Tort Law - Pure Economic Loss Flashcards
What does White v Jones do to Hedley?
Stretches it to breaking point
What does PEL not extend to in Australia?
Commercial property
Welton v North Cornwall DC judgment
Alterations on C’s guest house or close business, but alterations not necessary - DoC
Killick v PricewaterhouseCoopers general
Valuation of shares
What case shows judges were dissatisfied with Hedley?
Smith v Eric S Bush
Bishop on PEL arguments
Floodgates argument is weighty as could create deterrence to engage in X activity
What did the CoA attempt to do in Customs and Excise v Barclays (before HoL)?
Obliterate Hedley
How does McLachlan J in Canadian National counter comparative evidence as a way to deny PEL?
In the US it actually seems to have satisfied public demand for justice
What is the practical effect of applying Hedley in provision of services?
Different limitation periods in tort and contract
Barker on Customs and Excise
AR adds little to Caparo and should be removed
Lord Browne-Wilkinson in majority in White v Jones
AR for task creates special relationship, not to a person in particular
What judge in what case said nature of investment decision should be irrelevant for determining liability for PEL through supply of info?
Hercules Management v Ernst & Young, La Forest J
Hedley Byrne v Heller general
Advertising agents, bank, ‘without responsibility’
Smelting, power dust
spartan Stell v Martin
Why is the role of PEL in negligence restricted?
Because of liability in ‘economic torts’ which would be subverted if not limited
Riyad Bank v Ahli United Bank general
Kuwait bank chain, distance, not to block tortious obligations
What case said there is nothing to be gained from concurrent liability as tort obligations cannot exceed contractual ones?
Tai Hing Cotton Mill v Liv Chong
Simpson v Thompson
HoL approved Cattle v Stockton Waterworks Co
White v Jones general
Daughter and solicitor
Limitation period in tort
6 years from date of damage
In what case did the HoL find ‘material physical damage’ and allowed recovery of repair costs to avoid ‘present or imminent danger to health or safety’?
Anns v Merton LBC
Weir on distinction between Caparo and Smith
Capture paid nothing for the audit, and was a commercial enterprise
Scullion v BoS judgment
No AR as property for investment so reasonable they would conduct survey
What case allowed Hedley application despite no reliance and no representation?
Spring v Guardian
Killick v PricewaterhouseCoopers judgment
Smith applies outside of real property to valuation of shares
What two reasons did McLachlan J in Canadian National highlight as traditional grounds for denying PEL?
Comparative evidence and economic theory
Williams v Natural Life Health Foods judgment
Only company had AR as company-headed paper
What two cases clash on primacy of contractual or tortious duty?
Robinson v PE Jones; Henderson v Merrett
What was the issue with the language in Hedley?
Very wide language
what case is an example of AR implied from a relationship?
Henderson v Merrett Syndicates
McFarlane v Tayside Health Board judgment
No damages for upbringing of child
What is consequential loss?
When C is injured by D’s negligence, and then loses money as a result of the injury (e.g. earnings)
Hercules Management v Ernst & Young
Per La Forest J, nature of investment decision should be irrelevant
What three pockets of liability does Stapleton give?
Negligent misstatement, dependence on property of 3rd and defective property
What case shows even courts struggle to distinguish between PEL and consequential loss?
Aswan Engineering v Ludpine
London Borough of Islington v UCL Hospital judgment
local council care of V injured by hospital’s negligence
What two policy issues with Murphy does Quill highlight?
Buildings are homes, not just big products, and manufactured goods already have consumer protection legislation, unlike house-buyers - so shouldn’t be drawing analogy with defective products
Lord Templeman in Smith
Relationship ‘akin’ to a contract, and fact that survey was to fulfil statutory obligations did not preclude AR
What judge in majority in White found evidence of contact and thus AR?
Lord Nolan
Smith v Eric S Bush general
surveyor for council as mortgage lender and loan - purchaser relied on copy
Henderson on excluding possibility of tort liability
Per Lord Goff, he gave primacy to tortious duty over contractual
Byran v Moloney
HC of Australia, irrelevant if defect is dangerous or not, but does not extend to commercial property due to lack of vulnerability
What judge in what case entirely rejected pure/consequential loss distinction to determine duty of care?
