1. [1973] QB 27.

2. [1973] QB 27 at 39.

3. [1973] QB 27 at 41: ‘what has that purely fortuitous fact [of physical damage] to do with legal principle?’ See also Lord Millett in McFurlune v Tuyside Health Board [2000] 2 AC 59 at 109. One might also question concepts such as the’ complex structures' rule set out in D & F Estates Ltd v Church Commissioners for England [1989] AC 177, which again appears to rest on a rather arbitrary, if not complicated, distinction.

4. See Murphy v Brentwood District Council [1991] 1 AC 398.

5. [1995] 2 AC 207. See also Spring v Guardian Assurance plc [1994] 2 AC 296; Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577; Gorham v British Telecommunications plc [2000] 4 All ER 867.

6. [1995] 2 AC 207.

7. For comparative studies of pure economic loss, see JM Van Dunné‘Liability for pure economic loss: rule or exception?’ (1999) 7 ERPL 397; EK Banakas (ed), Civil Liability, for Pure Economic Loss (The Hague: Kluwer Law International, 1996); W van Gerven, J Lever and P Larouche Tort Law (Oxford: Hart, 2000) 2.4; B S Markesinis ‘La politique jurisprudentielle et la réparation du préjudice économique en Angleterre: Une approche comparative’ [1983] RIDC 31; and M Bussani and VV Palmer (eds) Pure Economic Loss in Europe (Cambridge: Cambridge University Press, 2003). More generally, see C von Bar's interesting attempt to explore common elements of tort law in EU states in The Common European Law of'Torts.(Oxford: Oxford University Press, 2000) Vol 2, Part One.

8. See F Terré, P Simler and Y Lequette Droit civil: Les Obligations (Paris: Dalloz, 8th edn, 2002) Nos 697–713. Note also Khoury's study of common and civilian approaches: ‘The liability of auditors beyond their clients: a comparative study’ (2001) 46 McGill LJ 413.

9. See C Lapoyade Deschamps in Civil Liability for Pure Economic Loss above n 7.

10 ‘One who intentionally or negligently unlawfully violates the life, body, health, freedom, property or similar right of another is obligated to compensate him for the harm that thereby ensues.’

11. B S Markesinis and H Unberath The German Law of Torts: A Comparative Treatise (Oxford: Hart, 4th edn, 2002) pp 71–74, and 52–67 generally.

12. Notably, by adopting a flexible approach to contractual recovery, for example, by use of the contract with a protective effect to third parties (Vertrag mit Schutzwirkung für Dritte) or the device of culpa in contrahendo (now incorporated in the revised Code at para 31 111).

13. See Banakas, E K Liability for incorrect financial information: Theory and practice in a general clause system and in a protected interests system’ (1999) 7 ERPL 261, 282–283. Note the classic study of K Lipstein ‘Protected interests in the law of tort’ [1963] CLJ 85.Google Scholar

14. Lord Denning MR in Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 at 36. See also SCM (United Kingdom) Ltd v WJ Whittall & Sons Ltd [1971] 1 QB 337 at 344.

15. Note, in particular, the works of Cane, Stapleton and Markesinis cited in this article. For recent attempts at rationalisation, see C Witting’ Distinguishing between property damage and pure economic loss in negligence: a personality thesis' (2001) 21 LS 481. P Benson ‘The basis for excluding liability for economic loss in tort law’ in D Owen (ed), Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995) and A Beever ‘A Gghts-based approach to the recovery of economic loss in negligence’ (2004) 4 OUCLJ 25.

16. See Stapleton, J Comparative Economic Loss: Lessons from Case-Law-Focused “Middle Theory”’ (2002) 50 UCLA L Rev 531: C Witting ‘The three-stage test abandoned in Australia—or not?’ (2002) 118 LQR 214; P Cane’ The blight of economic loss: Is there life after Perre v Apand?’ (2000)8 Torts LJ 246.Google Scholar

