I agree, save that

1. The standard of the duty is not the same. In assumed duty cases it is usually a duty that care will be taken, not a duty to personally take care. See bailment for an obvious example. ie the duty is "non-delegable"
2. The remoteness rules are not the same. See SAAMCo.

But, other than that, "the tort of negligence" is a great idea.

---

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 18 June 2021 12:25
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Robert Stevens <robert.stevens@law.ox.ac.uk>; William Swadling <william.swadling@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: SAAMCo safe

 

But it seems to me there is just too much confusion of concepts on the ‘damage’ question for it to be properly analysed. Despite it being the first question, it is clear from Khan at [31]-[32] that the court (seemingly forgetting Lord Sumption’s insightful analysis in Brownlie), is still not appreciating the difference between ‘loss’ and ‘damage’ (or ‘injury’). This then leads into massive confusion in Spartan Steel cases trying to explain why property damage and consequent loss can be recovered but loss not consequent on damage cannot. Hopefully one day Donal’s excellent piece on the matter will also be put before the court!

 

To follow on from Bill, it also confuses me that after Michael, Robinson, NRAM and Playboy, the court is still seeing assumed duties as simply a species of the duty in Donoghue (at [33]). How can that possibly be? The only thing that really unifies these two actions is the standard of duty and remoteness, which are generic to any cause of action which depends on negligence. As Rob says, to see these as a unified “tort of negligence” (sic) which one can reason across from just doesn’t make any sense.

 

Matthew Hoyle

Barrister

One Essex Court

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender.

 

From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: 18 June 2021 11:53
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; William Swadling <william.swadling@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca
Subject: RE: SAAMCo safe

 

I would say that Gorris v Scott was remoteness…

 

’Scope of duty’ is relatively harmless if used as a synonym for ‘scope of risk/remoteness’ though ultimately even then it confuses, as Lord Hoffmann himself accepted in the end. Otherwise it’s just a question of framing the duty of care question appropriately (eg, did the D owe a duty of care to the C in respect of pure economic loss, acts of third parties etc), and the last thing you need is a separate concept to complicate the duty issue any further (though Bill may well be right that we need to think more carefully about how this works in assumed obligation cases).

 

I was really surprised that Khan v Meadows made it to the UKSC at all, as it was such a straightforward case. Forlornly, I had hoped that maybe Chester v Afshar was in their sights, and not SAAMCO (which is just the good old risk principle in action). I think it could have been dealt with quite briefly and without much fuss as Lords Burrows and Leggatt say. I reserve my judgment on the majority’s broader claims until I’ve digested them probably but at least they put the damage question damage front and centre, which is about time.

 

All best

 

Donal

 

 

 

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 18 June 2021 11:35
To: William Swadling <william.swadling@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca
Subject: Re: SAAMCo safe

 

It also makes sense in statutory duty cases (as in the wonderful Gorris v Scott).

 

The majority are hamstrung by their attempt to create a template for the entire "tort of negligence" (sic). This purposive approach to construction of the duty doesn't really work in vanilla Donoghue v Stevenson cases (as AT's point about how what they said about Spartan Steel makes no sense).

 

But, they get it right for the right reasons. The rest is noise.

 

R

---

From: William Swadling <william.swadling@law.ox.ac.uk>
Sent: 18 June 2021 11:31
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: SAAMCo safe

 

I’m no contract/tort lawyer, but would I be right in thinking that talk of the scope of duty only makes sense in the context of assumed obligations, which Spartan Steel certainly was not?

Bill

 

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.

---

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

--
br>

--

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

______________________________________________________________________
This email has been scanned by the Symantec Email Security.cloud service.
For more information please visit http://www.symanteccloud.com
______________________________________________________________________

______________________________________________________________________
This email has been scanned by the Symantec Email Security.cloud service.
For more information please visit http://www.symanteccloud.com
______________________________________________________________________