If a doctor tells a prospective patient that he will only treat his or her illness for a payment of $100 in a situation where the doctor is legally required to treat all patients without cost and the patient pays the $100 to secure the procedure, can the patient recover on economic duress grounds?

From what I have read thus far, most rights-based theorists of duress (Bigwood, Stewart) think that there is a claim since the patient's background normative entitlements include treatment, but on your analysis there is none since "threats to withhold beneifts are not threats of harm".

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

Robert Stevens wrote:

Many writers, starting with Birks I think, divided the law of duress into
threats of wrongs and lawful threats, the former (usually) grounding
restitution, the latter (usually) not. This would be, I suppose, loosely
analogous to a claim for loss caused by unlawful threats. Such writers
then have to construct theories as to why the law sometimes says threats
of wrongs are insufficient and why the law also sometimes says that lawful
threats are sufficient. Any analogy with the claim for loss caused by
intimidation will (obviously) not help in this regard.

I think this division is a mistake. It is threats of harm which suffice to
ground restitution, regardless of whether the harm would be lawful if
actually inflicted.


So analogising from the law of intimidation, where what is threatened must
necessarily be wrongful and where that is a sufficient condition of
actionability for loss suffered is, I think, positively misleading. This
seems to me to be an unsurprising conclusion because a claim for
restitution for a gain transferred is not the same sort of claim as a one
for loss suffered. Bicycles and cheese.
best
Rob

  

I'm not sure that analogies between duress and tortious wrongdoing are
completely misplaced.

The tort of intimidation was "invented" by Salmond in 1907. Later
cases on two party and three party intimidation have relied on
Salmond's formulation. Salmond himself relied on Hawkins J's advice in
Allen v Flood, which suggested that such a tort existed by reference
to the criminal law of menaces and the action for duress. Although
Jason was concerned with conspiracy, not intimidation, the latter
shows that the law of torts is not wholly insulated from the action
for restitution arising from duress. It would be surprising if a tort
which was itself recognised by analogy with duress should not pay heed
in its development to the evolution of duress.

Best wishes

James

On 20 April 2010 08:10, Robert Stevens <robert.stevens@ucl.ac.uk> wrote:
    

A gain transferred as a result of threats of harm (even if lawful harm)
is
recoverable. (Threats to withhold beneifts are not threats of harm.)
Loss
which is not wrongfully inflicted is not recoverable, even where
intentionally and pointlessly caused.

I am not sure I understand the question. They are just not the same sort
of claim at all. Duress is nothing to do with wrongdoing. It is a bit
like
asking what explains the difference between bicycles and cheese.
best
Rob


      

Colleagues:

I was wondering if anyone had a view on the following. I am trying to
pinpoint the difference on a conceptual level between competition as
envisaged in a case like Mogul Steamships and extortion/lawful act
duress.  In a case like Mogul the defendant injures someone else
financially in order to bring about a profit for himself and the court
concludes that so long as the defendant's ultimate gain is primary goal
then there is no liability. In an extortion case, the defendant
threatens to injure someone else financially in order to bring about a
profit for himself yet this is always a wrong even if the defendant's
primary goal is his or her gain.  What explains the difference between
the two? Does anyone have any thoughts?

Sincerely,

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


        

--
Robert Stevens
Professor of Commercial Law
University College London