Date: Thu, 22 Jun 2006 10:13:03 +1000

From: Neil Foster

Subject: Economic Loss in the House of Lords

Dear Colleagues;

I think I might like to say more about the substantive issues in Commissioners v Barclays later, but for the moment I was struck by Lord Hoffmann's comment at para [39]:

The question of whether the order can have generated a duty of care is comparable with the question of whether a statutory duty can generate a common law duty of care. The answer is that it cannot: see Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. The statute either creates a statutory duty or it does not. (That is not to say, as I have already mentioned, that conduct undertaken pursuant to a statutory duty cannot generate a duty of care in the same way as the same conduct undertaken voluntarily.) But you cannot derive a common law duty of care directly from a statutory duty.

This it seems is precisely the point Lewis Klar was making in his paper at the conference about the tendency of Canadian courts to try to erect common law duties of care from statutory obligations. I happen to think as I said that the SCC was wrong to remove the civil action for breach of statutory duty from the common law of Canada, but once you have done so you shouldn't pretend you can base the duty of care in the law of negligence simply on statute. ( I don't see Lord Hoffmann's final sentence here as denying the existence of the BSD action in the UK- I read it as a reference to the law of negligence.)

{BTW is there a recent House of Lords decision on negligence where Jane Stapleton isn't cited?}

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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