Hill v Van Erp

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ

HILL trading as R F HILL & ASSOCIATES v VAN ERP; F.C. 97/007
Negligence

(1997) 188 CLR 159

18 March 1997
Negligence

Negligence—Duty of care—Proximity—Failure of solicitor to ensure that spouse of beneficiary did not witness execution of will—Whether duty of care owed to intended but disappointed beneficiary in the absence of a contractual relationship—Extent of duty—Nature of economic loss—Causation.

Orders

Appeal dismissed with costs.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Decision

BRENNAN CJ.

1. Mrs Olive Eileen Currey wished to change her will. Her will had been prepared by the appellant, Mrs Hill, a solicitor practising in the Brisbane suburb of Paddington. Mrs Currey asked Mr Van Erp, a neighbour, to ask Mrs Hill to call on her. She did so. On or about 3 December 1990, Mrs Currey gave Mrs Hill instructions for a new will. In accordance with her instructions, Mrs Hill drew a will cl 4 of which read as follows:

" I GIVE DEVISE AND BEQUEATH my house property situate 25 Perrott Street, Paddington, Brisbane in the said State, and the contents therein not previously bequeathed UNTO my son WILLIAM JOHN AXEN and my good friend RONA VAN ERP as tenants in common in equal shares."

2. Clause 3(b) of the will also provided that Rona Van Erp should be given Mrs Currey's leather lounge suite, ornate glass top table and antique clock. Rona Van Erp is the spouse of Mr Van Erp as Mrs Hill knew.

3. On 7 December 1990, Mrs Hill brought the draft will to Mrs Currey's house. Mr Van Erp was present. Mrs Hill read the draft will to Mrs Currey. Mrs Currey signed the will as testatrix. Mrs Hill signed as one attesting witness. Mrs Hill asked Mr Van Erp, who was the only other person present, to sign as the second attesting witness. She pointed to the place where he was to sign and, according to his evidence, he signed "because Mrs Hill asked me to". No advice was sought by him or given to him as to the effect on the gift to his spouse of his being an attesting witness.

4. The consequence of Mr Van Erp's signing as an attesting witness was to attract the operation of s 15(1) of the Succession Act 1981 (Q) which reads as follows:

" Where any disposition of property ... is, by will, made in favour of a person who attested the signing of the will, or the spouse of such person, to be held by that person or, as the case may be, that spouse beneficially, the disposition is null and void to the extent that it entitles that person, the spouse of that person or another person claiming under that person or that spouse to take property under it."

5. By reason of s 15(1), the testamentary disposition of an interest in the house property at 25 Perrott Street to Mrs Van Erp failed. Her interest fell into residue and presumably was taken by the residuary beneficiary. She sued Mrs Hill for damages for negligence and recovered a judgment in the District Court for $163,471.50 and interest. Mrs Hill's appeal to the Court of Appeal failed. The question on this appeal is whether Mrs Hill is liable in negligence for procuring Mr Van Erp to be an attesting witness whereby Mrs Van Erp failed to acquire the property which Mrs Currey intended to devise to her.

6. There are conceptual difficulties in the way of allowing a remedy against a testator's solicitor to an intended but disappointed beneficiary. These were rehearsed by Lord Goff of Chieveley in White v Jones[1], and I respectfully adopt his Lordship's statement of them. In that case, the solicitor for a testator negligently delayed in drawing a will in accordance with the testator's instructions and the testator died leaving a will which did not contain the gifts which the testator had intended the plaintiffs to receive. The principal conceptual difficulties in the way of allowing a remedy were stated by Lord Goff in these terms[2]:

"First, the general rule is well established that a solicitor acting on behalf of a client owes a duty of care only to his client. The relationship between a solicitor and his client is nearly always contractual, and the scope of the solicitor's duties will be set by the terms of his retainer. ... ... A further reason is given which is said to reinforce the conclusion that no duty of care is owed by the solicitor to the beneficiary in tort. Here, it is suggested, is one of those situations in which a plaintiff is entitled to damages if, and only if, he can establish a breach of contract by the defendant. First, the plaintiff's claim is one for purely financial loss; and as a general rule, apart from cases of assumption of responsibility arising under the principle in Hedley Byrne & Co Ltd v Heller & Partners Ltd[3], no action will lie in respect of such loss in the tort of negligence. Furthermore, in particular, no claim will lie in tort for damages in respect of a mere loss of an expectation, as opposed to damages in respect of damage to an existing right or interest of the plaintiff. Such a claim falls within the exclusive zone of contractual liability; and it is contrary to principle that the law of tort should be allowed to invade that zone."

7. His Lordship expanded the reasons advanced for contending that a beneficiary's claim can lie only in contract[4]:

"Here I refer not only to the fact that the claim is one for damages for pure economic loss, but also to the need for the defendant solicitor to be entitled to invoke as against the disappointed beneficiary any terms of the contract with his client which may limit or exclude his liability; to the fact that the damages claimed are for the loss of an expectation; and also to the fact (not adverted to below) that the claim in the present case can be said to arise from a pure omission, and as such will not (apart from special circumstances) give rise to a claim in tortious negligence. Faced with points such as these, the strict lawyer may well react by saying that the present claim can lie only in contract, and is not therefore open to a disappointed beneficiary as against the testator's solicitor. This was indeed the reaction of Lush and Murphy JJ in Seale v Perry[5], and is one which is entitled to great respect."

8. Notwithstanding the conceptual difficulties, a majority of the House of Lords held the solicitor liable in negligence to the intended but disappointed beneficiaries. Lord Goff[6] regarded it of "cardinal importance" that if the law did not recognise a duty owed to the disappointed beneficiary, there would be a lacuna in the law which, for reasons of practical justice, ought to be filled. Unless such a duty is recognised "the only persons who might have a valid claim (ie, the testator and his estate) have suffered no loss, and the only person who has suffered a loss (ie, the disappointed beneficiary) has no claim" - a proposition which Sir Robert Megarry V-C had expressed in his judgment allowing a disappointed beneficiary a remedy in Ross v Caunters[7].

9. The conceptual difficulties in the way of allowing a remedy to an intended but disappointed beneficiary led a majority of the Supreme Court of Victoria to a contrary view in Seale v Perry[8]. However, Seale v Perry was not followed in Watts v Public Trustee for Western Australia[9]or in Finlay v Rowlands, Anderson and Hine[10]. Accepting that "practical justice" tends in favour of allowing a remedy to an intended but disappointed beneficiary, it is necessary to address the conceptual difficulties to determine for this country whether the law of negligence provides such a remedy.

Is there a duty of care in tort?

10. Although a solicitor's contractual duty is owed solely to the client, the existence of that duty does not necessarily negate a duty of care owed to a third party in tort. To the contrary, the undertaking of a specialist task pursuant to a contract between A and B may be the occasion that gives rise to a duty of care owed to C who may be damaged if the task is carelessly performed[11]. Thus in Pippin v Sheppard[12], in an action by a man and his wife against a surgeon for negligent treatment of the wife, the declaration that the surgeon had been employed for a reward without alleging who had retained him was held to be sufficient. Whether it was the husband or the wife that employed the surgeon, the damage had been suffered by the wife and she had the cause of action. Richards LCB said[13]:

"The Defendant, being a surgeon, undertakes to the public, to cure wounds and other ailments of the human system, and professes himself ready to be employed by any one for that purpose. ... Then negligence and improper treatment are charged, and ... [t]he question then is, to whom was the injury done? ... From the necessity of the thing, the only person who can properly sustain an action for damages, for an injury done to the person of the patient, is the patient himself, for damages could not be given on that account to any other person, although the surgeon may have been retained and employed by him to undertake the cure."

11. The necessary, but not always sufficient, foundation for a duty of care in tort is reasonable foreseeability of damage to another if the task in hand is carelessly performed. Thus, in Voli v Inglewood Shire Council[14], Windeyer J said of an architect:

"Whatever might have been thought to be the position before the broad principles of the law of negligence were stated in modern form in Donoghue v Stevenson[15], it is now beyond doubt that, for the reasonably foreseeable consequences of careless or unskilful conduct, an architect is liable to anyone whom it could reasonably have been expected might be injured as a result of his negligence. To such a person he owes a duty of care quite independently of his contract of employment."

12. Then his Honour said[16]:

"[N]either the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it."

13. Generally speaking, however, a solicitor's duty is owed solely to the client subject to the rules and standards of the profession[17]. That is because the solicitor's duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client's interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client. But the interests of a client who retains a solicitor to carry out the client's testamentary instructions and the interests of an intended beneficiary are coincident.

14. Most testators seek the assistance of a solicitor to make their intentions effective. The very purpose of a testator's retaining of a solicitor is to ensure that the testator's instructions to make a testamentary gift to a beneficiary results in the beneficiary's taking that gift on the death of the testator. There is no reason to refrain from imposing on a solicitor who is contractually bound to the testator to perform with reasonable care the work for which he has been retained a duty of care in tort to those who may foreseeably be damaged by carelessness in performing the work. The terms of the retainer determine the work to be done by the solicitor and the scope of the duty in tort as well as in contract. A breach of the retainer by failing to use reasonable care in carrying the client's instructions into effect is also a breach of the solicitor's duty to an intended beneficiary who thereby suffers foreseeable loss. If the solicitor's carelessness results in the loss of a testamentary gift intended to be given to a beneficiary, "it is eminently fair, just and reasonable that the solicitor should be liable in damages to the intended beneficiary", as Sir Donald Nicholls V-C said in White v Jones[18]. Not only is the remedy of damages effective to compensate the beneficiary; it is necessary to enforce the duty owed to the client. "Otherwise", as the Vice-Chancellor said, "there is no sanction in respect of the solicitor's breach in his professional duty."

Does the loss of an intended gift found an action in tort?

15. In one sense, Mrs Van Erp has suffered no loss. She simply failed to obtain a benefit to which she had no legal entitlement. It is of the nature of a gift that the donee has no prior legal entitlement to the thing given, nor any right to compel the donor to give the thing. If some formality must be observed by the donor in order to effect the gift and the formality is not observed, the donee has no equitable right to compel the observance of the formality.

16. Property intended to be given may pass from a donor either during the lifetime of the donor or on the donor's death. In the case of an intended gift inter vivos, if the intended disposition fails for some reason, the thing to be given remains the property of the donor; the donor may then dispose of the thing effectively either to the donee first intended or to another. The intention of the donor is not irrevocably frustrated and, as between the donor and the intended donee, the property is not lost. But in the case of an ineffective gift intended to be given by a testator to a beneficiary, the thing intended to be given passes on the testator's death to another. It is no longer the property of the donor. And, unless the intended but disappointed beneficiary can claim the thing from the testator's estate in proceedings under a statute for the relief of the testator's family and dependants[19], the testator's intention is frustrated and the thing which passed from the testator on death is irretrievably lost to the intended donee. That is the nature of the "loss" with which this class of case is concerned. It is a loss that is suffered upon the dropping of the testator's life. It is a loss which follows immediately from breach of the solicitor's duty to safeguard the intended beneficiary from precisely that kind of loss[20].

17. When an intended beneficiary suffers such a loss as the result of the negligence of a third party, is the loss characterised as a loss which might found an action for damages? This is the novel question for determination.

18. An action for damages for negligence provides compensation to a plaintiff for loss measured by comparing the plaintiff's actual situation with the hypothetical situation in which the plaintiff would have been but for the negligence of the defendant. If the plaintiff's position is economically worse than it would have been but for the carelessness of the defendant, that is economic loss. Ordinarily, economic loss is recoverable when it is suffered in consequence of physical damage sustained by or manifesting itself in the person or property of the plaintiff or when it is caused by a plaintiff's acting or refraining from acting in reliance on what the defendant has negligently said or done[21]. The present case does not fall within any of these categories.

19. In Hedley Byrne & Co Ltd v Heller & Partners Ltd[22], there was a mutual relationship between the plaintiff and the defendants which gave rise to a duty of care in the making of a representation by the defendants on which the plaintiff relied and acted to its financial detriment. In White v Jones, Lord Mustill in dissent held[23] that a cause of action against the careless solicitor in favour of the intended but disappointed beneficiaries could not be based on Hedley Byrne because there was no undertaking of responsibility by the solicitor to the beneficiaries in the context of some mutual relationship between them. Although Hedley Byrne has been followed in Mutual Life and Citizens' Assurance Co Ltd v Evatt[24], it has not been thought to limit the recovery of economic loss to cases which exhibit the elements that attracted liability in Hedley Byrne.

