Negligent Misstatement in Australia - Resolving the Uncertain Legacy of Esanda: Chapter 13

Ch 13 in K. Barker, W Swain and R Grantham (eds), The Law of Misstatements (Oxford, Hart Publishing , 2015) pp 319-344

University of Queensland TC Beirne School of Law Research Paper

27 Pages Posted: 1 Feb 2016 Last revised: 15 Mar 2022

See all articles by Kit Barker

Kit Barker

University of Queensland - TC Beirne School of Law

Date Written: February 28, 2015

Abstract

This chapter analyses the confused state of the law of negligent misstatement in Australia since the High Court's decision in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 (HCA). It proposes a single, common set of rules for the determination of duty of care questions for all cases of pure economic loss caused by a plaintiff’s reliance on a negligent misstatement, whether they are of the two- or three-party type, even though the latter raise some complications (such as ‘indeterminacy’ and ‘remoteness’) that the former often do not. If such 'three-party' cases genuinely raises additional concerns of this type, they are better met, it is suggested, in other ways - for example through the imposition of legislative caps upon advisor liabilities in areas of particular market sensitivity - rather than through the placement by judges of arbitrary and unclear limits upon the scope of private law duties of care.

Keywords: negligence, misstatement, misrepresentation, hedley byrne, advice, auditor, solicitor, financial advice

JEL Classification: K13

Suggested Citation

Barker, Kit, Negligent Misstatement in Australia - Resolving the Uncertain Legacy of Esanda: Chapter 13 (February 28, 2015). Ch 13 in K. Barker, W Swain and R Grantham (eds), The Law of Misstatements (Oxford, Hart Publishing , 2015) pp 319-344, University of Queensland TC Beirne School of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2723705

Kit Barker (Contact Author)

University of Queensland - TC Beirne School of Law ( email )

4072 Brisbane, Queensland
Australia

HOME PAGE: http://www.law.uq.edu.au/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
1,240
Abstract Views
4,802
Rank
32,750
PlumX Metrics