Abstract:
This paper analyses the confused state of the law of negligent misstatement in Australia since the High Court’s decision in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 (HCA). It proposes a single, common set of rules for the determination of duty of care questions for all cases of pure economic loss caused by a plaintiff’s reliance on a negligent misstatement, whether they are of the two- or three-party type, even though the latter raise some complications (such as ‘indeterminacy’ and ‘remoteness’) that the former often do not. If such ‘three-party’ cases genuinely raises additional concerns of this type, they are better met, it is suggested, in other ways (for example through the imposition of legislative caps upon advisor liabilities in areas of particular market sensitivity) rather than through the placement by judges of arbitrary and unclear limits upon the scope of private law duties of care.
Barker, Kit, Negligent Misstatement in Australia – Resolving the Uncertain Legacy of Esanda (February 28, 2015). Ch 13 in K Barker, W Swain and R Grantham (eds), The Law of Misstatements (Oxford, Hart Publishing , 2015) pp 319-344.
First posted 2016-02-02 07:45:29
Leave a Reply