On
the latest discussion:
Price:
I agree with David that the price is relevant to remoteness. For
me it is because the price is a relevant factor in determining
what responsibility the other party can be assumed to have taken.
I think that the 'foreseeability without tacit assumption' theory
collapses in the face of the old taxi example:
Bill
Gates gets into a taxi at 11.30am and asks the driver how much
it costs to get to the airport. £15, says the driver. Bill tells
the driver that he has a meeting at the airport at 12pm with some
very easily-offended people, and that if he is late then a £100
million deal will definitely collapse and Bill will personally
lose £20 million in profits. He asks if the driver can promise
to get him to the airport in time for the meeting. "No problem
guvnor", says the driver. But he fails.
Of
course, the driver is not liable even though he foresaw (through
specially communicated information) that £20 million would be
lost as a result of breach of the undertaking to arrive by 12pm.
However if the driver had replied to Bill's question with: "No
problem guvnor, but the journey will cost you £100,000", then
we can be sure that the driver has assumed responsibility. The
price increase has "signalised" (Lightman QC, Seven Seas Properties
Ltd. v Al-Essa (No. 2) [1993] 1 WLR 1083 , 1088 (Ch D)) the
assumption of responsibility. The increase in price is not necessary
for such an assumption - if the taxi driver was known to be a
billionaire or a compulsive gambler, or the airport was next door,
then Bill might also reasonably interpret the driver as taking
responsibility - but it does the job.
Concurrent
liability and Doughty v Turner: I agree with Jason and
Andrew that contract limits tort. Anyway, where the tort duty
is due to an assumption of responsibility, the scope of that assumption
will be governed by exactly the same factors (at the same time-
the time of contracting/assuming responsibility) as the scope
of the contract duty - indeed, contract judges can learn a few
tricks from tort judges as to working out the scope of assumed
responsibility (see particularly Banque Bruxelles v Eagle
Star / South Australia Asset Management v York Montague).
I think John Cartwright talks about this in his classic article
[1996] CLJ 488. Also, it is my view that the scope of responsibility
for personal injury will not be as nicely sculpted by price/insurance
and other known factors, since most people cannot be reasonably
assumed to take responsibility for their own personal injury arising
from breach however cheap the service. Parsons v Uttley Ingham
might be based on similar reasoning. I have a sneaking suspicion
that there is still a problem in Robert's Doughty example
though, but will have to give it some wet-towel-around-the-head
thinking.
Strict
Liability: Robert, I don't see a problem with contract liability
being strict and yet the scope of responsibility being often dependant
upon foreseeability. Both are subject to the parties' agreement,
it is merely that it is generally normal to take a promise as
being subject to strict liability but a scope of responsibility
for consequences that is limited by factors dependant upon why
the promisor is making the promise (to make money) etc.
