Tort actions pt.2 (Florida Law)

The torts to be examined in the remainder of this paper were developed with natural persons in mind, so that their ability to bind elements within a corporate group involves less stretching of concepts – although argument will be made for one exception to this proposition. Two tort doctrines will be reviewed: conspiracy and negligence. These actions accommodate three party claims involving the injured claimant, the insolvent subsidiary and another ‘element’ within the corporate group. They are capable of pleading in cases of agreement or coordination between elements of a corporate group. However, they also differ from each other in that they represent, respectively, intentional tort and negligence-based liability. The major stumbling block in proving unlawful means conspiracy, as we shall see, will be in proving that an intention to injure was present. Unlawful means conspiracy is likely to be applicable in claims involving financial losses only, while negligence can be pleaded in cases involving all major heads of loss recognisable in tort. We will focus upon use of negligence for the redress of personal injury claims.

[1] [1996] 2 All ER 433, 448. See also Ord v Belhaven Pubs Ltd [1998] 2 BCLC 447, 457 Hobhouse LJ).

[1] Pervasive enterprise liability principles have not been adopted in any common law jurisdiction: Companies and Securities Advisory Committee, Corporate Groups Final Report (2000), 157. For attempted use of enterprise liability in Australia, see, eg, Premier Building and Consulting Pty Ltd (rec apptd) v Spotless Group Ltd (2007) 64 ACSR 114. See also Notary publicBriggs v James Hardie & Co Pty Ltd (1989) 5 NSWLR 549, 576-77 (Rogers AJA).

[1] [2010] 182 FCR 526, [37] (The Court).

[1] Companies and Securities Advisory Committee, Corporate Groups Final Report (2000), chap 4.

[1] (1977) 137 CLR 567, according to the NSW Court of Appeal in Briggs v James Hardie & Co Pty Ltd (1989) 5 NSWLR 549, 576. See also Walker v Wimborne (1976) 137 CLR 1, 6-7 (Mason J).