Case: Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180
Outcome: cited
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. In Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 , a case concerning pure economic loss, Gummow J said (at [198]): The question in the present case is whether the salient features of the matter gave rise to a duty of care owed by Apand. In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties. ... There is no simple formula which can mask the necessity for examination of the particular facts. In its submissions, Veda summarised " the particular facts" in the present cases as follows: [ 18 ] (a) the Respondent operates a credit reporting business regulated by the Privacy Act 1988 ; (b) the business involves entering into contracts with subscribers for provision to them of the services provided by the Respondent, pursuant to which the subscribers are obligated to report credit defaults to the Respondent by posting such reports on the Respondent's database for the benefit of other subscribers; (c) the legislation places restrictions on the type of credit information which credit providers are permitted to post onto the database and imposes certain obligations on both the Respondent and the credit providers to take steps to ensure the credit information on the credit file was accurate; (d) the Respondent maintains the database but does not control the posting of information onto the database or when the information on credit files is posted onto the database; the manner in which consumer credit information is posted onto the database is controlled by the Act; (e) the Respondent has no contractual or other pre-existing relations with the persons the subject of credit files on the database, and has no knowledge of their personal or financial circumstances; (f) while the subscribers could be said to rely on the credit information which they are provided with, the persons subject to credit files held on the database do not rely on the credit files in any direct or conscious way, though they may be aware of their existence; (g) so far as the evidence in these proceedings revealed, the Applicants did not seek to access their credit files, or concern themselves with their contents, until after they became aware that the files may contain information which was interfering with them obtaining credit; (h) the posting of default information onto credit files can be done via the internet in a manual fashion, but overwhelmingly is done by automated computer downloads with minimal human intervention at the credit provider end and none at the Respondent's end under either process the Respondent does not see the default information before it is registered onto the credit files; (i) the Respondent has no direct knowledge of the default information which subscribers post on the database the subscribers are the controllers and source of that information which they create in their own business records; the subscribers have similar, if not more onerous, obligations as to accuracy of the information imposed on them by the legislation; (j) the Respondent does not trigger or control when the access is made to the database; it is a contractual obligation to make the credit information placed on there by credit providers available at all times to other credit provider subscribers; (k) the Respondent does not use the information for any purpose it is a passive repository for the credit information, akin to a notice board or clearing house for the benefit of third parties; (l) the obligations imposed on the Respondent under the legislation in relation to prevention of inaccurate or misleading credit information are limited to reasonable steps and reacting once it becomes aware of inaccuracies; (m) the purpose of enquiries of the credit files by subscribers is to assist them in assessing credit applications by members of the public; at the time of such credit enquiries the Respondent has no knowledge of the particular application or the reasons for it; (n) a refusal of credit may or may not involve the applicant for credit in suffering financial harm; (o) the Respondent carries out various activities designed to correct alleged inaccuracies in credit information on the database, including training credit provider's employees, audit procedures, and complaints handling and investigation on behalf of members of the public, all within the restrictions on disclosing personal information imposed on the Respondent by the legislation; (p) as the Applicants concede, the provision of credit reporting services by the Respondent is of significant social and economic utility in enabling members of the public to obtain appropriate credit quickly and safely and at reasonable cost. I do not understand the applicants to dispute this summary.