Duty of Care, Breach of Duty, and Defences for Negligence

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Table of Contents
Duty of care................................................................................................................................3
Breach of duty of care................................................................................................................4
Defences for negligence.............................................................................................................5
References..................................................................................................................................6
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Duty of care
Under common law in the law of torts, a negligent misstatement leads to a civil claim. It
basically, refers to a statement which may be negligently given by the defendant and that the
claimant relied on it, causing him harm and loss. Based on this harm or loss, a claim arises
for the claimant to sue the defendant.
Like other common law territories, it was introduced in Australia through Hedley Byrne &
Co Ltd v Heller & Partners Ltd, wherein it was established that it is the duty of defendant not
to cause economic loss to the plaintiff by negligently misstating some information that the
plaintiff acts upon and suffers loss or harm. The Courts have charted their path in umpteen
matters on this subject.
To claim the pure financial loss caused by the carelessness of the defendant and establish
liability, it is pertinent that that plaintiff must prove that it was the duty of the defendant to
prevent that pure economic loss, which was caused to the plaintiff. The onus is then on the
plaintiff to prove that: the defendant owed plaintiff a duty of care; by making the negligent
misstatement, the defendant breached that duty of care; and plaintiff suffered injury or
damage as a result of that breach. (Feinberg, Palmer and Core concepts and key questions.,
2007)
Since this duty of care is beyond reasonable foreseeability, it must be established in each
scenario as per the following considerations:
If the pure economic loss was caused by a misstatement of the defendant, the court relies on:
(Mullender, 1999)
 Reasonable reliance of the plaintiff to act on that the misstatement given by the
defendant;
The term ‘reasonable reliance’ plays an important part in determining the duty of care.
It includes knowledge and reliance. The contention that the defendant knows or
should have known that the plaintiff will rely on the statement given and that the
plaintiff did rely on that negligent statement alone.
 The expertise of the defendant in the subject matter of that statement;
 Request for that information which was provided by the defendant must have
come from the plaintiff;
 No financial gains to the defendant; and
 Disclaimer of liability of the defendant.
If the court determines that the defendant had the duty to care, then he will be held liable for
causing pure economic loss to the plaintiff, who can recover damages for such losses from
the defendant. In the matter of Shaddock & Associates Pty Ltd v. Parramatta City Council, a
solicitor representing Shaddock contacted the city council to check the details of a property
which was widening of roads that were already approved. The council did not provide those
details, and the property was purchased that subsequently resulted in losses. The City Council
was held liable for the negligent misstatement.
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