Mon, 19 Dec 2005 08:59:50
seems to sum it up about right.
the other hand, perhaps WBA weren't quite as quixotic as they look.
There was an alternative -- and plausible -- claim in contract,
which as far as I can understand it wouldn't have been subject to
the bar on the actio per quod.
could well be that counsel advised WBA that this represented their
best shot, but then bunged in a claim in tort as well on the basis
that it couldn't do any harm.
Original Message From David Cheifetz
me see if I have this correct.
WBA tried to sneak in, in the guise of an ordinary negligence
action, what would be a type of per quod servitium amisit
action that England's common law never allowed. I'm assuming Appleton
wouldn't have qualified as a domestic servant.
Yet, nobody mentions that small conundrum (in the reported reasons).
It's not surprising WBA's lawyer didn't, if he recognized that
that is what he was trying to do. Actually para 68 and 69 imply
that nobody spotted it. One would think that had the trial judge
seen it, he would have also made the point that even
if were inclined to find that a duty of care could exist under
new principle, he was precluded by stare decisis.
The trial judge said, only, about prior cases [para 68] "In
spite of the best endeavours of Counsel no reported case has been
found where a duty of care has been held to exist in these circumstances.
That comes as no great surprise." Classic understatement,
Given (1), it certainly wasn't a surprise if WBA's counsel didn't
leave English case-law. He could have found Canadian common-law
precedent; however, it would have done him no good as that law
is based on an extension of per quod servitium amisit
beyond the domestic servant, declining to accept the old English
Bracton Professor of Law, University of Exeter, England
01392-263189 (int +44-1392-263189)
Fax: 01392-263196 (int +44-1392-263196)
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University of Exeter
Exeter EX4 4RJ
(n): One skilled in circumvention of the law.
Litigation (n): A machine which you go into as a pig and come out
of as a sausage.
Ambrose Bierce (1906).
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