Date: Mon, 10 Mar 2008 12:00

From: Vaughan Black

Subject: Remedies for Conversion and Trespass to Goods

Well, some philosophers are quite comfortable with the notion of backward-in-time but-for causation, but so far the law hasn't picked that one up.

It's interesting to compare this claim to one for the capital cost of repair equipment. Say a motorist knocks down a power pole and the utility includes in its cost-of-repair claim something for a portion of the capital cost of the truck and crane used to do the repair job. (Of course the utility has to have trucks and cranes to do normal maintenance, but let's say it can show it has to have extra ones just to fix the poles knocked over by motorists, and its claim is just for a pro rata portion of those extra ones.) An argument for awarding such claims is that if the utility contracted the repair job to the third party and then based its claim against the motorist on the repair fee charged to the utility by the third party, that repair fee might effectively include something for the capital costs of the third party's repair equipment.

One might of course draw a distinction between the capital costs of repair equipment (which might be seen as a real cost of knocking down the pole) and the cost of detection equipment. But equally I can imagine a court declining to draw such a distinction.

vb

Quoting Barry Allan:

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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