17. Cooper v Hobart (2002) 206 DLR (4th) 193 and Edwards v Law Society of Upper Canada (2002) 206 DLR (4th) 211.

18. See Hill v Van Erp (1997) 188 CLR 159.

19. See Prrre v Apand Pry Ltd (1999) 198 CLR 180 and Sullivan v Moody (2001) 207 CLR 562.

20. See eg the recent decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215, in which reliance is placed on the decisions in Bazley v Curry(1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174DLR (4th) 71, although for criticism, see Giliker (2002) 64 MLR 269. In the field of negligently incurred pure economic loss, one may note references by Lord Goff to Canadian case-law in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 191–194 and in White v Jones [1995] 2 AC 207 at 254–255, and the considerable academic coverage of the important case of The Norsk (Canadian National Railway Co v Norsk Pacific Steamship Co (1992) 9 1 DLR (4th) 289) on relational economic loss, notably by Professor Markesinis, see S F Deakin, A Johnston and B S Markesinis Markesinis and Deakin ‘s Tort Law (Oxford: Clarendon Press, 5th edn, 2003), pp 32–36. See also BS Markesinis and S Deakin ‘The random element of their Lordships’ infallible judgment: an economic and comparative analysis of the tort of negligence from Anns to Murphy’ (1992) 55 MLR 619; J G Fleming ‘Economic loss in Canada’ (1993) 1 Tort L Rev 68; M McInnes ‘Contractual relational economic loss' (1993) 52 CLJ 12 and N Rafferty’ Canada: tortious liability for purely economic loss' (1993) 9 PN 87.

21. There are also excellent internet resources available, for example the information website of the Supreme Court of Canada and the Virtual Canadian Law Library (http://www.lexum.umontreal.ca/index_en.html). Canadian law, unlike civilian materials, is also accessible via LEXIS.

22. Feldthusen has noted that the Canadian courts have in the past been accused of having too close a relationship with English law and failing, until the 1980s, to develop their own jurisprudence: B Feldthusen ‘The recovery of pure economic loss in Canada: Proximity, justice, rationality and chaos' (1996) 24 Manitoba LJ 1 and’ Pure economic loss in Canada’ in Civil Liability for Pure Economic Loss above n 7, p 131: ‘I doubt whether there exists another sovereign jurisdiction whose lower courts have so frequently discredited or ignored decisions of their own appellate courts and turned instead to those of a foreign country.’.

23 (1875) LR 10 QB 453.

24. [1978] AC 728.

25. [1978] AC 728 at 751–752.

26. (1984) 10 DLR (4th) 641. Comment J Irvine ‘Kamloops v Nielsen’ (1984) 29 CCLT 185; Feldthusen, B City of Kamloops v Nielsen: a comment on the Supreme Court's modest clarification of colonial tort law’ (1985) 30 McGill LJ 539 Google Scholar. Claims for pure economic loss had been developed from Rivtow Marine Ltd v Washington Iron Works (1973) 40 DLR (3d) 530 in 1973, in which the Supreme Court recognised for the first time that, in limited circumstances, damages for pure economic loss could be recovered.

27. (1984) 10 DLR (4th) 641 at 662–663, per Wilson J: ‘in order to decide whether or not a private law duty of care existed, two questions must be asked: (1) Is there a sufficiently close relationship between the parties (the local authority and the person who has suffered the damage) so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so, (2) Are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?’.

28. [1991] 1 AC 398.

29. For an overview in England and Wales, Clerk and Lindsell on Torts (London: Sweet & Maxwell, 18th edn, 2000) pp 7–85; Lord Denning in Spartan Steel v Martin [1973] QB 27 at 37–39; and the classic article of P S Atiyah’ Negligence and economic loss' (1967) 83LQR 248,269–276. For Canada, see AM Linden Canadian Tort Law (Toronto: Butterworths, 6th ed, 1997) at 405–406; LN Klar Tort Law (Toronto: Thomson Canada, 3rd edn, 2003) at 202–203, and leading judgments of the Supreme Court of Canada, for example, Martel Building Ltd v Canada (2001) 193 DLR (4th) 1 at 12–13 and D'Amato v Badger (1996) 137 DLR (4th) 129 at 133.

30 ‘The infliction of physical injury to the person or property of another universally requires to bejustified. The causing of economic loss does not’: Lord Oliver in Murphy v Brentwood DC [1991] 1 AC 398 at 487. See also Martel Building Ltd v Canuda (2001) 193 DLR (4th) 1 at 12 and D'Amaro v Badger (1996) 137 DLR (4th) 129 at 133.

