Comparing Compensatory Damages in Tort and Contract: Some Problematic Issues

Abstract

This essay considers a number of difficult issues in comparing compensatory damages in tort and contract in the context of concurrent liability. Four questions are focused on. Looking across all four questions, it is argued that, while the measure of damages should reflect the underlying wrong in question – so that the reliance interest should not be protected for breach of contract as opposed to tortious misrepresentation – there is usually no rational reason for applying different restrictions on compensatory damages in contract and tort in cases of concurrent liability. So it is that there should be an assimilated approach to remoteness and to the recovery of mental distress in the context of concurrent liability with, in both situations, the contractual rules applying to the concurrent claim in the tort of negligence. And as regards loss of a chance, the most rational assimilation depends on recognising that the differences should rest not on whether the cause of action is tort or contract but rather on whether the type of loss in question is economic or a personal injury.