Case: Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317
Outcome: followed
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 submits that the general law background to Part IIIA of the Privacy Act also tells against the imposition of a duty of care of the kind that the applicants must establish. Veda refers to the law relating to defamation and to statements by the High Court in Sullivan v Moody and Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317 , generally to the effect that a duty of care will not be recognised where its recognition would render the common law incoherent. In particular, Veda relies on the defence of qualified privilege claims in defamation a defence that is made available in the public interest. The defence is made available by the common law when a credit reporting agency provides an inaccurate credit report to a credit provider. It is argued that it would be destructive of that defence if the same common law were to impose a duty of care on the credit reporting agency as the foundation for a liability in negligence. Tame v New South Wales is the second case relied on by Veda. Ms Tame was the driver of a car that was involved in a traffic accident. She had a nil blood alcohol level, but when completing a report on the accident, a police officer mistakenly recorded that her blood alcohol level was 0.14. While the error was subsequently noticed and corrected, a copy of the uncorrected report was provided to the insurer which was handling Ms Tame's claim against the nominal defendant in respect of the accident. The insurer nevertheless admitted liability. Some time after the accident Ms Tame's solicitor told her about the entry concerning her blood alcohol level in the police report that had been given to the insurer. The police confirmed that the entry was wrong and they apologised. The insurer confirmed that liability for the accident was admitted. Nonetheless, Ms Tame became obsessed with the mistake that the police had made and ultimately developed a psychiatric disorder. She sued the State, claiming that it was vicariously liable for the negligence of the police officer. The High Court held that the police officer had not owed a duty to take reasonable care to avoid psychiatric injury to Ms Tame. Like Sullivan v Moody , Tame v New South Wales is unlike the present cases in that it was concerned with duties imposed by statute on persons who perform certain functions in the interests of the public or of a cross-section of it (for a recent illustration from the United Kingdom see Jain v Trent Strategic Health Authority [2009] 2 WLR 248). However, I think that the approach taken in Tame v New South Wales is applicable. The defence of qualified privilege is made available because it is seen to be required in the public interest. It would introduce an incoherence in the law to impose a duty of care on Veda directed to the accuracy of its credit reports to enquiring credit providers. 2. Did Veda commit a breach of any duty of care it owed to the applicants in relation to the accuracy of the credit reports concerning them that caused those credit reports to be inaccurate?