31. See Lord Reid in Dorset Yachr Co v Home Office [1970] AC 1004 at 1027.

32. See Widgery, J in Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569. See also Martel Building Ltd v Canada (2001) 193 DLR (4th) 1 at 12 and D'Amato v Badger (1996) 137 DLR (4th) 129 at 133.Google Scholar

33. Ultramares Corp v Touche 255 Ny Rep 170 and 179 (1931); 174 NE Rep 441 at 444 (1931) per Cardozo CJ. See also Hercules Managements Ltd v Ernst & Young (1997) 146 DLR (4th) 577 at 592.

34. See Société Commerciale de Reassurance v Eras International Ltd (formerly Eras (UK))[1992]1Lloyd's Rep 570 at 597–598; Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758; Greater Nottingham Co-operative Societv Ltd v Cementation Piling & Foundations Ltd [1989] QB 71 and Pacific Associates Inc v Baxter [1990] 1 QB 993. It is interesting that recent English attempts to extend liability have focussed on the fact that it will complement contract law by fulfilling an ‘essential gapfilling role’: see Lord Steyn in Williams v Natural Life Health Foods [1998] 2 All ER 577 at 584.

35. Contrast the view of McHugh, J in Perre v Apand Pty Ltd (1999) 198 CLR 180 at 230.Google Scholar

36. See Marc Rich & Co Ag v Bishop Rock Marine Co Ltd (the Nicolas H) [1994] 1 WLR 1071 (CA) and Lord Brandon's dissent in Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520, HL.

37. See La Forest, J in The Norsk (Canadian National Railway Co) v Norsk Pacific Steamship Co (1992) 91 DLR (4th) 289 at 302.Google Scholar

38. The Norsk (Canadiun National Railway Co) v Norsk Pacific Stearnship Co (1992) 91 DLR (4th) 289 at 366.

39. [1991] 1 AC 398.

40. [1985] AC 210.

41. See Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175; Rowling v Tukaro Properties Ltd [1988] AC 473; Hill v Chief Constable of West Yorkshire [1989] AC 53.

42. Murphy v Brentwood [1991] 1 AC 398 at 471, per Lord Keith. Their Lordships rejected more generous Canadian authority: Lord Oliver [1991] AC 398 at 488: ‘The suggested distinction between mere defect and dangerous defect which underlies the judgment of Laskin J in Rivtow Marine Ltd. v Washington Iron Works [1973] 6 WWR 692 is, I believe, fallacious.’.

43. Founded on Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465. See Lord Bridge in Murphy v Brentwood District Council [1991] 1 AC 398 at 475: ‘[Pure economic loss] is not recoverable in tort in the absence of a special relationship of proximity imposing on the tortfeasor a duty of care to safeguard the plaintiff from economic loss.’.

44. [1990] 2 AC 605.

45 (1985) 157 CLR 424.

46. See Lord Oliver [1990] 2 AC 605 at 633. Note also the comments of Lord Bridge at 618.

47 (1992) 91 DLR (4th) 289. This is particularly significant in that in this case the majority of the Supreme Court (3:2) was prepared to increase recovery for pure economic loss by supporting a claim for contractual relational loss.

48 (1992) 91 DLR (4th) 289 at 303. See also McLachlin J at 365: ‘[Canadian courts] will refuse to accept injustice merely for the sake of the doctrinal tidiness which is the motivating spirit of %Murphy.’.

49 (1992) 91 DLR (4th) 289 at 370: ‘Viewed in this way, proximity may be seen as paralleling the requirement in civil law that damages be direct and certain. Proximity, like the requirement of directness, posits a close link between the negligent act and the resultant loss.’.

50 (Toronto: Carswell, 4th edn, 2000). This work sets out the five categories of economic loss cases, first put forward in ‘Economic loss in the Supreme Court of Canada’ (1990–1991) 17 Can Bus LJ 356, 357–358, and adopted by La Forest J in The Norsk (1992) 91 DLR (4th) 289 at 299–300 and Winnipeg Condominium Corp No 36 v Bird Construction Co (1995) 121 DLR (4th) 193 at 199. See also ‘Liability for economic loss: Yes, but why?’ (1999) 28 UW Aust L Rev 84. Note also Linden, above n 29, at 405–406, Klar Tort Law, above n 29, at 203–204.

51 (1996) 137 DLR (4th) 129.

52 (2001) 193 DLR (4th) 1.