20. In Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad", economic loss was treated as a head of damage independent of physical damage which might be recovered when the circumstances were such as to impose on the defendant a duty of care to avoid that damage[25]. The problem was to define the elements additional to mere foreseeability which would allow relief to a plaintiff whose damages consist merely of economic loss. As Stephen J said[26]:

"[I]f economic loss is to be compensated its inherent capacity to manifest itself at several removes from the direct detriment inflicted by the defendant's carelessness makes reasonable foreseeability an inadequate control mechanism."

21. Hedley Byrne is properly to be understood as a case in which damages for pure economic loss were held to be recoverable when they were suffered as a result of the plaintiff's reliance on a statement made by a defendant who had undertaken to the plaintiff, by reason of the relationship between them, to exercise reasonable care in making the statement. The assumption of responsibility by the defendants in Hedley Byrne was a characteristic of the conduct to which a plaintiff's economic loss had to be causally related through inducement and reliance[27], not an element that exhausted the circumstances in which damages for economic loss could be recovered. In my respectful opinion, Hedley Byrne is one type of case in which damages for pure economic loss can be recovered but it does not deny the possibility of recovery in other types of case.

22. The objection that no claim for damages for economic loss lies in negligence unless it is in respect of damage to an existing right or interest is, in my opinion, erroneous. True it is that a plaintiff who has no existing right or interest that is adversely affected by a defendant's carelessness may suffer no loss and hence have no foundation for a claim in negligence. But it does not follow that it is only in contract that damages may be recovered for loss of something to which the plaintiff has no prior legal right. A benefit that a plaintiff would have received but for the negligence of the defendant is a loss, whether or not the benefit would have been gratuitous. So far as the element of causation is concerned, it is sufficient if the links between the negligent act or omission of the defendant and the plaintiff's loss of the benefit are established[28]. Cases of the present kind are not concerned with the loss of a spes successionis; compensation is sought for the loss of the property which, but for the negligence of the defendant, the plaintiff would have taken. The loss of that property is economic loss of which the law of tort takes cognizance.

23. It follows that the principal conceptual difficulties in the way of allowing the claim of an intended but disappointed beneficiary are without substance. The lesser difficulties which Lord Goff stated in White v Jones can be dismissed for the reasons which his Lordship gave[29]. The case then falls for consideration in accordance with the principles of the general law of negligence.

24. By accepting the testator's retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a testator on death to an intended beneficiary; it is foreseeable that, if reasonable care is not exercised in performing the task, the intended beneficiary will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with; and the intended beneficiary thereby loses the property. The elements, additional to the elements required by Donoghue v Stevenson in claims for physical damage, which prevent a case of this kind from being a precedent for claims of indeterminate liability for economic loss[30] are twofold: the claim can be made only by an intended but disappointed beneficiary in respect of an intended testamentary gift and the duty of care owed by the solicitor to the intended but disappointed beneficiary is in the performance of the work in which he owes a corresponding duty - albeit contractually - to the testator. It is immaterial, of course, that the negligent act or omission which causes the loss occurs during the lifetime of the testator and the plaintiff's loss is suffered on or after the testator's death.

25. In White v Jones[31], Lord Goff stated the principle under which the majority allowed the plaintiff's claim in negligence. He said:

"In my opinion, therefore, your Lordships' House should in cases such as these extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor. Such liability will not of course arise in cases in which the defect in the will comes to light before the death of the testator, and the testator either leaves the will as it is or otherwise continues to exclude the previously intended beneficiary from the relevant benefit."

26. Although, in my respectful opinion, his Lordship's statement describes the loss which may found a claim in negligence by an intended but disappointed beneficiary, I would not regard the principle underlying recovery against the solicitor as being an extension of the Hedley Byrne assumption of responsibility. The Hedley Byrne category of case depends upon an assumption of a duty of care as a factual element in the relationship between the plaintiff and defendant. In cases of the present kind, there is no anterior relationship between solicitor and intended beneficiary and the duty of care is imposed by law.

27. I would therefore hold Mrs Hill liable in damages to Mrs Van Erp. I would dismiss the appeal.

DAWSON J.

28. The question to be determined in this appeal is whether a person deprived of a bequest by the carelessness of a solicitor in attending to the execution of a will may recover damages for negligence from the solicitor.

29. The testatrix, Mrs Currey, died on 8 May 1991. She was a widow who, during her lifetime, had become friendly with her neighbours, Mr and Mrs Van Erp. Some time after her husband's death in 1988, Mrs Currey told Mr Van Erp that she wanted to make a will and asked him to get a solicitor for her. Mr Van Erp contacted Mrs Hill, a solicitor practising in the same suburb, and asked her to see Mrs Currey. Mrs Hill did so and, in accordance with Mrs Currey's instructions, prepared a will which Mrs Currey executed. By this time Mrs Hill was aware of the existence of Mrs Van Erp and that Mr Van Erp was her husband.

30. Subsequently, Mrs Currey wanted to change the will and, again through Mr Van Erp, had Mrs Hill call on her. Mrs Hill prepared a new will in accordance with Mrs Currey's instructions and returned on 7 December 1990 to have it executed by her. Under this will Mrs Van Erp was a beneficiary, being left property to the value of $163,471.50. Mrs Currey signed the will which was attested and subscribed by Mrs Hill. A second witness is required by s 9 of the Succession Act 1981 (Q) to attest and subscribe a will, and Mrs Hill requested Mr Van Erp to fulfil that requirement. He did so. Later, both Mrs Currey and Mr Van Erp told Mrs Van Erp that she was a beneficiary under the will and informed her of the nature and extent of the bequest. Mrs Van Erp did nothing either to secure or to confirm her position as a beneficiary.

31. After Mrs Currey's death, it became apparent that the bequest to Mrs Van Erp was null and void under s 15(1) of the Succession Act because it was in favour of the spouse of a person who attested the execution of the will. Being deprived of her bequest, Mrs Van Erp sued Mrs Hill for damages for negligence in the District Court. Mrs Van Erp was successful in her action and in an appeal by Mrs Hill to the Queensland Court of Appeal. Mrs Hill now appeals to this Court.

32. Mrs Hill does not contest that her failure to have the will attested by someone other than Mr Van Erp constituted negligent conduct but asserts that her only duty of care was to Mrs Currey, by whom she was retained. She denies that she was under any duty of care to the proposed beneficiary, Mrs Van Erp. The value of the property which Mrs Currey attempted to bequeath to Mrs Van Erp is not in dispute. Thus the sole question in this appeal is whether, in drawing up the will and attending to its execution, Mrs Hill owed a duty of care to Mrs Van Erp.

33. Clearly Mrs Hill owed a duty of care to the testatrix, Mrs Currey, and it was a duty both in contract and tort. The view that the relationship between solicitor and client is governed exclusively by the contract of retainer and leaves no room for liability in tort on the part of the solicitor was never based upon a firm foundation and is no longer accepted[32]. Of course, if during her lifetime the testatrix had attempted to sue her solicitor for negligence, she could at most have recovered the cost of the preparation and execution of a new will or the re-execution of the existing one. Likewise, had her estate attempted to sue the solicitor after her death it could have recovered no more than nominal damages because it suffered no loss by reason of the solicitor's negligence. The property which would have passed to Mrs Van Erp fell into the residue of the estate and passed to Mrs Currey's son. But so far as the solicitor's liability in contract is concerned, it did not extend to Mrs Van Erp. She had no contract with the solicitor and it is not suggested that the law would recognise any jus quaesitum tertio in the present circumstances[33].

34. The existence of a duty of care in negligence on the part of a solicitor to an intended beneficiary under a will has, since the decision of Sir Robert Megarry V-C in Ross v Caunters[34], been the subject of some controversy. That case decided, contrary to the decision of the House of Lords in Robertson v Fleming[35], that a solicitor may be liable to a beneficiary who fails to receive an intended bequest under a will by reason of the solicitor's negligence. The Vice-Chancellor's reason for not following Robertson v Fleming was that it had been superseded by Donoghue v Stevenson[36] and subsequent cases based upon that decision. In Seale v Perry[37] the Full Court of the Supreme Court of Victoria declined to follow Ross v Caunters, and there has been a slight indication of a similar view in New South Wales[38], but otherwise the trend in the cases has been in the opposite direction. In England this culminated in White v Jones[39] where the House of Lords held that a solicitor was liable to a disappointed beneficiary, not upon the basis of Donoghue v Stevenson, but upon principles to be found in authorities such as Nocton v Lord Ashburton[40] and Hedley Byrne & Co Ltd v Heller & Partners Ltd[41] which deal with liability in negligence. In New Zealand, the Court of Appeal applied Ross v Caunters in Gartside v Sheffield, Young & Ellis[42], and in Canada[43] and the United States[44] the tendency has been to allow damages to an intended beneficiary deprived of a bequest by negligence in the preparation or execution of a will. In Australia, a duty on the part of a solicitor to an intended beneficiary has been recognised in Western Australia[45] and is supported by dicta in Tasmania[46]. Comments by Deane J in Hawkins v Clayton[47] are consistent with the existence of such a duty.

35. As I have said, in Ross v Caunters[48] the Vice-Chancellor reached his conclusion that the solicitor in that case owed a duty of care to a disappointed beneficiary by applying Donoghue v Stevenson[49]. However, in White v Jones[50] it was thought that Donoghue v Stevenson did not provide the test which would identify the duty of care, if any, in that situation. Not all foreseeable injuries are compensable in negligence although Donoghue v Stevenson established one category which was. It established that a manufacturer of products owed a duty of care to the consumer of those products to avoid foreseeable injury to the consumer. In establishing that category, Lord Atkin enunciated the famous neighbourhood principle which, whilst helpful in identifying other categories of negligence, does not provide any comprehensive guide. The foreseeability of harm, whilst an essential ingredient of the tort of negligence, is not enough by itself to give rise to a duty of care, at all events in cases not involving ordinary physical damage to persons or property. In other words, it does not set the limits of the tort of negligence: there are situations which lie outside the boundaries of compensable damage even though harm may be reasonably foreseeable.

36. The most significant of those situations is where the damage is not physical injury or loss flowing from physical injury to a person or property, but consists of nothing more than economic loss. The law was compelled to recognise that in that situation, although the damage may have been foreseeable, it could not impose liability in every case. As Brennan J said in Bryan v Maloney[51]:

"If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition[52], sterilise many contracts and, in the well-known dictum of Chief Judge Cardozo[53], expose defendants to potential liability 'in an indeterminate amount for an indeterminate time to an indeterminate class'."

37. So the law set about defining categories of cases of pure economic loss where, without imposing indeterminate liability or destroying commercial competition, it could recognise the existence of a duty of care, the breach of which would sound in damages. The most significant case is, perhaps, Hedley Byrne & Co Ltd v Heller & Partners Ltd[54] in which the House of Lords held that loss caused by a negligent misstatement might give rise to liability in damages, but only where there was an express or implied assumption of responsibility on the part of the person making the statement and reliance placed upon that person's skill and judgment by the person to whom the statement was made. In other words, liability for pure economic loss was recognised in the case of a negligent misstatement, but only for the breach of a duty of care arising out of a particular relationship between the parties.

38. And in Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad"[55] this Court held that, although as a general rule damages are not recoverable for pure economic loss even where it is foreseeable, damages are recoverable where the defendant has the knowledge or means of knowledge that a particular person, not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence. Again, the particular relationship between the parties was held to give rise to a duty of care. Of note is the statement of Stephen J[56] that there was a need for "some control mechanism based upon notions of proximity between tortious act and resultant detriment".
39. The notion of proximity in this context was taken up by Deane J in Jaensch v Coffey[57]. That was a case of injury in the form of nervous shock and fell within another category of case in which it had been held that foreseeability of damage was not of itself sufficient to impose a duty of care. Deane J, with whom Gibbs CJ agreed, said that the relationship between the plaintiff and defendant in that case gave rise to a duty of care on the part of the defendant because it was a relationship of proximity.

40. The concept of proximity has been articulated in subsequent cases and has been accepted by this Court[58]. For instance, in San Sebastian Pty Ltd v The Minister[59], a majority said:

"The notion of proximity, because it limits the loss that would otherwise be recoverable if foreseeability were used as an exclusive criterion of the duty of care, is of vital importance when the plaintiff's claim is for pure economic loss. When the economic loss results from negligent misstatement, the element of reliance plays a prominent part in the ascertainment of a relationship of proximity between the plaintiff and the defendant, and therefore in the ascertainment of a duty of care. But when the economic loss results from a negligent act or omission outside the realm of negligent misstatement, the element of reliance may not be present. It is in this sphere that the absence of reliance as a factor creates an additional difficulty in deciding whether a sufficient relationship of proximity exists to enable a plaintiff to recover economic loss."

