Date: Thu, 10 May 2007 13:30

From: Jason Neyers

Subject: OBG again

Clearly if an act states explicitly or implicitly that it creates no rights in any individual then it cannot be used as a basis for the economic torts.

Also, I would think that a fair distinction might be made between true crimes (which would ground the tort) and regulatory offences (which might not). The distinction in Canada is fairly easy to make since the one is a federal matter which leads to a criminal record and another is provincial and does not. Is it that difficult in the UK to distinguish between true crimes and regulatory offences? (Is there any good UK stuff on this difference?)

I would also add that "civil actionability" is not the test that Hoffmann provides since he includes situations where no underlying tort is actually committed (the whole "would have been a tort if suffered loss bit" but I thought there was no such thing as negligence in the air, oh well).

Moreover, I would argue that "ease of use" is not a great test for the cogency of any legal doctrine -- is Wagon Mound easier to use than Re Polemis? The test rather is does the doctrine coherently fit with the central principles espoused in the totality of the other legal doctrines of the private law. By this measure, the Hoffmann test fails miserably.

In response to Rob, I would say three things: 1) the economic torts are generally regarded as a backwater and therefore the reasoning in them is less entitled to respect; 2) the crime theory explains the vast majority of the cases since the torts are also crimes (except the contract ones); 3) Lonhro is distinguishable since the question asked was one of foreseeability, the rest was obiter. I also query whether or not the offence committed was a crime as opposed to a regulatory offence (not having re-read it in many years).

I know that Rob views the economic torts as an exception to the privity doctrine but I still do not understand the basis on which this exception is justified. For example, it does not seem necessary to protect a right that would otherwise be unenforced or unenforceable (as is the case with some of the other exceptions, see White v Jones).

Thanks to everyone who took the time to comment.

----- Original Message -----
From: Anthony de Garr Robinson
Date: Thursday, May 10, 2007 4:39 am
Subject: RE: ODG: OBG again
To: Jason Neyers, John Murphy

Many activities which constitute crimes already are actionable in tort. However, there are thousands of regulatory and other minor offences buried away in unnumbered statutes and statutory instruments which are not. They are there for reasons which have nothing to do with protecting individuals from harm and were never intended to give rise to tort liability. Some are ancient or are there for political/aspirational reasons (“sending out a signal” etc) and would never be prosecuted in practice. Others expressly provide that they do not confer a civil remedy. To bring them all within the ambit of tort law by treating them as unlawful means could create a huge number of windfall claims which would be difficult to justify, either as a matter of justice or legal policy.

The same point applies to treating a breach of statutory duty. The common law has worked out principles for distinguishing between those which are (or the situations in which they are) actionable and those which are not (or the situations in which they are not). The principles can be haphazard and unpredictable, but this is inevitable given the subject matter: when the courts apply them, we all understand what they are trying to do. To treat all breaches of statutory duty as unlawful means would undermine those principles. In my view, it would make it necessary to develop a test to distinguish between those breaches which constitute unlawful means and those which do not. The obvious test is the one that the courts have already invented in order to determine whether a breach is actionable in tort. As I understand it, that is what the law has done for many years and it is what Lord Hoffman has done again now.

To use civil actionability as a control device for these purposes makes a great deal of practical sense. It is relatively easy to apply in practice and it builds on principles which have been carefully developed by the courts to distinguish between conduct which is serious enough to merit civil liability and conduct which is not. The suggestion seems to be that crimes and breaches of statutory duty that are not serious enough to be actionable at the suit of the victim should nevertheless be actionable when committed with the necessary intention to injure. But what pressing need justifies changing the law in this radical way?

The courts would then have to introduce new control devices to limit its wide potential effect. I pity the poor litigants who will have to pay for the privilege of helping the courts do that over the next few decades.

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

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