Beale v Meehan

[2000] NSWSC 282

CITATION:	BEALE v MEEHAN & ORS [2000] NSWSC 282
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	SC 20582/96
HEARING DATE(S):	19 April 1999, 20 April 1999, 21 April 1999, 22 April 1999, 27 April 1999
JUDGMENT DATE:	11 April 2000
PARTIES :	Esme Kathryn Beale (Plaintiff) John Patrick Meehan & Paul Francis Meehan t/as Meehans (First Defendants) John L Carr (Second Defendant) Caltex Australia Petroleum Pty Ltd (formerly Ampol Limited) (Third & Fourth Cross-Defendant)
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr P H Greenwood SC (2nd Cross Defendant/4th Cross- Claimant) Ms N Abadee (2nd Defendant/3rd Cross-Claimant) Mr M L Williams (Cross Defendant to 3rd & 4th Cross-Claimants)
SOLICITORS:	Firths (Plaintiff) Minter Ellison (First Defendants) Corrs Chambers Westgarth (Second Defendant) Middletons Moore & Bevins (Cross-Defendant to the Third & Fourth Cross-Claimants)
CATCHWORDS:	Negligence - misrepresentation - duty of care - foreseeability - solicitor seeking to identify defendant - supervening negligence by solicitor and counsel - expiration of limitation period - causation - deceptive and misleading conduct - s 52 Trade Practices Act 1974 - causation - ambiguous representation - causation - relevance of conduct of person affected by conduct
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 Trade Practices Act 1974
CASES CITED:	MLC v Evatt (1968) 122 CLR 556 Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] (1981) 150 CLR 225 San Sebastian Pty Ltd v The Minister (1986) CLR 341 Jaensch v Coffey (1984-1985) 155 CLR 549 MLC v Evatt (1970) 122 628; [1971] AC 793 Esanda Finance Corporation Pty Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 The Commonwealth v McLean (1996) 41 NSWLR 389 Chapman v Hearse (1961) 106 CLR 112 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 March v Stramere (E & H) Pty Ltd (1990-1991) 171 CLR 507 Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 Menhaden Pty Ltd v Citibank NA (1984) 1 FCER 542 Parkdale Custombuilt Furniture Pty Ltd v Puxu Pty Ltd (1981-1982) 149 CLR 191 Argy & Anor v Blunts & Lane Cove Real Estate Pty Limited & Ors (1990) 26 FCR 112 Neilson & Hempston Holdings Pty Ltd (1986) ATPR 40-686 Tefbao v Stannic Securities (1993) 118 ALR 565 Commonwealth Bank of Australia v Mehta (1991) NSWLR 84 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Winterton Consructions Pty Ltd v Hambros (1993) 39 FCR 97 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 Inderby Pty Ltd & Anor v Quinert (1995) ATPR (Digest) para 46-141 Elders Trustee v Reeves [1987] 78 ALR 193 Hill & Anor v Tooth & Co Ltd & Ors (1998) ATPR para 41-649
DECISION:	Verdict for the third and fourth cross defendant

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

TUESDAY 11 APRIL 2000

20582/96

BEALE v MEEHAN & ORS

JUDGMENT

1    HIS HONOUR: Mrs Beale went with her husband to an Ampol Service Station at Narrabri on 11 June 1987. She went to the lavatory and slipped over and fell on her way out. She suffered quite serious injuries. She instructed the firm of Mulally Mylott Meehan (Meehans) to act for her in an action to recover damages for her injuries. Mrs Beale’s first conference with the firm was with Mr Paul Meehan, then a law clerk, on 4 August 1987. Mrs Beale told him that the accident took place on a platform which was slippery and thin just outside the lavatory. She said that she had tripped on the platform before, as had her daughter. She added that she told the garage attendant about the accident. She injured her back but did not know the extent of the damage until a pending operation took place. Two days later, in a letter addressed to “The Proprietor, Ampol Service Station, Corner Anne and Dangar Streets, Narrabeen West” stating that the firm acted for Mrs Beale, who had been injured at the service station on 11 June 1987, an admission of liability was sought failing which proceedings would be instituted and requesting that the letter be sent “to your common law insurer”, the name of which was also sought. 2    On 25 August 1987, Mrs Beale attended for another conference with Mr Meehan. She brought in some photographs of the site of the accident. Those photographs showed that the concrete platform dipped down to a drain and Mr Meehan asked Mrs Beale whether that had caused the accident and whether it was wet. She told him that the platform may have been wet but she was not sure. 3    On 26 August 1987 Mr Zucker, a member of the firm J J Lyons & Barnett, solicitors of Tamworth, wrote to Meehans saying that their letter had been referred to them but stating that it was difficult to make an admission of liability on the basis of the allegations which had been so far made and suggesting that further particulars of the accident should be provided. Mr Zucker did not say on whose behalf he wrote but it is reasonable to infer that he was acting for the relevant insurers. It followed that he knew the identity of the proprietors. 4    On 27 August 1987, Meehans briefed Mr John Carr of counsel seeking an advice. The observations stated that Mrs Beale slipped on “the very slippery and uneven platform outside the toilet” although the basis for this confident assertion appears to me, to say the least, to have been somewhat exiguous. Counsel advised on 12 September 1987, amongst other things, that further information was required. In particular, he asked for further details of the slippery surface. He suggested that the solicitors should ascertain the name of the proprietor of the service station and pointed out that this information quite often appears on a window in the premises or could be obtained by a business names’ search. He suggested that the cause of action arose from the occupier’s negligence towards an invitee. He said that the most important matter to determine at that stage was whether the proprietor had any public liability insurance. It is obvious that an enquiry of Mr Zucker would immediately have elicited that information. This was not done. 5    On 14 October 1987 Mrs Beale again conferred with Mr Meehan. She said that she could not recall if the surface on which she slipped was wet or had any foreign substance on it and that no one else had inspected the surface at the time. On the following day, Mr Meehan wrote to counsel informing him of what Mrs Beale had told him, that she would try to ascertain the proprietor’s or the business name and, when this information was to hand, the firm would undertake a business names’ search. Two weeks or so later, Mrs Beale informed Mr Meehan that she could not get any further information from the person apparently managing the service station who told her to see “his solicitor”, Messrs J J Lyons & Barnett who were said to be retained by New Zealand Insurance. A further conference between Mrs Beale and Mr Meehan occurred in April and November 1988 but nothing was discussed to which I need to refer. Meehans did not bother to write to Messrs J J Lyons & Barnett. 6    On 26 April 1989, counsel wrote to Meehans concerning Mrs Beale’s case. By this time, it had become apparent that the accident had occurred at the Ampol Service Station in Narrabri not Narrabeen. However, nothing turns on this. Counsel advised that it was important to identify the proposed defendant and suggested that a letter be sent to the proprietor of the service station in the terms of a draft which he attached to his advice. Accordingly, on 5 June 1989, Meehans wrote to “The Proprietor” of the service station asking for the names of the proprietors of the business carried on at the premises on 11 June 1987, the names of the registered proprietors of the premises on that date and the names of the “occupiers” in law of the premises on the same date. The letter briefly set out the allegations giving rise to the claim of damages and requested that the letter be forwarded to the proprietors’ solicitors or public liability insurers requesting that they communicate with Meehans as soon as possible, asking also for the name of the solicitors and the insurer. The letter concluded by stating that if there was no response within three weeks proceedings would be taken by way of discovery before suit to identify the proprietors of the business at the time of the accident. A copy of this letter was sent to Ampol Limited. 7    About a week later, a Mrs Kerry Smart contacted Meehans by telephone and informed them that she had received the letter about Mrs Beale’s accident. The relevant file note went on to state -