Lord Millett in McFarlane v Tayside
Lord Jaunty and Lord Griffiths in Smith
Rejected contract analogy, finding a sufficiently proximate relationship instead based on payment by C and knowledge by D of high likelihood C would rely
Customs and Excise v Barclays on provision of services
Liability is not based on Hedley at all
What did Lord Haldane emphasise in Norton v Lord Ashburton to allow claim for INM?
Fiduciary relationship
Grubb and Millis on Bryan v Moloney
Easier to determine duty based on dangerousness, as it is dangerous nature that brings policy debates like deterrence in
Why did Anns still stand after D&F Estates v Church Commissioners for England?
Claim against builder, not local authority
Shell UK Ltd v Total UK
Equitable property owner can sue for damages and consequential losses as long as legal owner is joined
What is recovery of consequential loss governed by?
Remoteness
Who focused very briefly on why liability for PEL might be restricted in Hedley?
Lord Pearce
Conarken Group v Network Rail judgment
Damage of commercial asset assumes foresight by D that C will lose revenue
Contracts (Rights of Third Parties) Act 1999
limited right for 3rd party to enforce a contract made for his benefit
In what case did the HoL approve Cattle v Stockton Waterworks Co?
Simpson v Thompson
What section of what Act allows courts to relieve honest and reasonable auditor of liability?
Companies Act section 1157
The Albazero
X has a claim but has suffered no substantial loss - cannot claim for V who has suffered loss as a result of D but has no claim
Curran v NI Coronership Housing Association judgment
Statutory duty was to ensure public money was well-spent, not to protect recipient, so no DoC
Pearson Education v Charter Partnership
CoA doubted if anything other than actual knowledge could lead to denial of recovery, as opposed to contributory negligence reduction
In what case did the court reject that ‘special considerations’ apply to website representations?
Patchett v Swimming Pool
What case shows the court applying White?
Gorham v BT
Canadian National Railway v Norse Pacific Steamship judgment
Recognised ‘joint venture’ between bridge owner and user
What judge in Merrett thought Hedley and Caparo couldn’t be blended?
LJ Aldous
Letter signed by director
Williams v Natural Life Health Foods
Who said it is easier to determine duty based on dangerousness?
Grubb and Millis
What case allowed equitable property owner to sue for damages and consequential losses?
Shell UK Ltd v Total UK
What is the difficulty in provision of services cases?
When C is adversely affected by D’s performance of services under a contract with X
What case rejected that knowledge of a defect prevents a claim?
Targett v Torfaen BC
L&O on Henderson
Found ‘entrusting in fact’ as members had no choice in giving complete discretion to managing agents, and agents knew they had complete control
What were the judges anxious to show in Smith v Eric?
No general liability on information provided to 3rd parties
What case extended Hedley Byrne to liability to third parties?
Smith v Eric S Bush
Cooke on Murphy
Complex structure argument is absurd and transmissible warranty would be great
Henderson v Merrett judgment
Allowed concurrent liability and took up Lord Goff and Lowry in Spring
What judge in White v Jones gave a loose conception of reliance?
Lord Browne-Wilkinson
Henderson v Merrett Syndicates judgment
When D holds himself out as having specialist skills/knowledge exercised for C’s benefit, there is a DoC
Who said expansion in PEL could lead to a ‘limitless vista of uninsurable risk’?
Bishop
What did the court reject in Hedley Byrne?
That donoghue could just be simply applied
Mirza v Bhandal
Owner of a dwelling does not ‘take on work’ for purposes of s.1 defective premises act if he gives instructions for work or employs X
Gorham v BT judgment
CoA applied White, so lack of contact didn’t matter (clearer lack of contact than White)
What case emphasised that courts tend to define auditor’s statements narrowly?
Precis v William M Mercer
What case imposed a duty on a public authority?
Shaddock v Parramatta CC
Merrett v Babb on Caparo and Hedley
Can be blended as both should lead to same result
What is the difference between Caparo and Smith?
Information in Caparo was not for transaction carried out by C
What did La Forest J question in Hercules Management
Why Lord Bridge in Smith made a distinction between buying and selling
What does the case of Murphy assume?
Negligence should be subordinate to other legal categories like contract and statute, denying a remedy in the former if none in the latter
Department of Education v Thomas Bates
D&F Estates v Church Commissioners for England
What were the court keen to avoid in Murphy?
Undermining contract/statute
What judge in what case suggested Vietchi was an example of Hedley?
