What is the difference between an action in tort for breach of the common law duty of care and a contract in which a party is liable for damages?
British Columbia, Canada
The following excerpt is from De la Giroday v. Brough, 1997 CanLII 2662 (BC CA):
The underlying difference between an action in tort for breach of the common law duty of care and an action in contract for breach of the implied term in every contract for services that the person providing the service, whether he be a plumber or a physician, will exercise reasonable care and skill which is germane is that, in legal theory, damage is the gist of the action in tort for negligence whereas it is not the gist of an action in contract for breach of a term of the contract. Every breach of contract entitles the innocent party to damages, albeit the damages may be only nominal, and the extent of his right will be limited by the rule in Hadley v. Baxendale (1854), 9 Exch. 341, 156 E.R. 145, to what can be said to arise naturally, i.e. according to the usual course of things, or to be in the contemplation of the parties.
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