53. Martel (2001) 193 DLR(4th) 1 at 15 per Iacobucci and Major JJ giving judgment for the court.

54. See eg Hercules Managements Ltd v Ernsr & Young (1997) 146 DLR(4th) 577 and Queen v Cognos Inc (1993) 99 DLR (4th) 626.

55. Bdc Ltd v Hofstrand Farms Ltd (1986) 26 DLR (4th) 1 (delay in delivering envelope by courier).

56. Winnipeg Condominium Corp No 36 v Bird Construction Co (1995) 121 193 DLR(4th) (claim by subsequent purchaser for negligent construction of building).

57. Note the gloss following from Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd (1998) 153 DLR (4th), which seems to reconcile the conflicting approaches of McLachlin and La Forest JJ in The Norsk. Comment I Duncan Wallace QC ‘Contractual relational loss in Canada’ (1998) 114 LQR 370.

58. This approach has received criticism, notably from the High Court of Australia and Professor Stapleton, who has criticised Feldthusen for attempting ‘to organize precedents in a manner that has no normatively justifiable basis': ‘Comparative economic loss: Lessons from case-law-focused middle theory’ (2002) 50 UCLA L Rev 531, n 45. See also Cane above n 16. Note also Stapleton's criticism of what she terms the ‘pockets approach’ in ‘Duty of care and economic loss: A wider agenda’ (1991) 107 LQR 249 (see also ‘In restraint of tort’ in P Birks (ed) The Frontiers of Liability Vol II (Oxford: Oxford University Press, 1994) and ‘Duty of care factors: A selection from the judicial menus’ in P Cane and J Stapleton (eds) The Law of Obligations: Essays in celebration of John Fleming (Oxford: Oxford University Press, 1998)). Such criticism would appear harsh. The real utility of the categorisation approach advocated by Feldthusen is that it presents litigants with a structured approach which utilises the guidance of like cases whilst identifying relevant policy concerns. Although one may question the categories chosen, which will inevitably overlap in complicated factual situations, they represent no more than an overview of cases where economic loss has been found to be recoverable. What is important is the explicit connection between categorisation and policy.

59. (2001) 193 DLR (4th) 1. Comment in Duncan-Wallace Qc ‘Tender call obligations in Canada’ (2001) 117 LQR 351; N Rafferty’ Tortious and contractual liability arising out of pre-contractual negotiations and the tendering process' (2001) 17 PN 179.

60. A further claim based on contract failed due to the absence of proof of causation.

61 (2001) 193 DLR (4th) 1 at 19.

62 (2001) 193 DLR (4th) 1 at 20. Equally, the court rejected a duty of care in drafting tender specifications on the basis that it would undermine the objective nature of the tender process and lead to uncertainty.

63. See Lord Hoffmann in Stovin v Wise [1996] AC 923 at 949, although his Lordship does question whether, if considerations of policy are properly analysed, this should make a difference.

64. Markesinis, for example, noted in 1993 that Canadian law’ scores over Murphy … in its desire to abandon the “all or nothing” approach, which seems to appeal so much to the House of Lords': (1993) 109 LQR 5 at 12.

65 (1997) 146 DLR (4th) 577. Comment M E Deturbide (1998) 77 Can Bar Rev 260.

66. [1990] 2 AC 605. Comment J G Fleming (1990) 106 LQR 349 and Martin, R (1990) 53 MLR 824. Note also the similarities between the approach taken in Martel and the position in English law: see P Giliker ‘a role for tort in pre-contractual negotiations? an examination of English, French and Canadian law’ (2003) 52 ICLQ 969.Google Scholar

67. See Lord Bridge [1990] 2 AC 605 at 621.

68. See above n 65 at 587.

69. See above n 65 at 589.

70 (2002) 206 DLR (4th) 193.

71. Neyers, J ’Distilling duty: the Supreme Court of Canada amends Anns' (2002) 118 LQR 221. See also Pitel, S ‘Negligence: Canada remakes the Anns test’ [2002] CLJ 252 and N Rafferty ‘The test for the imposition of a duty of care: Elucidation or obfuscation by the Supreme Court of Canada’ (2002) 18 PN 218.Google Scholar

72. See Klar, above n 29, p 167; P H Osborne The Law of Torrs (Toronto: Irwin Law, 2nd edn, 2003) pp 66–67; and N Rafferty ‘Developments in contract and tort law: the2001–2002 term’ (2002) 18 Sup Ct L Rev (2d) 153 at 198.

