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RDG
online Restitution Discussion Group Archives |
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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 <== Previous message Back to index Next message ==> |
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