Contemporary Approaches towards Pure Economic Loss in the Law of Negligence

摘要

It has often been said that pure economic loss forms an exclusionary rule within the law of negligence, and that a major exception to this rule was established by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd regarding negligent statements. The decision in Hedley Byrne brought forth the concept of "voluntary assumption of responsibility" as a basis upon which a duty of care might be found in a pure economic loss claim. In Henderson v Merrett Syndicates Ltd Lord Goff confirmed that the assumption of responsibility concept extended beyond the provision of information and advice to also include the performance of "other services", thus giving rise to what became known as the "extended Hedley Byrne principle". The aim of this article is to evaluate the extent to which damages may currently be recovered for pure economic loss in the law of negligence, following an examination of decisions in this area during the new century. This examination provides some interesting insights. It shows that pure economic loss is not necessarily seen by judges as forming an exclusionary rule within the law of negligence, and that liability is not restricted to situations where the loss arose through either the provision of negligent advice or the negligent performance of some form of professional service. Moreover, the survey shows that the general threefold test of duty emerging from the decision in Caparo Industries Plc v Dickman is now being used by some judges as either the sole determinant of whether a duty of care existed, or as a cross-check upon the operation of the assumption of responsibility approach. This marks an interesting reversal in the fortunes of the assumption of responsibility concept. Indeed, it would seem that the status of the assumption of responsibility concept as a general test of duty in pure economic loss claims is currently open to question, following doubts expressed about the concept by the House of Lords in Customs and Excise Commissioners v Barclays Bank Plc, and because of confusion within the cases over the question of whether an assumption of responsibility can only arise if the defendant acted "voluntarily".