73. (2004) 233 DLR (4th) 193, noted by Rafferty, N (2004) 20 PN 74. Cooper had, by February 2005, been cited in over 80 reported decisions.Google Scholar

74. [1988] AC 175.

75. ‘the starting point for this analysis is to determine whether there are analogous categories of cases in which proximity has previously been recognised. If no such cases exist, the question then becomes whether a new duty of care should be recognised in the circumstances’: Edwards v Law Society of upper Canada (2002) 206 DLR (4th) 211 at 218.

76. [1990] 2 AC 605 at 618, 628–629 and 633.

77 (2002) 206 DLR (4th) 211 at 204.

78 (2002) 206 DLR (4th) 211 at 204.

79 (2002) 206 DLR (4th) 211.

80. The investors were not even clients of the solicitor in question, but had simply deposited money in his account in the course of their transaction with a third party.

81. Cooper (2002) 206 DLR (4th) 193 at 201.

82. Cooper ((2002) 206 DLR (4th) 193 at 203.

83. See Lord Roskill in Caparo plc v Dickman [1990] 2 AC 605 at 628. See also Sir Brian Neill in Bank of Credit und Commerce International (Overseas) Ltd v Price Waterhouse (No 2) [1998] PNLR 564 at 583–587.

84. See Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 at 273–276 and McLoughlin v Jones [2002] QB 1312 at 1323.

85. See Lord Steyn in McFarlane v Tayside Health Board [2000] 2 AC 59 at 82. See also Lord Hoffmann in White v Chief Constable of South Yorkshire [1999] 2 AC 455 at 502, where his Lordship contrasted the concept with that of corrective justice and expressed (at 511) a willingness to abandon the incremental approach in favour of a ‘system of rules which is fair between one citizen and another’ when the authority in question led to an unsatisfactory result.

86. See, notably, K Barker ‘Unreliable assumptions in negligence’ (1993) 109 LQR 461, in which he highlights the difficulties in defining the meaning of ‘voluntary assumption of responsibility‘, B Hepple’ The search for coherence’ (1997) 50 CLP 69 at 88; and P Cane Tort Law and Econornic Interests (Oxford: Oxford University Press, 2nd edn, 1996) pp 177 and 200. Note also judicial criticism: Lord Griffiths in Smith v Eric S Bush [1990] 1 AC 831, 862 and 864–865; Lords Roskill and Oliver in Cuparo plc v Dickman [1990] 2 AC 605 at 628 and 637 respectively; Lord Mustill dissenting in White v Jones [1995] 2 AC 207.

87. [1995] 2 AC 145 at 181. See also Lord Steyn in Williams v Naturul Lqe Health Foods [1998] 2 All ER 577 at 581.

88. Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; White v Jones [1995] 2 AC 207.

89. Henderson v Merrett Syndicates Ltd [1985] 2 AC 145; Spring v Guardian Assurance plc [1994] 2 AC 296; White v Jones [1995] 2 AC 207; Gorham v British Telecommunications plc [2000] 4 All ER 867.

90. White v Jones [1995] 2 AC 207. Here, potential beneficiaries to a will recovered their pure economic loss resulting from the solicitor's negligent omission to re-draft their father's will in their favour, although Lord Nolan did suggest (at 295) that reliance did exist on the family solicitor.

91. [1998] 2 All ER 577 at 581.

92. [1990] 2 AC 605 at 637.

93. It is far from easy to accept that an obligation imposed by law is undertaken voluntarily: see May LJ in Merrett v Babb [2001] QB 1174 at 1193. The test is clearly meant to be objective, not subjective: see Lord Goff in Henderson v Merrert Syndicates Ltd [1995] 2 AC 145 at 181 and Lord Steyn in Williams v Natural Life Health Foods [1998] 2 All ER 577 at 582. It has further been clarified that the responsibility assumed refers to the task undertaken and not the assumption of legal liability: see Lord Browne-Wilkinson in White v Jones [1995] 2 AC 207 at 273.

