Date: Tue, 15 Apr 2008 00:56

From: Neil Foster

Subject: Lumley v Gye and greater damages

Dear Colleagues

At the risk of stating the obvious, it seems to me at least possible to distinguish between liability and quantum of damages. If C sues D for inducing breach of C's contract with X, C may not be able to succeed unless it is shown that there was a contract and that it was breached; but once the wrong is committed then the damage caused to C by the wrong may be greater than the penalty for breach payable by X. Lord Hoffmann in OBG at [32] says that the law treats "contractual rights as a species of property which deserve special protection"; the value of the "property" to C may be more than he can recover from X.

I guess it all depends on what you mean by "secondary". The HL seems to use it in the sense of "dependent for its existence on another legal right". This does not seem to me to imply it will always be valued the same as the other legal right.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 14/04/08 9:45 >>>

It doesn't, which is one of the reasons why I have a gut feeling that the OBG answer is wrong. I think I have come to the conclusion that the liability in Lumley is primary but that the right protected is special in some respects. What I am working on now is what is the best interpretative theory of this primary right, the one offered by Robert Stevens (in Torts & Rights), Kant's explanation or that offered by Benson/Sayre.

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