been a mistake of law.
212
(iii) Liability of a Builder. In Byran the court
extended a house builder’s liability for an economic loss arising from
inadequate footings so that it covered not just the initial purchaser of the
house, but subsequent purchasers as
well.
213
(iv) Criminal Conspiracy. The
common law of criminal conspiracy was developed or derived from statutes
enacted in the thirteenth century.
214
(vi) Adoption of Procedures. This involves
the case where three things occur -
(a) a suit in equity corresponds with an
action at law; (b) there are statutory procedures for the action at law; and (c)
there are no procedures laid down for the equity suit. In these circumstances
the court of equity should adopt the statutory rule as its own rule of
procedure.
215
(vii) Statutes of Limitations. This is arguably a special case of
adoption of procedures. Commonly each jurisdiction will enact statutory
provisions, typically referred to as Statutes of Limitations, which impose time
limits on the bringing of an action. Generally these do not apply to equitable
remedies. However, some courts have adopted these time limits by analogy as
common law rules that apply to equitable remedies.
216
This argument is
strongest when the remedy in equity corresponds to the remedy at law from
whom the limitation period is adopted. (viii) Action for Wrongful Death. Under
English common law, there was no action for wrongful death by relatives of
the deceased.
217
This was the situation in the United States at least in relation
to maritime law because of a case decided in 1886, The Harrisburg.
218
In
Moragne in 1970 the United States Supreme Court was dealing with the
question of an action for wrongful death in maritime law. By this time every
State of the Union had enacted a statute creating an action for wrongful death.
This State legislation did not apply to the case in hand. Nevertheless, in the
light of this legislation being enacted in every state the Supreme Court decided
that the federal common law should adapt by analogy to the position
established in the various States. On this basis the court altered the common
law so that it provided for wrongful death.
219
___________________
212
David Securities v Commonwealth Bank of Australia
(1992) 175 CLR 353. See
McHugh (1999).
213
Byran v Maloney (1995) 182 CLR 609. See McHugh (1999).
214
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
at 513-515, per
McHugh J
215
Knox v Gye
(1872) LR 5 HL 656; Paragon Finance plc v D B Thakerar & Co
[1999] 1 All ER 400, Companhia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR
112; Coulthard v Disco Mix Club Ltd [2000] 1 WLR 707
216
Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 at 100, per Dixon J
217
Baker v Boulton (1808) 1 Camp 493; 170 ER 1033. In England the common law
rule was abolished by the enactment of a statute, the Fatal Accidents Act 1846. This
is commonly called Lord Campbells Act after the promoter of the statute.
218
The Harrisburg
119 US 199; 7 SCt 140; 30 Led (1886). The case decided that
there was no wrongful death as part of maritime law.
219
Moragne v States Marine Lines Inc 398 US 375 (1970)
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