41. The notion of proximity was advanced by Deane J to describe in general terms the element in a relationship which would give rise to a duty of care where mere foreseeability of harm was insufficient for that purpose and to provide a unifying conceptual determinant to assist in ascertaining what the content of that element was in any given category of case. Perhaps the attempt was an ambitious one, because the assumption would seem to be that there is a common element in each such relationship and that it can adequately be described as proximity. In Jaensch v Coffey[60] Deane J suggested that the concept "involves the notion of nearness or closeness", but the features of a relationship which gives rise to a duty of care do not always answer the description of nearness or closeness. Likewise, some relationships which would as a matter of language be thought proximate nevertheless do not constitute relationships of proximity[61]. That is because, as Deane J recognised in Jaensch v Coffey[62], the identification of the particular requirements of proximity in developing areas of the law is not divorced from the considerations of public policy which underlie and enlighten the concept. But if considerations of policy underlie and enlighten the concept of proximity, and if nearness and closeness are neither sufficient nor necessary to establish a relationship of proximity in all cases, then it cannot be said that any unifying common element has emerged which can adequately be described as proximity. That is why in Gala v Preston I said that Deane J went too far in Stevens v Brodribb Sawmilling Co Pty Ltd[63]when he said that "the notion of proximity can be discerned as a unifying theme explaining why a duty to take reasonable care to avoid a reasonably foreseeable risk of injury has been recognised as arising in particular categories of case".

42. To the extent that the joint judgment in Burnie Port Authority v General Jones Pty Ltd[64],to which I was subsequently a party, proceeds along similar lines, it would seem to go too far. I have in mind in particular the statement that without proximity as a "general conceptual determinant and the unifying theme"[65] of the categories of case in which a duty of care arises[66],

"the tort of negligence would be reduced to a miscellany of disparate categories among which reasoning by the legal processes of induction and deduction would rest on questionable foundations since the validity of such reasoning essentially depends upon the assumption of underlying unity or consistency."

43. Reasoning by analogy from decided cases by the processes of induction and deduction, informed by rather than divorced from policy considerations, is not, in my view, dependent for its validity on those cases sharing an underlying conceptual consistency. It is really only dependent upon the fact that something more than reasonable foreseeability is required to establish a duty of care and that what is sufficient or necessary in one case is a guide to what is sufficient or necessary in another.

44. Nevertheless, and notwithstanding the criticism of the concept by Brennan J[67], whose approach has found favour in the House of Lords[68], I retain the view which I expressed in Gala v Preston[69] that the requirement of proximity is at least a useful means of expressing the proposition that in the law of negligence reasonable foreseeability of harm may not be enough to establish a duty of care. Something more is required and it is described as proximity. Proximity in that sense expresses the result of a process of reasoning rather than the process itself[70], but it remains a useful term because it signifies that the process of reasoning must be undertaken. But to hope that proximity can describe a common element underlying all those categories of case in which a duty of care is recognised is to expect more of the term than it can provide.

45. Both the approach suggested by Deane J based on proximity, and that suggested by Brennan J, namely "that the law should develop novel categories of negligence incrementally and by analogy with established categories"[71], posit an overall framework but are not specific propositions of law[72]. When the content of proximity falls to be ascertained in a novel category of case, that is to say, when one engages in the process of reasoning signified by that term, then as Deane J pointed out in Stevens v Brodribb Sawmilling Co Pty Ltd[73], one proceeds in accordance with accepted modes of legal reasoning, particularly reasoning by analogy from decided cases. Indeed, although this Court has adopted the approach suggested by Deane J, the reasoning it has employed in formulating the particular requirements of proximity in a novel category is, in my view, similar to that suggested by Brennan J and does not reflect a unifying theme. Brennan J himself had those similarities in mind when he said in San Sebastian Pty Ltd v The Minister[74] that:

"The propositions of law which express the appropriate limitations for each class will be devised having regard, no doubt, to factors of the kind to which Deane J referred in Sutherland Shire Council[75]".

46. Thus the difference between the approach based on proximity and that suggested by Brennan J is, in my view, far less than the protracted debate on the subject would suggest, and is, perhaps, more a difference of labelling than one of substance. Reasonable foreseeability of harm does not, of itself, always give rise to a duty to take care. Something more is required according to the category of the case in question, and that something more is called proximity. Where a new category is suggested, regard should be had in the first place to the established categories which may be helpful by way of analogy in determining whether to recognise a duty of care. That is how incremental development takes place[76]. The process is affected by relevant policy considerations, such as the need to avoid indeterminate liability or the placing of impediments in the way of ordinary commercial activity. It is also important that the tort of negligence should not be regarded as providing an all-enveloping remedy, supplanting "other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic loss"[77]. In the end, policy considerations will set the outer limits of the tort. As Lord Pearce said in Hedley Byrne & Co Ltd v Heller & Partners Ltd[78]:

"How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts' assessment of the demands of society for protection from the carelessness of others."

47. Sometimes the question of proximity will turn upon the nature of the conduct which caused the damage - such as negligent misstatement or a failure to act - as well as the type of damage suffered - nervous shock or economic loss, for example. However, in this case nothing would appear to turn upon the nature of the conduct which constituted carelessness on the part of the solicitor. In White v Jones[79] the carelessness of the solicitor was a failure to carry out his instructions within a reasonable time before the death of the testator. That was considered indistinguishable from the carelessness of the solicitor in Ross v Caunters[80] which, as in this case, was his failure to see that the testator's signature was properly attested. It is with the type of loss suffered that any consideration of liability in this case must therefore begin.

48. In Seale v Perry[81] the Supreme Court of Victoria questioned whether an intended beneficiary disappointed because of the negligence of the testator's solicitor suffered any loss at all. It was said that at the time of the solicitor's negligence the only interest that the intended beneficiary had in the bequest was an expectation, a spes successionis. There was no enforceable right or interest. That approach overlooks the fact that, in this case, upon the testatrix's death, Mrs Van Erp would have had an enforceable right to her bequest had it not been for the negligence of the solicitor. In this case, what Mrs Van Erp lost was no mere expectation; it was a share in the testatrix's estate[82]. But in any event there is no rule preventing recovery of damages in tort for loss of an expectation. General damages are routinely awarded in tort for loss of future earnings or profits, which are no more than lost expectations[83]. Had the result of the solicitor's negligence in this case been discovered during the lifetime of the testatrix, the will could have been re-executed by her, provided her intentions remained the same. If her intentions had altered and she no longer wished to bequeath anything to Mrs Van Erp, then Mrs Van Erp would have suffered no loss. But there is nothing to indicate any change of intention on the part of the testatrix before her death, and the fact that the solicitor's mistake could have been rectified if it had been discovered during the testatrix's lifetime does not mean that Mrs Van Erp suffered no loss on the testatrix's death[84].

49. Whilst the loss Mrs Van Erp has suffered is pure economic loss, the considerations which ordinarily prompt concern about imposing liability for such loss are absent. In the first place, to impose liability upon the solicitor in such a situation is not to raise the prospect of indeterminate liability. An intended beneficiary under a will is a specific, identifiable individual rather than a member of an unascertained class[85]. Nor is the liability to such a person at large. The maximum amount of the damages which might be awarded is fixed by the size of the intended bequest. Indeed, both the beneficiary's existence and identity and the amount to which he or she is entitled will ordinarily be brought to a solicitor's attention.

50. Secondly, no question of competitive advantage arises. In appropriate cases that is a consideration which is relevant to the scope of the tort of negligence. As Mason CJ, Deane and Gaudron JJ said in Bryan v Maloney[86]:

"Another consideration is the perception that, in a competitive world where one person's economic gain is commonly another's loss, a duty to take reasonable care to avoid causing mere economic loss to another, as distinct from physical injury to another's person or property, may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage".

51. In this case, the solicitor's negligence had nothing to do with her obtaining a commercial or competitive advantage and the recognition of a duty of care would not impede the legitimate pursuit of financial gain.

52. Thirdly, the recognition of a duty of care would not supplant or supplement remedies available in other areas and would not disturb any general body of rules constituting a coherent body of law[87]. The only areas of law which require particular attention are the law of succession and the law of contract.

53. It has been suggested[88] that loss such as that suffered by Mrs Van Erp stems, not from the breach of any obligation upon the part of the solicitor, but from the operation of the law governing succession which requires a valid will to dispose of property after death. The intentions of the testator have been frustrated, so the line of reasoning goes, because those intentions are required to be expressed in a particular form. Because they were not, the wrong persons have benefited from the testatrix's estate. In a sense that is true. Had the testatrix re-executed her will and had her signature been properly attested, her intentions would have been realised. But to say as much is to fail to get to the bottom of the matter.

54. In this case, the real reason why the intended beneficiary failed to take under the will was that the testatrix did not embody her intentions in a will which complied with the requirements of the law. Those requirements may be criticised. Indeed, one may point to the absence in Queensland of a provision such as is to be found in s 12(2) of the Wills Act 1936 (SA) which allows admission of a will to probate which, whilst not executed in accordance with the prescribed formalities, expresses the intentions of the deceased to the satisfaction of the Supreme Court[89]. But whatever the requirements, the testatrix retained the services of the solicitor to ensure compliance with them and it was the solicitor's failure to perform that task that resulted in loss to the intended beneficiary. The testatrix during her lifetime and, after her death, her estate, could have sued the solicitor for breach of contract or in tort (albeit only for negligible or nominal damages) and that is because the fault did not lie in the law of succession but with the solicitor. The law relating to wills explains why the solicitor was at fault in acting as she did but in no way relieves her of responsibility for the loss which the intended beneficiary suffered.

55. It was pursuant to the contract of retainer between the testatrix and the solicitor that the solicitor undertook to prepare the will and attend to its execution. It was an implied term of the contract that the solicitor should exercise due skill and care in carrying out her duties. The origin of the solicitor's obligations lay in contract, but that is no reason for saying that the relationship to which the contract gave rise could not form the basis of a duty or duties owed otherwise than in contract. After all, it is now clear that the solicitor owed the testatrix a duty to take care in tort as well as in contract[90]. And if the relationship between the solicitor and the testatrix gave rise to a duty of care in tort there is no reason in logic or principle why the relationship between the solicitor and the intended beneficiary should not also do so. At any rate, there was nothing in the existence of a contract of retainer between the solicitor and the testatrix which precluded a duty of care in tort being owed to the intended beneficiary any more than it precluded a duty of care in tort being owed to the testatrix. Bryan v Maloney[91] makes it clear that these duties can co-exist. In that case the Court held that the builder of a house pursuant to a contract with the original owner owed a duty of care to a subsequent purchaser with whom the builder had no contract. Breach of the duty imposed liability upon the builder for the economic loss suffered by the subsequent purchaser. Indeed, in Bryan v Maloney, unlike this case, the identity of the person who suffered the damage was unknown to the builder at the time he carried out the work.

56. It has been suggested that a difficulty arises in recognising a duty of care to a third party arising from a contract between others. The suggested difficulty is that the contract may exclude liability for negligence[92]. In that context it is useful to recall what Windeyer J said in Voli v Inglewood Shire Council[93] of an architect's duty to strangers to take care to avoid physical damage to them:

"[N]either the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it."

57. In different terms, the principle expressed in that passage is that a duty of care is imposed on a person who places himself in a relationship which the law will recognise as one of proximity with other persons where damage to those others is reasonably foreseeable as a consequence of careless behaviour on his part, and merely because a person has placed himself in that relationship by reason of a contract with another does not necessarily preclude a finding of proximity (although in some cases it might do so[94]). The contract may give rise to an obligation to perform a task but the performance of the task may, in all the circumstances, give rise to a duty of care to perform it so as not to cause damage, whether of a physical or economic kind, to another. Even if one party to a contract can exclude liability to the other party for negligence in the performance of the contract but cannot do so with respect to someone who is not a party to the contract, that is no reason to deny the existence of a duty of care to that third party. A party to a contract is able to negotiate with respect to the protection of his interests whereas a third party is not in a position to do so.

58. These considerations lead me to conclude that, even though the loss suffered by a disappointed beneficiary is purely economic, there are not the same reasons to tread warily in that situation as there are in some other cases of economic loss. Indeed, as was suggested by Megarry V-C in Ross v Caunters[95], even though the loss suffered by a disappointed beneficiary is economic, it is suffered in circumstances which, juristically speaking, are as close to Donoghue v Stevenson[96] as they are to Hedley Byrne & Co Ltd v Heller & Partners Ltd[97].

59. In my view, the relationship between the solicitor, Mrs Hill, and the intended beneficiary, Mrs Van Erp, was one of proximity which did give rise to a duty of care on the part of Mrs Hill towards Mrs Van Erp. No single factor, such as an assumption of responsibility by the solicitor, leads me to that conclusion. The relevant circumstances are more complex than that.