“Mrs Smart advised that she did not own the service station as at the date of the accident and that Messrs Martin Coleman and William Schatz (sic) were the proprietors of the service station.”

On the following day Mr and Mrs Smart wrote to Meehans to advise that they did not take over the Ampol Service Station until 1 November 1987 and adding, “the previous proprietors were William Schatz and Martin Coleman.” It will be seen that this letter did not state, in terms, that Messrs Schatz and Coleman were the proprietors as at 11 June 1987 but rather that they owned the service station immediately before the Smarts, although the file note suggests that Mrs Smart might have said that they were indeed the proprietors as at that date. At all events, a fair reading of the note clearly implies, to my mind, that Mrs Smart was of the opinion that Coleman and Schatz were the relevant proprietors. It seemed, at least, very likely that they were.

8    On 23 June 1989 Ms O’Hara, the legal officer for Ampol Limited, wrote to Meehans in the following terms -

“(a) District Fuel Distributors Pty Limited was the proprietor of the business carried on at the premises on 11 June 1987 and is presently the proprietor.
(b) Ampol Limited was the registered proprietor of the premises on 11 June 1987 and is presently the registered proprietor.”
As to paragraph (c), the “occupiers” in law of the premises on 11 June, 1987 should be identified by you as solicitors for the potential plaintiff.
We enclose a copy of the franchise agreement for your information. As a matter of convenience please forward any further correspondence to the attention of Miss Schaan O’Hara of this office.”

The franchise agreement was, presumably by oversight, not enclosed. (Some time after the relevant events Ampol Limited changed its name to Caltex Australia Petroleum Pty Limited. For simplicity, I shall refer to the company as “Ampol”.) It is, I think, significant to note that the draft statement of claim advised by Mr Carr on 31 October 1989 relied principally upon the allegation that the defendant, District Fuel Distributors Pty Limited (DFD), was the occupier of the relevant premises, a basis for liability in respect of which Ampol specifically told the solicitors should be the subject of their own enquiries. On 12 September 1989, Ms O’Hara forwarded to Meehans a copy of the service station franchise licence agreement, the trademark licence agreement and the franchise supply agreement. The first of these documents, dated 29 December 1986, identified the parties as Ampol and DFD and covered the period from 1 November 1986 to 18 September 1989. The trademark licence agreement was dated 29 December 1986, covering the same period as the licence agreement as did the franchise supply agreement. The franchise licence agreement provided, inter alia, for Ampol’s premises to be used under licence, without any right of exclusive occupancy. Ampol was plainly an occupier of them. A strong case could be made that, in the alleged circumstances, Ampol was jointly liable. Despite this, Ampol was not sued until after the expiration of the limitation period.

9    On 20 October 1989 Meehans forwarded the correspondence to counsel and in ten days or so received an advice in effect asserting that the defendant had now been identified as DFD and, amongst other things, advising the solicitors to undertake a Corporate Affairs Commission search for details of the company. Counsel also drafted particulars of the claim for incorporation in a District Court ordinary statement of claim against DFD. Ampol was not mentioned as a potential defendant. On 27 November 1989 Meehans forwarded to counsel the results of the company searches. 10    On 6 March 1990 Meehans, on counsel’s advice, wrote to Ms O’Hara at Ampol stating that the searches at the Corporate Affairs Commission showed that the return giving particulars of directors of DFD dated 29 September 1977, identified a Mr and Ms McTaggart but noting that the Smarts, who claimed to be the current proprietors of the service station, said that the previous proprietors were Messrs Schatz and Coleman. The letter asked, “Do you know where these two persons fit in the picture”. Meehans noted that Mr McTaggart was one of the signatories of the franchise agreement. 11    On 28 March 1990 Ms O’Hara wrote to Meehans in the following terms -

“I refer to your letter of 6 March, 1990.
In reply, the persons to whom you refer were franchisees of the site. Mr. and Mrs. Smart as you say are the current franchisees of the site.
I would like to take this opportunity to refer to an earlier letter of yours dated 5 June, 1989 where you requested Ms. Kay Smart to forward the letter to her solicitors or public liability insurer.
Could you please let me know what came of this request.
Further, could you please inform me whether Ampol Limited will be involved in your client’s personal injury claim.”

