Date: Mon, 10 Mar 2008 11:56

From: Andrew Tettenborn

Subject: Remedies for Conversion and Trespass to Goods

I agree that all one's instincts are that this claim must be misconceived.

On the other hand, it's not quite so much of a no-brainer as some people may think it is, for 2 reasons.

A. This case is a little like the bus company that keeps a spare bus in case one of its normal fleet is off the road, or the shipowner that keeps a spare vessel for use in analogous circumstances. Suppose that, in the event of immobilisation of a bus or ship, the plaintiff claims the relevant proportion of the upkeep cost of the spare which it presses into service. There's a logical argument that this claim must be bad (the spare would have had to be upkept anyway, and hence there's no causation proved). Except that -- er-- in both England and the US there's authority that the plaintiff succeeds. See Birmingham Corp v Sowsbery [1970] RTR 84, The Emma Kate Ross 50 F 2d 845 (1892) and Brooklyn ET v US 287 US 170 (1932). The Mediana [1900] AC 113 also proceeds on the same assumption.

B. It's also a little like the case of the victim of a wrong that seeks to recover for the time spent by its own management (who, of course, would have been paid anyway) in sorting out the mess caused by the defendant's wrong. The preponderance of authority allows this claim, at least on principle. See e.g. Portman Building Society v Bevan Ashford [2000] PNLR 344; Horace Holman Group Ltd v Sherwood International Group Ltd [2001] All ER (D) 83 (Nov); Euro Pools plc v Clydeside Steel Fabrications Ltd 2003 SLT 411 at [11]–[12]; Balmoral Group Ltd v Borealis [UK] Ltd [2006] EWHC 1900 (Comm) at [491]–[494], [2006] 2 Lloyd's Rep 629; R + V Versicherung AG v Risk Insurance & Reinsurance Solutions SA [2006] EWHC 42 (Comm) at [76].

Best to all,
Andrew

Jones, Michael wrote:

Seems to me that treatment of the causation issue by the judge is confused.

Of course, if it were not for the foreseeable risk of theft in general there would be no need to incur the security costs, but this does not demonstrate that the security costs were caused by the specific theft. If the security already in place had been effective as a deterrent and your client had decided against taking the item, the store would still have incurred the costs. There is no "but for" link between the tort and the costs.

If, on the other hand, the theft prompted the store to install security for the future, there might be a causation argument - but then how much would be recoverable? Defendant takes item worth 50 cents. Store claims $40,000 for equipment and salaries?

This looks more like a claimant seeking punitive damages.

--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England

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