Yes, but ... I think you can turn the digger driver on her head (so to speak). She looks and sees a cable, and thinks: This belongs to someone, call them X Ltd. It then becomes odd that the scope of her duty to X varies drastically according to whether X also owes the factory across the road. -Andrew

The problem, it seems to me, is that 'scope of the duty' is playing two roles here. If we are applying it to Spartan Steel, we are talking about the people to whom the duty is owed. The digger driver has a duty to at least one person not to (negligently) break the cable. Is that duty owed only to the person in whom title to the cable is vested, or is it owed also to further individuals? In this loose sense, we might say that the duty's 'scope' does not extend to those further people (although all we are really saying here is that is a duty owed to the title-holder, and there is not a duty owed to other people). But in the SAAMCO cases, there is only ever one person at issue: the person e.g. to whom the advice is given. 

Yours,

Alex

On Fri, 18 Jun 2021 at 11:54, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:

I hear what your Lordship says. But put yourself in the position of the digger driver who, as a reasonable woman, contemplates that she might break a cable leading to a factory if she doesn't look carefully. It seems a bit odd that we say the scope of her duty to pay for profit losses should depend on the arbitrary question, whose answer she neither knows nor cares about, of who happens to own that stretch of cable. Possible, I grant: but curious. -Andrew

On 18/06/2021 11:49, Roderick Bagshaw wrote:

Spartan Steel. It may be that I am “best ignored …”, but I can’t see any conceptual objection to explaining Spartan Steel in terms of the “scope of the duty” imposed on the defendants – it was a duty to avoid causing physical damage to property (and NOT a duty to look after the purely economic interests of those who (foreseeably) depended on the electricity supply). I can’t see any contradiction between saying that the scope of the defendants’ duty was to avoid causing physical damage and an award of damages that included profits that could have been made through selling the property (if it hadn’t been damaged). (Similarly, where the scope of a duty only extends to protecting a person’s body an award of damages can include loss of earnings as a result of a physical injury … )

 

Roderick

 

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 18 June 2021 11:28
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca
Subject: Re: SAAMCo safe

 

Some of the looser things they say about issues that are not before them are probably best ignored.

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From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: 18 June 2021 11:26
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: SAAMCo safe

 

Not so sure if the majority in the MBS case at [8] are right to suggest that Spartan Steel is a scope of duty case. If loss of profits is outside the scope of the duty to take care not to damage my property, how come I can claim it if I suffer it as well as, and in consequence of, physical damage? Or am I being simply dense? -Andrew

On 18/06/2021 11:17, Robert Stevens wrote:

A couple of cases heard together on the SAAMCo principle. Both right I think, with strong majority judgments by Hodge and Sales, with Reed, Black and Kitchin signing up. Leggatt and Burrows give separate concurring judgments with different reasoning. 

 

The cases were pretty straightforward, IMO, if you'd just read Hoffmann.

 

Manchester BS v Meadows. 

 

Building Society seeks accounting advice from an accountant, who tell them that the wheeze of "hedging accounting" is the way to go. As a result of the advice the Society engages in some gambling on interest rate movements via swaps contracts. The exciting accounting procedure hid how badly losing the swaps were. The regulator informs the BS that it can't use this exciting new accounting method to avoid regulatory capital requirements. To extricate itself from its arrangements, the BS ends up closing out the swaps for £32m.

The easier one is Khan v Meadows.

 

Woman seeks advice on whether she carries the haemophilia gene. Doctor negligently advises that she does not. Child is born who, if the advice had not been given, would not have been, who has both haemophilia and autism. Is the doctor liable for the costs of the autism (it is accepted that they're liable for the costs of haemophilia)?

 

The majority ask: what is the purpose of the duty?

 

In Manchester BS [34] the purpose of the advice was to enable the Building Society to adopt its exciting new business model. The BS failed to understand that they couldn't adopt this because of the auditor's advice. So, when the regulators told them to draw their necks in, the loss was within the purpose of the duty.

 

Khan is really straightforward. Was the purpose of the duty assumed by the doctor (to advise about the haemophilia gene) there to protect against the costs of autism? No [68]

 

Lord Burrows (who cites many academics on this list) would have placed more emphasis on policy matters. Lord Leggatt would have placed more emphasis on the language of  causation. The majority don't agree with them.

 

The majority's approach seems to me to be clearly correct, but they add in an unfortunate six stage "test" for liability in negligence. You'd have thought they'd have learned their lesson with so many previous "tests" having gone down in flames after launch, but apparently not.

 

The reason there was a seven member panel was because it had been originally thought that SAAMCo was going to be challenged (one of the panel writes a textbook very critical of the rule introduced by Lord Hoffmann). This didn't happen, probably because the prospects for it being overturned at this point is zero. Good.

 

As a stylistic matter, I think it would be better if judges returned to just answering the question the facts before them pose. We have now had many cases and judgments attempting to give the "definitive" formulation of the SAAMCo principle (which is in fact relatively straightforward, as the majority make clear).

 

A welcome break from the grind of marking. (And the horror of being chair of examiners. Never see how the sausages are made).

 

Rob

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Andrew Tettenborn Professor of Commercial Law, Swansea University Institute for International Shipping and Trade Law School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Cellphone 07472-708527 / (int) +44-7472-708527 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

See us on Twitter: @swansea_dst
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My publications can be found here and here and here
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Andrew Tettenborn Professor of Commercial Law, Swansea University Institute for International Shipping and Trade Law School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Cellphone 07472-708527 / (int) +44-7472-708527 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

See us on Twitter: @swansea_dst
Read the IISTL Blog: iistl.wordpress.com
My publications can be found here and here and here
Member of the Heterodox Academy and member and adviser of the Free Speech Union

Disclaimer: This email (including any attachments) is for the use of the intended recipient only and may contain confidential information and/or copyright material. If you are not the intended recipient, please notify the sender immediately and delete this email and all copies from your system. Any unauthorized use, disclosure, reproduction, copying, distribution, or other form of unauthorized dissemination of the contents is expressly prohibited.