224 Chapter 8The tort of negligence
unsatisfactory, and even if the shopkeeper could not have discovered that they were.
However, liability in tort is imposed only when a person’s conduct does not match up to an
objective, reasonable standard. So a driver who runs over a pedestrian will be liable only if
he or she drove badly and failed to take reasonable care. If it cannot be shown that the driver
drove badly then there will be no liability, no matter how severe the pedestrian’s injuries.Contract remedies and tort remedies
Both the breaching of a contract and the commission of a tort give rise to liability in
damages. However, the purpose of contract damages is not the same as the purpose of
tort damages. Both, of course, are designed to compensate. As we saw in Chapter 5, contract
damages achieve this by putting the injured party in the position he or she would have been
in if the contract had been properly performed, and therefore include damages for loss of
the bargain. Tort damages achieve it by putting the injured party in the position he or she
would have been in if the tort had never been committed, looking at expenses incurred and
injuries suffered.Example
One business agreed to deliver a new machine to another business but delivered the
machine one month late. The business buying the machine would be entitled to damages
for breach of contract. These damages would be calculated by considering how much it had
cost the business buying the machine that the machine had not been delivered on time.
Such damages might include an amount for profit lost as a result of the machine not being
available, or for the cost of employing extra workers who were needed to do the work which
the machine was meant to do. A pedestrian who was run over by a negligent driver would
be awarded tort damages. The purpose of these damages would be to put him or her in the
same position as if the tort had not been committed. The damages might include an amount
for matters such as pain and suffering, for lost wages and perhaps for damage to clothes.
These losses would all be recoverable because if the pedestrian had not been negligently
run over none of the losses would have arisen.It should, however, be pointed out that the two methods of assessing damages will often
arrive at much the same result. If an employee loses two months’ wages as a result of the
contract of employment being breached, the damages awarded would compensate for this
loss on the basis that if the contract had been properly performed the employee would have
received the wages. If an employee loses two months’ wages as a result of being negligently
run over by a car driver, the same compensation would be awarded in respect of the lost
wages on the basis that if the tort had not been committed the employee would have earned
the wages.
Figure 8.1 shows the essential differences between contractual and tortious liability.