The oppressor’s wrong, the proud man’s contumely and the eight hundred pound gorilla
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While our safeguards against oppression by governments or corporations are being eroded – responsible government is a thing of the past – the differences in wealth and power are being magnified. Inequality of wealth and income is becoming the issue of our time. The relevant faults in our legal fabric may prove to be harmful. It is probably beyond the power of most courts and the political will of most legislatures to repair this defect in whole. The power that the press have shown over our politicians is both breathtaking and very unsettling. The least that we can do is to abolish those distinctions of category (between tort and contract) and jurisdiction (between common law and equity) that logically disfigure this part of our law on damages, and that therefore reduce the power of the principal armament against overbearing power or wealth. Why should the court be able to make an example of a party for throwing its weight around in a generally wrongful way, but not in a way that is in breach of specific and personal contract or trust with their victim? Are not these latter cases a fortiori? We should not be cowed by legal labels, like ‘fiduciary’, but we should be looking to provide remedies against those who abuse positions of power or trust to hurt people under them. The word ‘fiduciary’ has proved to be a seductively bad umbrella for the various kind of relations of trust or confidence or the various obligations that the law might attach to one side or the other of such relations. Finally, the same word may be in part responsible for people in business being told that the degree of their obligation to be honest – as, for example, in their duty to show good faith or loyalty, or to make disclosure – may fluctuate depending on the nature of the transaction and which side they are on, and not many employees would enjoy being told that while the employment relationship obliges them legally to act in good faith and with loyalty to their contracting partner, the law does not make the same requirement from their employer. The one-way traffic notion may not be well received in the relation of matrimony. These elements of untidiness and uncertainty in our law work against the weak and in favour of the strong. They are blood to a tiger – or a director’s chair for the 800 pound gorilla – and as a result our law does not offer enough comfort against the oppressor’s wrong and the proud man’s contumely. It is one thing to be behind the Edwardians or Victorians – it is another thing to be awash in the wake of the Romans. NOTES
Pollock on damages for insulting behaviour: Pollock, F and Maitland, F W, The History of English Law Before the Time of Edward I, Revised Ed, Cambridge, 1898, Vol I, 53. Bowen on causes of action: Skinner & Co v Shew & Co [1893] 1 Ch 413, 422. Twentieth century action on the case: Beaudesert Shire Council v Smith (1969) 120 CLR 145; Northern Territory v Mengel (1995) 129 ALR 1. Insult or outrage at Roman law: Buckland, W W, and McNair, A D, Roman Law and Common Law, 2nd Ed, C U P, 1952, 378 – 383; Buckland, W W, A Text-Book of Roman Law, 3rd Ed., C U P, 1963, 589-592; Lee, R W, The Elements of Roman Law, 2nd Ed., 1949, 384 – 386. Pollock on exemplary damages: cited in Buckland and McNair, above, 383, note 1. Holmes on malice: Holmes, O W, The Common Law, Boston, 1881, 130, 139-140. Damages for abuse of right: Zweigert and Kotz, Introduction to Comparative Law, 3rd Rev. Ed., Oxford, 2011, 619 – 620; Rene David, English Law and French Law, Stevens & Sons, 1980, 154. Purpose of BGB Section 138: F Wieacker, A History of Private Law in Europe (translated Tony Weir), OUP, 1995, 411. German Code, Art 226: K W Ryan, An Introduction to the Civil Law, Law Book Co, 1962, 129, 130. Restraining employees from setting up in competition: Hivac Ltd v Park Royal Scientific Instruments [1946] 1 Ch 169. Vassal homage a genuine contract: Bloch, M, Feudal Society, Folio, 2012, 543. Carter v Boehm (1766) 3 Burr. 1905, 1909-1910; 97 E R 1162. Duty of disclosure and statute: Insurance Contracts Act 1984, ss. 13 and 21. Distillers Bio-Chemicals v Ajax Insurance (1974) 130 CLR I, 30-31. Mackay v Dick: (1881) 6 App Cases 251, 263, Lord Blackburn. Griffith: Butt v M’Donald (1896) 7 QLJ, 68 – 70-71. Duty to afford benefit: Beerens v Bluescope Distribution [2012] VSCA 209 [54], Nettle, A J. Compare Renard Constructions v Minister for Public Works (1992) 26 NSWLR 234; Esso Australia v Southern Pacific Petroleum [2005] VSCA 228; McMahon v National Foods Milk [209] VSCA 153; Yam Seng v International Trade Corporation [2013] EWHC 111; AND Mid Essex Hospital v Company Group [2013] EWCA Civ 200. Pound: R Pound, Law and Morals, OUP, 1924, 61, n, 25. Breach of implied term a tort: for example, A C Shaw v Washoe County, 105 Nevada 913. Tort liability of insurers: for example, Gruenberg v Aetna Insurance Co (1973) 9 Cal. 3d, 566, 575. Californian courts on employers: Foley v Interactive Data, 47 Cal. 3d, 654; on banks: Prive v Wells Fargo, 213 Cal. App, 3d, 465. No tort liability of employers: Foley v. Interactive Data Corp. (1988) 47 C3d 654, pars 21c, 24. Malik v BCCI [1998] AC 20. CBA v Barker [2013] FCFC 83 Anti-trust laws: Competition and Consumer Act 2010, s 46; Queensland Wire Industries v BHP (1989) 167 CLR 177, 191; Boral Besser Masonry v ACCC (2003) 215 CLR 374. The citations are from the latter case: Gleeson, C J and Callinan, J [87] and [121] and Gaudron, Gummow, and Hayne, JJ [160]. Damages for disappointment or distress: Baltic Shipping Co v Dillon (1993) 176 CLR 344. Damages for libel for being allegedly raped: Yusupov MGM (1934) 50 TLR 81.
Emasculation of libel laws by the press: the sections in the Victorian Defamation Act 2004 are sections 34 to 38. No punitive damages for breach of contract: Gray v Motor Accident Commissioner (1991) 196 CLR 1. Damages for breach of fiduciary duty: Harris v Digital Pulse [2002] NSWSC 33; [2003] NSWCA 10 [353], [477]. Directory: 2014 2014 -> For want of a nail 2014 -> The Global Warming that Wasn’t 2014 -> Assembly, No. 3901 state of new jersey 216th legislature 2014 -> Stop Militarizing Law Enforcement Act of 2014 2014 -> Ihbb asian Championships 2014 middle school bowl Round 4 First Quarter 2014 -> Unit: Automotive and Auto Body 2014 -> Ihbb european Championships 2014 Bowl Round 4 First Quarter 2014 -> International History Bee and Bowl 2013-14 Asian Division Question Set Bowl Round Six 2014 -> United states patent and trademark office 2014 -> Walnut creek, ca branch executive committee meeting minutes Download 113.95 Kb. Share with your friends:
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