defendant was nonetheless liable in damages for the loss suffered by the plaintiff. This could not be said to represent status quo loss, since, before the wrong was done, the plaintiff had no interest in the testator’s property. Accordingly, there was no status quo to restore. Instead, what the plaintiff was awarded was a sum which put her into the position she would have been in had the defendants done what they were required to do on behalf of the testator, their client. CONCURRENT CONTRACTUAL AND TORTIOUS LIABILITY : It is sometimes the case that the conduct of the defendant amounts to the commission of a tort and a breach of contract at the same time. In these circumstances, there is said to be concurrent liability. Thus, where there is a contract for the supply of services, there is both a tortious duty on the supplier

doi:10.4324/9781843141518-16

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defendant was nonetheless liable in damages for the loss suffered by the plaintiff. This could not be said to represent status quo loss, since, before the wrong was done, the plaintiff had no interest in the testator’s property. Accordingly, there was no status quo to restore. Instead, what the plaintiff was awarded was a sum which put her into the position she would have been in had the defendants done what they were required to do on behalf of the testator, their client. CONCURRENT CONTRACTUAL AND TORTIOUS LIABILITY

ABSTRACT

Lord Scarman: Their Lordships do not believe that there is anything to the advantage of the law’s development in searching for a liability in tort where the parties are in a contractual relationship. This is particularly so in a commercial relationship. Though it is possible, as a matter of legal semantics, to conduct an analysis of the rights and duties inherent in some contractual relationships, including that of banker and customer either as a matter of contract law when the question will be what, if any, terms are to be implied or as a matter of tort law when the task will be to identify a duty arising from the proximity and character of the relationship between the parties, their Lordships believe it to be correct in principle and necessary for the avoidance of confusion in the law to adhere to the contractual analysis: on principle, because it is a relationship in which the parties have, subject to a few

exceptions, the right to determine their obligations to each other, and for the avoidance of confusion because different consequences do follow according to whether liability arises from contract or tort, for example, in the limitation of action. Their Lordships respectfully agree with some wise words of Lord Radcliffe in his dissenting speech in Lister v Romford Ice and Cold Storage Co Ltd [1957] 1 All ER 125, p 139; [1957] AC 555, p 587. After indicating that there are cases in which a duty arising out of the relationship between employer and employee could be analysed as contractual or tortious, Lord Radcliffe said:

Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is not real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since, in modern times, the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract.