Case: OzEcom &amp; Anor v Hudson Investment Group &amp; Ors [2007] NSWSC 719
Outcome: discussed
applicants do not submit that Veda was subject to the broad duty of care that I have described. They quoted from the following summary by McDougall J in OzEcom &amp; Anor v Hudson Investment Group &amp; Ors [2007] NSWSC 719 ( OzEcom ) at [321] of the elements of the cause of action in negligence causing pure economic loss extracted from recent High Court judgments: (1) Reasonable foreseeability of loss is not of itself a sufficient basis to impose a duty of care: Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317 at 329 [6] (Gleeson CJ; Tame was a case of alleged psychiatric injury, but what his Honour said applies a fortiori to a case of pure economic loss); Sullivan v Moody And Others [2001] HCA 59 ; (2001) 207 CLR 562 at 576 [420] (another case of alleged psychiatric and other injury; the comment just made in relation to Tame applies). (2) Nonetheless, reasonable foreseeability is a necessary condition of duty: Tame at 355 [103] (McHugh J). (3) The absence of reasonable foreseeability negates the existence of a duty of care (following from (2)). (4) A plaintiff's 'vulnerability', in the sense of its inability to protect itself from the consequences of a defendant's want of reasonable care, is an important requirement in analysing whether any such duty of care is owed: Woolcock Street Investments Pty Ltd v CDG Pty Ltd And Another [2004] HCA 16 ; (2004) 216 CLR 515 at 530 [23] (Gleeson CJ, Gummow, Hayne and Heydon JJ). (5) Another important consideration is assumption of responsibility coupled with known reliance: Woolcock Street at 531 [24] (ibid). (6) The existence and terms of any relevant contract may bear upon the existence and content of a duty of care: Astley And Others v Austrust Limited [1999] HCA 6 ; (1999) 197 CLR 1 , 22 [47] (Gleeson CJ, McHugh, Gummow and Hayne JJ). To adapt the words of Lord Steyn (with whom the rest of the House of Lords agreed) in Williams And Another v Natural Life Health Foods Ltd [1998] 1 WLR 830 at 857, the role of the law of tort is to fill gaps where other remedies are not available. (7) The relevant statutory and common law context, including the allocation of responsibilities and the provision of remedies, is relevant to the determination, whether a duty of care should be imposed in a particular case: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241 at 282 and 286 (Mc Hugh J [sic]); and see Perre And Others v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180 at 192 [5] (Gleeson CJ; his Honour repeated this sentiment in Tame at 329 [6]), 226 [120] (McHugh J)." As McDougall J acknowledged, the material relevant to the seven headings might overlap to some extent. Veda responded to the applicants' submissions based on the passage from OzEcom set out at [379] above. I therefore turn now to the five elements summarised at [380] above. 1. Foreseeability of economic loss As indicated earlier I am prepared to assume in favour of the applicants that it was reasonably foreseeable that if an inaccurate credit report was issued concerning them, they were likely to suffer economic loss. As also indicated earlier, the assumption may not be warranted. The question whether an applicant actually did suffer economic loss as a result of a particular inaccurate credit report would arise at the damages stage of these proceedings.