Lord Keith in Murphy
What statement in Donoghue does Mitchell particularly disagree with?
Lord Atkin - ‘there must be… and is’ a general conception of DoC - there need not be, Mitchell says, and there are at least two principles of a DoC
Anns v Merton LBC general
Subsidence, cracks - Local authority has statutory power to supervise building work
What case showed court considering that damage of commercial asset assumes foresight by D that C will lose revenue
Conarken Group v Network Rail
What case shows courts applying FJR in Caparo and finding no liability?
An Informer v A Chief Constable
Winnipeg Condominium v Bird Construction judgment
SC of Canada decided courts should weigh policy issues openly as complex structure theory obscures the ‘underlying policy issues’
Spartan Stell v Martin judgment
Allowed damage to metal and consequential lost profit, but not money that would have been made
Who argued from an economic analysis that social benefit equates to social cost, and thus there is no detriment to society by not allowing wide PEL claims?
Bishop
Gorham v BT general
Pension, widow and children beneficiaries
What are the three different approaches to PEL in commonwealth?
No duty by builder to subsequent purchase, duty for dangerous defects or duty for at least some non-dangerous defects
Why did Grubb and Millis think it is easier to determine a duty based on dangerousness?
Dangerous nature brings in policy debates like deterrence
What are the factors considered under Hedley similar to?
Fair, just and reasonable Caparo test
Economic theory as a traditional ground to deny PEL
Activity is inherently risky and losses basically inevitable. Could get insurance, spread loss among victims and contractual allocation of risk
What case showed courts recognising an owner cannot just discard a house?
Bryan v Moloney
Why is the ‘purpose’ basis for distinguishing Caparo and Smith unsatisfactory?
Surveyors in Smith wouldn’t have said survey was to provide info to a purchaser on whether to buy property
What judge in what case gave primacy to tortious duty over contractual?
Lord Goff in Henderson
What case shows the courts allowing C to claim DoC of surveyor to prospective purchaser as an individual, not through his employer?
Merrett v Babb
What was the 3 stage test from Caparo?
Foreseeable injury to C, proximity of relationship and C relied on statement for purpose it was provided
Bryan v Moloney on knowledge of defect
Owner cannot just discard house , and usually ‘one of the most significant investments’ of X’s life, so Donoghue should have been allowed in Murphy
Customs and Excise Commissioners v Barclays judgment
Rejected CoA methodology and result - incremental test is not freestanding. Hedley first then Caparo
What does Stapleton think the pockets approach should be replaced with?
Agenda of policy concerns
Henderson v Merrett Syndicates general
Lloyds insurance losses
Chaudhury v Prabhaker general
Car, aciddent
Dutton v Bognor Regis
If a product doesn’t work due to D’s negligence, PEL
Lord Goff and Lowry in Spring
DoC on Hedley despite no reliance and no representation, by using special information as giving AR
S.1 Defective Premises Act 1972
Requires premises to be fit for human habitation
What fits into second pocket of liability by Stapleton?
Spartan Stell
Junior Books v Vietchi general
Floor of warehouse
Shaddock v Parramatta CC
Duty imposed on public authority although do not disregard exercise of statutory functions
What case stated that S.1 Defective Premises Act extends to failure to carry out necessary work and carrying it out badly
Andrews v Schooling
D&F Estates v Church Commissioners for England judgment
Defective construction was PEL so no claim - against builder
What did Lord Goff and Lowry say of FJR in Spring?
Once AR is found, no need to consider FJR
Stapleton takes what kind of approach to liability in PEL?
‘Pockets’ approach
Williams v Natural Life Health Foods problem
Why should employee be personally liable but not the director?
What case argued Donoghue should have applied in Murphy?
Bryan v Moloney
Riyad Bank v Ahli United Bank judgment
Whether or not tortious duty is excluded depends on the facts
How did Lord Haldane in Norton argue the decision didn’t contradict Derry?
argued no duty found on specific facts in Derry so didn’t contradict
What section of what act allows auditors to limit liability to companies they audit
Companies Act 2006, sections 534 - 538
Canadian National Railway v Norse Pacific Steamship general
Railway bridge, boat
Limited Liability Partnerships Act 2000
Created LLPs to let accountants and solicitors limit liability in a way not possible under Caparo
Calvert v William Hill Credit judgment
DoC bc express AR
Weir on Hedley
A ‘judicial jamboree… Lordships had… smoked a joint on the bus’
What is New Zealand’s approach to PEL?
