Pure economic loss

Economic loss is a term of art[1] which refers to financial loss and damage suffered by a person such as can be seen only on a balance sheet rather than as physical injury to the person or destruction of property. There is a fundamental distinction between pure economic loss and consequential economic loss, as pure economic loss occurs independent of any physical damage to the person or property of the victim. It has also been suggested for it to be called "commercial loss" as injuries to person or property could be regarded as "economic".[1]

Examples of pure economic loss include the following:

The latter case is exemplified by the English case of Spartan Steel and Alloys Ltd v. Martin & Co. Ltd[6] Similar losses are also restricted in German law[7] though not in French law beyond the normal requirements that a claimant's asserted loss must be certain and directly caused.[8]

Common law jurisdictions

Recovery at law for pure economic loss is restricted under some circumstances in some jurisdictions, in particular in tort in common law jurisdictions, for fear that it is potentially unlimited and could represent a "crushing liability" against which parties would find it impossible to insure.[9][10]

Australia

In Australia it is very difficult to recover pure economic loss in negligence if it is not consequent to property damage.[11] The test of duty of care has been established in Perre v Apand Pty Ltd.[12]

Canada

Justice Cardozo's indeterminacy concerns were relied on by the Supreme Court of Canada to restrict imposing liability on a corporation's auditors for negligently auditing the corporation's financial statements. In Hercules Management v Ernst & Young, [1997] 2 SCR 165.[13] The court determined that the auditors owed investors of the company a duty of care, and that the auditors had been negligent in conducting their audit. However, La Forest J, writing for a unanimous court, declined to impose liability on the auditors for policy reasons, citing Justice Cardozo's concerns over indeterminate liability.[14]

England and Wales

Pure economic loss was not recoverable in negligence until 1963 and the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. Up until Hedley Byrne was decided, pure economic loss was thought to be entirely within the realm of contract law.[15] From that point on, in jurisdictions following the English common law, it has been possible to recover for some pure economic loss in negligence; however, because purely economic loss can usually be anticipated and allocated differently by contract, the party seeking to be compensated for such loss must demonstrate a compelling reason to change the contractual allocation through tort liability.

Malaysia

In Malaysia, the Federal Court in Majlis Perbandaran Ampang v Steven Phoa Cheng Loon [2006] 2 AMR 563 followed the decision in Caparo Industries v Dickman [1990] UKHL 2 where it held; pure economic loss is claimable if 1) the damage was foreseeable, 2) the relationship between the parties was one of sufficient proximity, and 3) it is fair, just and reasonable to impose a duty of care on the defendant.

United States

In the United States, Chief Judge Benjamin N. Cardozo of the New York Court of Appeals famously described pure economic loss as "liability in an indeterminate amount, for an indeterminate time, to an indeterminate class."[16] The rule may also be traced back to Roger Traynor's decision in the California case Seely v. White Motor Co. (1965), and was later adopted by the Supreme Court of the United States in East River Steamship Corp V Transamerica Delaval Inc. (1986).[1]

A few state supreme courts in the United States have departed from the majority rule and authorized recovery for pure economic loss through tort causes of action (usually negligence). The first was California in 1979,[17] followed later by New Jersey[18] and Alaska.[19]

Civil law jurisdictions

Germany

The general rule of tort liability under German law is supplied by section 823 of the Bürgerliches Gesetzbuch (BGB), which does not provide for damages for pure economic loss.[20] However, the courts have interpreted BGB provisions imposing liability for harms caused by actions contrary to public policy or statute to allow for pure economic loss damages.[20]

Contractual liability for pure economic loss is recognized in German law. As a result, German courts have often turned to a contract theory to impose liability.[21] Such liability may be imposed even without privity of contract.[21]

In addition, liability for pure economic loss may be imposed under German law in the case of special relationships, such as the relationship of a guardian to a ward, in which the guardian may be subject to liability for pure economic loss if the guardian is at fault.[22]

Sweden

Sweden adopted general principles of tort liability for the first time in 1972 with the adoption of the Tort Liability Act (skadeståndslagen, SKL).[23] Previously, liability had been largely confined to cases in which a crime had been committed.[23] Under the SKL, that limitation continues to apply in cases involving pure economic loss: it is available only when a crime has been committed.[24] However, in more recent decades, some Swedish court decisions have allowed damages for pure economic loss in exceptional circumstances even when there is no underlying crime.[25]

References

  1. 1 2 3 Sorenson T, Davidson M, White M. (2012). When Can A Breach of Contract Be a Tort and What Difference Does it Make?. American Bar Association CLE Seminar.
  2. ↑ Baker v. Bolton (1808) 1 Camp 493 (England and Wales)
  3. ↑ Murphy v. Brentwood District Council [1991] 1 AC 398 (England and Wales)
  4. ↑ Sutherland Shire Council v. Heyman (1985) 60 ALR 1, at 60-61 (Australia)
  5. ↑ Winnipeg Condominium Corporation No.36 v. Bird Construction Co. [1995] 1 SCR 85 (Canada)
  6. ↑ [1973] QB 27
  7. ↑ van Gerven (2001) pp187-188
  8. ↑ van Gerven (2001) pp198-199
  9. ↑ Canadian National Railway Co. v. Norsk Pacific Steamship Co. [1992] 1 SCR 1021 (Canada), per McLachlin J
  10. ↑ Bishop (1982)
  11. ↑ Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36.
  12. ↑ Perre v Apand Pty Ltd [1999] HCA 36 (12 August 1999) AustLII
  13. ↑ "Hercules Management v Ernst & Young". Retrieved November 11, 2014.
  14. ↑ "Hercules Management v Ernst & Young".
  15. ↑ "Hedley Byrne". Bailii. Retrieved November 11, 2014. "It must now be taken that Deny v. Peek did not establish any universal rule that in the absence of contract an innocent but negligent misrepresentation cannot give rise to an action. It is true Lord Bramwell said (at p. 347):" To found an action for damages there must be a contract and breach, or " fraud." And for the next twenty years it was generally assumed that Derry v. Peek decided that. But it was shown in this House in Nocton v. Ashburton [1914] A.C. 932 that that is much too widely stated. We cannot, therefore, now accept as accurate the numerous statements to that effect in cases between 1889 and 1914, and we must now determine the extent of the exceptions to that rule.
  16. ↑ Ultramares Corporation v. Touche, 174 N.E 441, 444 (N.Y. 1931).
  17. ↑ J'Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P.2d 60, 157 Cal. Rptr. 407 (1979).
  18. ↑ People Express Airlines, Inc. v. Consol. Rail. Corp., 495 A.2d 107, 109 (N.J. 1985).
  19. ↑ Mattingly v. Sheldon Jackson Coll., 743 P.2d 356, 359–61 (Alaska 1987).
  20. 1 2 Bussani & Palmer 2003, p. 148.
  21. 1 2 Bussani & Palmer 2003, p. 150.
  22. ↑ § 1833 BGB.
  23. 1 2 Bussani & Palmer 2003, p. 156.
  24. ↑ Bussani & Palmer 2003, p. 157.
  25. ↑ Bussani & Palmer 2003, p. 158.

Bibliography

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