From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
Sent: Wednesday, November 13, 2013 3:11 PM
To: James Goudkamp; obligations@uwo.ca
Subject: RE: Causes of Action

If, for example, I deceived you into lending me $100 there may be several separate reasons why I should be obliged to you. First I promised to pay you back. Second I wrongly deceived you. Third if the deal is set aside, I am unjustifiably enriched. Three possible causes of action, arising from a single set of facts, because there are three different reasons why I may be obliged to you.

To an extent, the law does make sense. So, if I defame you in several ways in a single publication, there is but one claim, because there is one wrong, because there is only one right violated (meaning you cannot bring multiple proceedings but must consolidate them). By contrast if by my negligence I injure you, and simultaneously damage you property, separate claims may be brought (because there are two wrongs, because there are two rights violated).

The question of whether one claim is 'the same' as another is dependent upon the degree of generality with which we describe the reason for it. So, a claim for libel is the same as a claim for private nuisance because they are both torts (ie wrongs). They are also different because they involve different kinds of wrong. (ie different rights arising for different reasons). Just as a cat and a dog may be the same (both mammals) and different (feline/canine) at the same time. Whether unjustified enrichment is a cause of action would depend upon whether it involves a single reason why a claim should succeed.

Cases like Williams v Milotin don't really make much sense. It concerned a boy being struck by a negligently driven lorry ('truck' for our American friends). In a rational universe, how many reasons are there why the lorry driver should be liable to the boy? One. There was a wrong, because the boy was negligently injured.

But, because we are the victims of history, the claim against the lorry driver could be brought in two quite separate ways, as an action in trespass and as an action on the case. At the time in South Australia (bizarrely) actions in trespass had a 3 year limitation period, those claims formerly known as actions on the case 6. It made no sense to confine the plaintiff to the action in trespass, and so a longer limitation period was applied. [I know trespass is usually said not to require 'damage', whilst the action on the case did, but on these facts that is of no relevance.]

That however is to treat causes of actions as formulas, magical incantations for relief. 

This is not just an Australian phenomenon (Letang v Cooper is usually read as killing off negligent trespass in England, something that happened decades earlier in the US, but has not happened yet in Australia, the home of legal antiquities). If I employ a solicitor to draft a document for me and he does so negligently, there is only one reason why he was under any duty to me: he promised to carefully draft the document. One reason, one right, one wrong, consequently one cause of action. However, we are taught that there are two claims, one for breach of contract, and another in tort (or even, possibly, some kind of equitable wrong). That is to think of causes of action in contract, tort etc as like formulas for relief, with boxes to be ticked off.

We should, I think, try to stop thinking of causes of action as artificial formulas for relief untied to reason, like potions in Harry Potter, save where compelled to do so by legislation.