Date: Thu, 15 Feb 2007 09:30:43 +1300

From: Geoff McLay

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7

Dear All

I have woken up to find all of these emails about this case. My thought this morning, builds on my experience of having taught (or tried to teach) product liability in the United States last semester.

Much of the discussion that has proceeded below has made general use of traditional tort and contract cases from across the various areas of negligence. I am wondering if that is useful. I am not sure ( and the Americans who read this list can correct me) that product liability law has very much to do at all with traditional tort law in general, and that traditional tort law has very little to say about how to solve the problems of liability for failing to prevent others from using products stupidly (at least as seen in hindsight). Good product design necessarily involves preventing ordinary people making silly mistakes, and it seems to me that good product liability law recognises that. But the question really it seems to me is whether tort law can actually get there if we treat product liability as just another part of tort law, just as it seems to me that the medical cases raise very different concerns that general contract law loss of a chance issues (misdiagnosing cancer is just not the same as failing to run a promised beauty pageant). When we were doing our smoking case here last (NZ) summer, we had real problems conceptualising the relationship between acceptance of risk, contributory negligence and product liability , and I am not sure that we came to any answers ...

Geoff

-----Original Message-----
From: Robert Stevens
Sent: Thursday, 15 February 2007 7:44 a.m.
To: Jones, Michael
Subject: RE: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7

One point - Chaplin v Hicks does not help. If it were the answer, then loss of chance claims would be routine in the medical negligence context where the patient had a contractual claim.

Maybe so, although doctrinally I cannot see how, if the claim is framed as for loss suffered as a breach of contract, what the answer to it is. I suspect it has just not been tried because the law has not been understood. For myself, I'd be hard pressed to explain why I can (uncontroversially) claim for the lost chance of winning a beauty contest which I have suffered as a result of the defendant's breach of contract, but not for the lost chance of not being paralysed from the neck down suffered as a result of another breach. Now, it might be said that the former is for economic loss whilst the latter is not, but why treat the latter less seriously as a result? Indeed, it would be perfectly possible to frame the latter in terms of consequential economic loss if it was thought helpful.

They aren't, and no-one suggested that the contract/tort distinction provides the explanation for this in Gregg v Scott (and though Hale was hard put to explain why she could claim against her solicitor for loss of chance but not against her doctor, she did not suggest that it was because the claim against the solicitor was in contract).

Gregg v Scott was not a lost chance case. The claimant in Gregg was alive and well, and still is I hope. What he suffered was the diminished chance of avoiding a harm (death) which has not yet occurred, as opposed to the lost chance of avoiding a harm which has actually been suffered. I know of no case, contractual or tortious, where a claim to this sort of loss has succeeded.

Now you may say that Gregg v Scott should be revisited following Barker

No, Gregg is clearly correct.

it does not depend on the contract-tort distinction.

I wasn't suggesting that it did. What I was suggesting was that it turned upon the right/no right distinction. If I suffer facial injuries because of your negligence, so that I can no longer appear in a beauty contest which I have a chance of winning (far-fetched I know) I should have a claim for this loss if it is not too remote. My right to bodily safety has been violated by you: all consequential loss which is not too remote should be recoverable. Similarly, if you defame me so that I lose the chance of getting a really lucrative job, that loss should be recoverable if not too remote (cf Spring v Guardian Assurance). My loss is consequential upon the violation of my right to my reputation.

However 'pure' lost chances, ie chances I lose where I cannot show that a right of mine has been violated, should not be actionable: see the chemical factory example.

It is the same pattern as is found in relation to economic loss. Loss consequential upon the violation of a right is actionable, 'pure' loss is not.

Incidentally, I presume that you would move all the employers' liability cases into the contract textbooks (we could even move the occupiers' liability cases on the basis that they are "equivalent to contract"). There is much to be said for this - it would certainly cut down my work when I have to produce a new edition of Textbook on Torts.

Not necessarily. If my employer runs over my foot in his car, his status as employer with regard to me is neither here nor there. Where, however, the primary right I am saying has been infringed is born of the contract, it is a claim for breach of contract (or breach of statutory duty if the duty is imposed by the legislature and is not implied as a matter of fact into my contract). My employer is under positive duties to take steps to protect me from harm which you, and other third parties, are not under. My rights against my employer are observably different from, with a different source, my rights as against the rest of the world.

The reason we put claims against employers into torts books is, I suspect, because it is thought (wrongly) that because the claim is dependent upon fault it must be based upon a tort. That just does not follow. It is also part of the unhelpful lumping together of all claims where negligence must be shown into a general 'tort' of negligence.

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