Bryan v Maloney after the death of proximity: time to take one step backward, or a small leap forward

摘要

The well-known case of Bryan v Maloney (1994-1995) 182 CLR 609 was decided when the concept of proximity was at its most popular. There, the High Court found a builder liable for pure economic loss suffered by the subsequent purchaser of a property. The majority emphasised that the building was a permanent residence and not a commercial building. This distinction was critical to their reasoning. Since Bryan v Maloney was decided, the use of proximity as a universal criterion of liability has been abandoned, and the High Court has acknowledged other instances of pure economic loss arising from negligence in a commercial setting. This article will argue that if liability of a kind recognised by Bryan v Maloney is to be maintained, it should be extended to commercial premises. Both recent High Court decisions and the legal principle expressed in the House of Lords decision in St Martins Corp Ltd v Sir Robert McAlpine & Sons Ltd provide fertile ground for the extension of such liability.