Date: Thu, 10 May 2007 15:17

From: Jason Neyers

Subject: OBG again

Let me re-phrase the question what (theory) both justifies the exceptional situation whereby a third party is allowed to piggy back on another's rights in a case like OBG (the unlawful interference tort) and does not simultaneously create a generalized exception?

Perhaps unrelatedly, if I deliberately inflict physical discomfort or emotional distress on you why are unlawful means necessary? Isn't my right to personal integrity up to the task by itself?

I know that Rob views the economic torts as an exception to the privity doctrine

Sorry to have another bite, but I don't think this. I think causing loss by unlawful means is an exceptional situation where a third party is allowed to piggy back on another's rights (see also Lord Hoffmann at [60]) but I don't think that that provides a general explanation of the so called 'economic torts'.

Lord Wedderburn famously said that the 'economic torts still await their Atkin' (see also Lord Hoffmann (at [31]). We'll be waiting forever. The reason is that these torts don't really have much in common with one another, indeed that is one of the lessons to take from all of the speeches in OBG that there is no overarching genus principle. There are several different torts with different rationales.

I even doubt whether there is anything specifically 'economic' about them. If I deliberately inflict physical discomfort or emotional distress upon you using unlawful means, should that be actionable or not?

I think it should be.   

--
Jason Neyers
January Term Director
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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