94. T Weir Tort Law (Oxford: Oxford University Press, 2002) p 37.

95. Contrast, for example, the recent case of Commissioner of Police of the Metropolis v Lennon [2004] 2 All ER 266 and White v Jones [1995] 2 AC 207.

96. See Lord Goff in Henderson v Merrett Syndicates Ltd [1995]1 2 AC 145 at 181.

97. See Clerk and Lindsell above n 29, at 7–95 and 7–23: ‘Rather than viewing assumption of responsibility as a additional or alternative to the three-fold test, it is suggested that it be seen as complementary, as means of confirming that the requirements of proximity and fairness have been met.’ See Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No 2) [1998] PNLR 564 at 583–587. Approved in Parkinson v St James and Seacrofr University Hospital NHS Trust [2002] QB 266 by Brooke LJ at 273 as a statement which ‘draws a lot of the threads together in a helpful way’.

98. See Lord Steyn in McFarlune [2000] 2 AC 59 at 83: ‘That does not mean that I would decide the case on grounds of public policy. On the contrary, I would avoid those quicksands.’.

99. Lord Steyn in Rees v Darlington Memorial Hospital NUS Trust [2004] 1 AC 309 at 322. See also Lord Millett in McFarlane [2000] 2 AC 59 at 108: ‘Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper.’.

100. Such difficulties are apparent in McFarlane where, of the judges adopting the duty of care analysis, Lord Steyn ([2000] 2 AC 59 at 83) finds that the claim would fail for reasons of distributive justice and, if necessary, under the fair, just and reasonableness test and Lords Slynn and Hope both decide the case on this latter basis.

101. See Hoyano, L C H Misconceptions about wrongful conception’ (2002) 65 MLR 883. It is of little surprise, therefore, that it was used in White to justify a decision in the absence of any’ refined analytical tools': Lord Steyn [1999] 2 AC 455 at 500.CrossRefGoogle Scholar

102. [2001] QB 1134.

103. [2001] QB 1174 at 1193. See also Colman J in Commissioners of Customs and Excise v Barcluys Bunk plc [2004] 1 Lloyd's Rep 512, 587, 588.

104. See Lord Slynn in Phelps v Hillbigdon LBC [2001] 2 AC 619 at 654 (also Lord Clyde in Phelps at 670: ‘Opinion has differed on the question whether the language of an assumption of responsibility is useful or not… The expression may be descriptive rather than definitive.’) Approved by Sedley LJ in Dean vAllin & Watts [2001] 2 Lloyd's Rep 249 at 264.

105. Lord Hope in McFurkine [2000] 2 AC 59 at 96.

106. See eg Feldthusen, B ’the Anns/Cooper approach to duty of care for pure economic loss: the emperor has no clothes' (2002) 18 CLR (3d) 67 and R Brown ‘Still crazy after all these years: Anns, Cooper v Hobart and pure economic loss' (200336 UBCL Rev 159. This causes particular problems in view of the fact that stage one policy issues will give rise to a prima facie duty of care. One may also note Chief Justice McLachlin's rather loose use of categorisation, which is more reminiscent of her broad statement of principle in The Norsk (1992) 91 DLR (4th) 289 than the position taken by La Forest J in that case.Google Scholar

107. See Klar, L N Foreseeability, proximity and policy’ (2002) 25 Advocates' Q 360.Google Scholar

108. Seen 106 above.

109. See Klar, above n 29 at 203–204 and Osborne The Law of Torts, above n 72, at 162, which both continue to analyse pure economic loss according to the Feldthusen categorisation.

110 ‘The fairest of them all: The Supreme Court of Canada's tort jurisprudence’ (2002) 17 Sup Ct L Rev (2d) 1 (reproduced in S Beaulac, S G A Pitel and J L Schulz The Joy of Torts (Markham, Ontario: LexisNexis Canada, 2003).

111. As Cane notes, ‘At the end of the day, courts have to choose to favour one party or the other: to be “pro-plaintiff” or “pro-defendant”; and the concept of “purpose” does not relieve them of this choice’: P Cane Tort Law and Economic Interests above n 86, pp 178–179. This is particularly apparent in Caparo where the court is clearly influenced by the floodgates argument and Lord Oliver [1900] 2 AC 605 at 642 expressly finds ‘no pressing reason of policy which would require such an extension [of liability]’.

