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The Causation Question in Pure Economic Loss, Lost Opportunity Claims Thursday 14 April 2016 S B Mcelwaine SC

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The Causation Question in Pure Economic Loss, Lost Opportunity Claims Thursday 14 April 2016 S B Mcelwaine SC LAW SOCIETY OF TASMANIA PROFESSIONAL DEVELOPMENT The Causation Question in Pure Economic Loss, Lost Opportunity Claims Thursday 14 April 2016 S B McElwaine SC What is pure economic loss? 1. I am not able to point to a crisp definition. It is more often recognised than defined. It is not physical injury to a person or property, even though financial loss may be suffered in consequence; i.e. where an injured plaintiff recovers damages for past and future economic loss. That is a type of secondary economic loss. In Perre –v- Apand Pty Ltd1 each of Gleeson CJ and Gummow J approached the definition in different ways. Gleeson CJ pointed to a: ‘Lack of precision in the concept of financial or economic loss. Physical injury to person or property is usually readily identifiable, even if it may take time to manifest itself. However, the concept of financial or economic loss or harm is wide enough to comprehend a variety of circumstances or contingencies, some of which may be indirect and difficult to identify or measure... If the matter were at large, how would a court set about identifying, and estimating, the kinds of financial loss which might sound in damages? What kinds of detriment, harm or disadvantage, would be treated as financial loss? The law of tort is a blunt instrument for providing a remedy for many kinds of harm which may be suffered as a consequence of someone else’s carelessness, and which are capable of being described as financial.’2 2. Gummow J said: ‘The phrases "economic loss" and "pure economic loss" were used in argument and in many of the authorities to which the Court was referred. However, in Miller v United States Steel Corporation, Posner J, having spoken of the use of the term "economic loss" to distinguish it from an injury to the plaintiff's person or property, continued: "It would be better to call it a 'commercial loss,' not only because personal injuries and especially property losses are economic losses, too - they destroy values which can be and are monetized - but also, and more important, because tort law is a superfluous and inapt tool for resolving purely commercial disputes. We have a body of law designed for such disputes. It is called contract law." One may accept the first point made by his Honour without adopting the second. As is indicated in more detail later in these reasons, the so-called "economic torts" provide the legal means for the resolution of a range of commercial disputes which are beyond the reach of contract law. Nevertheless, in Miller, Posner J went on to refer, with evident approval, to the "increasing number of jurisdictions" in which it is held "that tort law provides no remedy in a case in which the plaintiff is seeking to recover for a commercial loss rather than damage to person, property, or reputation". He added: "The insight behind the doctrine is that commercial disputes ought to be resolved according to the principles of commercial law rather than according to tort principles designed for accidents that cause personal injury or property damage."’3 1 (1999) 198 CLR 180. 2 At [6]. See further his observations in Catanach –v- Melchoir (2003) 215 CLR 1 at [4] where he observed: ‘the distinction between what is often called pure economic loss, and loss, including financial loss, flowing from injury to person or property, is not always clear, or satisfactory.’ 3 At [167]. 2 3. Claims for pure economic loss are most usually pursued for breach of contract. In that sphere such claims do not cause difficulty as what is most usually sought to be recovered is compensation for a bargained economic advantage, which was not delivered. Necessarily such claims turn upon ‘breach of an antecedent promise to afford an opportunity.’4 4. As will be seen, the causation question is approached differently in contract and tort cases. 5. Some claims for pure economic loss are not, on the surface, obviously so categorised. Take Bryan – v- Maloney5 the well-known case of a builder’s liability, for defective construction, to a subsequent purchaser of a home. In that case the nature of the building defects led to distortion and cracking in the building. The damages claim was particularised at trial calculated by reference to the reasonable estimated cost of repair. On the face of it the damage caused by the negligence was physical; and the damages claimed were the repair costs. However, the Court classified the claim as one for economic loss observing: ‘Mr Bryan was negligent in building the house with inadequate footings; the damage sustained by Mrs Maloney was the loss involved in the decrease