60. A client who retains a solicitor to draw up a will and attend to its execution must ordinarily rely upon the solicitor to carry out those functions to effectuate the client's testamentary intentions. In that situation the responsibility assumed by the solicitor to the client is clearer, if anything, than it was in Hawkins v Clayton[98] where a solicitor entrusted with custody of a client's will was held to be under a duty to take reasonable steps to find the executor and inform him of the existence, contents and custody of the will. In that case Deane J identified the factors which led him to recognise a duty of care[99]:

"The critical factors of the relationship between the testatrix and the firm which gave it the character of a relationship of proximity with respect to economic loss of the kind sustained in the present case are those related elements which lie at the heart of the ordinary relationship between a solicitor and his client, namely, assumption of responsibility and reliance. The solicitor, as a specially qualified person possessing expert knowledge and skill, assumes responsibility for the performance of professional work requiring such knowledge or skill. The client relies upon the solicitor to apply his expert knowledge and skill in the performance of that work. In the ordinary case, the only kind of damage which is likely to result from the negligence of the solicitor in the performance of his professional work is pure economic loss. In that context, the elements of assumption of responsibility and of reliance combine with that of the foreseeability of a real risk of economic loss to give the ordinary relationship between a solicitor and his client the character of one of proximity with respect to foreseeable economic loss."

61. In the present case, of course, the relevant parties are not solicitor and client (or, as in Hawkins v Clayton, the client's executor). The relationship here is between a solicitor attending to the preparation and execution of a will and an intended beneficiary under the will. Nor does this case have anything to do with the custody of a will after its execution.

62. To say that in this case the solicitor assumed responsibility to the intended beneficiary may invite argument but for reasons which will appear the argument would be one over terminology rather than substance. The requirements of an assumption of responsibility and the element of reliance to which Deane J referred in the passage I have just quoted are a means by which the law seeks to avoid undesirable consequences such as indeterminate liability, the destruction of legitimate commercial competition, or the emasculation of other bodies of legal doctrine. Where there is no threat of those undesirable consequences, the assumption of responsibility by a defendant and reliance, or request, by a plaintiff may suggest policy reasons for recognising the existence of a duty of care, although they may not be determinative. Indeed, the element of reliance may be unhelpful as an indication of a relationship of proximity in cases of economic loss which do not involve misstatement[100]. Of course, in cases involving misstatement, the element of reliance plays a prominent part not only in establishing proximity but also in establishing causation. Even in cases involving misstatement, request is "by no means essential"[101]. This is why Deane J said in Hawkins v Clayton[102] that in economic loss cases the requisite relationship of proximity is to be found in "some additional element or elements which will commonly (but not necessarily) consist of known reliance (or dependence) or the assumption of responsibility or a combination of the two".

63. However, in cases such as the present one, there is both an assumption of responsibility of a kind and reliance of a kind, which at least on grounds of policy suggest that a relationship of proximity might be recognised even though neither is in a form which would suffice in cases where those elements are crucial to a relationship of proximity. The person to whom a testator wishes to make a bequest is the object of the testator's intentions. The reason for engaging a solicitor to make a will is to confer benefits upon the beneficiaries[103]. As Nicholls V-C said in the Court of Appeal in White v Jones[104]:

"The very purpose of the employment of the solicitor is to carry out the client's wish to confer a particular testamentary benefit on the intended beneficiary. There is no other purpose."

64. Thus, when a solicitor accepts responsibility for carrying out a client's testamentary intentions, he or she cannot, in my view, be regarded as being devoid of any responsibility to an intended beneficiary. The responsibility is not contractual but arises from the solicitor's undertaking the duty of ensuring that the testator's intention of conferring a benefit upon a beneficiary is realised. In a factual, if not a legal sense[105], that may be seen as assuming a responsibility not only to the testatrix but also to the intended beneficiary.

65. In the present case there was no reliance upon the solicitor by Mrs Van Erp nor did she request her to do anything for her. Mrs Van Erp did not change her position in reliance upon anything said or done by the solicitor. It is true that Mrs Van Erp was told that she was a beneficiary under the will and took no steps to protect her position. In that way it might be said that she relied upon the solicitor to carry out the testatrix's instructions carefully. However, I make no point of that in the present case[106].

66. What is important is the position of a solicitor as a professional person of specialised skill and knowledge. That is significant with respect to the drawing up and execution of a will because the failure to exercise due care may affect not only the interests of the client but also the interests of others whom the client has in mind as beneficiaries. The interests of those others are relevantly the same as the interests of the client in that situation. Because wills are legal documents involving many technicalities, attending to their preparation and execution requires the exercise of professional skill and care. That led Lord Browne-Wilkinson to observe in White v Jones that[107]:

"Save in the case of those rash testators who make their own wills, the proper transmission of property from one generation to the next is dependent upon the due discharge by solicitors of their duties."

67. As a result, there is a general reliance extending beyond their clients which is placed upon solicitors in relation to the preparation and execution of wills which is at least analogous with that placed upon public authorities in relation to statutory powers of inspection. Of that situation, Mason J in Sutherland Shire Council v Heyman said[108]:

"the plaintiff's reasonable reliance will arise out of a general dependence on an authority's performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimise a risk of personal injury or disability, recognised by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realisation that there is a general reliance or dependence on its exercise of power."

68. The notion of general reliance or dependence described by Mason J is apt also to describe the situation in which, whilst there will usually be no specific reliance by an intended beneficiary upon a solicitor retained to attend to the will, the intended beneficiary's interests are totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor. And, it might be added, in that situation the solicitor knows of the beneficiary's dependence and in that respect may be regarded as having assumed responsibility towards the intended beneficiary.

69. The distinguishing features of a case such as this do not stop there. In such a case the solicitor's mistake is not ordinarily discoverable by anyone other than the solicitor. In the ordinary course, the only persons who have access to a will are the solicitor and the client. A client can hardly be expected to review the will for regularity and even if he or she were to do so, could hardly be expected to discover its defects. Indeed, to do so would be to engage in the very task which the solicitor was retained to perform in the first place.

70. Moreover, and this seems to me to be crucial, in the normal course the solicitor's error only becomes apparent after the death of the client. Upon that event, the hitherto concealed error becomes irreversible. In this respect the intended beneficiary is particularly vulnerable and it is this aspect of the matter that led Megarry V-C in Ross v Caunters[109] to make the telling remark that in the absence of a duty of care towards the intended beneficiary "[t]he only person who has a valid claim has suffered no loss, and the only person who has suffered a loss has no valid claim".

71. These circumstances distinguish the present case from others in which a solicitor has been held to owe no duty to anyone other than his client. No doubt that is the general rule[110]. Thus in Gran Gelato Ltd v Richcliff Ltd[111] no duty was owed to a purchaser to whom the solicitor's client was selling an underlease. In Al-Kandari v JR Brown & Co[112] it was said that no duty of care was owed by a solicitor to a client's opponent in adversarial litigation. And in Clarke v Bruce Lance & Co[113] no duty was owed by a solicitor to a prospective beneficiary under a client's will in relation to a proposed dealing with property during the client's lifetime.

72. Recognising a duty of care in a case such as the present one does not involve any conflict of duties on the part of the solicitor such as might occur in other situations, because the interests of the client are in all relevant respects the same as the interests of the intended beneficiary. The interests of the intended beneficiary exist only because of the client's intentions and in carrying out those intentions the solicitor is necessarily serving the interests of the intended beneficiary. As Megarry V-C observed in Ross v Caunters[114] the duty to the intended beneficiary "far from diluting the solicitor's duty to his client, marches with it, and, if anything, strengthens it".

73. For all of these reasons, I am of the view that a solicitor retained to draw up and attend to the execution of a will is in a relationship of proximity with an intended beneficiary under the will. That relationship gives rise to a duty to exercise reasonable skill and care in the performance of those tasks. That will be so whether or not the intended beneficiary knows of the bequest. The duty arises from the special considerations involving testamentary dispositions which I have discussed above. There is nothing in what I have said which is intended to convey the view that whenever a person's performance of a contractual obligation may, if performed negligently, injure a third party's economic interests, that person owes the third party a duty of care. Nor is anything I have said intended to convey the view that, other than in a case of the present kind, a solicitor owes a duty of care to persons other than his client whose interests may be affected by the solicitor's performance of his or her duties to the client. The duty of care which I would recognise in the present case arises from the particular relationship between the parties, that relationship being analogous to other relationships of proximity in which a duty of care has been held to arise. It is that which, in addition to the foreseeability of harm, provides the basis in this case for the recognition of tortious liability for negligence.

74. I would therefore dismiss the appeal.

TOOHEY J.

75. I would dismiss this appeal for the reasons given by Dawson J with which I am in general agreement.

76. The only comments I wish to make relate to the place of proximity in the jurisprudence of this Court. The authorities according recognition to proximity, and they are noted by Dawson J, culminate in the majority judgments of the Court in Burnie Port Authority v General Jones Pty Ltd[115] and in Bryan v Maloney[116]. Those authorities do not preclude analysis of the relationship of proximity to the duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. But, as the weight of authority stands, the general conception must be taken as controlling the circumstances which might otherwise, by application of reasonable foreseeability alone, give rise to a duty of care.

77. The point is made in the judgment of Gibbs CJ, Mason, Wilson and Dawson JJ in San Sebastian Pty Ltd v The Minister[117] where their Honours said:

"The notion of proximity, because it limits the loss that would otherwise be recoverable if foreseeability were used as an exclusive criterion of the duty of care, is of vital importance when the plaintiff's claim is for pure economic loss."

78. To speak, as was said in Burnie[118], of proximity as "the general conceptual determinant and the unifying theme" in liability in negligence directs attention to Lord Atkin's observation in Donoghue v Stevenson[119]:

"And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist."

79. As Stephen J observed in Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad"[120]:

"The articulation, through the cases, of circumstances which denote sufficient proximity will provide a body of precedent productive of the necessary certainty".

80. Dawson J has made clear why this is so.

81. To say that proximity represents the general conceptual determinant and the unifying theme focuses attention on the categories of cases in which proximity has been held to exist. It is the category of cases with which proximity is concerned, rather than whether a relationship of proximity exists on the facts of a particular case. The category may be an established one; it may not.

82. In Hedley Byrne & Co Ltd v Heller & Partners Ltd[121] Lord Devlin said in relation to Donoghue v Stevenson[122]:

" Now, it is not ... a sensible application of what Lord Atkin was saying for a judge to be invited on the facts of any particular case to say whether or not there was 'proximity' between the plaintiff and the defendant. That would be a misuse of a general conception and it is not the way in which English law develops. What Lord Atkin did was to use his general conception to open up a category of cases giving rise to a special duty. ... What Donoghue v Stevenson did may be described either as the widening of an old category or as the creation of a new and similar one ... An existing category grows as instances of its application multiply until the time comes when the cell divides."

83. Used in that way, there is no difficulty in treating proximity as the general conceptual determinant and the unifying theme. That does not mean that proximity of itself identifies with any precision a common element underlying all those cases in which liability in negligence has been held to exist. But the general conception does operate as a limitation on any notion that liability in negligence arises simply from a duty to avoid harm that is reasonably capable of being foreseen, at any rate in cases not involving direct physical injury or damage. It designates "a separate and general limitation upon the test of reasonable foreseeability in the form of relationships which must exist between plaintiff and defendant before a relevant duty of care will arise"[123].

84. Attention is focused on established categories in which a duty of care has been held to exist; analogies are then drawn and policy considerations examined in order to determine whether the law should recognise a further category, whether that be seen as a new one or an extension of an old one. Thus in Bryan v Maloney the existence of a duty of care on the part of the builder to exercise reasonable care in relation to the building work to avoid a foreseeable risk of physical injury to someone who was a subsequent purchaser of the house was a starting point in a consideration of the recoverability for a particular kind of economic loss arising from inadequacies in the performance of the work. At the same time policy considerations, such as avoiding the imposition of an indeterminate liability, were examined to see whether they presented an obstacle to holding that liability existed in that type of case. And so, by the process of reasoning to which reference has been made, the builder was held liable to a subsequent purchaser for diminution in the value of the house because of inadequate footings. Seen in that way, I doubt whether the difference between an approach based on proximity and the incremental approach favoured by Brennan J in Sutherland Shire Council v Heyman[124] is as stark as is sometimes suggested.