12 On 13 August 1990 counsel advised that the defendant appeared to be DFD, on the basis, it seems, of this letter. Again, no consideration appears to have been given to Ampol’s position. 13 On 8 August 1991 proceedings were commenced by Meehans on Mrs Beale’s behalf in the District Court against DFD. This delay was unexplained. The summons, moreover, was not served until 15 October 1992 although counsel, on 6 August 1992 had enquired whether the matter was still proceeding. It was delivered to the registered office of the company, as identified by the searches to which I have previously referred. On 20 October 1992 the accountants on whom the summons was served informed Meehans that the company had been wound up. On 23 October 1992 Meehans sought Mr Carr’s advice as to the effect of the winding up of DFD. The firm was aware, by virtue of DFD’s agreement with Ampol, that the franchisee was required to insure against “legal liability” to $2 million. It was also aware, by virtue of the letter of Messrs J J Lyons & Barnett of 26 August 1987, that they acted for the “common law insurer” of the proprietor and from Mrs Beale on 2 November 1987 that this was New Zealand Insurance, Tamworth. It appears that Mr Carr gave no further advice. In the circumstances, the possible applicability of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 plainly arose. In this case, of course, as DFD was not liable to the plaintiff, the provision was irrelevant, except to the extent that any competent solicitor would, upon being informed that a putative defendant was wound up, make enquiries concerning insurance and proceed, where the prerequisites for liability were present, against the insurer. Meehans should therefore have made immediate inquiries as to the date of the winding up and contacted the insurers. Had this been done, the identities of the true defendants would have been immediately disclosed, since the solicitors would necessarily have communicated with Messrs J J Lyons & Barnett. It is obvious, from their letter to the plaintiff of 23 October 1992, that this is what they contemplated. However, it appears that nothing further was done. 14 Although Meehans sought advice from Mr Carr (from whom, it seems, nothing was heard) it seems clear that they thought that the action had run into a brick wall. The possibility of proceeding instead against Ampol was not considered. On 10 June 1993, the limitation period expired. 15 In February 1994 there was a brief flurry of inconclusive correspondence with counsel in which, amongst other things, the possibility of restoring DFD to the register and also suing Ampol were mentioned. Eventually, Mr William Meehan went through the file and made certain enquiries, which he set out in a letter of 9 September 1994 to Mr Carr seeking his advice as to what should be done. He said that on 9 September 1994 he telephoned Mrs Smart who confirmed that she and her husband had bought the service station from William Schatz and Martin Coleman on 1 November 1987 and that, whilst the letterhead she used was that of DFD, she and her husband were not connected with that company but were simply using old stationery that had been left behind when they took over the business. Mr Meehan telephoned Mr Schatz who told him that he and Coleman had owned the service station for about eight to twelve months before they sold it to the Smarts, they having bought it from DFD. Mr Schatz, indeed, remembered Mrs Beale (whose name he did not know) slipping over. Thus two telephone calls quickly ascertained that Messrs Schatz and Coleman were the proprietors of the service station at the time of the accident. Furthermore, Mr Schatz informed Mr Meehan that he thought he and Mr Coleman had public risk insurance but that the latter had all the paperwork in a box in his garage. Mr Meehan was not able to contact Mr Coleman. Mr Meehan commented candidly and accurately to Mr Carr-

“Whoever was handling this file should have realised from the K & K Smart’s letter dated 14/6/89 that Schatz and Coleman were possibly the proprietors on the 11 June 1987. But nothing was done to chase them up.
This may have been because in replying to our letter to Ampol dated 5 June 1989 . . . seeking ‘(a) (b) & (c)’ to which Ampol replied by letter dated 23 June 1989 . . . ‘(a) (b) & (c)’ and enclosing franchise agreement for DFD.
A Corporate Affairs Search was carried out and Ampol written to on 6 March 1990 . . . wherein Schatz & Coleman were again mentioned. A reply to this letter from Ampol dated 28 March 1990 ... indicated ‘the persons to whom you refer were franchisees of the site. Mr and Mrs Smart, as you say, are the current franchisees of the site’.
It is obvious ‘the persons to whom you refer’ were Schatz and Coleman. But again nothing was done to chase them up.
This may have been because of Ampol’s letter of 23rd June 1989 . . . indicating “DFD was the proprietor of the business . . . on 11th June 1987 and is presently the proprietor.” Although one would have thought that Schatz and Coleman were well worth following up both in 1989 (Smarts’ letter) and 1990 (Ampol’s letter) but again this was not done.

