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Professional negligence claims: contract or tort?
A tortious duty of care can arise regardless of if there is a contractual relationship between parties or not.
Where there is a contractual relationship, the professional may owe concurrent duties in contract and in tort. A concurrent duty in contract and tort exists where a claimant can build a tortious claim on either the:
- Defendant’s undertaking based in contract.
- Defendant’s negligence in performing the contract. This must have caused harm to the claimant’s property or financial interests.
As a general rule, professionals assume responsibility towards their clients. Thus, they owe them both a duty of care in tort and contractual obligations. These duties are not necessarily co-extensive however. The contract may impose obligations that are more onerous than the duty of care imposed by the law of tort.
Moreover, a tort may not exist if the failed duty does not incur any contractual issues. For example, the parties may have agreed that tortious remedies do not apply in scenarios not covered by the contract.
What is a tort?
A tort is a civil wrong that causes a claimant harm or a loss. This results in legal culpability for who caused it.
Typically, a tort will lead to a lawsuit filing for monetary damages.