----- Original Message -----
From: Lionel Smith
Date: Thursday, March 1, 2007 10:57 am
Subject: [RDG] 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 ...