16 By Notice of Motion on 8 March 1995 Mrs Beale sought an extension of time within which to bring proceedings against Schatz, Coleman and Ampol Limited under ss 58, 60G and 60I of the Limitation Act 1969. For reasons which are obvious such an application was doomed to fail, as it did on 18 March 1996. 17 Not surprisingly, Mrs Beale sued her legal advisers for professional negligence. That they had been negligent is obvious from the material which I have briefly set out above, although whether Mrs Beale had lost anything was a matter of some controversy. The defendants cross-claimed against Ampol upon the basis that Ampol was itself negligent both in respect of Mrs Beale and the defendants. A claim was also made under s 52 of the Trade Practices Act 1974. 18 It is essential, at the outset, to define precisely the terms of the alleged negligent misstatement by Ampol. As I have pointed out, Meehans had already sought the names of the proprietors of the business carried on at the premises as at the date of the accident, 11 June 1987, as well as the names of the “registered proprietors of the premises” on that date. They were informed by Ampol, in effect, that the proprietor at 11 June 1987 was DFD, which was still the proprietor as at 23 June 1989, the date upon which Ampol provided the information. Ampol also informed Meehans that it was the registered proprietor of the premises in the same period. Ampol, however, declined to identify the “occupiers in law of the premises” and advised Meehans that they should undertake this responsibility as solicitors “for the potential plaintiff”. Of course, the information provided by Ampol was inconsistent with what the solicitors already knew from the Smarts’ letter of 14 June 1989 to the effect that they had taken over the service station on 1 November 1987 and the previous proprietors were Schatz and Coleman. This information may, however, have been consistent with that provided by Ampol if the new “proprietors” had simply acquired the shares in DFD. 19 The franchise and related documents showing DFD as Ampol’s franchisee certainly covered the period extending past the date of the accident. Those documents clearly demonstrated Ampol’s ownership and occupation of the premises. However, Meehans were aware from what the Smarts had told them that DFD was almost certainly not the proprietor of the service station from 1 November 1987. Moreover, the Smarts had told them that the previous proprietors were Schatz and Coleman, clearly implying at least the distinct likelihood that the latter persons were the proprietors at the time of the accident. It was possible, of course, that the Smarts and Schatz and Coleman had, in turn, acquired the shareholding in DFD which was, on this hypothesis, still the franchisee from Ampol and the proprietor of the business. However, the searches showed that, as at September 1977 Adrian and Nurelle McTaggart were directors and, in the circumstances, most likely to have been also the shareholders of DFD, with no returns filed since November 1977. 20 That the information received from Ampol was therefore incomplete and probably, inaccurate, was appreciated by the cross-claimants and explains why they sought clarification of these matters in the letter to Ampol of 6 March 1990. In that letter, Meehans asked specifically whether Ampol’s corporate solicitor knew where the previous proprietors, according to the Smarts, namely Schatz and Coleman, “fit in the picture”. Ampol’s letter in reply of 28 March confirmed that the Smarts were the current franchisees therefore correcting, in terms, their earlier advice that DFD were the current franchisees. A nice interpretation of that letter (and obviously one never made by Meehans) was that the Smarts had become franchisees since 12 September 1989 (ie following Ampol’s forwarding of the agreements) although this seems inconsistent with the request by Ms O’Hara for information concerning the Smarts’ public liability insurer. This query makes sense only on the supposition that Ms O’Hara believed that the Smarts were the relevant proprietors at the time of the accident. Ampol’s letter of 28 March 1990 makes no reference as such to Schatz and Coleman but they were clearly “the persons” who “were franchisees of the site”. In the context, this could only mean that they preceded the Smarts and succeeded DFD. It did not state, at least clearly, how Schatz and Coleman “fitted into the picture” in respect of when they became proprietors of the business. Accordingly, Ampol’s letter left the enquiry unanswered to that extent. The doubts of which Meehan’s letter of 6 March 1990 was the expression were only partly resolved, and that in respect of the least important issue, whilst the query concerning the Smarts’ insurer added further uncertainty. 21 It is obvious that the correspondence between Meehans and Ampol must be read as a whole. The initially unqualified assertion by Ms O’Hara on Ampol’s behalf was seen to be only doubtfully reliable, having regard to the information already possessed by the cross-claimants. The cross-claimants submitted that the letter of 28 March 1990, in acknowledging one error and remaining silent as to any others, logically implied that the only error in the information earlier supplied concerned the identity of the current franchisee as distinct from the franchisee at the date of the accident. However, I do not think that the letter of 28 March can be so construed. The omission of Ms O’Hara to mention in terms the franchisee at the date of the accident and answer the query concerning Schatz and Coleman cannot sensibly be read as confirmation of the accuracy of her letter of 23 June 1989. The second sentence in Ms O’Hara’s letter was obviously ambiguous. In my view, the most reasonable but possibly mistaken interpretation of it was that the second sentence meant “the persons to whom you refer were franchisees of the site [on 11 June 1987]”. The only sensible course for any solicitor (or counsel) to undertake would be to query the sense of what was intended to be conveyed and attempt to clarify the uncertainties. 22    In MLC v Evatt (1968) 122 CLR 556, Barwick CJ specified (at 571) three conditions essential to the relationship which gave rise to a duty care. The third of these was “...the circumstances must be such that it is reasonable in all the circumstances for the recipient...to rely upon the utterance of the speaker”. This statement was adopted by Mason J with the concurrence of Aicken J in Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] (1981) 150 CLR 225 at 251 and referred to with approval by Brennan J in San Sebastian Pty Ltd v The Minister (1986) CLR 341 at 372. I am of the view that, having regard to the terms of the correspondence with Ampol, it was completely unreasonable, indeed, absurd, for the cross-claimants to have considered that Ms O’Hara’s letter of 23 March 1990 implied a confirmation that DFD was, indeed, the proprietor at the date of the accident. I do not consider that Ampol intended, by that letter, to induce the cross-claimants to act on the belief that DFD was proprietor. As I have said, the only sensible interpretation of it was that Ms O’Hara acknowledged that her earlier information was incorrect and that Meehans were right about the proprietorship. If this is not the interpretation, then it remained so ambiguous that it conveyed no useful information upon which any reliance could reasonably be placed. `The interpretation contended for by the cross-claimants is quite unreasonable. At the very best for them the letter was irreducibly uncertain and ambiguous. The request for information as to the Smarts’ insurer and solicitor suggested, if anything, that they were the relevant proprietors but this was contradicted by the cross-claimants’ information that they had acquired the service station on 1 November 1987. The likelihood that Schatz and Coleman were the relevant proprietors was increased by the lapse of only five months between June and November 1987. With the exception that the Smarts were the current franchisees, the uncertainties identified in Meehans’ letter of 6 March 1990 were not only unresolved but reinforced by Ms O’Hara’s letter of 28 March. 23    I have already referred to the fact that, in Ampol’s letter of 23 June 1989, Ms O’Hara declined to identify the occupiers of the service station as at the date of the accident, stating no more in respect of DFD than that it was the proprietor of the business as at that date. Although, depending on the facts, it is possible that a proprietor not in occupation might be liable for an injury caused by a fall such as Mrs Beale’s on an unsafe, slippery surface, this was not necessarily the case. Identification of DFD as the franchisee, of course, took the matter a step further. However, Ms O’Hara’s express refusal to identify the company as the occupier of the premises should, at least, have operated as a warning that another occupier was at least possible. Accordingly, even if the cross-claimants relied on Ampol’s letter of 23 June 1989, a question as to the identity of the person or persons responsible for the allegedly unsafe surface on which Mrs Beale had her accident remained outstanding. 24    Taking the correspondence as a whole, I conclude that, in the result, Ampol made no relevant negligent misstatement or false or misleading representation. Even if I were wrong about this, and it was reasonable to construe the correspondence as possibly amounting to a representation that DFD was the franchisee as at the date of Mrs Beale’s fall, I consider that the ultimate cause of the loss, namely the failure by Meehans (acting on counsel’s advice that DFD appeared to be the correct defendant) to commence action against the appropriate persons, including Ampol, within the limitation period was not reasonably foreseeable. This issue is relevant to the consideration of whether there was a duty of care and, if so, whether the ultimate loss is compensable at the hands of the defendant. 25    In Jaensch v Coffey (1984-1985) 155 CLR 549 Gibbs CJ said (at 553) -

