Contractual and Tortious Liability

In many cases, a person voluntarily binds himself by a contract to perform some duty, which already lies upon him independently of any contract. The breach of such a contract is also a tort. For example, the right injured railway passenger to sue the railways either for breach of contract of safe carriage or for negligence in carrying him. Similarly, if a person leave his horse with his neighbour for a week and go out and the neighbour allows the horse to die of starvation, there is breach of contract in as much as the bailee has failed to exercise due care, and the bailee has also committed tort to negligence. In such cases of concurrent liability in tort and contract, the plaintiff can’t claim the damages twice over but either to sue for breach of contract or for the commission of tort. A doctor or surgeon is under concurrent liability in tort and contract, but not an architect or a solicitor.
According to the definition of tort, it is the violation of a right conferred by law. No contract between private parties is capable of curtaining or modifying the law, and therefore, no exemption clause in a contract is capable of exempting a party from tortious (White v John Warrick & Co. (1953) 2 All ER 1021 (CA)

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