Impose liability on local council without regard to liability of builder
What case challenged Candler v Crane?
Hedley Byrne v Heller
Aswan Engineering v Ludpine judgment
Split over whether it was a case of PEL or property damage
Why did the HoL rely on s.1 Defective Premises Act 1972 in Murphy?
The house was not unfit for habitation, so allowing claim would go beyond statutory protection and encroach on sovereignty of legislature
What judge and in what case stated it was Better to say AR is ultimately a question of law REFLECTING FJR rather than disapplying it altogether, as they did in Spring?
Lord Hoffman in Customs and Excise v Barclays on FJR
What case shows the approach of Australia to PEL claims?
Byran v Moloney
Caparo Industries v Dickman general
Auditors, two batches, report
Duty for at least some non-dangerous defects
Bryan; Hamlin
What did the court say in Customs and Excise about the suitability of Caparo?
Better for non-statements
Beever explores what approach to PEL?
Rights-based
Partlertt on Bryan v Moloney
True distinction lies in inability of residential buyer to spread risk
Dean v Allin judgment
AR in tort to 3rd need not even be of same nature as under contract
What judge in Hedley said Donoghue shows how law can be developed, not the solution?
Lord Devlin
What does C have to show after Hedley Byrne on PEL?
D assumed responsibility towards C, and C reasonably relief on the assumption of responsibility - D has to hold himself out as having some kind of duty of skill and care
Curran v NI Coronership Housing Association general
Improvement grant
What judges found relationship through proximity in Smith?
Lord Jauncey and Lord Griffiths
White v Jones judgment
HoL found it didn’t matter there had been no contact for AR
What is pure economic loss?
When C is financially worse off, but no physical damage
What case gave primacy of contractual obligation over tortious
Robinson v PE Jones
X has a claim but has suffered no substantial loss - cannot claim for V who has suffered loss as a result of D but has no claim
The Albazero
Mitchell on Merrett v Babb concerning blending of Caparo and Hedley
‘Utterly unconvincing basis for imposing liability’ without consistency
Companies Act 2006, sections 534 - 538
Auditors can limit liability to companies they audit
What fits into third pocket of liability by Stapleton?
Murphy
Honore on judgment in Hedley
Going ‘to the village church via the moon’
Welton v North Cornwall DC general
Threatening statement
What do Australia focus on in PEL claims?
Vulnerability of C with builder/architect
Patchett v Swimming Pool judgment
‘Special considerations’ do not apply to website representations, although Hedley could arise on usual principles - no DoC as made clear no relianace without further enquiry
What did the court stress in An Informer v A Chief Constable?
Only financial damage to C
What case made the test for PEL clear?
Customs and Excise Commissioners v Barclays
What led to development of the law in PEL?
Dissatisfaction with AR test, preferring a more law-based approach
Chaudhury v Prabhakar judgment
Allowed AR through relationship in social context because of agency agreement
L&O on Stapleton’s agenda of policy concerns idea
Valuable function of such categorisation, but does not relieve court of difficult value judgments
What did Derry v Peek lead to an assumption of?
Innocent negligent misstatement was not actionable
Calvert v William Hill Credit general
Close telephone account
Who finds Hedley to be based on foreseeability?
Atkey
What case put Anns into question?
D&F Estates v Church Commissioners for England
What case shows Australia’s test for supply of information and liability for PEL?
Esanda Finance Corporation v Peat Marwick
White v Jones on voluntary assumption, per Lord Browne-Wilkinson
Looser conception of reliance as you rely on solicitors IN GENERAL
what is an example of when the existence of a contract and tortious liability can take the tort duty beyond contractual bounds?
AR based on an unenforceable agreement for lack of consideration
What did Lord Reid in Hedley say of social contexts and AR?
No AR in social context (i.e. implied from friendship)
When did Hedley Byrne allow a DoC?i
When D has voluntarily assumed responsibility for C’s economic welfare
Andrews v Schooling
S.1 Defective Premises extends to failure to carry out necessary work and carrying it out badly
What academic called complex structure argument absurd?
Cooke
Close telephone account
Calvert v William Hill Credit
Lord Nolan in White v Jones
Found evidence of daughters speaking to solicitor
Name one of the first cases where judge refused a claim for being for PEL?