“Many examples could be given of cases in which foreseeability, although necessary to establish the existence of a duty of care, is not sufficient for that purpose. One such case is that of damages for negligent words which cause financial loss. The law, which at first did not allow recovery in such a case, now permits recovery, but by no means in every case where the loss was foreseeable; the principle, the limits of which are not yet fully defined, is complex and detailed: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 and L Shaddock & Associates Pty Limited vParramatta City Council (1981) 150 CLR 225. Another case is that where the damage caused by some negligent physical act is solely economic. In Caltex Oil (Australia) Pty Ltd v The Dredge“Willemstad” (1976) 136 CLR 529, although the members of this Court gave different reasons why the plaintiff in that case should recover, or recognise that the fact that the loss was foreseeable was not enough to make it recoverable ((1976) 136 CLR at 555, 573-574, 590, 604, 606). In Junior Books Ltd v Veitchi Ltd [1983] 1 AC 520, where the House of Lords dealt with the same question, all their Lordships recognised the importance of proximity in deciding it ([1983] 1 AC at 533, 535, 539, 545, 551).

26 In a more extensive discussion of this matter by Deane J (155 CLR at 578 ff), his Honour pointed out (155 CLR 585-6) that, in context of a case involving physical injury, the relevant duty owed by the defendant to the plaintiff to take reasonable care resulted from the combination of -

“(i) a relevant duty owed by the defendant to the plaintiff to take reasonable care resulting from the combination of (a) reasonable foreseeability of a real risk that injury of the kind sustained by the plaintiff would be sustained either by the plaintiff, as an identified individual, or by a member of a class which included the plaintiff, (b) existence of the requisite element of proximity in the relationship between the parties with respect to the relevant act or omission and the injury sustained, and (c) absence of any statutory provision or other common law rule...which operates to preclude the implication of such a duty of care to the plaintiff in the circumstances of the case; (ii) a breach of that duty of care in that the doing of the relevant act or the doing of it in the manner in which in was done was, in the light of all relevant factors, inconsistent with what a reasonable man would do by way of response to the foreseeable risk...; and (iii) injury...which was caused by the defendant’s carelessness and which was within the limits of reasonable foreseeability.”

27    His Honour pointed out that this “general formulation of ingredients of a cause of action in negligence is obviously a superficial one and fails to take account of serious difficulties and uncertainties such as those that are liable to arise in the case “... involving multiple or successive causes of injury or intervening acts...”; and, in particular, it was confined to cases involving physical injury, leaving open the question whether actions involving purely economic injury are accommodated in it. 28    In Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] 1980-1981 150 CLR 225 it was necessary to consider whether the Parramatta City Council, in issuing a certificate which, in the circumstances, implied that there were no road widening proposals in answer to an enquiry made by a solicitor in a conveyancing matter rendered the Council liable when, in the result, it appeared that relevant road widening proposals in fact existed. Gibbs CJ pointed out that, in certain circumstances, a person could be liable for financial loss occasioned by a negligent but honest misstatement of fact or opinion where there was no fiduciary or contractual relationship between the parties, but the principle which determines whether a duty of care exists in the particular circumstances remained uncertain (150 CLR at 230). His Honour cited the contrasting positions expressed by the members of the Judicial Committee in MLC v Evatt (1970) 122 CLR 628; [1971] AC 793, referring with approval to the dissenting opinion of Lord Reid and Lord Morrison of Borth-y-Gest who took the broader view that the provision of advice in the course of his business by a person qualified to give it to an enquirer who makes it clear that considered advice is being sought and that it was intended to act on it in a particular way is under a duty to take reasonable care (150 CLR at 232). However, in the circumstances of the case, his Honour did not think it necessary to decide whether this view should be accepted, being satisfied in the instant case that the duty of care arose from the circumstance that the defendant was a public body which “by following the practise of supplying information upon which the recipients are likely to rely for serious purposes, let it be known that it is willing to exercise reasonable skill and diligence in ensuring that the information supplied is accurate” (150 CLR at 235). In dealing with the majority opinions in Evatt, Stephen J identified their concern as to “with what might be inferred, in reliance upon the doctrine of holding out, from the conduct of those engaged in business or a profession” in which context the decision established the duty of care, namely holding “oneself out both as possessing relevant skill or competence in the giving of advice and as willing to put that skill or competence to work for others” (150 CLR at 240). His Honour concluded (at 241) -

“...one who holds himself out as being, by reason of having set up a system for its gathering and collation, in possession of special knowledge, especially when he has a monopoly of that knowledge, and who further holds himself out as providing the fruits of that system to those who seek it, should be subject to such a duty”.

(Of course, there was no such holding out here.)

29    Mason J (as he then was) preferred the view expressed by Barwick CJ in Evatt (1968) 122 CLR at 572-573 that -

“...whenever a person gives information or advice to another, upon a serious matter in circumstances where the speaker realises, or ought to realise, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on that information or advice , the speaker comes under a duty to exercise reasonable care in the provision of the information or advice he choses to give.” (Emphasis added.)

His Honour concluded that the Council provided the requisite information “in the course of discharging a government or administrative responsibility” upon which the “citizen is just as likely to rely...as he is to act on similar...information given by a person who carries on a business”, and was therefore liable (150 CLR 252). Murphy J considered that the liability extended to those whose profession or business it is to give advice or information, whether gratuitously or not (150 CLR 256). Aickin J agreed with Mason J.

