'A Rights-Based Approach to the Recovery of Economic Loss in Negligence'

Abstract

The following two claims are widely accepted: first, the ordinary principles of the law of negligence imply recovery for economic loss limited only by foreseeability and, second, such recovery is unacceptable. Hence, the task of legal scholarship has been to discover appropriate policy justifications for restricting the ordinary principles of the law. This, perhaps, has been the most pressing problem facing analysis of the law of negligence in recent times. This article accepts the second claim but rejects the first. That is, it argues that recovery for many kinds of economic loss is inconsistent with the ordinary principles of the law of negligence. This has been obscured, because it has largely been forgotten that the law of negligence is not an area of the law sui generis. Negligence is part of tort which is in turn part of the private law. The principles of negligence, then, are meant to operate in conjunction with principles from other areas of law. When the place of tort law within the private law as a whole is remembered, the problem of economic loss evaporates.