Date: Fri, 11 May 2007 14:58

From: John Swan

Subject: Good news/bad news

It's not directly relevant to the discussion but I would point out that, if you calculate the size of the cheque that Esso would have had to cut in Esso v. Mardon, it's not at all clear that Lord Denning M.R. did not, in fact, give damages equivalent to those that he would have awarded had he accepted the argument that there was a guarantee of the "throughput". The case just illustrates that, to use Fuller & Perdue terms, there is in cases based on negligent misrepresentation often no difference between reliance damages and expectation damages. See also the Canadian case of V.K. Mason Construction Ltd. v. Bank of Nova Scotia, [1985] 1 S.C.R. 271, 16 D.L.R. (4th) 598.

John

 -----Original Message-----
From: Duncan Sheehan (LAW)
Sent: May 11, 2007 9:40 AM
To: 'Robert Stevens'; 'BEEVER A.D.'
Subject: RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

In which case, and acknowledging that counting cows is, as Steve in his inimitable way points out, somewhat more trivial than whether I'm going to die, the question is still the effect of "I think". It's clearly not a guarantee of accuracy (quite the contrary); we're all agreed on that, I hope. Even in Esso v Marden, there wasn't a guarantee of accuracy, but a guarantee that the estimate was done with reasonable care. To what extent is it then a disclaimer of responsibility if I don't die? We can take an extreme view and say I shouldn't ever rely on a statement of opinion and expect there to be liability for misstatement, or we can take a less extreme view. Even on the basis though that I'm entitled to believe what the consultant tells me, because consultants know about medicine and academic lawyers don't, the fact it counts as a statement of opinion means it might still be an implicit disclaimer of liability, or a statement that you rely on this at your own risk. In which case I guess we're back where we started, talking about the scope of disclaimers, and have in the end disagreed about very little.

The more interesting question as Rob says is this. If the consultant says (charming man) "Duncan, I guarantee 100% that you'll be dead by next week" is he liable? I'm not sure how (like Rob) he can be if he is careful, but somehow I instinctively dislike that conclusion, and I wonder whether anybody else does and has any bright ideas to make him liable.

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