Fri, 11 Feb 2005 15:07:17 -0500
your (twisted) Doughty v Turner example, I would say that
the contract rule could trump the tort one but would say, as a gut
reaction, that you are mis-applying the contract rule by characterizing/describing
the risk too narrowly given the warranty by the employer (a la Lord
Scarman in Parsons). Was it in the RC of the parties, at
KF, that failure to provide a safe system of work, could lead to
physical injury through molten metal? Most probably, yes.
the only reason that the court in Doughty was so specific
with the description of the risk is that there was really no violation
of the standard of care and the plaintiff was trying to reason backwards
from remoteness (using Hughes) to breach of standard.
the above is right don't think that we have to follow Lord Denning.
ODG: Remoteness As an inclusionary rule HvB is clearly
insufficient. No one thinks that all loss which is suffered which
is reasonably foreseeable is recoverable either in contract or
tort (SAAMCO, Chester v Afshar etc). Whether
we should abandon HvB as an exclusionary rule is another
In those cases where the tortious duty depends upon a voluntary
assumption of responsibility (eg Brown v KMR) the contract
test must apply. These cases are decided in this way because the
duty in tort arises from a 'voluntary assumption of responsibility'
(i.e. the duty to take care arises from the promise to take care
both in contract and tort.)
If you take the view (per Lord Reid in Heron II) that
the tort test is more generous than the contract test because
in a contractual relationship you have the opportunity to warn
the other side of potential risks ("I really need you to get here
on time as I don't have a spare mill shaft"), where liability
is concurrent and the opportunity to warn exists you should apply
the contract test
If you take the view that the contract test is determined by those
risks we have consented to run, where the tortious duty is similarly
based upon the assumption of responsibility the test should be
But in Doughty v Turner (twisted) can it really be right
that the contract test trumps tort?
A Ltd employs B to work dipping asbestos into a melt. Injuries
from splashes are, at the time of contracting, reasonably foreseeable
but no other injury. After B has started work it becomes apparent
that the asbestos can explode. B is subsequently seriously injured
because of carelessness for which A Ltd is responsible. A claim
is available in tort or in contract for the breach of an implied
duty to provide a safe system of work.
The traditional formulation of the contract test would indicate
that the loss is too remote as the injury was not within the contemplation
of the parties at the time of contracting (H v B). Under
the formulation of the tort test in WM (1) as it was
foreseeable at the time of breach.
I would have thought the more generous tort test must apply. B
didn't have the opportunity to warn of the risk - they didn't
know of it. The duty in tort is independent of any assumption
of responsibility by B Ltd.
Perhaps Lord Denning's view in Parsons v Uttley is near
(if not quite) the truth after all - we have one rule for economic
loss (at least where dependent upon an assumption of responsibility)
and another for other forms of loss? We would have to modify our
traditional formulation of the rules though.
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