An Australian example of a duty of care being held to exist in a parent company concerning activities by its subsidiary is CSR Ltd v Wren (1997) 44 NSWLR 463.  In its application in another jurisdiction the Australian history concerning the test for a duty of care in a novel situation would need to be taken into account, and even in Australia changes in the law on that topic after 1997 would need to be taken into account.

(For those not familiar with this Australian history, I summarise it here. The Anns test was not adopted in Australia, and for a time proximity was used as the concept that provided the "something else" beyond reasonable foreseeability of damage that the required to give rise to a duty of care: Sutherland Shire Council v Heyman (1985) 157 CLR 424; Jaensch v Coffey (1984) 155 CLR 549 at 584  per Deane J. See Hill v Van Erp (1997) 188 CLR 159 at 176–7  [1997] HCA 9 per Dawson J, CLR 210; per McHugh J, 237–9; per Gummow J.

However proximity in its turn was abandoned by the High Court: Perre v Apand Pty Ltd (1999) 198 CLR 180.  The authorities relating to the dropping of proximity as a test of duty of care collected in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR at [18].

The High Court also (in a unanimous 5-member decision) rejected the English 3-stage test put forward in Caparo: Sullivan v Moody (2001) 207 CLR 562. In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [238] Kirby J , who was not party to the decision in Sullivan, recognized the binding nature of the rejection in Sullivan of the Caparo  test.)

Joe

 

 

The Ontario Superior Court of Justice has dismissed motions to strike out, as disclosing no cause of action, claims by indigenous Mayan Q'eqchi' from Guatemala against HudBay, a Canadian mining company.  So the claims go forward, though my money would be on an appeal first.

The facts pleaded are disturbing.  The decision is not yet on a public website but is available at:

http://www.chocversushudbay.com/wp-content/uploads/2010/10/Judgment-July-22-2013-Hudbays-motion-to-strike.pdf

The court does a detailed analysis to consider whether it would be possible that the defendant owed the plaintiffs a duty of care in the course of their corporate operations.  The plaintiffs in their pleadings apparently stressed the direct nature of the tort claim against the Canadian parent company rather than alleging it is somehow responsible for another company's torts.

My sense is the volume of this sort of claim against parent corporations is increasing.  I suppose I am remembering
Chandler v Cape Plc [2012] EWCA Civ 525.  Doubtless there are more examples.

Stephen