements which, when taken together make a successful claim; the tests which have to be applied to fulfil those conditions; who is under the obligation to furnish the relevant facts; and who bears the burden of proof. These rules may differ. For Instance, a strict liability regime does not, typically, require the claimant to argue fault on the part of the defendant. It is up to the defendant to argue  the absence of fault, provided that the law allows such a defence. Secondly, the scope of liability may differ. This question concerns the type and extent of the losses that may be recovered under the respective heads of liability.

The Laws of contract and tort may vary with regard to the type of loss that may be claimed the first and foremost remedy, some article  prescribes restitution in money, but allows the victim to claim, and the court to order restitution in kind. Some legal systems deal with this question when establishing liability , while other legal systems deal with this question after liability has been established . E.g. pure economic loss, consequential economic loss and non-economic loss.

Recoverable Damages

Negligent advice which results in a foreseeable type of loss will not always entitle the injured party to recover all losses suffered. Since the decision of the House of Lords in South Australian  Asset Management Corp. v York Montague Ltd, it has been settled law that a valuer is not liable for all the consequences that result from his conduct, such as fluctuating market values, but only for those which fall within the scope of his duty of care. However, ten years on, academics and practitioners are still discussing what this actually means and how it affects the professional’s liabilities.

Conclusion

Professionals may be liable to clients concurrently in contract and tort. If the court finds breach of an implied tortious duty of care owed by the professional, which is concurrent and co-extensive with breach of an implied assumption of care, at least two of the usual incidents of  tortious liability will follow. The professional may seek contribution from fellow tort feasors and he may plead that the damages award should be reduced by reason of the client’s contributory negligence. A plea of contributory negligence may not succeed in many cases, however, because of the professional’s relative expertise in his field, and the reasonableness of the client following the advice of a retained expert.

Reference

  1. http://www.researchgate.net
  2. Professional negligence: contribution and contributory negligence http://www.austlii.edu.au
  3. Contractual and tortious liability for professional negligence.www.legalserviceindia.com

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