112. See McLachlin LCJ (2002) 206 DLR (4th) 193 at 196. See also at 202: ‘Anns, as “properly understood”, continues to provide a useful framework in which to approach the question of whether a duty of care should be imposed in a new situation.’.

113. Note the application of Cooper in Rogers v Faught (2002) 212 DLR (4th) 366 (Ontario Court of Appeal); Fraser v Westminer Cannda Ltd (2003) 228 DLR (4th) 513 (Nova Scotia Court of Appeal); and Hall v Bennett Estate (2003) 227 DLR (4th) 263 (Ontario Court of Appeal).

114 (2002) 219 DLR (4th) 467.

115 (1995) 121 DLR (4th) 193 (claim by subsequent purchaser for negligent construction of building).

116. ‘the three-stage approach of Lord Bridge … [in Caparo] does not represent the law in Australia’: Sullivan vMoody (2001) 207 CLR 562, 579. See, most recently, Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 205 ALR 522. Feldthusen is predictably critical of an approach which ‘encourages an expansive and uncertain case-by-case approach to economic loss generally’: (2000) 8 Torts L Rev 33, 52.

117 (1999) 198 CLR 180.

118. The court drawing on Caltex Oil Pty Ltd v the Dredge ‘Willemstad’ (1976) 136 CLR 529, rejected by the Privy Council in Candlrwood Navigation Corpn Ltd v Mitsui Osk Lines [1986] AC 1 at 24 and in Canada by The Norsk (1992) 91 DLR (4th) 289.

119. See JA Riordan The Laws of Australia: Torts (Sydney: Law Book Co, 2003) 33.2 [16].

120. See Riordan, above n 119.

121. The attempt by Kirby, J to support the Caparo principle with explicit recognition of the policy choices involved has received little support in Australia, as recognised by the judge himself in Woolcock (2004) 205 ALR 522.Google Scholar

122. Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465.

123. See James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 QB. 113 at 125–126 per Neil L J, in which his Lordship sets out the elements which might alternatively be described as an undertaking of responsibility.

124. Hoffmann J in Morgan Crucible Co plc v Hill Samuel & Co Ltd [1991] Ch 295 at 302–303.

125. This is questionable in White v Jones [1995] 2 AC 207.

126. Henderson v Merrett Syndicates Ltd (No 1) [1995] 2 AC 145 and Spring v Guardian Assurance plc [1995] 2 AC 296.

127. Henderson v Merrett Syndicates Lid (No 1) [1995] 2 AC 145.

128. White v Jones [1995] 2 AC 207 at 259–260, per Lord Goff (see also Gorham v British Telecommunications plc [2000] 4 All ER 867).

129. See Symmons, Cr Policy factors in actions for wrongful birth’ (1987) 50 MLR 269.CrossRefGoogle ScholarPubMed

130. See Lord Steyn in McFarlane v Tayside Health Board [2000] 2 AC 59, but note criticisms above.

131. See Lords Hope and Millett in McFarlane at 89 and 114 respectively.

132. Lord Millett [2000] 2 AC 59 at 114. Query whether the birth of a disabled child continues to justify a sum representing the ‘additional’ costs of bringing up a disabled child: see Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309.

133. Rees v Darlington Memorial Hospital Nhs Trust [2004] 1 AC 309.

134. Lord Slynn in Barrett v Enfield LBC [2001] 2 AC 550 at 568–569 comments that this is a factor of little, if any, weight.

135. Doubted by Clyde, Lord in Phelps v Hillingdon Lbc [2001] 2 AC 619 at 674.Google Scholar

136. The general statement by Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 749–751 must now be reconsidered in the light of subsequent decisions of the House of Lords in Barrett v Enfield LBC [2001] 2 AC 550 and Phelps v Hillingdon LBC [2001] 2 AC 619: see D v East Berkshire Communify Health NHS Trust [2004] QB 558.

137. Murphy v Brentwood DC [1991] 1 AC 398 at 487, per Lord Oliver.

138. See Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758; Greater Nottingham Co-operative Society Ltd v Cementation Piling & Foundations Ltd [1989] QB 71; and Pacific Associates Inc v Baxter [1990] 1 QB 993.

139. Spartan Steel v Martin [1973] QB 27 at 38 per Lord Denning.

140. Martel Building Ltd v Canada (2001) 193 DLR (4th) 1.

141. [1990] 1 AC 831.