85. Dawson J has referred to the considerations which warrant imposing liability in the type of situation with which this appeal is concerned, including some assumption of responsibility on the part of the solicitor and reliance of a kind, and the absence of compelling considerations for refusing liability. I shall not repeat them. But, for the reasons advanced by his Honour, I conclude that a solicitor retained to draw up and attend to the execution of a will is in a relationship of proximity with an intended beneficiary under the will which gives rise to a duty to exercise reasonable skill and care in those matters. As Megarry V-C noted in Ross v Caunters[125], a comparable case:

"The basis of the solicitor's liability to others is either an extension of the Hedley Byrne principle ... or, more probably, a direct application of the principle of Donoghue v Stevenson."

86. As I said at the outset, I would dismiss the appeal.

GAUDRON J.

87. The appellant, Ms Rosemary Hill, is a solicitor. She was retained by the late Mrs Olive Eileen Currey ("the testatrix") to prepare and to attend on the execution of her last will and testament. Mrs Currey wished to devise a one-half interest in her house and to bequeath certain items of household furniture to her friend and neighbour, Mrs Rona Van Erp, the respondent to this appeal. Ms Hill prepared a testamentary document to give effect to Mrs Currey's intentions and attended at her home for the purpose of witnessing its execution as her last will and testament. At the request of Ms Hill, Mr Van Erp, the respondent's husband, also witnessed the will. Mrs Currey died some few months later without altering or revoking her will and, apparently, without taking any step in that regard.

88. Section 15 of the Succession Act 1981 (Q) ("the Act") relevantly provides, as it has since 1981, that where a disposition of property "is, by will, made in favour of a person who attested the signing of the will, or the spouse of such person ... the disposition is null and void". Thus, the provisions of Mrs Currey's will intended to benefit Mrs Van Erp were of no effect. The property which she would otherwise have taken fell into residuary estate and passed to Mrs Currey's son.

89. On learning of the failure of the testamentary provisions intended for her benefit, Mrs Van Erp brought proceedings in negligence against the appellant in the District Court of Queensland. She recovered judgment in the sum of $163,471.50, the conceded value of the property she would otherwise have taken under the will, together with interest and costs. The appellant appealed unsuccessfully to the Court of Appeal of the Supreme Court of Queensland and now appeals to this Court.

90. It has at all times been common ground that the appellant was not retained by Mrs Van Erp, whether in relation to Mrs Currey's will or any other matter. Indeed, it is clear from the evidence that at the time the will was executed Mrs Van Erp had not met Ms Hill. It is in this context that Ms Hill denies that she owed a duty of care to Mrs Van Erp. In her defence to the respondent's plaint, Ms Hill also denied that Mrs Van Erp suffered loss by reason of the failure of the testamentary provisions intended for her benefit. However, this seems not to have been argued as a separate issue in the trial.

91. The trial judge, Morley DCJ, made findings as to the circumstances in which the appellant received instructions to act for Mrs Currey. Those findings were to the effect that, some time after 1988, Mr Van Erp telephoned Ms Hill on behalf of Mrs Currey requesting Ms Hill to visit Mrs Currey at her home to take instructions with respect to her will. Ms Hill agreed and, when she later attended at Mrs Currey's home, she was received by Mr Van Erp. She attended again, some little time later, for the execution of the will. In 1990, Mrs Currey wished to change her will and again requested Mr Van Erp to telephone Ms Hill. He did so with the result that, on or about 3 December 1990, Ms Hill again attended on Mrs Currey and received instructions that Mrs Currey wished to make provision in her will for Mrs Van Erp. Ms Hill returned on 7 December with an engrossed will for execution. As earlier indicated, Mrs Currey then signed the will in the presence of Ms Hill and Mr Van Erp as attesting witnesses.

92. It is not now in issue that the circumstances in which Ms Hill was retained by Mrs Currey were such that she knew or ought to have known of the marital relationship between Mrs Van Erp, the intended beneficiary, and Mr Van Erp, the attesting witness. Nor is it in issue that Ms Hill had a professional duty to Mrs Currey to ensure that her testamentary intentions were not defeated by operation of s 15 of the Act. And although Ms Hill originally denied that Mrs Van Erp suffered any loss by reason of her, Ms Hill's, failure to ensure that the intentions of the testatrix were carried into effect, that was not argued as a separate issue in this Court or in the Court of Appeal. The only matter for determination in this Court is, as it was in the Court of Appeal, whether Ms Hill owed a duty of care to Mrs Van Erp.

93. The question whether Ms Hill owed a duty of care to Mrs Van Erp was determined in Mrs Van Erp's favour in the Court of Appeal on the basis that there existed a relationship of proximity between Ms Hill, as a solicitor with a professional duty to ensure that Mrs Currey's testamentary intentions were carried into effect, and Mrs Van Erp, as the person intended to benefit from her will. In approaching the matter in this way, the Court of Appeal followed the decisions of this Court which establish that a duty of care arises only if there is a relationship of proximity between plaintiff and defendant[126]. However, Brennan J has rejected the notion of proximity as a separate requirement for liability, most recently in Bryan v Maloney[127].And its usefulness as a universal criterion of liability was questioned by Dawson J in Gala v Preston[128]. Thus, the arguments in this Court ranged wider than in the Court of Appeal.

94. It is well settled that where, as here, a plaintiff sues in negligence to recover pure economic loss - "financial loss which is not 'causally consequent' upon physical injury to the plaintiff's own person or property"[129] - he or she must establish more than the foreseeability of loss. As earlier indicated, the focus of this Court in that regard has been directed to the relationship of proximity and it has been said authoritatively that "the categories of case in which the requisite relationship of proximity with respect to mere economic loss is to be found are properly to be seen as special"[130].

95. The need for a special relationship in cases of pure economic loss derives from two policy considerations. The first is the need "to avoid the imposition of liability 'in an indeterminate amount for an indeterminate time to an indeterminate class' "[131]. The other is that "in a competitive world where one person's economic gain is commonly another's loss, a duty to take reasonable care to avoid causing mere economic loss to another ... may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage"[132]. Neither consideration applies in this case. Liability, if it exists, is confined to Mrs Van Erp, and it is liability in a definite amount which was ascertained or, at least, was ascertainable within a short time of Mrs Currey's death. Moreover, the duty asserted by Mrs Van Erp is co-extensive with the duty owed to Mrs Currey and, on that account, must be viewed as not inconsistent with community standards as to what is legitimate in the pursuit of a personal advantage.

96. Quite apart from any consideration of proximity, the recognition of a duty of care on the part of a solicitor to an intended beneficiary whose interests (in the sense of rights he or she would otherwise have acquired) are defeated by the solicitor's negligent failure to carry a testator's instructions into effect would bring the law of this country into line with the weight of authority in other common law countries.

97. Despite the statement by Lord Campbell LC in Robertson v Fleming[133] that it "[was] not the law of Scotland, nor of England, and it [could] hardly be the law of any country where jurisprudence has been cultivated as a science" that a disappointed legatee can sue the solicitor employed by a testator if the will is void for not being properly signed and attested, it was later held in Ross v Caunters[134]that that was, in truth, the law of England[135]. However, the decision in that case was reached by the two-stage approach adopted by the House of Lords in Anns v Merton London Borough Council[136]. On that approach it was necessary, at the first stage, to determine whether there was a sufficient relationship of proximity to establish a prima facie duty of care. The second stage involved a consideration of policy issues to determine whether the duty should be excluded[137].

98. The two-stage approach adopted in Anns was later rejected by the House of Lords in favour of what is generally considered to be a more stringent proposition, namely, that the law will develop novel categories of negligence "incrementally and by analogy with established categories"[138] - a proposition earlier advanced in this Court by Brennan J in Sutherland Shire Council v Heyman[139]. Recently, the House of Lords, proceeding on the "incremental" approach, affirmed in White v Jones[140]that a solicitor is under a duty of care to an intended beneficiary whose interests are defeated as a result of the solicitor's negligence.

99. As noted by Lord Goff of Chieveley in White v Jones[141], it has been held in New Zealand, in Gartside v Sheffield, Young & Ellis[142], that a solicitor is under a duty of care to an intended beneficiary whose intended interest is lost as a result of the solicitor's negligence. His Lordship also observed that the law appeared to be developing in the same direction in Canada[143], his observations in this regard having been confirmed, to some extent, by the subsequent decision of the Supreme Court of British Columbia in Smolinski v Mitchell[144]. Moreover, as was also observed in White v Jones, "the trend ... appears to be moving strongly in favour of liability" in the United States[145].

100. Policy considerations also favour the recognition of a duty of care on the part of solicitors in cases such as the present. As Lord Browne-Wilkinson pointed out in White v Jones, the proper transmission of property from one generation to the next is, as a general rule, "dependent upon the due discharge by solicitors of their duties"[146]. The same point was made by Cooke J in Gartside when he observed that "[i]n practice the public relies on solicitors (or statutory officers with similar functions) to prepare effective wills"[147].

101. There is also the consideration that, unless there is a duty of the kind presently in question and if, as is usually the case, the defect is not discovered until the testator's death, "the only persons who might have a valid claim (ie, the testator and his estate) have suffered no loss, and the only person who has suffered a loss (ie, the disappointed beneficiary) has no claim"[148]. Thus, the recognition of a duty of care to an intended beneficiary not only promotes the proper transmission of property but also promotes the proper performance by solicitors of their professional duty to those who employ them to give effect to their testamentary intentions.

102. A further and more pragmatic consideration in favour of the recognition of a duty of care on the part of solicitors is that, as a result of the decision in Watts v Public Trustee for Western Australia[149], a remedy has been allowed to intended beneficiaries in Western Australia for several years, apparently without problem. A similar consideration was taken into account in White v Jones[150],it being observed by Lord Goff of Chieveley that the decision in Ross v Caunters had been applied in the United Kingdom for 15 years without apparent problems in practice.

103. The position in Victoria is different from that established by the course of judicial decision in Western Australia. In Seale v Perry[151], the Supreme Court of Victoria held in a majority decision (Lush and Murphy JJ, McGarvie J dissenting) that a solicitor does not owe a duty of care to an intended beneficiary. The reasoning in that case placed emphasis on the contractual relationship between solicitor and testator, it being said by Murphy J[152]:

"Proximity"

235. The result I have reached may be expressed as consistent with a finding of sufficient proximity. However, I have eschewed use of that term in endeavouring to explain the path by which I conclude that the appeal should be dismissed. "Proximity" may be no more than "the currently fashionable touchstone of 'duty'"[333]. My own view is that, in the field of liability for pure economic loss, as elsewhere, the concept of proximity is of limited use in the determination of individual disputes[334]. It may provide a broad conceptual "umbrella" beneath which the concerns particular to discrete categories of case can be discussed. As one recent English commentator has put it[335]:

"Judges now accept that the concept is no more than a broad umbrella beneath which more specific criteria for the imposition of duties operate in particular categories of case."

236. To my mind, there is real difficulty in treating the requirement of a relationship of proximity as an overriding requirement which provides the conceptual determinant (or a determinant[336]) for the recognition of an existence of a duty to take reasonable care to avoid reasonably foreseeable risk of injury. It may well be that the notion of proximity provides a unifying theme for various categories of case, the genus of which they are species. Each species provides what Professor Morison identified as "a short method of referring, with some particularity and correctness, to the specific set of concrete circumstances giving rise to the duty of care in the individual case"[337].

237. Thus, each of Burnie Port Authority v General Jones Pty Ltd[338] and Bryan v Maloney[339] provides authority for a distinct species of negligence. The first is concerned with a person who takes advantage of the control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things. The second deals with the duty of a builder to a subsequent owner as regards diminution in value of the structure when the inadequacy thereof first becomes manifest by reason of consequent damage to its fabric. Each species displays a particular manifestation of the notion of a relationship of proximity[340]. But, by itself, the notion of proximity, used as a legal norm, has the uncertainties and perils of a category of indeterminate reference, used with shifting meanings to mask no more than policy preferences[341].

238. An analogy may help make the point. In a sense it is true that much of equity is concerned with the prevention, or unravelling of the consequences, of unconscientious conduct. Many such situations may usefully be addressed from that starting point. But recitation of the precept stops far short of conveying the content of that sophisticated body of law. This includes the complex doctrines and particular remedies devised and developed by the learning and sagacity of the great equity judges since at least the Chancellorship of Lord Nottingham.

239. Likewise, in David Securities Pty Ltd v Commonwealth Bank of Australia[342], this Court decided that it was not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. The Court rejected the proposition that unjust enrichment is a definitive legal principle according to its own terms, and not just a concept. Accordingly, in a given case, recovery depends upon the existence of some qualifying or vitiating factor such as mistake, duress or illegality[343].

