So, in your view then Richard, Edgington v Fitzmaurice and all the cases

which follow it and which are equivalent to it (eg the undue influence

case we are discussing) must be wrong as the claimant is no worse off due

to improper behaviour by anyone? The point of these cases is that it

doesn't matter whether the same decision would have been taken regardless

of any improper conduct by anyone.

For myself, I think (much like Richard) that the law (rightly) allows for

recover for harm the claimant suffers as a result of one or more wrongs

committed against him, and that all those who have committed such wrongs

which were sufficient to cause such harm are jointly liable even though

the harm would have been suffered regardless of the acts of any one of

them taken individually. What I deny is that this means we have to accept

the idea that X can cause Y even where Y would have happened regardless of

X.

(Baker v Willoughby isn't an overdetermination case properly understood.

He would never have been shot by the robbers but for the action of the

original defendant, as he would not have been in the storeroom then when

the robbers came in. It is a proximate cause case, or 'scope of liability'

case if we must.)

Rob

> Going beyond actual causation, I think there is in all these cases,

> involving both physical and mental causation, the further issue of a

> widely applied (at least in the US) 'no worse off' attributable

> responsibility limitation that, unfortunately, is often confused with

> actual causation since it closely resembles the but-for test.  If the

> same decision or physical result would have been made in the absence of

> any legally responsible cause (including NESS influence), the plaintiff

> is 'no worse off' due to improper behavior and cannot recover.  The

> obvious physical injury case would be one involving two fires, one

> tortiously set, the other set by lightning.  I have argued that this

> explains the difference between Jobling and Baker v Willoughby.  See

> part III of http://works.bepress.com/richard_wright/1/.  In economic

> torts the issue often is whether the loss would have occurred anyway due

> to market forces.

>

> The existence, scope and proper location of this limitation was a

> subject of prolonged debate (by the Council rather than the membership)

> in the drafting of the Restatement Third of Torts.  The Third

> Restatement departed from the first and second in acknowledging its

> existence, but, IMHO, incorrectly states that it should be treated as a

> damages issue rather than an attributable responsibility (scope of

> liability) issue.  This may have been due at least in part to the fact

> that the debate about its existence and proper (comprehensive) scope was

> not resolved until very late in the drafting process, after work on the

> scope of liability sections had been completed.

>

> -----Original Message-----

> From: Andrew Robertson [mailto:a.robertson@unimelb.edu.au]

> Sent: Wednesday, March 31, 2010 6:13 PM

> To: Tettenborn, A; obligations@uwo.ca

> Subject: Re: Punitive Damages and Undue Influence

>

> Andrew T suggests that if there was no evidence as to the influence of

> the non-disclosure on Mrs Hewett's decision to enter into the

> transaction then she ought to lose. But what (reliable) evidence could

> there be? As has been pointed out in a number of cases there is no point

> putting someone like Mrs Hewett in the witness box: what she would have

> done had she known of the affair is pure speculation and she can't even

> say herself with any certainty. It is impossible to disentangle her

> motivations after the fact.

>

> A similar evidentiary problem arises whenever a person enters into a

> transaction or otherwise acts to his or her detriment following the

> exertion of pressure or influence or the making of a promise or

> representation by another. The problem therefore similarly affects the

> doctrines of deceit, duress and promissory and proprietary estoppel,

> amongst others. In all of those doctrines the same solution is adopted:

> a 'but for' approach to causation is rejected in favour of a requirement

> that the influence in question be 'a cause', and a rebuttable

> presumption is made that the influence, promise, representation etc was

> influential. In most cases, as here, no evidence is available to rebut

> the presumption.

>

> Andrew

>

>

> On 1/04/10 5:21 AM, "Tettenborn, A" <A.M.Tettenborn@exeter.ac.uk> wrote:

>

>> I absolutely agree with Richard's view, assuming that the assumption

>> of marital fidelity was a factor which had some -- albeit not decisive

>

>> -- influence. But even NESS causation has to be proved. I'm just

>> wondering what, if any evidence, there was that this assumption of Mrs

>

>> Hewett's had any influence at all. If there wasn't any, then (unless

>> we monkey around with the burden of proof) surely she ought to lose.

>>

>> Happy Easter

>>

>> Andrew

>

>

--

Robert Stevens

Professor of Commercial Law

University College London