30    It is clear that Ampol was aware that the plaintiff proposed to rely to some extent on the information provided as to the identity of the proprietor of the service station business at the relevant date for the purpose of commencing proceedings against the proprietor for negligence. The reason for the error made by Ms O’Hara does not appear but it is, I think, reasonable to infer that insufficient enquiry had been made to ensure the accuracy of the information which was provided. Ampol’s position was not the same as that of the defendants in Evatt or Shaddock and I am not sure that the general statements (which I have cited) made in those cases apply here. But, accepting that they do, it seems to me that it was not reasonable in the circumstances for the cross-claimants to rely on the advice of Ampol to the extent that they interpreted it as positively identifying DFD as the appropriate, rather than a possibly appropriate, defendant. 31    In Esanda Finance Corporation Pty Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241, Brennan CJ identified (at 242) the elements giving rise to the duty of care for statements potentially productive of pure economic loss as being the knowledge or imputed knowledge of the defendant that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class, that it was communicated so that the plaintiff would be very likely to enter into a transaction of the kind actually entered into, that this was very likely in reliance on information or advice and the plaintiff would thereby risk incurring economic loss if the information or advice were wrong. 32 Here, the relevant transaction is the commencement of proceedings against DFD and the risk was that the plaintiff might suffer the economic loss attributable to the wrong identification of the defendant. For the reasons mentioned below, moreover, it is clear that the economic loss in prospect must be of the same kind as that ultimately suffered. Additionally, as was pointed out by Toohey and Gaudron JJ in Esanda Finance (188 CLR at 265), “ordinary principles require that the [special relationship of proximity] does not arise unless it is reasonable for the recipient to act on that information or advice without further enquiries. Similarly, ordinary principles require that it be reasonable for the recipient to act upon it for the purpose for which it is used.” I do not consider that Ms O’Hara believed that Meehans would be likely (let alone very likely) to sue DFD in reliance solely on the information she conveyed on Ampol’s behalf. Nor would any reasonable person in the position of the cross-claimants who considered the terms of the correspondence. 33 That it was not reasonable for Meehans to act on that information or advice without further enquiry is so, not only because of the course and terms of the correspondence, but because of the solicitors’ own responsibilities. All the information that the solicitors had concerning the potential defendants must be considered. Applying the exclusionary principles identified by Toohey and Gaudron JJ above, I conclude that the special relationship of proximity did not arise in this case. 34 I consider also that it was not reasonably foreseeable to Ampol that Mrs Beale, because of the wrong identification by Ampol of a potential defendant, might suffer the destruction of her cause of action by operation of the Limitations Act. A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected or unforeseeable manner: The Commonwealth v McLean (1996) 41 NSWLR 389 at 403. Here, there was a mistake as to the identity of a potential defendant by virtue of the careless ambiguity of the letter of 28 March 1990. The loss which I consider was foreseeable was the possible financial consequences of commencing proceedings against an irrelevant defendant with the result that the action might need to be recommenced against the correct defendant. The injuries were sustained on 11 June 1987. Ampol identified DFD as the proprietor of the business on 23 June 1989 and forwarded the franchise documentation on 12 September 1989 which clearly identified Ampol as a potential defendant. On 28 March 1990, Ms O’Hara provided Meehans with information, which, in effect, accepted (at least) that her earlier statement that the current franchisee was DFD was wrong and that two other sets of franchisees had operated the business during the currency of the agreements which had been forwarded earlier. The case was a simple one as, indeed, was the mode of correctly identifying the proper defendants. The statement of claim was, as I have pointed out, filed in August 1991 against one defendant only and then was served over a year later in October 1992; the solicitors for the plaintiff were advised a few days later that the company had been wound up but nothing was done to investigate the matter further for almost another two years. On the assumption that DFD was a correct defendant, no further action was advised or undertaken by the cross-claimants, despite the possible applicability of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946. Nor was Ampol sued. In the meantime, the limitation period expired in June 1993. I do not consider that this appalling litany of incompetence was reasonably foreseeable. In fairness, I should point out that there is no evidence that Mr Carr was responsible for the delays. I think it is reasonable to accept that there well may have been some delay and inconvenience caused by Ampol’s mistake but that this would extend for a period of almost four years and result in the expiration of the limitation period not only against the proprietors but also against Ampol would not, to my mind, have been a possibility which anybody would reasonably have foreseen. In Chapman v Hearse (1961) 106 CLR 112 at 122 the Court said -

“The term ‘reasonably foreseeable’ is not, in itself, a test of ‘causation’; it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act.”

