The Differing Principles of Assessment of Damages in Tort and Contract

4679 WordsDec 3, 201219 Pages
The Differing Principles of Assessment of Damages in Tort and Contract By Raphael Kok 1. Introduction For those in the legal fraternity, the question of whether a legal wrong has been committed in various situations predominantly occupies their concentration. This holds true, even purely in the civil context. When confronted with a problem, the question that immediately blazes in their mind is this: “Is there a breach of tortious duty or a breach of contract here?” However, the layman’s perspective is a stark contrast. He is not interested in knowing whether it is a case of breach of tortious duty, or a breach of a contractual duty, or both. He is not interested in knowing how does a tortious or contractual liability arises.…show more content…
2.1. Tort In damages for tortious breaches, its compensatory aim is ‘to put the claimant into as good a position as it would have been in if no tort has been committed’. A classic statement of this is found in Livingstone v Raywards Coal Co, where Lord Blackburn explained that the measure of damages in tort is ‘to put the party who has been injured in the same position as he would have been in if he has not sustained the wrong for which he is now getting his compensation’. 2.2. Contract In damages for contractual breaches, its compensatory aim is ‘to put the claimant into as good a position as it would have been in if the contract has been performed’. As Parke B in Robinson v Harman succinctly puts it: ‘the rule of common law is that where a party sustains a loss by reason of a breach of contract, he is to be placed in the same situation with respect to damages as if the contract has been performed’. Such a view was echoed in the Malaysian case of Tan Sri Khoo Teck Puat v Plenitude. 2.3. Practical Differences in Concurrent Liability Cases Such theoretical differences between the compensatory aims for damages in tortious and contractual breaches can give rise to practical differences, in terms of the recoverable quantum of damages, in concurrent liability cases. In short, pursuing an action in tort or contract in such cases may produce different results

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