Construction Contract Administration (CON3372)

Chapter 5 – Law of tort and the law of negligence

1. Tort and Tort Law

Tort is generally referring to a private or civil wrong or injury, one that exists
independent of contract.

The fundamental purpose of tort law is to compensate victims of torts. Punishment of

negligent wrongdoers is not a purpose of tort law.

If the circumstances of the tort also constitute criminal activity, punishment of the
criminal would be governed by the relevant Ordinances on Criminal Offences.
Criminal proceedings are independent of civil proceeding.

Principles of Tort Law

The essential principles applicable in a tort action are to provide, or formulate

approach for analyzing whether tort liability arises in a given situation.

In order to satisfy the court compensation should be made, the plaintiff in tort action
must substantiate that:

(a) The defendant owed the plaintiff a duty of care

(b) The defendant breached that duty by his or her conduct
(c) The defendant’s conduct caused the injury or damage to the plaintiff

If any one of these essentials aspects of a tort action is not substantiated to the
satisfaction of the court, the plaintiff will not succeed.

When tort principles are applied to a particular situation, reasonableness plays a major
role.

Reasonableness in measured by the conduct expected of a reasonable person in the

circumstances.

The court must be persuaded that the defendant owed the plaintiff a duty to use a
reasonable degree of care.

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Construction Contract Administration (CON3372)

Reasonable degree of Care and General Accepted Practice for the Professional

In order to avoid a breach the general duty of care, a professional must take
reasonable steps like a reasonable person in his position to prevent harm to other.

Generally the law relating to professional negligence does not allow training or
learning period. From the first day of entering a profession, a person must attain the
standards of an ordinary reasonable member of that profession with a reasonable
experience.

A professional person must take reasonable steps to keep abreast of new professional
knowledge and technique within a reasonable time.

The general accepted practices of a profession are good evidence of what amounts to
reasonable care but they are not conclusive.

There may be more than one reasonable practice or alternative in a particular

situation.

In judgement whether there has been a breach of the general duty of care, the courts
consider the magnitude of the risk and the seriousness of the likely consequences.
With dangerous substances or operations, a person will be expected to take very
substantial precautions.

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Difference between Tort Law and Contract Law

(1) Liability in contract is based on a legally enforceable agreement between the

parties

- Generally, only the parties to a contract can enforce the contract.

- Other persons cannot sue on the contract even though they are affected by it in
some way.
- A contract does not give rights to the whole world. This is called the principle of
Privity of Contract.
- The parties to a contract are free to negotiate the terms that they consider
desirable.

(2) Liability in Tort is based on the concept of a legal duty not to injure other persons
or their property interests.

- This duty is based on general concepts such as reasonable foreseeability and is not
limited by privity of contract.
- It is therefore possible for a person to be liable in tort to other persons with whom
he has never met before.
- For example, if a person is knocked down in the street and injure through the
carelessness of the driver of the vehicle or a person suffers interference with the
use of the land because of excessive noise or nuisance from nearby premises, the
resulting liability is based on Tort.

(3) Tort obligations are imposed by laws, whereas contractual obligations are created
and decided voluntarily by the parties to the agreements

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