35    It is clear that reasonable foresight of the relevant injury is conceptually different from a novus actus interveniens which breaks the chain of causation. However, in this case, although the limitation period would probably not have expired but for the cross-claimants’ assumption that Ampol had identified DFD as the proprietor of the business at the material time and but for the ambiguity of Ampol’s letters, which left open the possibility that DFD was the relevant proprietor, even if the expiry of the limitation period was reasonably foreseeable, I consider that the careless disregard by Meehans of the obvious uncertainties in the reliability of Ampol’s identification, the wilful failure to follow up the information which they had to hand and the inexcusable delay to which I have already referred, the expiration of the limitation period was the result of the cross-claimants’ negligence alone. In drawing this conclusion, I am mindful of what the High Court said in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 especially at 528. 36 In this case, had Meehans not understood that DFD were the proprietors of the premises at the date of the accident, it is very likely that they would have followed the obvious lines of enquiry exposed in the material which they already had, which they negligently omitted to do and should have done whatever Ampol had informed them. As I have mentioned, Mrs Beale took action against DFD as occupier, in respect of whose identity Ampol explicitly refused to inform them. Meehans failed to make further enquiries because of their (mistaken and unreasonable) belief that Ampol had given them an unqualified identification of the correct defendant. In this sense, but for the information supplied by Ampol, the injury, namely the expiry of the limitation period, would not have occurred. This, however, does not conclude the issue of causation. The “but for” test may be applied as “a negative criterion of causation” (see March v Stramare (E & H) PtyLtd (1990-1991) 171 CLR 506 per Mason CJ at 515) but, as his Honour observed (171 CLR at 516) “the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury”. I consider that the appropriate approach to the circumstances here is - to adapt the language of Mason CJ (171 CLR at 517) - that the negligent act by Ampol set the scene for a deliberate wrongful act by the cross-claimants who fortuitously and irresponsibly transformed the outcome of Ampol’s conduct into something of far greater consequence, which was not readily foreseeable by Ampol. In this situation, Ampol’s act was not the cause of the expiry of the limitation period and the destruction of Mrs Beale’s action, although it was an essential condition of it. I do not consider that in any commonsense way Ampol’s wrongful conduct generated the “very risk” of expiry of the limitation period let alone that that injury occurred “in the ordinary course of events” (see per Mason CJ, 171 CLR at 518-9). 37 In considering “whether an identified negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that, as a matter of ordinary commonsense and experience, it should be regarded as a cause of it” (per Deane J, 171 CLR at 522) it is obvious that potential causes or contributing causes should be looked at. In this case, the failure of Ms O’Hara to categorically correct the mistaken information that DFD was the proprietor at the relevant time made possible the unreasonable inference of the cross-claimants that she was confirming the earlier statement about DFD’s ownership of the business on 11 June 1987. The cross-claimants’ failure to act with due care both in evaluating the information supplied by Ampol and that which they themselves had, as well as the delay by Meehans in undertaking proceedings, then only proceeding against only one of two possible defendants, and omitting to make further enquiries after being informed that DFD had been wound up were the factors which substantially or realistically operated to produce the extinction of Mrs Beale’s action. It would offend common sense to conclude that Ms O’Hara’s letters caused that result. Moreover, the failure to sue Ampol itself for negligence for Mrs Beale’s injury which was caused by the state of its premises, which it jointly occupied with the franchisee/licensee was entirely independent of the identification of DFD as proprietor. There was nothing in the information supplied by Ampol which led to its omission as a defendant in the proceedings. Even if it was thought that there was no point in adding Ampol at the outset, on the assumption that suing DFD was sufficient for Mrs Beale’s purposes, that view could not survive the disappearance of DFD following its winding up. Nothing in the correspondence affected the question whether it was then appropriate to sue Ampol and it clearly was as the later litigation demonstrated. However, having come to the view already referred to, I do not need finally to determine whether Ampol was actually liable in the circumstances. 38 Whether one considers the cross-claimants’ behaviour as being “the sole real cause of” the expiry of the limitation period so as to constitute a novus actus interveniens or to demonstrate that Ampol’s actions were not, as a matter of ordinary common sense, its cause may simply be different ways of describing the same series of events: see per McHugh J in March (171) CLR at 531. It may be that Meehans were lulled into a sense of false security by their understanding of the correspondence with Ampol but that sense of security could not have been enjoyed by any competent solicitor or barrister acting reasonably in the exercise of his or her professional responsibilities, nor was it reasonably foreseeable that it would be a starting point for the ensuing disregard of proper professional standards. If the behaviour of Meehans was simply a momentary lapse in undertaking an otherwise proper professional course, I am not so sure that it would amount to a novus actus interveniens or otherwise attenuate into irrelevance the chain of causation commencing with Ampol’s letters of 23 June 1989 and 28 March 1990. However, in my opinion, the incompetence displayed by the cross-claimants, especially Meehans, was far greater than that which might have been reasonably foreseen by Ampol, accepting that it is reasonable to expect some shortcomings and ordinary human failings even in professionally competent persons. 39 Accordingly, so far as the claim under common law negligence is concerned, it must fail. 40 As I have mentioned, the cross-claimants sue also under s 52 of the Trade Practices Act 1974 (Cth) (TPA). The first question which must be decided is whether, in providing the advice sought by Meehans, Ampol’s conduct was “in trade or commerce” within the meaning of s 52. It “is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business”: Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 per Mason CJ, Deane, Dawson and Gaudron JJ at 603-4. Their Honours went on to say -

“What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote “has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.”

In this case, Mrs Beale was injured whilst on premises which were owned by Ampol and used by its licensee/franchisee for the purposes of running a business with which Ampol was obviously intimately concerned. Enquiry by Mrs Beale as to the ownership of the business directed to Ampol was plainly made in her capacity of a consumer although, as it happens, the purpose of the enquiry was made in order to identify a defendant that she might sue for injuries caused to her whilst she was on Ampol’s property. It is clear that the majority view in Nelson is that it is unnecessary that the person misled by the conduct to which s 52 refers need be a consumer. That the purpose of the information was to provide Mrs Beale with the identity of the persons responsible for management of the site owned by Ampol, is no less connected with the trading business of Ampol because the information was given to enable that franchisee to be sued for the manner in which that business was carried on. Accordingly, I am satisfied that Ampol, in providing the information sought by Mrs Beale was acting in the course of its business, that is to say “in trade or commerce” within the meaning of s 52 of the TPA (see also Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542).

41 I have concluded that the cross-claimants’ (cumulative) incompetence was the substantial cause of the extinction of Mrs Beale’s action. A question thus arises as to the applicability of s 52 of the TPA to Ampol’s conduct. In Parkdale Custombuilt Furniture Pty Ltd v Puxu Pty Ltd (1981-1982) 149 CLR 191, Gibbs CJ said (at 199) -

“Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding where the conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion be regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to have been imposed for the benefit of persons who failed to take reasonable care of their own interests. What is reasonable will, of course, depend of all the circumstances.”

42    Although, as is obvious, these observations were made in the context of a class of indeterminate persons who might be consumers, it seems to me that they are applicable to a situation where a particular person alleges that he or she has suffered loss or damage by virtue of the allegedly misleading conduct: see, eg, Argy & Anor v Blunts & Lane Cove Real Estate Pty Limited & Ors (1990) 26 FCR 112. It was submitted on behalf of the cross-claimants that the causal chain is not broken even if they failed to take reasonable care for their own interests, citing Neilson v Hempston Holdings Pty Ltd (1986) ATPR 40-686. This was a case in which the applicant entered into a contract for the purchase of a motel, alleging breaches of s 52 of the TPA in respect of a number of allegedly misleading statements made by the respondents as to takings and room occupancy rates. However, the respondents were aware that the representations were false and misleading and deliberately made them for the purpose of inducing the applicant to enter into the contract in question. The respondents argued that, in entering into the large transaction which was the subject of the case, reasonable care for one’s own interest would at least dictate some examination of the primary accounting records which would have shown, it was submitted, that the representations were false and misleading. His Honour, Pinkus J, declined to refuse a remedy under s 52 to the applicant although “there may well have been some lack of care on the part of the applicant” ((1986) ATPR at 47, 542). In Argy (26 FCR at 138) Hill J said -

“A case may perhaps be imagined where an applicant is so negligent in protecting his own interests that there will be a finding of fact that the representation complained of was not, in the circumstances, a real inducement to his entering into a contract. In such a case, the element of causation between misrepresentation and damage will have been severed by the intervention of the negligence of the applicant.”

