|
Date:
Thu, 17 Nov 2005 16:23:40
From:
Robert Stevens
Subject:
High Court of Australia on causation and policy issues
Without
checking the trial judge's finding of fact I don't know the answer
to Professor Wright's question. We are told that if accurate reports
had been given the Fund would have 'required either bank guarantees
or substantial increases of capital as a condition of permitting
continued participation in the Fund.'
If
either bank guarantees or increased capital would have been provided,
then I can see how we can say that the loss would not have been
suffered, but the HC of A only say that this would have been required,
not that it would have been forthcoming.
We
don't know, I suspect it was never found, whether she would have
just acted in precisely the same illegal manner if she had had her
licence revoked earlier.
RS
"Wright,
Richard" writes:
Not having read any of the opinions, I nevertheless wonder about
the correct result having been reached. I of course agree with separating
the issue of factual causation from the issue of scope of liability,
and also for limitations on the scope of liability based on hopefully
elaborated principle rather than unlimited and undefined policy
-- positions I have argued and elaborated repeatedly since 1985.
I also agree that further illegal operation after revocation of
the license was not highly unforeseeable (as should be required
for a superseding cause) but indeed foreseeable. But I wonder about
liability for the illegal operations after the license was revoked.
If Tambree had provided accurate reports initially the
license would have been revoked earlier and presumably Ms Fry would
have continued to operate illegally (as she later did) until the
government discovered that she was still operating and physically
locked her business premises. Tambree would have had no
liability for the customers' losses during the period of illegal
operation. Should it be different when the period of illegal operation
(as well as the period of legal operation for which liability is
clear) was simply postponed by Tambree's inaccurate report?
Should Tambree only be liable for the losses due to the
delay in terminating the license?
<<<<
Previous Message ~ Index ~ Next
Message >>>>>
| 