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LAW OF TORTS: Negligence, Liability for Negligent Statements - Coggle…
LAW OF TORTS: Negligence, Liability for Negligent Statements
Overview of Negligent Statements causing Pure Economic Loss
Negligent statements - words given carelessly to cause loss
Advice
Supply of information
Elements of Negligent Misstatement
Does D owe a
duty of care
to P?
Special Relationship
Hedley Byrne v Heller (1964)
Duty of care can exist provided there is a 'special relationship'
Criteria
Person gives info or advice on a serious or business matter
Should realise or realises they are being relied on to five correct advice
and
Reasonable to reply on experts
Not reasonable to rely on disclaimers
If they are being paid, assumes responsibility
Reasonable for person to rely on advice in the circumstances
Shaddock v Parramatta City Council
MLC v Evatt
Third party
Must show it is reasonable to rely and act on advice without seeking further advice or making their own enquiries
Esanda Finance v PMH
If so, has D
breached
that duty of care?
Step 1: Foreseeable risk - s 48(1) Wrongs Act
SAME AS WEEK 8
Step 2: Reasonable person's response - s 48(2) Wrongs Act
How would a reasonable person respond to the risk?
If defendant is professional or has a special skill or training
Standard of care is informed by
peer professional opinion defence
- did they do what other competent professionals in their field would do?
Argo v Al Kammessy
If so, has P suffered
damage
?
SAME AS WEEK 8
But for the wrong advice or information, would the plaintiff not have taken the action that incurred the loss
Wagonmound case
Loss to remote
Are there any
defences
?
WEEK 8
Contributory negligence
Voluntary Assumption of risk
Peer Professional Opinion
complete defence
Defendant is liable unless they have acted in accordance with
peer professional opinion
Wrongs Act ss 59-60
does not incur liability if acting in a manner widely accepted by peer professional opinion
court can over rule if opinion is irrational
Does not need to be unanimous, just widely accepted
Evidence:
Independent expert reports and testimonies
standards of direction from a professional association
common practises or customers in the particular profession or industry