Torts in Commercial Law: A Conference Not To Miss

From the introduction to the conference by the Chief Justice of Australia until the concluding paper by Lord Hoffmann, for two days, the world’s leading academics, practitioners and judges in the field of torts will attempt to solve, and to explain, some of the greatest puzzles presented by the law of torts, particularly for commercial law. Examples of several major puzzles can be given:

(1) As the B.P. oil slick moves across the Gulf of Mexico, class actions are being prepared in the United States by fishermen who will sue for the economic losses flowing from the loss of their livelihoods. Will they succeed? United States caselaw is unclear.  

The same issue is pending in England. A case pending before the Supreme Court of the United Kingdom, is Colour Quest Ltd v Total Downstream Plc [2010] EWCA Civ 180. There, five oil companies suffered huge economic losses after an enormous explosion caused by the negligence of an operator of the Buncefield oil terminal. English law does not permit more than four names on the title deed so the five oil companies placed the title to the terminal and pipelines into a transparent trust which they wholly controlled. If four companies had been listed on the title deeds then those four companies could have recovered for their economic losses. But, since the five companies were only beneficiaries under a trust, the trial judge considered that the tort of negligence should be constrained. The Court of Appeal overturned this finding, focusing on the rights of the oil companies as beneficiaries under a trust. The Supreme Court has yet to decide.

A recent Australian decision also raised the same concern. In Fortuna Seafoods Pty Ltd v The Ship “The Eternal Wind” [2005] QCA 405, the Queensland Court of Appeal imposed liability upon a negligent defendant who carelessly caused damage to a ship which created pure economic loss for a related corporation. The corporation recovered its losses from the defendant because the defendant had “the means of knowledge that [the plaintiff] was a member of a determinate ascertainable class of persons or entities who were at risk of foreseeable economic harm if [the defendant] acted negligently.” (at [15]).

Speaking on this topic will be leading experts from the United States, England and Australia (including Professor Mark Gergen who was a reporter for the Restatement Third, Economic Torts and Related Wrongs from 2005 to 2007, Professor Stevens of University College London and Associate Professor Barker from the University of Queensland).

(2) The last decade has seen a spate of cases in the highest courts of Australia, Canada and England concerning the liability of local authorities. The unique feature of many of these cases is that they concern omissions by local authorities rather than positive acts. Traditionally, “the common law has neither recognized fault in the conduct of the feasting Dives nor embraced the embarrassing moral perception that he who has failed to feed the man dying from hunger has truly killed him”: Jaensch v Coffey [1984] HCA 52; (1984) 58 ALJR 426 at 439. But liability is sometimes imposed. The question of where to draw the line is hotly debated. The effect of liability on the finances of local authorities can be catastrophic. In England, the majority (or unanimous) decision in almost every major case on liability of local authorities in the last decade has been authored by Lord Hoffmann, who will speak at the conference. He will be joined by Canada’s foremost torts scholar, Professor Klar QC and related issues will be considered by Professor McInnes of the University of Alberta and Professor Vines of the University of NSW.  

(3) Third, fourth and fifth, sixth example of puzzles for the law of torts in commercial law is the operation of principles of causation, the economic torts, insurance, and remedies. A dazzling array of speakers will tackle these issues including Justice Allsop (President of the New South Wales Court of Appeal), Professor Andrew Burrows QC, Justice Hammond, Professor Harold Luntz, Professor Jason Neyers, Professor Jane Stapleton, Professor Jenny Steele, Professor Robert Stevens, and Mr William Swadling.

(4) More generally, areas of torts which are little understood include proprietary torts, intentional torts, developing torts (such as privacy) and defences. These issues will be considered by Dr Simon Douglas, Mr James Goudkamp, Professor Barbara McDonald and Professor Steven Todd.

The programme for the two days of the conference is action packed. It will involve substantial debate and discussion and audience questions for these world experts. It is an event not to be missed and is suitable for compliance with your CLE/CPD obligations. For more details: www.torts.unsw.edu.au  or email torts@unsw.edu.au.

James Edelman* and Simone Degeling**

*Professor of the Law of Obligations, University of Oxford and Conjoint Professor University of NSW. Barrister, One Essex Court.

**Associate Professor, University of NSW.