Date: Thu, 16 Jun 2005 08:13:34 -0400

From: Jason Neyers

Subject: Esser v. Brown

Dear Andrew:

The case is attached for your perusal. The more I think about it, the more I think it is damage to property. In most pure economic loss cases either: (1) the persons property right is unimpaired but their complaint is that for whatever reason, the value of their right was diminished; or (2) they are complaining because their use of something which was not theirs has been interfered with. Here the complaint is different, it is that her rights have been extinguished (subtracted from her patrimony), which seems to be very different.

You might find it interesting that the court in Esser distinguished Penn v Bristol on the basis that in Penn the lawyer purported to act for the "third party".

Cheers,

Andrew Tettenborn wrote:

Hi Jason:

Surely it must be pure economic loss. There's no physical interference at all.

Oddly enough English courts have (as I expect you know) gone the other way on the duty of care. See Penn v Bristol & West, Times, 22/5/1995; Al-Sabah v Ali [1999] ECGS 11.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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