"Collateral Damage"

Sun Jan 20 22:56:01 UTC 2002

        I believe that Fred is right in supposing that  "collateral damage"
comes from or is at least influenced by the older legal usage.

        >>The judge rightly excluded evidence of the four matters of damage
which the plaintiff offered to prove. Without inquiring whether they would,
under any form of declaration, have been legal grounds of damage, it is
sufficient for the decision of this case, that they were not the necessary
consequences of the defendant's breach of agreement, which are implied by
law; and were not alleged in the declaration. Nor were they consequences
which (in the language sometimes used by judges) "in all probability" might
follow, or would be "very likely to follow," from that breach. [Citations
omitted.] "Mere collateral damage," says Holroyd, J., "must be stated in the
declaration, in order to entitle the plaintiff to give it in evidence, lest
otherwise the defendant might be taken by surprise." Battley v. Faulkner, 3
B. & Ald. 294.<<

Warner v. Bacon, 8 Gray 397, 74 Mass. 397, 69 Am.Dec. 253 (1857).  The
Battley v. Faulkner case quoted in this passage appears to be an English
case that is older than the 1839 case Fred found, although I have not been
able to find its text or determine its exact date (sometime between 1810 and

John Baker

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