Concurrent Liability in Tort and Contract: An Analysis of Interplay, Intersection and Independence

Abstract

This article examines the understanding of concurrent liability in tort and contract, through a detailed analysis of the interplay, intersection and independence of the law of torts and the law of contract. The central argument that will be advanced is that the present understanding of the ‘incident rules’ in concurrent liability in tort and contract, such as the applicable rules of remoteness or limitation, is inconsistent with the rationale for concurrence laid down in Henderson v Merrett Syndicates Ltd. Rather than analyse concurrence as a single situation, that is, conceiving it as a contest between rules of tort or contract rules, we argue that the better way forward is to differentiate between the different situations in which liabilities in tort and contract may arise and to apply the correct analysis to each situation accordingly.

Keywords: concurrent liability, tort, contract, overlapping claims, Henderson v Merrett