Pure Economic Loss From Negeligent Damage To Third Party Property

Question 0

Perre v Apand test

Answer 0

According to McKew;

1. Is there an existing category of duty? (In not then there will be a novel category of cases)
2. It is reasonable foreseeable? (If yes then;)
3. Incremental development of the law (referencing salient features)
   i. Policy considerations
   ii. Ascertainable class
   iii. Autonomy (are you unduly infringing on the defendant’s autonomy)
   iv. Is the plaintiff vulnerable?
   v. The defendant’s knowledge of the plaintiff.

(Liability will be indeterminate unless you can calculate the number of people and nature of the claim)

(Vulnerability; if P relies on D to take the right course of action, and D has already taken some responsibility but then doesn’t, a duty will arise. Particularly if there is nothing the P can do to protect themselves)

(Knowledge; if there are facts available to D that people would be effected if only they had turned their minds to it = sufficient to find an ascertainable class of persons)

Question 1

Perre v Apand (1999)

Answer 1

Contaminated potato seeds used in one farm led to a 20km radius of soiled goods (even though some not effected, WA statute barred sale of good for 5 years)

Damage was to a third party property and Apand owed them a duty of care due to =

Policy considerations; complying with legislation
Ascertainable class; stated in statute (20km)
Perre vulnerable as they are unable to protect themselves.
Apand had not certified seeds therefore they had assumed some level of responsibility.

Question 2

Caltex Oil v The Dredge “Willemsted” (1976)

Answer 2

Caltex suffers loss from The Dredge severing pipelines due to faulty maps.

High a court held; duty can exist for negligently caused pure economic loss through conduct.

Mason/Dibbs;

• difference between PEL and property damage is practical (not logical)
• reasonable foreseeability is not sufficient; requires knowledge of the defendant that the plaintiff is at some risk.
• unascertainable class
• physical proximity
• parties have a common venture

Stephens;
- proximity based considerations

• salient features; reasonable foreseeability that conduct would cause loss, already an existing duty owed to a third party and the nature of the loss.

Jacobs;
- physical propinquity to property damage (physical effect)

Question 3

Christopher v MV “Fiji Gas” (1993)

Answer 3

Collision at sea of two ships renders one of them unable to sail. The damages ship crew are unable to fish

No duty found;
Unascertainable class; can the plaintiff be identified specifically rather than as part of an unascertainable class? The owner of the other ship could not have known the names of all the crew.

Kirby imposed the Caparo test; reasonable foreseeability, remoteness and whether it is fair, just and reasonable to find a duty.