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Lionel Smith
Thu, 1 Mar 2007 09:18:07 -0500
Waiver of tort


Perhaps ironically, these recent Canadian cases are being argued on exactly the distinction between anti-enrichment and anti-harm wrongs. I would be interested to know how many RDG members find this distinction useful?

On a rights-based analysis, if we thought that in some situations (and negligence might be one, perhaps not in England and Wales after Barker) the plaintiff’s right is only infringed if loss is caused, we might well think that a gain-based remedy is not consonant with the extent of the right in question. Eg if loss is $20 and gain is $50, and we think that $20 is not just a measure of loss but actually in some sense constitutes the violation of the right, it is arguably hard to see how the plaintiff connects to the $50.

Does anyone know of a theory of rights that offers an explanation for a distinction between those rights that are properly said to be violated only when a loss is caused, and those that can properly be said to be violated regardless of whether any loss is caused?

My excuse for asking such a general question is that I have been kicked out of my office for over three weeks and all my books are in boxes somewhere ...




On 1/3/07 06:40, "Rotherham Craig" wrote:

It is interesting to hear how the American law is developing. There is limited English authority regarding nuisance and a certain amount of academic resistance to the possibility. In his Introduction to the Law of Restitution, Peter Birks argued that a gain-based remedy should not be available for nuisance, as it is a "anti-harm wrong" and not an "anti-enrichment" harm. Soon after Millett, in Carr-Saunders v. Dick McNeil Associates Ltd [1986] 1 WLR 922, suggested that profits would be recoverable in a case involving a nuisance by interference with a right to light. Birks ultimately gave up on this distinction (Civil Wrongs - a New World (1991)) but others have continued to flirt with it.

After Saunders, in Stoke-on-Trent CC v. Wass [1988] 3 All ER 394, the Court of Appeal denied the defendant's claim for recovery for nuisance caused by breaching the claimant's monopoly to licence markets within a particular area and Nourse LJ was rather overly hostile to the possibility of having benefit-based recovery in this context. However, the facts of the case are rather special. There is a judicial presumption that markets breaching such a geographical monopoly cause harm and therefore an injunction is automatically available without proof of actual harm. However, the Court found that, as a matter of fact, the claimant suffered no loss from the breach in question. So, it was case of a "presumed nuisance", if you like, and, in this respect, not a terribly compelling case for gain-based relief (on the other hand, the fact that the defendant breaches of the claimant's rights were knowing and repeated might have been thought sufficient to outweigh this consideration).

I suspect that an English court might well find for the claimant in a Boomer-like case but we will have to wait and see.

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