240. To speak of "proximity" is to invite a series of questions which spring from the particular circumstances of the case in question. Put another way, as it was in the Supreme Court of Canada (by La Forest J in Canadian National Railway Co v Norsk Pacific Steamship Co[344]), proximity "expresses a result, rather than a principle". Nevertheless, I would, with respect, accept (as Dawson J put it in Gala v Preston[345]) that it would be going too far to say that the notion of proximity is entirely without legal content and that no principles emerge from the process of extrapolation from decided cases or categories of decided cases. His Honour said:

"For example, there are reasons of general, if not universal application, which lie behind the rule which, for the most part, denies recovery of damages for pure economic loss or the rule which restricts the recovery of damages for nervous shock to a particular kind of plaintiff. But it is obvious that the search for a single principle underlying the concept of proximity is bound to be unsuccessful."[346]

Conclusion

241. The appeal should be dismissed with costs.

[1] [1995] 2 AC 207.
[2] White v Jones [1995] 2 AC 207 at 256-257.
[3] [1964] AC 465.
[4] [1995] 2 AC 207 at 261-262.
[5] [1982] VR 193.
[6] [1995] 2 AC 207 at 259-260.
[7] [1980] Ch 297 at 303.
[8] [1982] VR 193. See at 198-199 per Lush J and at 206-207 per Murphy J; contra at 236ff per McGarvie J.
[9] [1980] WAR 97.
[10] [1987] Tas R 60 (see White v Jones [1995] 2 AC 207 at 255-256).
[11] See Phillips v Britannia Hygienic Laundry Co [1923] 1 KB 539; Stennett v Hancock [1939] 2 All ER 578; Malfroot v Noxal Ltd (1935) 51 TLR 551.
[12] (1822) 11 Price 400 [147 ER 512].
[13] (1822) 11 Price 400 at 407-408 [147 ER 512 at 515]; see also at 408-409 [at 515] per Graham B and at 409-410 [at 515] per Garrow B.
[14] (1963) 110 CLR 74 at 84.
[15] [1932] AC 562.
[16] (1963) 110 CLR 74 at 85.
[17] See White v Jones [1995] 2 AC 207 at 223.
[18] [1995] 2 AC 207 at 224; see also at 232-233 per Farquharson LJ; at 236, 238 per Steyn LJ.
[19] As suggested in Weir, "A Damnosa Hereditas?" (1995) 111 Law Quarterly Review 357 at 359.
[20] See Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 at 555.
[21] See San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 354, 369.
[22] [1964] AC 465.
[23] [1995] 2 AC 207 at 287-290.
[24] (1970) 122 CLR 628; [1971] AC 793.
[25] See (1976) 136 CLR 529 at 555-556, 575-579, 591-593, 606 and cf 597.
[26] Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 at 573-574.
[27] San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 366-367.
[28] Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 362.
[29] [1995] 2 AC 207 at 257-258.
[30] See San Sebastian (1986) 162 CLR 340 at 353-354.
[31] [1995] 2 AC 207 at 268.
[32] See Hawkins v Clayton (1988) 164 CLR 539; Midland Bank v Hett, Stubbs & Kemp [1979] Ch 384; Ross v Caunters [1980] Ch 297; Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; White v Jones [1995] 2 AC 207; cf Robertson v Fleming (1861) 4 Macq 167; Groom v Crocker [1939] 1 KB 194.
[33] cf Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107.
[34] [1980] Ch 297.
[35] (1861) 4 Macq 167.
[36] [1932] AC 562.
[37] [1982] VR 193.
[38] See BT Australia Ltd v Raine & Horne P/L [1983] 3 NSWLR 221 at 231.
[39] [1995] 2 AC 207.
[40] [1914] AC 932.
[41] [1964] AC 465.
[42] [1983] NZLR 37; cf First City Corporation Ltd v Downsview Nominees Ltd [1990] 3 NZLR 265 at 275.
[43] See, for example, Whittingham v Crease & Co (1978) 88 DLR (3d) 353; Peake v Vernon & Thompson (1990) 49 BCLR (2d) 245; Heath v Ivens, McGuire, Souch & Ottho (1991) 57 BCLR (2d) 391 (but see (1993) 77 BCLR (2d) (xxxi)); Smolinski v Mitchell [1995] 10 WWR 68.
[44] See, for example, Biakanja v Irving 320 P 2d 16 (1958); Lucas v Hamm 364 P 2d 685 (1961); Licata v Spector 225 A 2d 28 (1966); Auric v Continental Casualty Co 331 NW 2d 325 (1983); Hale v Groce 730 P 2d 576 (1986); Walker v Lawson 514 NE 2d 629 (1987); cf Viscardi v Lerner 510 NYS 2d 183(1986); Spivey v Pulley 526 NYS 2d 145 (1988); Deeb v Johnson 566 NYS 2d 688 (1991).
[45] See Watts v Public Trustee [1980] WAR 97 at 100-103.
[46] See Finlay v Rowlands [1987] Tas R 60 at 63-64.
[47] (1988) 164 CLR 539 at 581.
[48] [1980] Ch 297.
[49] [1932] AC 562.
[50] [1995] 2 AC 207.
[51] (1995) 182 CLR 609 at 632.
[52] See per Lord Reid in Dorset Yacht Co v Home Office [1970] AC 1004 at 1027.
[53] Ultramares Corporation v Touche 255 NY 170 at 179 (1931) [174 NE 441 at 444].
[54] [1964] AC 465.
[55] (1976) 136 CLR 529.
[56] (1976) 136 CLR 529 at 574.
[57] (1984) 155 CLR 549 at 578-587.
[58] See, in particular, Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 441, 461-462, 471, 495-498; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 30, 49-53; San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 355; Cook v Cook (1986) 162 CLR 376 at 381-382; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 542-543; Bryan v Maloney (1995) 182 CLR 609 at 617-618; 656.
[59] (1986) 162 CLR 340 at 355.
[60] (1984) 155 CLR 549 at 584.
[61] See Gala v Preston (1991) 172 CLR 243.
[62] See Jaensch v Coffey (1984) 155 CLR 549 at 585.
[63] (1986) 160 CLR 16 at 52.
[64] (1994) 179 CLR 520.
[65] (1994) 179 CLR 520 at 543 (a quote from the judgment of Deane J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 53).
[66] (1994) 179 CLR 520 at 543.
[67] See San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 368; Hawkins v Clayton (1988) 164 CLR 539 at 555-556; Gala v Preston (1991) 172 CLR 243 at 260-263; Bryan v Maloney (1995) 182 CLR 609 at 652-653.
[68] See Caparo Plc v Dickman [1990] 2 AC 605 at 618, 633-634.
[69] (1991) 172 CLR 243 at 276.
[70] See Caparo Plc v Dickman [1990] 2 AC 605 at 632-633; Spring v Guardian Assurance Plc [1995] 2 AC 296 at 343-344; Canadian National Railway Company v Norsk Pacific Steamship Co (1992) 91 DLR (4th) 289 at 344, 387.
[71] Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481.
[72] cf Hawkins v Clayton (1988) 164 CLR 539 at 555 per Brennan J.
[73] (1986) 160 CLR 16 at 52.
[74] (1986) 162 CLR 340 at 369.
[75] (1985) 157 CLR 424 at 497-498.
[76] See Dorset Yacht Co v Home Office [1970] AC 1004 at 1058-1059 per Lord Diplock.
[77] See Downsview Ltd v First City Corporation Ltd [1993] AC 295 at 316.
[78] [1964] AC 465 at 536.
[79] [1995] 2 AC 207.
[80] [1980] Ch 297.
[81] [1982] VR 193.
[82] cf Dutton v Bognor Regis UDC [1972] 1 QB 373 at 413.
[83] See Fleming, "The Solicitor and the Disappointed Beneficiary", (1993) 109 Law Quarterly Review 344 at 346.
[84] See Otter v Church, Adams, Tatham & Co [1953] Ch 280 at 289.
[85] See Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 at 555, 593.
[86] (1995) 182 CLR 609 at 618.
[87] cf Hawkins v Clayton (1988) 164 CLR 539 at 584.
[88] See White v Jones [1995] 2 AC 207 at 278 per Lord Mustill; Weir, "A Damnosa Hereditas?", (1995) 111 Law Quarterly Review 357 at 359.
[89] See also Wills, Probate and Administration Act 1898 (NSW), s 13.
[90] See Hawkins v Clayton (1988) 164 CLR 539; Midland Bank v Hett, Stubbs & Kemp [1979] Ch 384; Ross v Caunters [1980] Ch 297; Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; White v Jones [1995] 2 AC 207.
[91] (1995) 182 CLR 609.
[92] The matter is discussed by Lord Nolan in White v Jones [1995] 2 AC 207 at 294.
[93] (1963) 110 CLR 74 at 85.
[94] See Bryan v Maloney (1995) 182 CLR 609 at 621.
[95] [1980] Ch 297 at 322.
[96] [1932] AC 562.
[97] [1964] AC 465.
[98] (1988) 164 CLR 539.
[99] (1988) 164 CLR 539 at 578-579.
[100] See San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 355.
[101] See San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 357.
[102] (1988) 164 CLR 539 at 576; cf Rangen Inc v Deloitte & Touche [1994] 10 WWR 55 at 62.
[103] cf Bryan v Maloney (1995) 182 CLR 609, where the relationship between a builder and a subsequent purchaser was held to be one of proximity even though it could not be said that the reason for engaging the builder was to confer a benefit on the subsequent purchaser.
[104] [1995] 2 AC 207 at 222.
[105] See White v Jones [1995] 2 AC 207 at 273-274 per Lord Browne-Wilkinson.
[106] cf White v Jones [1995] 2 AC 207 at 219.
[107] [1995] 2 AC 207 at 276. See also Gartside v Sheffield, Young & Ellis [1983] NZLR 37 at 43.
[108] (1985) 157 CLR 424 at 464.
[109] [1980] Ch 297 at 303. See also White v Jones [1995] 2 AC 207 at 259.
[110] See Moss v Solomon (1858) 1 F & F 342 [175 ER 756]; Rae v Meek (1889) 14 AC 558; Seale v Perry [1982] VR 193 at 203; White v Jones [1995] 2 AC 207 at 223.
[111] [1992] Ch 560.
[112] [1988] QB 665 at 672, 675.
[113] [1988] 1 WLR 881; [1988] 1 All ER 364.
[114] [1980] Ch 297 at 322.
[115] (1994) 179 CLR 520.
[116] (1995) 182 CLR 609.
[117] (1986) 162 CLR 340 at 355.
[118] (1994) 179 CLR 520 at 543, quoting Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 53 per Deane J.
[119] [1932] AC 562 at 580.
[120] (1976) 136 CLR 529 at 575.
[121] [1964] AC 465 at 524-525. And see Jaensch v Coffey (1984) 155 CLR 549 at 585; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 497; Cook v Cook (1986) 162 CLR 376 at 387 where various parts of this passage are referred to with approval.
[122] [1932] AC 562.
[123] Jaensch v Coffey (1984) 155 CLR 549 at 584 per Deane J.
[124] (1985) 157 CLR 424 at 481.
[125] [1980] Ch 297 at 322.
[126] See, for example, Jaensch v Coffey (1984) 155 CLR 549 at 583-585; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 52-53; San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 355; Cook v Cook (1986) 162 CLR 376 at 381-382; Hawkins v Clayton (1988) 164 CLR 539 at 545, 576; Gala v Preston (1991) 172 CLR 243 at 252-253; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 542-543; Bryan v Maloney (1995) 182 CLR 609 at 617.
[127] (1995) 182 CLR 609 at 652-655.
[128] (1991) 172 CLR 243 at 276-280.
[129] Bryan v Maloney (1995) 182 CLR 609 at 657 per Toohey J referring to Feldthusen, Economic Negligence, 2nd ed (1989) at 1.
[130] Bryan v Maloney (1995) 182 CLR 609 at 619. See also Hawkins v Clayton (1988) 164 CLR 539 at 576.
[131] Bryan v Maloney (1995) 182 CLR 609 at 618 referring to Ultramares Corporation v Touche 255 NY 170 at 179 (1931); 174 NE 441 at 444 per Chief Judge Cardozo. See also Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 at 568, 591; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 465.
[132] Bryan v Maloney (1995) 182 CLR 609 at 618. See also Jaensch v Coffey (1984) 155 CLR 549 at 578; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 503.
[133] (1861) 4 Macq 167 at 177.
[134] [1980] Ch 297.
[135] Note that in Scotland, the Outer House of the Court of Session has held that it is bound by Robertson v Fleming; see Weir v JM Hodge & Son [1990] SLT 266; MacDougall v MacDougall's Executors [1994] SLT 1178.
[136] [1978] AC 728.
[137] [1978] AC 728 at 751-752.
[138] Caparo Industries Plc v Dickman [1990] 2 AC 605 at 618 per Lord Bridge of Harwich citing Brennan J in Sutherland Shire Council v Heyman - see note 14. See also Henderson v Merrett Syndicates Ltd [1995] 2 AC 145. The Anns approach continues to be followed in New Zealand; see, for example, Brown v Heathcote County Council [1986] 1 NZLR 76; South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 which was applied in Invercargill City Council v Hamlin [1994] 3 NZLR 513 (upheld in the Privy Council [1996] 2 WLR 367; [1996] 1 All ER 756). It has also been followed to some extent in Canada; see, for example, City of Kamloops v Nielsen (1984) 10 DLR (4th) 641; Canadian National Railway Co v Norsk Pacific Steamship Co Ltd (1992) 91 DLR (4th) 289. See also British Columbia Hydro & Power v ND Lea & Associates (1992) 92 DLR (4th) 403 at 430.
[139] (1985) 157 CLR 424 at 481. See also Hawkins v Clayton (1988) 164 CLR 539 at 556.
[140] [1995] 2 AC 207.
[141] [1995] 2 AC 207 at 255.
[142] [1983] NZLR 37.
[143] Lord Goff cited Peake v Vernon & Thompson (1990) 49 BCLR (2d) 245 and Heath v Ivens, McGuire, Souch & Ottho (1991) 57 BCLR (2d) 391 (note that this case has been reversed by the Court of Appeal although its reasons do not appear to have been reported - see (1993) 77 BCLR (2d) (xxxi)).
[144] [1995] 10 WWR 68.
[145] [1995] 2 AC 207 at 255. See also the materials there referred to, namely, Teshima, "What constitutes negligence sufficient to render attorney liable to person other than immediate client", (1988) 61 ALR (4th) at 464, 473-475; American Law Institute, Restatement of the Law, Third, The Law Governing Lawyers, Tentative Draft No 7 (7 April 1994) at 16, par 73(3) and the cases cited in the Reporter's Note under par 73.
[146] [1995] 2 AC 207 at 276.
[147] [1983] NZLR 37 at 43.
[148] White v Jones [1995] 2 AC 207 at 259 per Lord Goff of Chieveley, referring to Ross v Caunters [1980] Ch 297 at 303 per Sir Robert Megarry V-C.
[149] [1980] WAR 97. See also Finlay v Rowlands, Anderson & Hine [1987] TasR 60 where Ross v Caunters [1980] Ch 297 was accepted as correct.
[150] [1995] 2 AC 207 at 255.
[151] [1982] VR 193.
[152] [1982] VR 193 at 212. See also at 198-199 per Lush J.
153 [1982] VR 193 at 209.
[154] [1982] VR 193 at 199.
[155] [1982] VR 193 at 199.
[156] (1988) 164 CLR 539.
[157] (1995) 182 CLR 609 at 620-622. See also Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84.
[158] (1995) 182 CLR 609 at 621.
[159] (1986) 31 DLR (4th) 481 at 522; [1986] 2 SCR 147 at 206.
[160] See White v Jones [1995] 2 AC 207 at 231 per Farquharson LJ and 239 per Steyn LJ. See also Smolinski v Mitchell [1995] 10 WWR 68 at 88.
[161] [1982] VR 193 at 222.
[162] [1964] AC 465.
[163] [1964] AC 465 at 486-487, 502-503, 529-530.
[164] (1853) 2 El & Bl 216 [118 ER 749]. See also, for example, Northern Territory v Mengel (1995) 69 ALJR 527 at 537-538; 129 ALR 1 at 15.
[165] (1988) 164 CLR 539 at 594.
[166] (1995) 182 CLR 609 at 619. See also Sutherland Shire Council vHeyman (1985) 157 CLR 424 at 498; Hawkins v Clayton (1988) 164 CLR 539 at 593.
[167] See also White v Jones [1995] 2 AC 207 at 262.
[168] (1994) 179 CLR 520 at 551.
[169] (1988) 164 CLR 539 at 578-579.
[170] (1988) 164 CLR 539 at 552-553.
[171] (1988) 164 CLR 539 at 597.
[172] (1988) 164 CLR 539 at 555.
[173] [1995] 10 WWR 68.
[174] That is, economic loss not resulting from physical damage.
[175] Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 at 555, 573, 592-593; Jaensch v Coffey (1984) 155 CLR 549 at 552-554, 575, 582-587; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 441, 467, 477, 495; San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 355, 367-370; Hawkins v Clayton (1988) 164 CLR 539 at 579; Gala v Preston (1991) 172 CLR 243 at 254-255; Bryan v Maloney (1995) 182 CLR 609 at 617-619.
[176] Watts v Public Trustee for Western Australia [1980] WAR 97 (Australia); Ross v Caunters [1980] Ch 297; White v Jones [1995] 2 AC 207 (England); Gartside v Sheffield, Young & Ellis [1983] NZLR 37 (New Zealand); Whittingham v Crease & Co (1978) 88 DLR (3d) 353; Heath v Ivens, McGuire, Souch & Ottho (1991) 57 BCLR (2d) 391 (Canada); Biakanja v Irving 320 P 2d 16 (1958); Lucas v Hamm 364 P 2d 685 (1961); Auric v Continental Casualty Company 331 NW 2d 325 (1983); Hale v Groce 730 P 2d 576 (1986) (United States).
[177] (1861) 4 Macq 167.
[178] (1861) 4 Macq 167 at 177.
[179] [1980] Ch 297.
[180] Ross [1980] Ch 297 at 322-323.
[181] Ross [1980] Ch 297 at 303.
[182] [1978] AC 728 at 751-752: "First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise".
[183] See Murphy v Brentwood District Council [1991] 1 AC 398. In this country, its persuasive force finished with the decision of this Court in Sutherland Shire Council (1985) 157 CLR 424.