Cattle v Stockton Waterworks Co
No duty by builder to subsequent purchaser
D&F Estates; Murphy
What academic thought a transmissible warranty of quality would be a great thing?
Cooke
Targett v Torfaen BC on knowledge of defect
Knowledge doesn’t prevent a claim - was it reasonable not to move to avoid damage?
Winnipeg Condominium v Bird Construction general
Policy issues over complex structure
What Act allows accountants and solicitors to limit liability in a way not possible under Caparo?
Limited Liability Partnerships Act 2000
Recommendation 2008/473/EC
Auditor’s liability should be limited both to company and 3rd parties except in the case of intentional breaches
Nocton v Lord Ashburton
Solicitor liable for INM as Lord Haldane emphasised fiduciary relationship
What kind of relationships did Hedley point to for AR?
Solicitor and client
What judge relied on contractual analogy in Smith?
Lord Templeman
What does Mitchell argue Hedley is?
Reassertion of old idea of liability - reassertion of assumpsit duties
Conarken Group v Network Rail general
Railway bridge, compensation
What academic said AR adds little to Caparo and should be removed?
Barker
Limitation period in contract
6 years from date of breach
What Recommendation of the EU suggests Auditor’s liability should be limited both to company and 3rd parties except in the case of intentional breaches
Recommendation 2008/473/EC
Tai Hing Cotton Mill v Liv Chong
Nothing to be gained from concurrent liability as tort obligations cannot be greater than contractual
Why does Mitchell believe the judges engaged in elaborate analyses where no duty arose at the end?
Devlin’s driving force to develop the law of tort, through existing lines of authority , where such opportunity was usually absent
Winnipeg Condominium ratio
Serious defect likely to damage C allows recovery
Bellefield Computer Services v E Turner general
Fire extensive damage more likely
Aswan Engineering v Ludpine general
Pails, waterproofing compound
Junior Books v Vietchi judgment
HoL allowed claim on Anns but threatened to abolish property damage/PEL distinction
Comparative evidence as a traditional ground for denying PEL
Other jurisdictions don’t allow it/have problems with it
Who said the true distinction between commercial property and residential under Bryan v Moloney lies in inability of residential to spread risk?
Partlett
Stapleton on Hedley
Judges paid very little attention to why liability for PEL might be restricted - only very briefly in Lord Pearce’s speech
What case suggested than once an AR is found, no need to consider FJR?
Spring v Guardian
Threatening statement
Welton v North Cornwall DC
Who highlighted that judges paid very little attention to why liability for PEL might be restricted in Hedley?
Stapleton
Todd on Bryan v Moloney
Vulnerability can only work if applied to a category of cases, not at large
Hedley Byrne v Heller on voluntary assumption
Disclaimer removed AR so insisted on voluntary element
Why did Lord Bingham say a chain of contracts blocks tort from imposing MR, and in which case?
‘Inconsistent with the structure of the contract’; Simaan General v Pilkington Glass
McBride and Hughes on Hedley
Hedley is not part of negligence at all but actually fiduciary relationships
Why no DoC in Curran v NI Coronership Housing Association?
Statutory duty was to ensure public money was well-spent, not to protect recipient
Anns v Merton LBC judgment
‘Material physical damage’ and recovery of repair costs to avoid ‘present or imminent danger to health or safety’
What did Lord Devlin argue about Donoghue in Hedley Byrne
Showed how law can be developed, not the solution
What two cases show other jurisdictions have a much more relaxed approach to claims for PEL?
Canadian National Railway v Norsk Pacific Steamship; Shell UK Ltd v Total UK
In what case did the HoL threaten to abolish property damage/PEL distinction?
Junior Books v Vietchi
What case favoured the minority view in Mutual Life v Evatt?
Esso Petroleum v Mardon
Why was there no AR in Caparo?
Info given to allow shareholders to exercise supervisory jurisdiction, not buy more shares
What Act shows further development of liability to third parties?
Contracts (Rights of Third Parties) Act 1999
Candler v Crane
Only allowed fiduciary relationship to make INMS actionable - nothing else
Spring v Guardian judgment
HoL found employer liable as he had specialist knowledge
What is the rights-based approach to PEL?
