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Misstatements 代寫causing Pure Economic Loss

?Negligent Misstatements causing Pure Economic Loss
?(THE DUTY OF CARE)
?Note:
?
?Tomorrow in the lecture (28th of March) we will go through another statutory interpretation question
?
?The question will be posted on LMS by 5pm today.
?To establish liability in negligence, the plaintiff must show:
?1. a duty of care owed to the plaintiff by the defendant and
?
?2. a breach of that duty and
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?3. that the defendant caused the plaintiff's damage (this includes consideration of whether the damage in question is too remote from the breach)
?
?
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?A cause of action for negligent misstatement or negligent advice relates to situations where the plaintiff acts to his or her financial detriment in reliance upon a statement or advice proffered by the defendant.
?
?There has been an historical reluctance on the part of the courts to allow recovery for negligent misstatement.
?
•Interference with commercial expectations
?Brennan J in Bryan v Maloney (1995) 182 CLR 609 (dissenting):
?
?“If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition…sterilise many contracts…”
?
?
The Origins of Liability
?
?*Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465 (HL)
?
?
?HB sought a credit report from a potential client’s bank. Bank provided report but with a disclaimer. HB lost money as a result of relying on bank’s statement.
?HL said a duty of care could exist but no liability here because of disclaimer.
?TORT OF NEGLIGENCE
¢General approach to negligent misstatement to third parties (Tepko Pty Ltd v Water Board (2001) 206 CLR 1 – endorsing Barwick CJ in Evatt)
oAssumption of responsibility
oReasonable reliance
oNo disclaimer
¢
¢Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556
¢
¢Intended use and known recipient: Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225
?
?
Barwick CJ in Mutual Life & Citizens’ Assurance Co v Evatt (1968)

?Whenever:
?A person gives information or advice to another, whether actively sought or merely accepted on serious matter, particularly in a matter of business, and
?the relationship of parties is such that the speaker realises or ought to realise that is being trusted, particularly if they are thought to have access to information or capacity to exercise judgment, and
?it is reasonable in the circumstances for other the party to seek or accept and act upon information and advice,
?the speaker comes under duty to act with reasonable care.
?
?TORT OF NEGLIGENCE
¢
¢Unintended use and unkown recipient: Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241
¢
¢Tepko Pty Ltd v Water Board (2001) 206 CLR 1
?
?Limits to liability for negligent misstatement:
•Leda Pty Ltd v Weerden [2007] NSWCA 174
?Section 18 Competition and Consumer Act 2010
?
?Misleading or deceptive conduct             
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?(1)  A shall not, in , engage in conduct that is misleading or deceptive or is to mislead or deceive.

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