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The problem with the argument that waiver of tort can somehow stand on its own is that such a theory of liability cannot provide a justification why this plaintiff (or this class of plaintiffs) should recover from this defendant. This question is, after all, the only relevant question in an action. The fact that someone does what he, she or it should not have done, does not, by itself, provide a justification of giving one person aggrieved by the wrong, a claim to the gains made by the doing of the wrong. It is the function of the law of tort (particularly the requirement that the plaintiff have suffered a loss); the law of contract (with the existence of an agreement); and the law of restitution (with the requirement for the benefit to the defendant to have come with a corresponding detriment to the plaintiff), to answer the fundamental question which must underlie any claim against anyone.

It seems to me that the requirement that I have described is consistent with all the leading cases, particularly United Australia, and, whether one adopts Birks’ or any other theory of gains-made recovery or restitution, independent of any theory too. A theory which suggests that an underlying or actual tort is unnecessary, cannot provide the justification needed to support a judgment for a particular plaintiff against a particular defendant.

John Swan

-----Original Message-----
From: Charles Mitchell
Sent: May 8, 2006 4:58 AM
Subject: [RDG] Fwd: [RDG] Waiver of Tort

Danny Friedmann and John McCamus must speak for themselves, of course, but I had understood the basic Friedmann argument to be that the law does/should protect some types of interest directly (rather than 'parasitically') by making restitutionary awards against defendants who infringe those interests, not by allowing a claim in UE, and not by spring-boarding off proof of a wrong sounding in compensatory damages either. Instead, the argument goes that the law should/does protect some interests by allowing some wrong-based restitutionary claims, without putting the claimant to proof of the fact that he could have sued for compensation instead if the wrong in question had caused him a loss. I hope Danny will forgive me for misrepresenting him if I don't have this right. If I do, then I would only comment that the argument presupposes that proof of loss is not a necessary part of our idea of 'wrong'.