Date: Tue, 19 Feb 2008 21:19
From: Robert Stevens
Subject: Economic Torts
The Brooke v Boole point was considered in Cook v Lewis and (correctly) rejected as inapplicable by all members of the court. (Rather unfashionably my current opinion is that Cook v Lewis is wrong in allowing the claim and that Locke J's dissent is to be preferred.)
It depends upon what has been agreed. If I agree to go holiday with you, I am not agreeing to all of the conduct you may get up to on that holiday. So if you knock someone over as you drive down to the beach, I am not a joint tortfeasor. That was not within the scope of what I agreed.
Similarly, if I agree to go on a hunting trip with you, I am not agreeing to the sort of conduct which, if it injures someone, would be tortious. I am not agreeing, for example, that we should fire blind into woodland.
If by contrast I agree with you that we should go into a cellar and search for a gas leak with a lighted match, the conduct of each is attributed to the other, so that if a tort arises both are liable. This is because what has been agreed to amounts to a tort if it results in injury. It doesn't matter whether it was my match or yours.
I'd accept that Brooke v Boole is on the edge, as I can see that it is arguable that on the facts their agreement didn't stretch to cover the tortious conduct. However, for present purposes, that is not the point. The plaintiff doesn't need to show intention to cause harm anymore than you do when there is only one defendant.
Rob
Quoting Jason Neyers:
If two people go hunting together, is A responsible for the tort of B in negligently shooting C? (Is there therefore an easier explanation for Cook v Lewis?) I don't know if it just me but Brooke v Boole seems a little wide/too easy to make out.
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