In response to Richard (edited I hope not unfairly)

> Consider breach of contract. If I have contract to do X, and I don't do X

> the civil wrong is thereby constituted. The breach of the duty, without

> more, is the wrong.

>

> RWW:  I should defer to a contracts scholar (which I am not), but I have

> assumed that the failure to perform as promised is treated as a dignitary

> wrong to the plaintiff, much like the dignitary wrong of invasion of

> personal bodily dignity by unconsented to contact with one's person that

> constitutes the required legal injury that must be caused by one's

> intentional conduct for a battery to exist in tort law.

In no account I have ever read has anyone ever suggested that in order for

a breach of contract to be wrongful that there are requirements of "actual

causation and attributable responsibility" to be fulfilled. The breach of

the duty is the wrong. Nobody has ever suggested, for example, that

trying, and failing, to breach a contract is the breach of a duty owed to

anyone.

> RWW: Precisely so.  Acting with the (tortious) intent to enter the

> property (which I have a duty not to do without consent or other

> justification) is not enough; one's intentional conduct must also cause

> the required legal injury:  a physical entry (or remaining) without

> consent.  These are quite different things.

They are different things but acting with the tortious intent is not a

breach of any duty owed to anyone. If I break into my own home thinking it

is yours I breach no duty owed to you (ie there is no civil wrong). Again,

in no account of trespass to land that I have ever read has it ever been

suggested that "actual causation and attributable responsibility" are

independent requirements of there being a civil wrong. The civil wrong is

constituted by there being a breach of a duty owed to someone else,

without more.

> Consider libel. If I call you an axe murderer in print, I breach my duty

> not to do so and commit libel. There is no further requirement.

>

> RWW: Again, the publication of the defamatory statement constitutes the

> required legal injury, here an injury to reputation, dignity, whatever,

> that is distinct from the conduct that caused that injury, which I have a

> duty not engage in.

The duty is one not to publish any defamatory statement. Again, if I

tried, and failed, to publish a letter calling you an axe murderer, say it

was lost in the post, I breach no duty with respect to you. Again, I know

of no account of defamation suggesting that "actual causation and

attributable responsibility" are independent requirements of the tort

(although, as with breach of contract and trespass to land, they are

relevant to determining whether loss is suffered as a result of the

wrong.)

> RWW:  Agreed, the conduct is not the wrong in itself.  In the usual view,

> the tortious conduct is the negligent conduct, the 'wrongful' (in a loose

> sense) conduct, the conduct that will subject you to liability if it

> actually and attributably results in the required legal injury for the

> particular tort.

>

I don't accept that this is the 'usual view', at least where I live. The

phrase 'negligence in the air is not enough' comes, I think, from Pollock.

That the duty to take care is relational (ie owed to other people) is, I

think, orthodoxy in the Commonwealth. So when I am driving my car in

Oxford I don't owe you a duty to take care not to injure you sat in

Chicago. Cardozo CJ's view in Palsgraf was adopted 5-0 by the House of

Lords in Bourhill v Young [1942] AC 92, HL, 98 per Lord Thankerton; 102

per Lord Russell of Killowen; 108 per Lord Wright; 116 per Lord Porter. In

the Commonwealth it is the law.

I am not sure what the explanation for American exceptionalism is,

although the persistence of jury trials and the (erroneous) view that

matters of duty are for the judge and breach for the jury is one possible

explanation. Stephen Perry has an excellent piece in the book on the Goals

of Private Law on this topic.

> You need injury (ie a right violation).

>

> RWW:  Agreed, entirely.

I think that if you concede that you concede everything. My right that you

do not do X correlates with your duty not to do X. So the infringement of

my right is also a breach of the duty by you. So once you have said, as

you do, that without some injury to me there is no rights violation, there

is no escaping from the conclusion that there is no breach of a duty owed

to me either. (Unless you want to go down G&Z's route of saying there are

really two duties: although only one of them has any legal significance).

> RWW: You should not throw such a flame at me, Rob! :>)  As you know, it

> opens up an entirely different debate.  Of course I believe, as I think

> any rational person must, that X can and does cause Y even where Y would

> have happened regardless of X.  It is the old two fires, each

> independently sufficient, scenario, where they combine to burn down a

> house (each is a 'duplicative' cause), or the shot which immediately kills

> a person bound to die due to having drunk a slow-acting but fatal poison

> for which there is no antidote (shot is a preemptive cause, poison is a

> preempted, noncausal condition).  To hold otherwise is to believe in

> mysteriously uncaused events.

Sorry for flaming, but I don't think it is an entirely different issue.

If there are two fires each of which is independently sufficient to burn

down a house, it simply does not follow as a matter of logic that the fact

that it is impossible to say, with regard to either fire individually that

but for its existence the house would not have burnt down that this leads

to a mysteriously uncaused event. The logically correct answer is to say

that the two fires caused the house to burn down, but neither alone: see J

L Mackie, The Cement of the Universe: A Study of Causation (1974), 47.

As to the law of torts, setting fire to someone's house is wrongful (as

opposed to trying and failing). It doesn't stop being wrongful because

someone else does so at the same time. So is poisoning someone, regardless

of what the consequences of so doing are.

The difficulties your view gives rise to might be illustrated by this case:

A car mechanic carelessly fails to repair a driver’s brakes. The driver

collides with the claimant after carelessly failing to apply the brakes.

Had the driver applied the brakes and had the mechanic properly repaired

them, the accident would not have happened.

Now in your view, both the mechanic and the driver have breached their

duty to person injured. It is then in my view very difficult (although I

know attempts have been made) to explain why they should not both be

liable, just as each person who has set fire to the house is liable. On my

view the event which would have made the mechanic's conduct tortious with

respect to the plaintiff, the failure of the brakes, never eventuated. He

is not therefore a wongdoer, unlike someone who sets fire to someone

else's house.

Rob

--

Robert Stevens

Professor of Commercial Law

University College London