Nature of C’s loss determines recoverability - D needs to AR to give C necessary right
Patchett v Swimming Pool general
Website pool
Caparo Industries v Dickman judgment
No AR for positive statement NOR for failing to detect fraud due to 3 stage
Who highlighted two policy issues with Murphy?
Quill
An Informer v A Chief Constable judgment
No DoC because not FJR - police should be unrestricted as possible in investigating crime and only FINANCIAL damage to C
Joint case of Harris to Smith v Eric general
Valuation by council, assumption by purchaser (never saw) and confidential report
White v Jones is a case concerning what?
An omission to act resulting in PEL
Cattle v Stockton Waterworks Co judgment
One of the first cases where Blackburn J refused PEL claim
What do L&O argue in regard to White decision?
Could have found a midway solution as Bs had SOME contact with solicitor, so COULD have found mutuality of relationship to satisfy Mustill
Reference, ‘kiss of death’
Spring v Guardian
Owner of a dwelling does not ‘take on work’ for purposes of s.1 defective premises act if he gives instructions for work or employs X
Mirza v Bhandal
What judge found relationship in Smith ‘akin’ to a contract?
Lord Templeman
Why was Derry hard to overrule in Hedley?
Practice Direction 1966 had not been passed yet, so would need to reinterpret other cases following Derry
London Borough of Islington v UCL Hospital general
Care of injured by local council
What was the CoA methodology in Customs and Excise Commissioners v Barclays?
AR & Caparo together & incremental by analogy
What do L&O argue in regard to impact of White?
Caused few problems in nearly 20 years so no real issue
Lord Keith in Murphy on Vietchi
It is an example of Hedley - not so far-fetched after Spring and Henderson as sub-contractor knew of reliance
D&F Estates v Church Commissioners for England general
Plastering
Law Society v KPMG judgment
Look to purpose behind statutory requirement - to allow LS to decide whether to exercise regulatory powers, so AR
Companies Act section 1157
Court can relieve an honest and reasonable auditor of liability
Murphy v Brentwood District Council general
Shallow foundations, cracks
Merrett v Babb
DoC to prospective purchaser as an individual, rather than needing to sue employer of surveyor
Cattle v Stockton Waterworks Co general
Flooding, tunnel.
Barker on Beever’s rights-based approach
How do we know if there is a right, little room for development and no correspondence with judge’s understanding in economic loss cases
How does McLachlan J in Canadian National counter economic theory as a way to deny PEL?
Unlikely to get reasonably priced insurance, doesn’t account for big losses all falling on one V and can’t always assume liability is assigned to the ‘least-cost risk avoider’
What additional requirements were specifically for PEL under Caparo test?
Proximity of relationship needed a statement intended for C and that C relied on statement for purpose it was provided
What case affirmed D&F Estates v Church Commissioners for England?
Department of Education v Thomas Bates
Hedley is not part of negligence at all but actually fiduciary relationshipsWho argued
McBride and Hughes
what did they allow a claim for in Bellefield Computer Services v E Turner ?
For loss of property/possessions
What case asked if it was reasonable for C not to move to avoid damage?
Targett v Torfaen BC
What case showed the CoA doubting if anything other than actual knowledge of the defect could lead to denial of recovery?
Pearson Education v Charter Partnership
Scullion v BoS general
Buy-to-let
Invercargill v Hamlin
New Zealand impose liability on local council without regard to liability of builder
What did Lord Hodson require in Hedley Byrne?
That D be shown to have some kind of ‘special skills’
What judge required D be shown to have some kind of ‘special skills’ in Hedley Byrne?
Lord Hodson
Esso Petroleum v Mardon
Favoured minority in Mutual Life v Evatt
Murphy v Brentwood District Council judgment
Cracks only manifestation of defectiveness - need PROPERTY damage. Divide up property - e.g. electrical wiring causes a fire damaging fabric of the building, allowing claim for damage to fabric of the building but none for electrical wiring as PEL
Specialist insurance syndicate managing agent
Henderson v Merrett Syndicates
Spartan Stell v Martin general
Smelting, power dust
How did HoL explain Murphy?
Would create ‘transmissible warranty of quality’ and through s.1 Defective Premises Act 1972
Henderson v Merrett Syndicates general
Specialist insurance syndicate managing agent
Why did the HoL refuse to grant a transmissible warranty of quality in Murphy?
