Is tort law or a law of extra contractual obligations recognised in your jurisdiction?
Yes. In general, under Norwegian tort law, liability for damages can arise provided certain conditions are met. The three conditions for damages are basis of liability, proximate cause (casuality) and financial loss.
In relation to construction projects, the parties should be aware that one can be held liable for pollution damage. Further, strict liability applies to hazardous and dangerous activities, such as the use of explosives.
The Swedish Torts Act is applicable to both contractual and non-contractual relationships. In contractual relationships, the Torts Act applies to the extent that there are not deviating provisions in other rules or in the parties’ contract. Under the Torts Act, a person is liable for physical damage and personal injury which he causes intentionally or by negligence. In non-contractual relationships, the liability does not cover pure economic loss unless there is a criminal offence. In contractual relationships, however, the liability for negligence also covers pure economic loss.
Tort law is recognised under the common law in Hong Kong.
Negligence and occupiers’ liability are the most common types of tort actions. Occupiers’ liability is partly governed by the common law and partly by the Occupiers’ Liability Ordinance (Cap. 314).
The law of tort is recognised in England and Wales. Most construction claims are contractual claims, but tortious claims are typically relevant to construction projects in the context of alternative claims for negligence.
It is common to make a claim against a construction professional in contract and alternatively in tort. Claims in tort can benefit from extended limitation periods. However, one disadvantage of a claim in tort is that if the claimant does not have a direct contractual relationship with the wrongdoer it cannot generally recover damages for the repair of defective buildings, since this is considered to be pure economic loss (see answer to question 20.)
The law of torts can create extra-contractual obligations for parties to a construction contract under certain circumstances. The most common method is when there is an instance of personal injury or property damage. In such instances, tort law applies and can result in unanticipated liability. There are means for limiting such liability, however, including through the use of indemnity provisions, warranty exclusions and the procurement of appropriate insurance to cover such risks. Proper contracting and insurance at the outset of a project are the most effective mechanisms for limiting potential tort liability.
In addition, some jurisdictions in the United States allow a party to sue for negligence or professional negligence even where a contract exists. Such lawsuits are not common, however, as many jurisdictions in the United States recognize the economic loss doctrine, which prohibits a party from suing in tort to recover for the breach of a contractual obligation. There are, however, exceptions to the economic loss doctrine.
Certain exceptions to the economic loss doctrine allow a party to sue in tort for money damages stemming from the breach of a contractual duty. For example, some states exempt any claim for professional negligence -- i.e., a defective design, engineering calculation or even professional management of a project -- from the economic loss doctrine. See e.g., Municipality of Anchorage v Integrated Concepts & Research Corp Case No 3:13-cv-00063 SLG, Docket 501 (D. Alaska December 5 2016). Some states allow a contractor or subcontractor to sue a design professional for professional negligence when that professional work results in damages to the contractor or subcontractor. See Balfour Beatty Infrastructure, Inc v Rummel Klepper & Kahl, LLP, 2017 WL 701441, * 4 (Md. 2017). Other states allow such claims were the work creates a “serious risk of personal injury.” Id.
Due to the wide variance in application of the economic loss doctrine, it is important to understand the local law when negotiating contract terms or preparing claims. Failure to account for the possibility of tort liability can have serious unintended consequences and expose a construction professional to unintended significant risk.
Only the Serbian Law on Contracts and Torts is recognised in our jurisdiction.