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Tortious duty of care concurrent with contractual duty

In Robinson v. PE Jones [2011] EWCA Civ 9 CA (Civ Div) a homeowner ('R') appealed against a finding that the respondent builder ('J') did not automatically assume a duty of care in tort further to his contractual duty. J built R a house.

In Robinson v. PE Jones [2011] EWCA Civ 9 CA (Civ Div) a homeowner ('R') appealed against a finding that the respondent builder ('J') did not automatically assume a duty of care in tort further to his contractual duty. J built R a house. Twelve years after completion, a latent defect was discovered in J's work. As a claim for breach of contract would have been statute-barred, R sued in tort for economic loss.

At first instance, the judge found that though it was possible for a builder to owe a tortious duty of care concurrent with his contractual duty, J owed no duty to R as their contract contained a clause specifically excluding tortious liability for economic loss. Said exclusion clause was found to be reasonable under UCTA 1977 and R's claim was struck out.

R appealed; challenging the court's construction of the contract, the extent of any tortious liability and its finding of reasonableness in relation to the exclusion clause.

In dismissing the appeal, the Court of Appeal held: (1) though the obligations of contracting parties were governed by their contract, it was possible for a tortious duty of care to arise through an assumption of responsibility; (2) J could not assume responsibility simply by entering into the contract and nothing in the parties' course of dealings indicated that J had assumed responsibility in the Hedley Byrne sense; (3) the clause excluding liability for economic loss was reasonable under UCTA 1977.

Rahul Varma / 22nd Jun 2011


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