[184] See Scott Group Ltd v McFarlane [1978] 1 NZLR 553; Brown v Heathcote County Council [1986] 1 NZLR 76.
[185] See Seale v Perry [1982] VR 193.
[186] Weir v J M Hodge & Son 1990 SLT 266.
[187] [1982] VR 193.
[188] (1861) 4 Macq 167.
[189] [1995] 2 AC 207.
[190] White [1995] 2 AC 207 at 259-260.
[191] White [1995] 2 AC 207 at 260.
[192] White [1995] 2 AC 207 at 267.
[193] [1964] AC 465.
[194] White [1995] 2 AC 207 at 268.
[195] White [1995] 2 AC 207 at 269.
[196] [1914] AC 932.
[197] White [1995] 2 AC 207 at 272.
[198] White [1995] 2 AC 207 at 273-274.
[199] White [1995] 2 AC 207 at 275.
[200] White [1995] 2 AC 207 at 275.
[201] White [1995] 2 AC 207 at 276.
[202] Murphy, "Expectation Losses, Negligent Omissions and the Tortious Duty of Care", (1996) 55 Cambridge Law Journal 43 at 50: "most unconventional ... notion of 'assumption of responsibility'". See also the use of the term "assumption of responsibility" by this Court in Bryan v Maloney (1995) 182 CLR 609 at 627.
[203] cf Bryan v Maloney (1995) 182 CLR 609 at 627.
[204] White [1995] 2 AC 207 at 293.
[205] White [1995] 2 AC 207 at 293.
[206] White [1995] 2 AC 207 at 294.
[207] White [1995] 2 AC 207 at 277.
[208] White [1995] 2 AC 207 at 279.
[209] White [1995] 2 AC 207 at 283.
[210] White [1995] 2 AC 207 at 287.
[211] White [1995] 2 AC 207 at 287.
[212] White [1995] 2 AC 207 at 289.
[213] White [1995] 2 AC 207 at 289.
[214] White [1995] 2 AC 207 at 291.
[215] [1964] AC 465.
[216] White [1995] 2 AC 207 at 251.
[217] White [1995] 2 AC 207 at 251.
[218] Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 211 at 235.
[219] (1984) 155 CLR 549 at 584-585.
[220] See, for example, Caparo Industries Plc v Dickman [1990] 2 AC 605 at 616-618 per Lord Bridge of Harwick; at 628 per Lord Roskill; at 633 per Lord Oliver of Aylmerton.
[221] See, for example, Lord Oliver in Caparo Industries Plc [1990] 2 AC 605 at 633: " 'Proximity' is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists."
[222] (1986) 160 CLR 16 at 52.
[223] "Duty of Care and Economic Loss: A Wider Agenda", (1991) 107 Law Quarterly Review 249 at 258.
[224] "Duty of Care and Economic Loss: A Wider Agenda", (1991) 107 Law Quarterly Review 249 at 284-285.
[225] "Duty of Care and Economic Loss: A Wider Agenda", (1991) 107 Law Quarterly Review 249 at 259.
[226] "Neighbourhood, Proximity and Reliance" in Finn (ed), Essays on Torts, (1989) 5 at 36-39.
[227] (1991) 172 CLR 243.
[228] (1986) 162 CLR 340 at 355.
[229] Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384.
[230] Dorset Yacht Co v Home Office [1970] AC 1004 at 1027 per Lord Reid.
[231] cf Cane, "Contract, Tort and the Lloyd's Débâcle"in Rose (ed), Consensus Ad Idem, Essays in the Law of Contract in Honour of Guenter Treitel,(1996) 96 at 110-111.
[232] See Bily v Arthur Young and Co 834 P 2d 745 at 760 (1992) per Lucas CJ: "The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion."
[233] [1982] VR 193 at 202.
[234] Dorset Yacht Co [1970] AC 1004 at 1027 per Lord Reid.
[235] Benson, "The Basis for Excluding Liability for Economic Loss in Tort Law" in Owen (ed), Philosophical Foundations of Tort Law, (1995) 427 at 457.
[236] Posner, Law and Legal Theory in England and America,(1996) at 46-47.
[237] "The Recovery of Pure Economic Loss in Canada: Proximity, Justice, Rationality, and Chaos", (1996) 24 Manitoba Law Journal 1 at 12.
[238] cf White [1995] 2 AC 207 at 283 per Lord Mustill. In Ross [1980] Ch 297 at 322-323, Megarry V-C decided for the plaintiff by reference to a principle defined in substantially similar terms.
[239] cf White [1995] 2 AC 207 at 259.
[240] Hawkins (1988) 164 CLR 539.
[241] Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628; Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175; Caparo Industries Plc [1990] 2 AC 605.
[242] Sutherland Shire Council (1985) 157 CLR 424. Similarly, in Marc Rich [1996] 1 AC 211, the House of Lords held that marine surveyors owed no duty of care to the owners of cargo carried on a ship which sank soon after the surveyors had certified that it was seaworthy.
[243] Minor editorial changes which appear to have been made pursuant to the Reprints Act 1992 (Q) may be ignored for the disposition of the present appeal.
[244] See In The Estate of Kolodnicky (1981) 27 SASR 374; and see also Wills, Probate and Administration Act 1898 (NSW), s 13; Wills Act 1958 (Vic), s 13.
[245] Van Erp v Hill (t/a R F Hill & Associates) [1995] Aust Torts Reports |P81-317.
[246] Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 314.
[247] [1995] 2 AC 207. The respondent also relied upon other authorities including Biakanja v Irving 320 P 2d 16 (1958); Ross v Caunters [1980] Ch 297; Gartside v Sheffield, Young & Ellis [1983] NZLR 37; and the dissenting judgment of McGarvie J in Seale v Perry [1982] VR 193.
[248] cf Matthews, "Round and Round the Garden", [1996] Lloyd's Maritime and Commercial Law Quarterly 460 at 461.
[249] [1995] 2 AC 207 at 216ff.
[250] Cane, "Contract, Tort and the Lloyd's Débâcle", in Rose (ed), Consensus Ad Idem, (1996) 96 at 109.
[251] [1995] 2 AC 207 at 268.
[252] [1995] 2 AC 207 at 274.
[253] [1995] 2 AC 207 at 275.
[254] [1995] 2 AC 207 at 276.
[255] [1995] 2 AC 207 at 295.
[256] [1995] 2 AC 207 at 295.
[257] [1995] 2 AC 207 at 291-292.
[258] [1995] 2 AC 207 at 291.
[259] Hawkins v Clayton (1988) 164 CLR 539 at 584; Downsview Ltd v First City Corporation Ltd [1993] AC 295 at 316.
[260] 7 Will 4 & 1 Vict, c 26. See Lee, Manual of Queensland Succession Law, 4th ed (1995), pars [102]-[103].
[261] Halsbury, The Laws of England, 1st ed (1914), vol 28 at 517, note (q).
[262] (1988) 165 CLR 107 at 120-121, 134-135, 138-139, 146-149, 155-157, 169.
[263] [1995] 2 AC 207 at 223-224. The more relaxed view of privity doctrine taken in various jurisdictions in the United States has led to decisions in which the prospective beneficiary has recovered in contract against the testator's lawyer; see the authorities discussed in Eisenberg, "Third-Party Beneficiaries", (1992) 92 Columbia Law Review 1358 at 1393-1396.
[264] [1968] AC 58.
[265] See as to that latter possibility Briggs, "Privity Problems in Damages for Breach of Contract", (1981) 131 New Law Journal 343; Barker, "Are We up to Expectations? Solicitors, Beneficiaries and the Tort/Contract Divide", (1994) 14 Oxford Journal of Legal Studies 137 at 140-141.
[266] [1995] 2 AC 207 at 266-267.
[267] [1977] AC 774 at 846-847.
[268] cf in tort, as to recovery of the value of services to be gratuitously provided, Griffiths v Kerkemeyer (1977) 139 CLR 161; Nguyen v Nguyen (1990) 169 CLR 245 at 261-263; Kars v Kars (1996) 71 ALJR 107 at 115; 141 ALR 37 at 48; and cf Hunt v Severs [1994] 2 AC 350 at 363-364.
[269] Stapleton, "Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence", (1995) 111 Law Quarterly Review 301 at 324; cf Fleming, "Tort in a Contractual Matrix", (1995) 33 Osgoode Hall Law Journal 661 at 677.
[270] cf Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 174-177.
[271] Luntz, "Solicitors' liability to third parties", (1983) 3 Oxford Journal of Legal Studies 284 at 288-289; Cane, "Negligent Solicitors and Doubly Disappointed Beneficiaries", (1983) 99 Law Quarterly Review 346; Matthews, "Round and Round the Garden", [1996] Lloyd's Maritime and Commercial Law Quarterly 460.
[272] Birks, An Introduction to the Law of Restitution, revised ed (1989) at 133-136.
[273] [1996] Ch 217 at 227; discussed Watts, "The Limits of Profit-Stripping for Wrongs", (1996) 112 Law Quarterly Review 219 at 220-221.
[274] The expression "at the expense of another" appears first to have been used by Professor Ames in his article, "The History of Assumpsit", (1888) 2 Harvard Law Review 53 at 64, 66. This is pointed out by Morritt LJ in Kleinwort Benson Ltd v Birmingham City Council [1996] 3 WLR 1139 at 1157; [1996] 4 All ER 733 at 750.
[275] See Smith, "Three-Party Restitution: A Critique of Birks's Theory of Interceptive Subtraction", (1991) 11 Oxford Journal of Legal Studies 481 at 482-487, 511-514.
[276] In his article "Rationalizing Restitution", (1995) 83 California Law Review 1191, the American scholar, Professor Andrew Kull, after referring (at 1195) to decline in teaching of the subject in that country, turns (at 1219-1220) to the basic definitional issue of whether restitution is "merely a description of the end result" or "a reference to the basis of liability", and continues (at 1241): "Before we can tell a straight story about restitution, we must decide what the subject is about. Is restitution the body of law concerned with avoiding unjust enrichment? Is it mostly that but partly other things as well? Or is the identification with unjust enrichment altogether an illusion, and restitution merely a hodgepodge of devices for undoing, unwinding, throwing into reverse, and giving things back?"
