The Gazette 1982

GAZETTE

JULY/AUGUS T 1982

when he knows or ought to know that the recipient intends to act or rely on it; and that a duty of care may arise where the speaker has a financial interest in the transaction with respect to which the statement is made. The Court, however, preferred the arguments of the minority of the Privy Council (who were of course supporting the view of the High Court of Australia in the Evan case) that the possession or professed possession of skill and competence was not an essential element in the foundation of the duty of care. It will be recalled that Mr. Evatt had sued the insurance company when he suffered loss as a result of gratuitous advice and information given to him by the insurance company about the liabilities of a company which was an associate of the insurance company. Gibbs C.J. in his judgment held that a person giving information may be so placed that others can reasonably rely on his ability to carefully ascertain and import the information while Mason J. (with whose judgment Aickin J. agreed) went further saying: "The specialised nature of the information, the importance which it has to an owner or intending purchaser and the fact that it contains what the Authority proposes to do in the exercise of its public functions and powers, form a solid base for saying when information (or advice) is sought on a serious matter, in such circumstances that the Authority realises, or ought to realise, that the enquirer intends to act upon it, a duty of care arises in relation to the provision of the information and advice."

The Court noted that the Canadian Supreme Court in Hodgins -v- Hydro-Electric Commission of Napean [1975] 60 D.L.R. (3d), I, had taken the view that the judgement of the House of Lords in the Hedley Byrne case did not suggest that only those engaged in private enterprise, in particular trades or professions, may attract such a duty of care. It also noted that in other Canadian cases, Windsor Motors Limited -v- District of Powell River [1969] 4.D.L.R. (3d) 155, where incorrect advice given by a municipality about the zoning of land was concerned; and Gadutsis -v- Milne [1972] 34 D.L.R. (3d) 455, where the City of Toronto was held liable in damages for negligent misrepresentation concerning permitted uses in a particular zone of the city; and in H. L. &M. Shoppers Ltd-v- Town of Berwick [1977] 82 D.L.R. (3d) 23; the Hedley Byrne doctrine had been held to apply. The court also noted that there was a line of authority in the United Kingdom courts commencing with the case of Ministry of Housing and Local Government -v- Sharpe [1970] 2 QB 223, which was mentioned in Moorgate Limited -v- Twitchings [1977] A.C. 890 and applied in Ross -v- Counters [1979] 3. W.L.R. 605 which suggested that notwith- standing the decision in Mutual Life and Citizens Insurance Company -v- Evatt (supra) public bodies were not excluded from the Hedley Bryne Doctrine. Although McMahon and Binchy in their recently published book "Irish Law of Torts" (pp 397-403) expressed reservations about the continuing significance of the Hedley Byrne doctrine in Irish law it must now be at least a possibility that in the case of claims against public authorities it may have a greater significance in the future.•

*The author is grateful to Mr. Tony Baines of Carroll & O'Dea, Solicitors of Sydney for calling attention to the importance of the judgment in this case.

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