Documentation:Torts/Concurrent actions
Concurrent actions
In some cases, an individual's wrongdoing may be analysed as a tort as well as a breach of contract and/or a breach of a statutory duty.[1][2]
For concurrent liability with regards to situations with multiple tortfeasors, see apportionment of liability.
Concurrent liability in contract
Individuals may be concurrently liable under tort and contract law "unless the parties by a valid contractual provision indicate that they intended otherwise."[1] A contractual provision will not limit tort liability "where the contractual limitation is invalid, as by fraud, mistake or unconscionability" or "where the tort is independent of the contract in the sense of falling outside the scope of the contract".[1]
There are "three situations that may arise when contract and tort are applied to the same wrong":
- "[T]he contract stipulates a more stringent obligation than the general law of tort would impose"
- "[T]he contract stipulates a lower duty than that which would be presumed by the law of tort in similar circumstances. This occurs when the parties by their contract indicate their intention that the usual liability imposed by the law of tort is not to bind them."
- "[T]he duty in contract and the common law duty in tort are co-extensive"[3]
Mustapha v. Culligan set out that the same considerations of remoteness that apply in tort, namely foreseeability, generally also apply in contract.[4]
Concurrent liability in statute
| In the news |
|---|
| Concurrent liability in the employment context |
| In the U.K. case of Dryden v. Johnson Matthey Plc, the claimants successfully argued that they had a "a cause of action in negligence/statutory duty".[5] The case had involved "current or former employees of the Defendant, who, during the course of their employment as chemical process operators, were wrongfully exposed to platinum salts."[6]
This video features one of the claimants and was posted prior to the Supreme Court case in a bid to garner support.[7] Read more about their stories here.[8] |
United Kingdom
The United Kingdom recognizes a "tort of breach of statutory duty".[9] English law treats this as a distinct tort with its own elements.[9] In a 1996 article, Fordham described the elements of the tort of breach of statutory breach saying:
These elements are the same as those required in an action for negligence - ie, duty, breach and causation and remoteness of damage. However, the requirements of the elements in this tort differ from the requirements of the same elements in negligence in a way which reflects the differing nature of the two torts. Duty under the tort of breach of statutory duty requires only that the plaintiff is within the class of persons protected by the statute and breach can be established simply by showing that the statutory provision has been breached. The defendant must also have caused the damage (the plaintiff must not be the sole author of his own misfortune) and the damage must be of the type contemplated by the statute - ie, it must be within the scope of the risk.[9]
Thus, an individual could be liable in both tort and breach of statutory duty.[2]
Canada and the United States
Unlike the U.K., Canada has followed the lead of the United States and has not recognized a "nominate tort of statutory breach."[10] Rather, "[b]reach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence."[11]
Discussion questions
- In what types of situations do you think someone would seek to limit tort liability via a contract? Do you think it is a good thing that contracts can limit tort liability?
- Do you think Canada should recognize a tort of breach of statutory duty or is the role statute plays at the breach stage of the negligence test sufficient? What are the advantages of either approach?
Quiz
- ↑ 1.0 1.1 1.2 BG Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 CanLII 145 (SCC) (§17.5.2) at para 21.
- ↑ 2.0 2.1 See e.g. Dryden and others v. Johnson Matthey Plc, [2018] UKSC 18.
- ↑ BG Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 CanLII 145 (SCC) (§17.5.2) at paras 17–19.
- ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 19.
- ↑ Dryden and others v. Johnson Matthey Plc, [2018] UKSC 18 at 49.
- ↑ Boulden, Lizzie (8 February 2017). "Permission to appeal given in Supreme Court case of Greenway, Dryden and ors v Johnson Matthey PLC UKSC 2016/0140". 12 King's Bench Walk.
- ↑ CrowdJustice (7 July 2016). "CrowdJustice Stories – Tony Cipullo". YouTube.
- ↑ Cipullo, Tony. "Our fight for justice". CrowdJustice.
- ↑ 9.0 9.1 9.2 Fordham, Margaret. "Breach of Statutory Duty—A Diminishing Tort". Singapore Journal of Legal Studies: 364.
- ↑ R v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC) (§14.1.2.1) at para 12.
- ↑ R v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC) (§14.1.2.1) at para 37.