Date: Mon, 10 Mar 2008 05:20

From: Neil Foster

Subject: Remedies for Conversion and Trespass to Goods

Dear Barry and others

This is pretty outrageous! And you say a real judge actually accepted the argument ...?

I would have thought the simplest answer is that the action of the defendant in converting the goods could not possibly be regarded as a cause in fact of the cost of a pre-existing security system, except in some bizarre Dr Who universe where time travel is possible. The tell-tale addition of the words "and others" in the quoted comments gives it away.

Of course, even if one took the perspective of the shop introducing security precautions after some other defendant's prior theft, it would be highly doubtful to say that the theft was a "but for" cause of the security. My immediate response would be that the decision to introduce a security system was a novus actus interveniens. One might be tempted to say, I suppose, that it was "just the sort of thing" to be expected.

But perhaps the real reason this seems wrong is it would seem to be hard to characterise such a consequence as "damage". After all, once the system is introduced presumably future thefts are deterred or prevented, and so the result is that the plaintiff has actually gained from the action which it is claimed is "damage". An accounting of the difference between the pre-theft and post-theft situations might lead to the view that the plaintiff owes the defendant for doing him the favour of spurring him on to better security!

I will be interested to see if anyone else knows of a case which is in any way similar.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Barry Allan 10/03/08 3:37 >>>

Hello all

I've been thrown a slight curve ball as a consequence of my involvement in the local student run law centre. We have a student who has been sued for trespass to goods and conversion as the result of taking an air-freshener from a convenience store. It’s a fair cop in terms of the value of the goods involved, but the plaintiff added a nasty consequential damages claim. They've invested in a security system, which involves a monitoring cost, and have claimed a part recovery of those costs as a form of consequential damages.

My application of first principles arrives at the conclusion that such a head of damage could not be recovered, as (a) the security system was in place prior to the activities of this individual student and (b) monitoring costs do not flow from his act of conversion (in much the same way as keeping the lights on, while helpful in detection) do not flow from his activities.

The Judge's handling of causation is simply that "but for the defendant and others wrongfully taking the goods, the plaintiff would not have to incur such expenditure" and that the "ongoing expenditure in the detection and prevention of theft from its store is either a foreseeable consequence of the theft or arises directly from such acts".

The whole notion seems more than a little backward, but I'm having trouble putting my finger on cogent authority. Any thoughts?

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