"Seductive Company": Contract, Tort or Obligations in the South Pacific?

Abstract

SEDUCTIVE COMPANY : CONTRACT, TORT OR OBLIGATIONS IN THE SOUTH PACIFIC? Sue Farran and Jennifer Corrin Care* INTRODUCTION In jurisdictions which have inherited the English common law, there increasingly appear to be areas of contract law which overlap with the law of torts; where clear distinction is more a matter of academic debate than practical application, and where it might well be asked, as long as a just solution is reached does it matter whether the solution is by way of tort or contract. This is particularly so in the case of liability for negligent advice or in- formation resulting in economic loss. Here, the relationship be- tween the parties might well be one of contract and often, but not always, in circumstances where one party is relying on the exper- tise or professional skill of the other. Implied into the contract, but generally not stipulated, is the idea that the expert or profes- sional will conduct themselves in accordance with the standards generally associated with that profession or expertise. Where the expected standard is not met and loss results, there is the ques- tion not so much of who is liable, but on what grounds should liability be imposed? Where the damage is physical, an action will lie in tort, even if there is no contract, for example, where a surgeon is not employed by the patient but by the State, or where a builder contracts with the previous but not current owner of the building. If, however, the loss or damage is not physical, but only financial, there is reluctance in the law of tort to recognise a claim. Recovery in contract may also be ruled out by the absence of privity or, in a seemingly diminishing number of cases, of con- Sue Farran is a Senior Lecturer at the Law School of the University of the South Pacific, Vanuatu. Jennifer Corrin Care is a Senior Lecturer at TC Beirne School of Law, University of Queensland, Brisbane, Australia and a Barrister and Solicitor of Fiji Islands and Solomon Islands.