[277] Soh, "Privity of Contract and Restitution", (1989) 105 Law Quarterly Review 4; Jackman, "Recent Cases", (1989) 63 Australian Law Journal 368; Proksch, "Restitution and Privity", (1994) 68 Australian Law Journal 188; Barker, "Unjust Enrichment: Containing the Beast", (1995) 15 Oxford Journal of Legal Studies 457 at 468-471.
[278] Parker v Clark [1960] 1 WLR 286; [1960] 1 All ER 93.
[279] [1972] AC 572.
[280] (1975) 133 CLR 150.
[281] [1982] VR 193.
[282] [1982] VR 193 at 220.
[283] (1990) 169 CLR 540 at 558.
[284] See Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 46 per Megarry J; Keeton & Sheridan, Equity, 3rd ed (1987) at 37-38.
[285] (1828) 1 Beatty 157.
[286] (1834) 2 Cl & F 102 [6 ER 1094]. See also Re Birchall; Wilson v Birchall (1881) 44 LT 243 at 245 per Malins V-C.
[287] (1834) 2 Cl & F 102 at 178 [6 ER 1094 at 1122]. See also at 177 [1122] per the Earl of Eldon and at 182 [1124] per Lord Wynford.
[288] cf Posner, Law and Legal Theory in England and America, (1996) at 47-48.
[289] Whitton v Russell (1739) 1 Atk 448 [26 ER 285].
[290] Story, Commentaries on Equity Jurisprudence, 13th ed (1886), vol 1 at 58-59, 186, 263-264; Pomeroy, Equity Jurisprudence, 5th ed (1941), vol 3, par 828. But cf the so-called rule in Strong v Bird identified by Kitto J in Cope v Keene (1968) 118 CLR 1 at 8, and the doctrine of donatio mortis causa.
[291] See, further, the discussion by Brennan J in San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 367-369; Hawkins v Clayton (1988) 164 CLR 539 at 555-556; Gala v Preston (1991) 172 CLR 243 at 258-263; Bryan v Maloney (1995) 182 CLR 609 at 652-655.
[292] Christie, "The Uneasy Place of Principle in Tort Law", in Owen (ed), Philosophical Foundations of Tort Law, (1995) 113 at 123.
[293] (1995) 182 CLR 609 at 618-619 per Mason CJ, Deane and Gaudron JJ.
[294] Smith v Bush [1990] 1 AC 831 at 864-865 per Lord Griffiths; Caparo Plc v Dickman [1990] 2 AC 605 at 628 per Lord Roskill.
[295] Steele, "Scepticism and the Law of Negligence", (1993) 52 Cambridge Law Journal 437 at 444.
[296] Barker, "Unreliable Assumptions in the Modern Law of Negligence", (1993) 109 Law Quarterly Review 461 at 483-484; see also Stapleton, "Duty of Care and Economic Loss: A Wider Agenda", (1991) 107 Law Quarterly Review 249 at 259-263, 284-288.
[297] [1996] 1 AC 211 at 238.
[298] [1995] 2 AC 207 at 294.
[299] [1995] 2 AC 207 at 274-275.
[300] Murphy, "Expectation Losses, Negligent Omissions and the Tortious Duty of Care", (1996) 55 Cambridge Law Journal 43 at 49-50; Whittaker, "Privity of Contract and the Tort of Negligence: Future Directions", (1996) 16 Oxford Journal of Legal Studies 191 at 204-205; Cane, "Contract, Tort and the Lloyd's Débâcle", in Rose (ed), Consensus Ad Idem, (1996) 96 at 108.
[301] Simaan Contracting Co v Pilkington Ltd (No 2) [1988] QB 758 at 782.
[302] "Contract and Tort: The View from the Contract Side of the Fence", (1993) 5 Canterbury Law Review 280 at 281.
[303] (1988) 164 CLR 539.
[304] (1988) 164 CLR 539 at 549.
[305] (1988) 164 CLR 539 at 551-553.
[306] (1988) 164 CLR 539 at 552.
[307] Hawkins v Clayton (1988) 164 CLR 539 at 597-598 per Gaudron J.
[308] Cane, Tort Law and Economic Interests, 2nd ed (1996) at 136-145 and Whittaker, "Privity of Contract and the Tort of Negligence: Future Directions", (1996) 16 Oxford Journal of Legal Studies 191 at 207-212, where various illustrations are given. They include Ross v Caunters [1980] Ch 297 and White v Jones [1995] 2 AC 207.
[309] Burrows, "Solving The Problem of Concurrent Liability", (1995) 48 Current Legal Problems 103 at 119-120.
310 cf White v Jones [1995] 2 AC 207 at 276, 291, 295.
[311] [1914] AC 932 at 972.
[312] [1964] AC 465 at 529-530.
[313] Prosser, Selected Topics on the Law of Torts, (1982), Ch VII, "The Borderland of Tort and Contract" at 391-402. See also Cane, Tort Law and Economic Interests, 2nd ed (1996) at 325-334.
[314] [1988] QB 665 at 675.
[315] (1995) 182 CLR 609 at 621.
[316] (1985) 160 CLR 548 at 568-569.
[317] [1995] 2 AC 207 at 223.
[318] Gartside v Sheffield, Young and Ellis [1983] NZLR 37 at 51.
[319] [1995] 2 AC 207 at 291-292.
[320] cf Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 181, where Lord Goff of Chieveley, in delivering the leading speech given in the House, said: "[I]f a person assumes responsibility to another in respect of certain services, there is no reason why he should not be liable in damages for that other in respect of economic loss which flows from the negligent performance of those services". See also Gran Gelato Ltd v Richcliff Ltd [1992] Ch 560 at 569-571 and the criticism thereof in Bernstein, Economic Loss, (1993) at 420-423.
[321] Variants of the proposition of Lord Goff of Chieveley, namely that the defendant is liable in damages if (i) the plaintiff has entrusted the defendant with the conduct of the plaintiff's affairs, the defendant has failed to exercise reasonable care and skill in so doing and the plaintiff has suffered loss as a result, and (ii) the defendant undertook the exercise of power over the plaintiff, knowing the plaintiff expected the defendant to use reasonable care and skill in so doing and the defendant failed to do so, thereby causing loss to the plaintiff, are considered by McBride and Hughes, "Hedley Byrne in the House of Lords: an interpretation", (1995) 15 Legal Studies 376 at 382-385.
[322] [1996] 1 WLR 1397 at 1403; [1996] 2 All ER 161 at 167.
[323] (1995) 182 CLR 609 at 618.
[324] 174 NE 441 at 444 (1931).
[325] (1995) 182 CLR 609 at 618.
[326] See Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg), unreported, High Court of Australia, 18 March 1997.
[327] [1995] 2 AC 207 at 276.
[328] Wills Act 1936 (SA), s 12(2); Wills, Probate and Administration Act 1898 (NSW), s 13; Wills Act 1958 (Vic), s 13.
[329] [1995] 2 AC 207 at 223.
[330] cf Gran Gelato Ltd v Richcliff Ltd [1992] Ch 560 at 569-571.
[331] Al-Kandari v J R Brown & Co [1988] QB 665 at 672, 675; cf as to prosecuting authorities Elguzouli-Daf v Commissioner of Police [1995] QB 335 at 348-349, 352.
[332] [1980] 2 NZLR 536.
[333] Fleming, "Tort in a Contractual Matrix", (1995) 33 Osgoode Hall Law Journal 661 at 664.
[334] cf Bryan v Maloney (1995) 182 CLR 609 at 617-618.
[335] Barker, "Are We up to Expectations? Solicitors, Beneficiaries and the Tort/Contract Divide", (1994) 14 Oxford Journal of Legal Studies 137 at 147.
[336] In Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211, Lord Steyn delivered the speech attracting majority support in the House of Lords. Lord Steyn approved (at 236) a formulation in which proximity, with foreseeability and "fairness", are elements for the imposition of a duty of care, but added that these three elements are really facets of the same thing. The result, it is suggested, is no different from the application of the rejected two-stage test favoured by Lord Wilberforce in Anns v Merton London Borough [1978] AC 728 at 751-752: Tan, "Of Duty", (1996) 112 Law Quarterly Review 209 at 213-214.
[337] Morison, "A Re-Examination of the Duty of Care", (1948) 11 Modern Law Review 9 at 18.
[338] (1994) 179 CLR 520.
[339] (1995) 182 CLR 609.
[340] cf Caparo Plc v Dickman [1990] 2 AC 605 at 618.
[341] The Hon Justice McHugh, "Neighbourhood, Proximity and Reliance", in Finn (ed), Essays on Torts, (1989) 5 at 13.
[342] (1992) 175 CLR 353.
[343] (1992) 175 CLR 353 at 378-379.
[344] [1992] 1 SCR 1021 at 1115. His Lordship agreed with the views to this effect of Stevenson J at 1178, expressed after consideration of the judgments of Brennan J and the extrajudicial writing of McHugh J. In Caparo Plc v Dickman [1990] 2 AC 605 at 632-633 (a passage recently repeated by Lord Woolf in Spring v Guardian Assurance Plc [1995] 2 AC 296 at 343-344), Lord Oliver of Aylmerton said that "proximity" embraces not a definable concept but is "merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists". His Lordship spoke later to similar effect in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 411.
[345] (1991) 172 CLR 243 at 277.
[346] This passage was accepted and applied by Brennan J in Bryan v Maloney (1995) 182 CLR 609 at 654.