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GAZETTE
JULY/AUGUS
T 1982
when he knows or ought to know that the recipient
intends to act or rely on it; and that a duty of care may
arise where the speaker has a financial interest in the
transaction with respect to which the statement is
made. The Court, however, preferred the arguments
of the minority of the Privy Council (who were of
course supporting the view of the High Court of
Australia in the
Evan case)
that the possession or
professed possession of skill and competence was not
an essential element in the foundation of the duty of
care.
It will be recalled that Mr. Evatt had sued the
insurance company when he suffered loss as a result
of gratuitous advice and information given to him by
the insurance company about the liabilities of a
company which was an associate of the insurance
company.
Gibbs C.J. in his judgment held that a person
giving information may be so placed that others can
reasonably rely on his ability to carefully ascertain
and import the information while Mason J. (with
whose judgment Aickin J. agreed) went further
saying:
"The specialised nature of the information, the
importance which it has to an owner or intending
purchaser and the fact that it contains what the
Authority proposes to do in the exercise of its
public functions and powers, form a solid base for
saying when information (or advice) is sought on a
serious matter, in such circumstances that the
Authority realises, or ought to realise, that the
enquirer intends to act upon it, a duty of care arises
in relation to the provision of the information and
advice."
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The Court noted that the Canadian Supreme
Court in
Hodgins -v- Hydro-Electric Commission of
Napean
[1975] 60 D.L.R. (3d), I, had taken the view
that the judgement of the House of Lords in the
Hedley Byrne
case did not suggest that only those
engaged in private enterprise, in particular trades or
professions, may attract such a duty of care. It also
noted that in other Canadian cases,
Windsor Motors
Limited -v- District of Powell River
[1969] 4.D.L.R.
(3d) 155, where incorrect advice given by a
municipality about the zoning of land was concerned;
and
Gadutsis -v- Milne
[1972] 34 D.L.R. (3d) 455,
where the City of Toronto was held liable in damages
for negligent misrepresentation concerning
permitted uses in a particular zone of the city; and in
H. L. &M. Shoppers Ltd-v- Town of Berwick
[1977]
82 D.L.R. (3d) 23; the Hedley Byrne doctrine had
been held to apply. The court also noted that there
was a line of authority in the United Kingdom courts
commencing with the case of
Ministry of Housing and
Local Government -v- Sharpe
[1970] 2 QB 223, which
was mentioned in
Moorgate Limited -v- Twitchings
[1977] A.C. 890 and applied in
Ross -v- Counters
[1979] 3. W.L.R. 605 which suggested that notwith-
standing the decision in
Mutual Life and Citizens
Insurance Company -v- Evatt
(supra) public bodies
were not excluded from the
Hedley Bryne
Doctrine.
Although McMahon and Binchy in their recently
published book "Irish Law of Torts" (pp 397-403)
expressed reservations about the continuing
significance of the
Hedley Byrne
doctrine in Irish law
it must now be at least a possibility that in the case of
claims against public authorities it may have a greater
significance in the future.•
*The author is grateful to Mr. Tony Baines of Carroll & O'Dea, Solicitors
of Sydney for calling attention to the importance of the judgment in this
case.
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