Pure economic loss Flashcards
Negligence operates as a means to compensate a C for foreseeable losses caused by a Ds breach of duty of care
Donoghue v Stevenson
What is pure economic loss?
Pure economic loss is loss C has suffered as a result of Ds negligence, which is not derived from physical injury, death or property damage.
Exists where
- Failure to receive expected future profit or financial benefit
- Result from acquisition of defective property
- Property damage sustained by a third party
*Spartan Steel v Martin [1973]
TWO TYPES: 1) Economic loss consequential On physical damage √ 2) Pure economic loss x
D accidentally cut the electric supply cable near
a metal factory
Three claims:
1) Harm caused to metal that was in the melting furnace
2) Loss of profits they would have made from materials in the furnace
3) Loss of profits from not operating for several hours.
HELD
The first two were recoverable as it was consequential economic loss from physical damage.
Third was purely financial detriment of not operating and not recoverable.
Reasoning:
Lord Denning: What are the policy reasons for treating pure economic loss differently?
1) People should put up with disruption in the power supply
2) Many people will have been affected by the power cut and the court would face a huge
number of claims that are difficult to verify and quantify.
3) Power cut is the type of loss that should be borne by the whole community.
Dutton
Pure economic losses arises where a product is not as good as expected
Murphy
ILLUSTRATION OF THE UNCERTAINTY
House was built on inadequate foundations leading to cracked walls
Council had approved the construction plans
Held HOL
The loss was pure economic loss
The building had never existed without the defective foundations and had been flawed from the start
IN ORDER TO CLAIM IN A DEFECTIVE HOUSE SITUATION IN NEGLIGENCE IT IS REQUIRED TO SHOW THE HOUSE CAUSED DAMAGE TO SOME PROPERTY or other
Failure of a product doesn’t count as physical damage
Allowing the claim would’ve been a transmissible warranty of quality (this is a matter of contract law and statute, imposing a duty would undermine and go beyond statutory duty of Defective Premises Act)
House was built on inadequate foundations leading to cracked walls
Council had approved the construction plans
Held HOL
The loss was pure economic loss
The building had never existed without the defective foundations and had been flawed from the start
IN ORDER TO CLAIM IN A DEFECTIVE HOUSE SITUATION IN NEGLIGENCE IT IS REQUIRED TO SHOW THE HOUSE CAUSED DAMAGE TO SOME PROPERTY or other
Failure of a product doesn’t count as physical damage
Allowing the claim would’ve been a transmissible warranty of quality (this is a matter of contract law and statute, imposing a duty would undermine and go beyond statutory duty of Defective Premises Act)
Murphy
Murphy
softens murphy approach:
It would have to be established whether it would be reasonable to move to another place to avoid a risk of damage
softens murphy approach:
It would have to be established whether it would be reasonable to move to another place to avoid a risk of damage
Murphy
*Hedley Byrne
Cases in which C has suffered pure economic loss due to a negligent statement allow for an exception of the reluctance of the law to recognize a duty of care
C must show:
1) D assumed responsibility towards him
2) C reasonably relied upon this assumption of responsibility
No fair just and reasonable requirement
Cases in which C has suffered pure economic loss due to a negligent statement allow for an exception of the reluctance of the law to recognize a duty of care
C must show:
1) D assumed responsibility towards him
2) C reasonably relied upon this assumption of responsibility
No fair just and reasonable requirement
*Hedley Byrne
Calvert
Gaming case
express assumption of responsibility
Henderson:
Assumption implied from relationship
I) D needs to hold himself out as having some kind of special skill or knowledge
II) D must have led C to believe that he was going to exercise this to Cs benefit
Assumption implied from relationship
I) D needs to hold himself out as having some kind of special skill or knowledge
II) D must have led C to believe that he was going to exercise this to Cs benefit
Henderson:
No requirement for communication for implied assumption of responsibility to be found
No contact between daughters of a client and solicitor who negligently failed to change the clients will
- Duty of care recognized by analogy
- And because you took responsibility you are liable to anyone
*White v Jones
*White v Jones
No requirement for communication for implied assumption of responsibility to be found
No contact between daughters of a client and solicitor who negligently failed to change the clients will
- Duty of care recognized by analogy
- And because you took responsibility you are liable to anyone
Is there a requirement of voluntary assumption of responsibility
USED TO BE YES
Hedley Byrne
Where normally the court would have found duty of care because of an implied assumption of responsibility they could not as reference was given explicitly “without responsibility”
BUT
Smith v Eric Bush
Clause excluding liability fail foul for Unfair Contract Terms Act 1977
BUT
Customs and Excise Commissioners v Barclays Bank
- Dicta suggests need for a voluntary assumption
White and Jones
Reliance typically shows in chance of conduct but reliance might be assumed based on the fact that people generally rely on solicitors to do their work competently and professionally
Reliance typically shows in chance of conduct but reliance might be assumed based on the fact that people generally rely on solicitors to do their work competently and professionally
White and Jones
*Caparo
1) prox 2) fore 3) f,j,r
Caparo test must be applied with narrow interpretations of concepts of “proximity” “fair just and reasonable” because intention of tort that it is difficult to recover purely economic loss
PROXIMITY:
1) Statement intended for C
2) C relied on it for the purpose for which it was intended for him to
relied on
1) prox 2) fore 3) f,j,r
Caparo test must be applied with narrow interpretations of concepts of “proximity” “fair just and reasonable” because intention of tort that it is difficult to recover purely economic loss
PROXIMITY:
1) Statement intended for C
2) C relied on it for the purpose for which it was intended for him to
relied on
*Caparo
An Informer v A chief Constable
Proximity: informer police √
Foreseeability: √
Fair just and reasonable = x
Police did not owe duty to protect Cs economic welfare
IDEA:
Police need to be free to investigate in a way they think is the best without being subject to potential negligent liability
Proximity: informer police √
Foreseeability: √
Fair just and reasonable = x
Police did not owe duty to protect Cs economic welfare
IDEA:
Police need to be free to investigate in a way they think is the best without being subject to potential negligent liability
An Informer v A chief Constable
*Customs and Excise Commissioners v Barclays Bank
1st apply Hedley Byrne If you conclude 1 assumption of responsibility 2 reasonable reliance Duty of care Next stage: negligence If no assumption of responsibility Caparo: 1) Reasonably foreseeable damage 2) Sufficient proximity 3) Is it fair just and reasomanle LORD HOFFMANN: it is important to apply Hedley Byrne only where it fits, and not force it as we have got the Caparo test -> this allows for a more nuanced application of Hedley byrne
1st apply Hedley Byrne If you conclude 1 assumption of responsibility 2 reasonable reliance Duty of care Next stage: negligence If no assumption of responsibility Caparo: 1) Reasonably foreseeable damage 2) Sufficient proximity 3) Is it fair just and reasomanle LORD HOFFMANN: it is important to apply Hedley Byrne only where it fits, and not force it as we have got the Caparo test -> this allows for a more nuanced application of Hedley byrne
*Customs and Excise Commissioners v Barclays Bank
