Laws301 Lecture Notes Part 2 - Tort Law

Economic Torts 4

Introduction 4

Problem question: 4

(a) Policy reasons for or against liability 4

(b) Making arguments based on precedent and policy 5

Inducing breach of contract 7

Lumley v Gye (1853) 118 ER 749 7

OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1 8

Facts 8

Elements of the tort 8

Underlying rationale and principles 11

Application to problem question 11

Causing loss by unlawful means 13

Tarleton v M’Gawley (1794) Peake 270 13

OBG v Allan (HL) 13

Elements of the tort 13

Underlying rationale/principles/policies: 15

Examples 16

Unlawful means vs inducing breach of contract 16

Lord Nicholls on unlawful means (minority) 16

Problem Question 17

Unlawful and lawful means conspiracy 18

Lawful means conspiracy (conspiracy to injure) 18

Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 (HL) 18

Unlawful means conspiracy 19

Revenue and Customs Comrs v Total Network [2008] UKHL 19 19

Land-based Torts 22

Trespass to land 22

Elements of the tort of trespass to land 22

Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 23

Cf trespass in tikanga Maori 23

What constitutes an intrusion upon land? 24

Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 489 24

Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 25

Cf tikanga 26

Defences: express or implied licence 27

Tararo v R [2010] NZSC 157 27

Cf tikanga 28

Civil remedies: injunction or damages (nominal or compensatory) 29

Nuisance 30

What is private nuisance? 30

Context 30

Elements of private nuisance 30

An interference with the right to the use or enjoyment of land 31

Hunter v Canary Wharf Ltd [1997] UKHL 14 31

Problem Question 33

Substantial and unreasonable interference 35

St Helen’s Smelting Co v Tipping (1865) 11 ER 1483 (HL) 35

Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 (HC) at [17] 37

Problem question: 2019 1(a) 39

Defendant’s responsibility for the interference 41

Creating a nuisance 41

Matheson v Northcote College Board of Governors [1975] 2 NZLR 106 41

Continuing a nuisance 42

Sedleigh-Denfield v O’Callaghan [1940] AC 880 (HL) 42

Rylands v Fletcher 44

Non-natural use 44

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 (HL) 45

Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2012] 1 NZLR 120 (HC) 46

Unison Networks Ltd v Nottingham Forest Trustee Ltd [2019] NZHC 2280 47

The meaning of strict liability 48

The escape need not be reasonably foreseeable 48

The type of damage must be reasonably foreseeable 48

Does reasonable foreseeability of the type of damage apply to claims in nuisance? 49

Relationship with nuisance 50

Problem Question template 51

Problem Question 52

ACC 54

The effect of s 317 in relation to torts 54

Statutory bar on proceedings for personal injury 54

Personal injury 54

Bringing proceedings for exemplary damages 55

The philosophy behind s 317 56

The Woodhouse Report 56

The Accident Compensation Scheme as a “Social Contract” 56

McGougan 57

Lecture 21: (12/05/20)

Mila is a hairdresser in Dunedin. Due to the Covid-19-related national lockdown, she has been unable to work for the past few weeks. The Government has now announced that, following a shift to Alert Level 2, hairdressers will be allowed to work again provided they are wearing appropriate PPE (personal protective equipment). Mila had seen this coming and had acted quickly: a few weeks ago already she had placed an order for PPE with Protective Clothing and Equipment Ltd (PCE) via TradeMe. Mila is glad she acted so quickly: the price for PPE has climbed massively since then, and in fact, stocks all over the country appear to be depleted. Unfortunately, her order has not yet been delivered and she is getting increasingly nervous. She contacts PCE, who tells her, with surprising honesty, that they had sold her PPE to Beauty First Ltd, a luxury beauty salon in Queenstown, because they had offered ten times the amount that Mila had paid. PCE said that they had told Beauty First Ltd that their last remaining set of PPE was earmarked to be delivered to a customer in Dunedin but Beauty First had explained to them that they would be stupid not to breach that contract and accept their offer instead. PCE offered to refund Mila’s payment.

Mila is distraught. Without the PPE she will not be able to return to work and will probably go out of business. A friend tells her that she would be able to sue PCE for breach of contract and claim damages for the economic loss she has suffered. But when Mila gets in touch again with PCE nobody answers the phone – the business seems to have disappeared. She is now wondering whether she can have recourse against Beauty First instead.

The partner you work for asks you to write an opinion on whether Beauty First could be held liable (addressed to the partner, not the client). Assume that PCE did, in fact, breach their contract with Mila by failing to deliver the PPE.

Assume that there is no precedent. How would you argue as a matter of first principles that Beauty First Ltd did/did not commit a wrong? In other words, what are the reasons of policy or principle for/against liability?

• Court should develop a new tort holding Beauty First Ltd to account for the loss Mila has suffered as a result of Beauty First’s conduct.

• E.g. climate change tort. Court must look at relevant principles and policy supporting the creation of such a tort.

Privity of contract – Beauty First was not a party to the contract, so it should not be held liable for PCE’s breach.

• A claim for breach of contract against PCE already provides Mila with damages as a remedy.

Sanctity of contract – we should be protecting and upholding contracts. If we create liability on behalf of Beauty First, we are offering double protection of a contract.

• In practice, this is a good idea because the party which actually breached the contract (PCE) might not have any money or may have disappeared.

• This renders Mila’s right...