Dear Colleagues;For those who are interested in the question of whether a duty of care in negligence can be owed to avoid causing pure economic loss, the decision of the WA Court of Appeal in APACHE ENERGY LTD -v- ALCOA OF AUSTRALIA LTD [No 2] [2013] WASCA 213 decisions.justice.wa.gov.au/supreme/supdcsn.nsf/PDFJudgments-WebVw/2013WASCA0213/%24FILE/2013WASCA0213.pdf may be of interest.
Broadly speaking, Alcoa are a company needing a continued supply of gas, Apache were in charge of gas supplies in the north of WA when there was an explosion at a gas plant and supply was interrupted. The decision here was to reject a claim by Apache to strike out the claim, and to allow it to proceed to a full trial. Those of us in Australia who have been wrestling to no avail with understanding the enigmatic comments of the High Court on this question of economic loss in its recent decision (also on appeal from WA) in Barclay v Penberthy [2012] HCA 40; (2012) 246 CLR 258 may take some comfort from the fact that the WA Court here also can't quite work out what to make of them. Substantive issues discussed include whether the existence of a contract between related parties precludes the finding of a duty of care (the court says it doesn't, necessarily); and whether a finding that Alcoa were not "vulnerable" in the relevant sense would preclude there being a duty of care (again, not necessarily, vulnerability is held to be only one of the "salient features" relevant to determining whether a duty of care arises.)
Regards
Neil