Places C in a better position than if he brought a contractual/statutory claim, and removed need for C to hire a surveyor
What case emphasised that ONLY a fiduciary relationship could make INMS actionable?
Candler v Crane
What judge in White required a mutuality of relationship?
Lord Mustill
What case shows Smith applies outside of real property?
Killick v PricewaterhouseCoopers
Precis v William M Mercer
Courts tend to define auditor’s statements narrowly and deny DoC unless auditor knew reliance explicitly and reasonable reliance by C w/o further advice
Why was recovery of PEL in Spartan rejected?
People should deal with PEL, floodgates, impossible for quantum and loss should be spread out and borne by sufferer
Law Society v KPMG general
Accountants report on solicitor for LS
Railway bridge, compensation
Conarken Group v Network Rail
Customs and Excise Commissioners v Barclays general
Freezing order not done
Lord Hoffman and Rodger in Customs and Excise
Hadley should not be distorted to make situations fit
Lord Mustily in minority in White v Jones
Require mutuality of relationship
Minority in Mutual Life v Evatt
Only need advice to be given on A business occasion or in course of A business
Customs and Excise Commissioners v Barclays
HoL gave three tests for PEL - Hedley Byrne, Caparo and Heyman (incremental)
Dean v Allin general
Solicitor AR to lender despite client being borrower
What did Lord Millett reject in McFarlane v Tayside?
Entirely rejected pure/consequential loss distinction to determine Duty of care
Duty for dangerous defects
Winnipeg Condominium
Beever on Hedley basis
Hedley is part of the law of contract
An Informer and A Chief Constable general
Informer, frozen assets
Robinson v PE Jones
Primacy of contractual obligation over tortious, but tortious duty not ALWAYS assumed by parties in contractual relationship
Mutual Life v Evatt on Hedley
Took it for granted that a banker owes a DoC in the circumstances in Hedley
Esanda Finance Corporation v Peat Marwick
HC of Australia required C to show D knew/ought to have known info would be communicated to C and would cause them to enter into a given transaction
Care of injured by local council
London Borough of Islington v UCL Hospital
What did the disclaimer do in Hedley Byrne?
Remove liability and thus no DoC on facts
What did the court look carefully at in Williams?
What led C to believe AR and what D said and did
What do the views of McBride, Hughes and Beever on the basis of Hedley show?
Paradox - Hedley has been around for 40 years but still not fully accepted as part of negligence
Smith v Eric S Bush judgment
Clause excluding liability to purchaser fell foul of UCTA 1977
Lord Hoffman in Customs and Excise v Barclays on FJR
Better to say AR is ultimately a question of law REFLECTING FJR rather than disapplying it altogether
Donoghue v Stevenson general
Decomposing snail
Williams v Natural Life Health Foods general
Letter signed by director
Bellefield Computer Services v E Turner judgment
Builder not liable for additional damage to building by fire despite building it so more extensive damage was likely
What case shows AR in tort to 3rd need not even be of same nature as under contract
Dean v Allin
Simaan General v Pilkington Glass
Chain of contracts blocks tort from imposing AR
What fits into first pocket of liability by Stapleton?
Hedley
What view did the judges take instead in Smith?
Law-based view of AR
What case made it clear that you cannot disregard a public authority’s exercise of statutory functions when considering AR?
Shaddock v Parramatta CC
What is Australia’s view on supply of information and test?
Need C to show D knew/ought to have known info would be communicated to C and would cause them to enter into a given transaction
What are the two ways the existence of a contract can affect Hedley liability?
Excluse possibility of tort liability, or imposition will take the tort duty beyond contractual liability bounds
What did the court in Hedley approve?
Denning LJ’s dissent in Candler
What jurisdiction rejects the complex structure theory of PEL?
Canada - Winnipeg Condominium v Bird Construction
Who gave the reasons to reject PEL in Spartan Stell v Martin?
Lord Denning
Fire extensive damage more likely
Bellefield Computer Services v E Turner
What case shows that an exclusion clause may not be sufficient to remove AR?
Smith v Eric S Bush
McFarlane v Tayside Health Board general
Incorrect vasectomy
Majority in Mutual Life v Evatt
Hedley limited to advisors in the profession of giving advice of kind sought
In what case did the HoL highlight three tests for PEL?
Customs and Excise Commissioners v Barclays
Spring v Guardian general
Reference, ‘kiss of death’