43    In my opinion, the negligence of the cross-claimants was such as to sever, in this case, the causal link between the alleged misrepresentations and damage. As mentioned above, the correspondence with Ampol considered as a whole did not amount to a representation that DFD was the proprietor of the business at the date of the accident when considered by itself, and especially when considered with the other information in the cross-claimants’ hands. But even if an available interpretation of the correspondence was that it left open such a representation, the careless failure by the cross-claimants properly to consider with reasonable care the effect of the correspondence with Ampol (on any account of doubtful import), especially when taken together with the information which they already had concerning the proprietorship of the garage at the material time, was the real cause of the commencement of litigation against DFD alone and it was their later careless delay in serving the summons and following up the information they had available when they became aware of its liquidation which should reasonably be regarded as having caused the expiration of the limitation period. In Tefbao v Stannic Securities (1993) 118 ALR 565, Hodgson J said (at 575) -

“It is clear that the contravention need not be the only cause of the loss or damage: Milner v Delita Pty Ltd ( 1985) 61 ALR 557 at 572. However, if some other cause is properly to be treated as the real, essential, substantial, direct, appreciable or effective cause of the damage, the fact that the damage would not have occurred but for the contravention need not be enough for liability. If some part of the damage would not have occurred but for negligent conduct of the complainant, or failure to mitigate, then it may be appropriate to apply notions of reasonableness in assessing how much in truth was caused by the contravention: Henjo Investments Pty Limited v Collins Marrickville Pty Limited (1989) ATPR 40: 968 at 50, 584”.

44    The cross-claimants submitted that Ampol’s failure, in terms, to correct the information which had earlier been supplied as to when DFD were responsible for the business amounted to a continuing representation that, at the relevant time, the company was in fact so responsible. I consider, for the reasons I have expressed, that this is not a fair reading of the correspondence between Meehans and Ampol, still less can it have been responsibly thought to be so when the other information in Meehans’ possession is brought into account. A similar argument was considered in Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 where, Meagher JA said (at 92) -

“A further thread in his Honour’s reasoning seems to be a suggestion that whilst a banker as such is under no obligation to tender a customer any advice about a transaction into which the latter is minded to enter, if he does volunteer to tender any advice about any aspect of the transaction, he will be liable under s 52 of the Trade Practices Act , unless he tenders complete and accurate advice about all aspects of that transaction. This is not the law. He is liable if, and only if, the advice which he tenders is deceptive or misleading. This would doubtless be the case if he represents the fragmentary advice which he does tender as covering the field, as being complete. It is decidedly not the case if he makes it plain that it does not do so.”

45    Of course, it is the effect of the representations as a whole which is important in considering whether it is “fragmentary” or could be fairly regarded as “being complete”. It is also, I think, as well to bear in mind the distinction referred to in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 by Gummow J at 42 between silence which resulted from inadvertence to the possible problem on the part of a respondent and silence which was otherwise than inadvertent. In Winterton Constructions Pty Ltd v Hambros (1993) 39 FCR 97 Hill J said -

“However, if the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her would, if it existed, be communicated, then the failure to communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger or detriment existed”.

46    Here, I think, as I have said, it is obvious when one looks at the course of correspondence that it was very likely, to say the least, that Ms O’Hara, on behalf of Ampol, in her letter of 28 March 1990 was intending by her second paragraph to correct the error which was earlier stated that DFD were the franchisees of the site at the relevant time and that her omission to refer to DFD was mere inadvertence. The letter itself suggested, although it did not state, that the earlier identification was mistaken. I do not think that in the circumstances here the cross-claimants were “entitled to believe” that Ms O’Hara would have specifically mentioned DFD if she had erred in her earlier letter. This case is therefore significantly different to Rhone - Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 and Inderby Pty Ltd & Anor v Quinert (1995) ATPR (Digest) para 46-141. 47    In Elders Trustee v Reeves [1987] 78 ALR 193, Gummow J said -

“It is, of course, fundamental that s 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests and also that it would be wrong to select particular words or act which, although misleading in isolation, do not have that character when viewed in context.”

What will amount in any particular situation to a relevant failure to take reasonable care by a person who acted in reliance on what they believed to be the representation created by the defendant’s conduct is a matter of fact and degree. One of the material considerations is, of course, the circumstances in which the information is provided. There is an important distinction to be drawn between those cases where the maker of the representation is acting pursuant to a distinct commercial interest as, for example, the vendor of the hotel in Hill & Anor v Tooth & Co Ltd & Ors (1998) ATPR para 41-649 and a case where, as here, information was provided without consideration and for no discernible commercial advantage but merely in order to be helpful to a person who made an enquiry. In such cases, the possibility that the information might not be gathered with due care or only with minimum inconvenience and hence may not be completely reliable is obvious, especially when the enquirer is a professional person who has not only a capacity to assess the reliability of information given but also the means and the duty to do so. Here, the possibility of error became an obvious probability with the frank admission of error as to the proprietor at the date of the correspondence, the vagueness of the other assurances and the likelihoods arising from the facts otherwise in the cross-claimants’ possession. Accepting the possibility that Ampol’s letters might, on one reading, amount to a representation that DFD was the relevant proprietor, I do not consider, for the reasons already stated, that this was the real cause of the extinction of Mrs Beale’s action by the expiration of the limitation period. Whether regarded as amounting to a break in causation or circumstances in which it could not have been intended to impose the heavy burdens created by s 52 ( vide Gibbs CJ in Parkdale Custombuilt Furniture Pty Ltd v Puxu Pty Ltd , supra) does not matter much. I consider that the claim under the TPA must fail also.

48    Ampol also argued that the cross-claimants settled the action for negligence brought against them by Mrs Beale for an unreasonably high sum and that, if held to be liable to them, the relevant loss should not be measured by that judgment. It is not strictly speaking necessary for me to determine this issue, having regard to the conclusion I have arrived at on the question of liability. However, I should perhaps say that, although there were certainly some weaknesses concerning the cause of Mrs Beale’s accident (some of which are evident from what I have already mentioned) it was reasonable to consider that there would probably have been a finding that the occupier of the garage was indeed negligent. There was also an issue as to the cause of Mrs Beale’s incapacity. However, the medical opinions tendered by the plaintiff and those in the defendant’s hands showed that there was a very substantial risk that the plaintiff would have succeeded on that issue also. In the end, I think that the sum agreed to was not so large as to be unreasonable.

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Last Modified: 09/25/2000