Dear Colleagues:

 

I post on behalf of Harold Luntz:

 

Dear Colleagues,

The lively parallel discussions on Rankin’s Garage and MWB v Rock Advertising on the ODG, on the eve of the return of the Obligations Conference to its original home at the University of Melbourne, provoke some thoughts as to whether the modern generation of tort scholars have a different approach to the law of obligations from that of their contract colleagues. While both sets are deeply divided between those who think the decision was right and those who think it was wrong, the contract lawyers are at least asking what actually happens in practice and why parties insert no oral variation clauses in contracts. They are recognising the reality that while the law of contract may be leaving it to the parties to allocate a foreseen risk, in practice one powerful party may be exploiting another in a contract in which the exploited party has no real input. Some are willing to recognise that in these days, especially of take it or leave it contracts on the Internet, no one really reads the fine print, because even if they do they have no choice in the matter.

On the other hand, none of the discussion of the torts case so far as I have seen has asked, was this a claim by JJ himself, having been denied recovery – or full recovery – by the law of compulsory third party insurance of the province, or was it a claim by an insurer seeking to shift some of the burden to a peripheral party? If it was the former, why was the compulsory third party insurance so structured? After all, in other jurisdictions compulsory third party insurance protects victims even in cases where vehicles are driven by thieves. Such insurance often gives complete cover without an upper limit. Are these not the sort of questions academic scholars should be asking themselves, rather than asking whether the majority was right in denying that the damage was reasonably foreseeable, while the minority simply disagreed on what was a factual question? One erected by courts to hide real policy decisions.

Hoping to meet some of you again next month,

Harold.

Harold Luntz

Professor Emeritus
Law School
The University of Melbourne

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)