Expectation Losses, Negligent Omissions and the Tortious Duty of Care

This chapter discusses the difference between the law of torts and contract and criminal law. It explores the tort of negligence, considering the necessary elements for a claim of negligence, namely the defendant owed the claimant a duty of care, the defendant breached that duty of care, and reasonably foreseeable damage was caused by the breach of duty. The chapter considers the special requirements for the recovery of pure economic loss and for loss as a result of psychiatric injuries, looking at both primary and secondary victims. The principles relating to breach of a duty of care, including the standard of care, are discussed. The chapter concludes with a discussion of the final element, considering the need for a causal link between the breach of duty by the defendant and the damage suffered by the claimant.

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11. The Tort of Negligence

Introduction to Business Law ◽

10.1093/he/9780198766261.003.0011 ◽

2017 ◽

Author(s):

Lucy Jones

Keyword(s):

Criminal Law ◽

Standard Of Care ◽

Economic Loss ◽

Causal Link ◽

Duty Of Care ◽

Pure Economic Loss ◽

Breach Of Duty ◽

The Law ◽

The Difference

This chapter discusses the difference between the Law of Torts and Contract and Criminal Law. It explores the tort of negligence, considering the necessary elements for a claim of negligence, namely the defendant owed the claimant a duty of care, the defendant breached that duty of care, and reasonably foreseeable damage was caused by the breach of duty. The chapter considers the special requirements for the recovery of pure economic loss and for loss as a result of psychiatric injuries, looking at both primary and secondary victims. The principles relating to breach of a duty of care, including the standard of care, are discussed. The chapter concludes with a discussion of the final element, considering the need for a causal link between the breach of duty by the defendant and the damage suffered by the claimant.

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7. General defences

Tort Law Directions ◽

10.1093/he/9780198805359.003.0007 ◽

2018 ◽

Author(s):

Vera Bermingham ◽

Carol Brennan

Keyword(s):

Economic Loss ◽

Duty Of Care ◽

Physical Injury ◽

Legal Knowledge ◽

Property Damage ◽

Pure Economic Loss ◽

Key Points ◽

The Law ◽

Principle Of Liability

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The tort of negligence originated as a remedy for property damage and physical injury. However, recovery of compensation for psychiatric injury and pure economic loss, in cases where they were not caused by physical injury or property damage, has proved difficult. Duty of care for psychiatric injury is contingent upon whether the claimant is a primary or secondary victim. This chapter discusses the policy reasons for limiting duty of care for psychiatric injury, the mechanisms by which the law limits duty of care for psychiatric injury, the meaning of ‘pure economic loss’, and the development of the Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) principle of liability for negligent statements. The chapter also examines the ‘thin skull’ rule, which applies to psychiatric injury in the same way as to physical injury.

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Negligently inflicted psychiatric harm: a re-appraisal

Legal Studies ◽

10.1111/j.1748-121x.1995.tb00528.x ◽

1995 ◽

Vol 15 (3) ◽

pp. 415-433 ◽

Cited By ~ 1

Author(s):

John Murphy

Keyword(s):

Economic Loss ◽

Personal Injury ◽

Duty Of Care ◽

Pure Economic Loss ◽

House Of Lords ◽

The Law ◽

Relationship Of

The law of negligence has long been concerned not to countenance liability ‘in an indeterminate amount for an indeterminate time to an indeterminate class’. Nowhere, except perhaps in relation to pure economic loss, has this reluctance been more pronounced than in the context of negligently inflicted psychiatric harm. Without aiming to advocate a system of law that would create an increase in the workload of personal injury practitioners, this article attempts a thoroughgoing reappraisal of the bases of liability for psychiatric harm. More particularly, its primary aim is to accommodate liability for such harm within the current, tripartite framework governing the duty of care: that harm to the plaintiff be foreseeable, that there be a relationship of proximity between the plaintiff and the defendant and, that it be just and reasonable to impose a duty. Such an endeavour is both timely and necessary in view of the House of Lords’ recent insistence that in all cases-even those involving physical harm-all three limbs of the duty formula must explicitly be demonstrated.

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5. Negligence: duty of care problem areas

Tort Law Directions ◽

10.1093/he/9780198853923.003.0005 ◽

2020 ◽

pp. 106-145

Author(s):

Carol Brennan ◽

Vera Bermingham

Keyword(s):

Economic Loss ◽

Duty Of Care ◽

Physical Injury ◽

Legal Knowledge ◽

Property Damage ◽

Pure Economic Loss ◽

Key Points ◽

The Law ◽

Principle Of Liability

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The tort of negligence originated as a remedy for property damage and physical injury. However, recovery of compensation for psychiatric injury and pure economic loss, in cases where they were not caused by physical injury or property damage, has proved difficult. Duty of care for psychiatric injury is contingent upon whether the claimant is a primary or secondary victim. This chapter discusses the policy reasons for limiting duty of care for psychiatric injury, the mechanisms by which the law limits duty of care for psychiatric injury, the meaning of ‘pure economic loss’, and the development of the Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) principle of liability for negligent statements. The chapter also examines the ‘thin skull’ rule, which applies to psychiatric injury in the same way as to physical injury.

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The case of ‘losses in any event’: a question of duty, cause or damages?

