The Gazette 1982

GAZETTE

JULY/AUGUS T 1982

"Hedley Byrne" Marches On Duty of Public Authority in Providing Information to Enquirers by John F. Buckley, Solicitor T HE extension of the application of the Hedley Byrne and Heller &Partners doctrine to the acts

practice of the Council when it received a request for such a certificate and for additional information as to whether the property was proposed to be effected by road widening proposals, and when there was a relevant proposal, to type or write (usually in red ink) a reference to the proposal at the foot of the certificate. During a three year period the solicitor had received about eight such certificates and had seen at least two others sent to other solicitors. The Town Clerk of the Council gave evidence to show that it was the practice of the Council to give information other than that which the Council was authorised by the Statute to give, including informa- tion as to road widening proposals, both orally over the telephone and by endorsements on certificates issued under the Statute. An examination ofthe files ofthe Council revealed that about 10,000 certificates under the Statute had been issued during a two and a half year period of which about 650 had been endorsed with a reference to road widening proposals. The High Court accepted that the evidence abundantly supported the finding of the trial judge that it was the practice of the Council to answer enquiries as to the existence of any road widening proposals made by the use of the application form by making an appropriate endorse- ment on the certificate issued under the Statute if there was such a proposal. The Court held that the return of the certificate unendorsed was tantamount to the giving of information that there were no proposals and that it was clearly careless to give such a certificate. The question which arose for decision was as to whether there was a duty to answer carefully the questions put to the Council orally and in writing. The Court held that it would not have been reasonable for the appellants to have relied on an unconfirmed answer given by an unidentified person in response to an enquiry made over the telephone and that the Council owed no duty of care in making response to such an enquiry. The majority of the Court interpreted the decision of the majority of the Privy Council in Mutual Life and Citizens Assurance Company -v- Evatt [1971] A.C. 793, as confining the duty of care in relation to the provision of advice or information by a person to the situation where he carries on a business or profession and in the course of it provides advice or information of a kind which calls for skill and competence or he otherwise professes to profess skill and competence and provides advice or information 197

of a Public Authority providing information to enquirers about such Authority's road widening or zoning proposals in another Common Law country may be of considerable interest to practitioners in Ireland. The High Court of Australia, that Country's highest judicial tribunal, so determined recently in L. Shaddock & Associates Ply. Limited and Another -v- the Council of the City of Paramatta (High Court of Australia 28/10/81)* The facts of the case were as follows: The Appellants contracted to purchase a property for the purpose of redevelopment. They would not have concluded the purchase if they had known the land would be substantially effected by road widen- ing proposals which had been approved in principal by the Paramatta City Council in 1971. Before the exchange of contracts the appellants' solicitor made a telephone call to the Council and enquired from an unidentified person in the Town Planning Department whether there was any local road widening proposal affecting the property. He was told that there was not. On the following day he lodged with the Council a form of application for certificates given by Local Authorities under a New South Wales Statute; one of the appellant companies was described as the purchaser and the purpose for which the information was required was stated to be "Conveyancing". Under the heading "other information indicated under remarks" the question was asked "Is the property affected or proposed to be affected by any of the following:— Road widening or re-aligning proposals? In response to this application the solicitor received a certificate from the Local Authority with respect to matters that the Council was authorised to issue certificates under the Statute. These matters did not include the effect on the land to which the certificate related of a proposed local road widening scheme which was not included in a prescribed scheme or a scheme in course of preparation. The local road widening proposals were not so included and there was therefore no obligation to include the information in a certificate issued under that Statute. The solicitor believed that the absence of any notation as to a local road widening proposal on the certificate indicated that there was no such proposal. His previous experience indicated that it was the