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Sender:
John Murphy
Date:
Tue, 21 May 1996 20:21:18 +1000
Re:
Restitution and "passing on"

 

In reply to EOIN. Firstly, us Irish never, never rant - got that?

Maybe I'm trying to make the law fit a gut feel, but here goes again.

In pure economic loss tort cases there is an underlying policy to prevent the floodgates opening. The High Court of Australia developed (I think) its concept of "proximity" - which Dawson J never agreed with - precisely in response to the floodgates argument; it is an attempt to limit the possible plaintiffs and eliminate those persons who may be ill-defined and very numerous when the tort occurs.

So, for instance, where a road gang cuts the electricity lines and my business suffers because my computers crash, I probably cannot sue.

Now, I will accept arguendo that I should not have a cause of action for pure economic loss except in certain circumstances where my loss is closely coupled to the defendant's breach.

By a sort of converse analogy, the defendant in the these sorts of cases should not escape by pointing to a possibly very large number of ill-defined "Cs" who may have suffered a loss in fact by the defendant's unjust enrichment and be allowed to say, "These other people (I can't really define them) are the real losers and therefore the proper defendants."

Part of the policy of the law of torts is deterrence, in my view. Again, by analogy, the defence of passing-on seems to remove any deterrent effect on the offender.

Regards

 

John Murphy
160 Hellawell Road
Sunnybank Hills 4109
Australia
+61 7 3273-7193


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