in value of the house resulting from the inadequacy of the footings and its consequences... The economic loss involved is the amount which would necessarily be expended in remedying the inadequate footings and their consequences...’6 6. Another example is the class of case one frequently against legal practitioners where a claim for damages for personal injury is not commenced within the statutory time period. The negligence of the solicitor causes loss being the inability to pursue an action for personal injuries either as of right or by reason of a discretionary extension to the limitation period7. In Hunt & Hunt Lawyers –v- Mitchell Morgan Nominees Pty Ltd8 Bell & Gageler JJ (albeit in dissent in the result) exampled such cases in the following terms: ‘One is the case of a solicitor whose negligent omission leads to his client's claim for personal injuries being dismissed for want of prosecution or becoming statute barred. It has been pointed out that in such a case the loss that is caused by the solicitor's negligence is "the loss of a cause of action for personal injuries" and that what is compensated in damages is the value of that lost cause of action. The fault of the person who was or would have been the defendant in the actual or putative action for personal injuries gives rise to the cause of action that is lost. Through the combined faults of that person and the solicitor, the client may be out of pocket. But the harm caused by that person and the harm caused by the solicitor are separate and distinct. The harm caused by that person is personal injuries. The harm caused by that person is not the loss of the cause of action. The harm caused by the solicitor is the loss of the cause of action, not the personal injuries. The analysis would be no different if the cause of action that is lost by reason of the negligence of the solicitor, instead of being for personal injuries, is for damage to property or for economic loss.’9 7. Generally the decision in Hunt & Hunt –v- Mitchell Morgan Nominees is useful as it collects a number of examples of claims for pure economic loss, in the context of the application of the proportionate liability provisions of the Civil Liability Act 2002 (NSW), which do not materially differ 4 Tabet –v- Gett (2010) 240 CLR 537 at [47], Gummow ACJ. 5 (1995) 182 CLR 609. 6 At 616, Mason CJ, Deane & Gaudron JJ. 7 Johnson –v- Perez (1989) 166 CLR 351 at 360, Mason CJ. 8 [2013] HCA 10 (2013) 247 CLR 656. 9 At [97]. See also French CJ, Hayne & Kiefel JJ at [38]. 3 from the corresponding Tasmanian provisions. There is an important distinction between damage and damages which the plurality explained as follows: ‘In the identification of the damage or loss that is the subject of the claim, it is necessary to bear in mind that damage is not to be equated with what is ultimately awarded by the court, which is to say the "damages" which are claimed by way of compensation and which are assessed and awarded for each aspect of the damage suffered by a plaintiff. Damage, properly understood, is the injury and other foreseeable consequences suffered by a plaintiff. In the context of economic loss, loss or damage may be understood as the harm suffered to a plaintiff's economic interests. It has already been observed that the Civil Liability Act equates "harm" with damage to property and economic loss which results from a failure to exercise reasonable care and skill.’10 8. Further, as their Honours point out ‘it will almost always be necessary to identify, with some precision, the interest infringed by the negligent act.’11 That is because: ‘its identification is also necessary for a proper understanding of the harm suffered and for the determination of what acts or omissions may be said to have caused that damage.’12 9. The decision is also important, for present purposes, in that economic loss ‘need not be derived from proprietary rights or obligations’13 and extends to an economic interest which is compensable by money. 10. Examples of recent claims for pure economic loss which have been considered by our Full Court include Calvert –v- Badenach14, a claim by a disappointed beneficiary brought against a solicitor responsible for drawing the will of a testator, Kronenberg –v- Bridge15, a breach of contract and misleading and deceptive conduct claim by homeowners against a builder for the lost opportunity of being able to have the work undertaken at less cost, Blackley Investments Pty Ltd –v- Burnie City Council16, a claim by a developer against a local council for the lost opportunity of being able to undertake a commercial development on land the subject of a repudiated contract and Doolan –v- Renkon17 a claim for damages by a client against a solicitor for negligence in failing to give advice which, had it been given, would have enabled the client to avoid an onerous contract.
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