Legal Studies ◽

10.1111/j.1748-121x.2010.00167.x ◽

2010 ◽

Vol 30 (4) ◽

pp. 558-585

Author(s):

Mark Stiggelbout

Keyword(s):

Economic Loss ◽

Duty Of Care ◽

Private Law ◽

General Argument ◽

The Real ◽

Pure Economic Loss ◽

Court Of Appeal ◽

Careful Comparison

This paper considers the relevance of a finding that, even absent the defendant's unlawfulness, the private law claimant would have suffered the losses claimed. It provides a principled framework for considering the issues raised by such a finding of ‘losses in any event’, arguing that it should be distinguished both from causation of injury and from the scope of the defendant's duty of care, and that it should be treated as raising a question of damages. It highlights the need, particularly in pure economic loss cases, for a careful comparison of the real and the hypothetical losses so as to determine whether the latter would indeed have been losses in any event. In this regard, the decision of the Court of Appeal in Calvert v William Hill Credit Ltd is subjected to close scrutiny. A more general argument advanced is that tort and contract both do and should adopt similar approaches in this field.

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Hedley Byrne in the House of Lords: an interpretation

Legal Studies ◽

10.1111/j.1748-121x.1995.tb00526.x ◽

1995 ◽

Vol 15 (3) ◽

pp. 376-389

Author(s):

Nicholas J McBride ◽

Andrew Hughes

Keyword(s):

Economic Loss ◽

Duty Of Care ◽

Pure Economic Loss ◽

House Of Lords

The House of Lords has now handed down decisions in six cases which have involved extended discussions of the scope of liability to compensate another for pure economic loss under the Hedley Byme principle. It seems reasonable to suppose that we can now arrive, on the basis of those decisions, at some conclusions as to when and why such liability arises. In this article we attempt to amve at such conclusions. In so doing we avoid using the usual terminology- ‘duty of care’, ‘proximity’, ‘just and reasonable’, ‘policy’, ‘reliance’, ‘assumption of responsibility’, ‘equivalent to contract’, even ‘negligence’-which an analysis of the scope and rationale of liability under Hedley Byme would be expected to employ.

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Tortious liability for pure economic loss

10.12681/eadd/4752 ◽

1979 ◽

Author(s):

Ευστάθιος Μπανάκας

Keyword(s):

Economic Loss ◽

West Germany ◽

Pure Economic Loss ◽

Legal Traditions ◽

Different Types ◽

The Subject ◽

The Common ◽

The Law ◽

Comparative Examination ◽

Individual Style

Financial harm may be caused in many different ways. It can be said that it appears in several different ’’types", each produced in distinct factual circumstances. Different "types" of financial harm may demand a different treatment by the law. The considerations that ought to determine the policy of the law vary together with the factual . circumstances, in which each particular type offinancial harm becomes manifested. Thence the need for a separate examination of the major, or "generic", types of such harm, a need that has already been - detected by Comparative lawyers writing on the subject.(20) The present study will concentrate on the problem ' of financial harm that is not the product of a harmful intention (21) . In the Common Law of Negligence this problem is known as the "pure economic loss" problem. The solutions given to it by English Law are compared to the solutions of the French Law of Torts, and to those of the law of Torts of the German Federal Republic (West Germany)(22). The compared Tort systems not only are leadingthe major legal traditions of our age, each employing its own individual "style" (23), but, also, operate in virtually similar social and economic environments. This should allow the comparison to expose more easily the true merits of any "stylistic" idiosyncrasies, thatthey might possess in this particular connection. The problem of pure economic, loss caused by erroneous advice or information is not examined in * detail in the present study. It has been already the subject of comprehensive Comparative examination (24).

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7. Special duty problems: economic loss

10.1093/he/9780198867760.003.0007 ◽

2021 ◽

pp. 188-216

Author(s):

Kirsty Horsey ◽

Erika Rackley

Keyword(s):

Economic Loss ◽

Personal Injury ◽

Economic Losses ◽

Duty Of Care ◽

Financial Loss ◽

Exclusionary Rule ◽

Pure Economic Loss ◽

District Council ◽

Secondary Consequence ◽

Special Duty

This chapter explains when and how the courts have found that a duty of care should be owed by defendants for purely economic loss. This differs from ‘consequential’ economic loss, where financial loss is suffered as a secondary consequence of another harm, such as personal injury or property damage. The tort of negligence distinguishes between these, using duty of care as a device to control whether and when claimants will be able to recover their pure economic losses. The discussions cover the meaning of ‘pure’ economic loss; exceptions to the exclusionary rule; claims for pure economic loss in negligence before Murphy v Brentwood District Council [1990]; and extended applications of the principles established in Hedley Byrne v Heller [1963].

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Liability of the State and Public Authorities in Israel and South Africa

European Journal of Comparative Law and Governance ◽

10.1163/22134514-45060008 ◽

2013 ◽

pp. 1-47

Author(s):

Max Loubser ◽

Tamar Gidron

Keyword(s):

South Africa ◽

South African ◽

Common Law ◽

Economic Loss ◽

Tort Law ◽

Public Authority ◽

The South ◽

Public Authorities ◽

Pure Economic Loss ◽

The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

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