It is instructive to observe that the same set of act/conducts may amount to both
Tortious Liability and Contractual Liability:
Persons, such as surgeons, who undertake to discharge
certain duties and voluntarily enter into contracts for the
due performance thereof, will be liable for neglect or
unskilfulness either in an action for a breach of contract or
in tort.
READ: Friedman,
Interaction of Tort and Contract
, (1977) 93 Law Quarterly
Review 422.
34
(b)
This duty is towards persons generally
This is a second limb of the definition of Tortious Liability furnished by Professor
Winfield. In this limb, Professor Winfield argues that duties provided for by the
Law of Tort [eg. Not to slander, not to assault or commit battery, etc] is owed to
persons generally. There is no formal agreement between persons for instance
not to slander, not to assault or commit battery, etc]. The duty not to slander,
not to assault or commit battery, etc is fixed by the law and is owed towards all
persons generally.
By this element, if primary duty is owed to a specific person, then that duty will
not be Tortious. The generality rule is not without controversies. Some people
have argued that there is as much general duty not to commit tort as there is a
general duty not to breach contracts.
Read: Poulton,
Tort or Contract?
(1966) 82 Law Quarterly Review 346
35
(c)
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