LLB102 Week 8 Tutorial

LLB102 Week 8 Tutorial

Queson One

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’

1. Idencaon and statement of “ascertained class” test by Gibbs and Mason JJ.

There are exceponal cases in which the defendant has knowledge or means of knowledge

that the plain) individually and not merely as a member of an unascertained class, will be

likely to su)er economic loss as a consequence of his negligence, and owes the plain) a

duty to take care not to cause him such damage by his negligent act.

It was material but not su-cient that:

• Some property of the plain) was in physical proximity to the damaged property or
• The plain) and the person where property was injured were engaged in a common

adventure

Mason J at 590-194:

• A defendant will be liable for economic damage due to his negligent conduct when

he can reasonably foresee that a specic individual, as disnct from a general class

of persons, will su)er nancial loss as a consequence of the conduct.

Christopher v The Motor Vessel “Fiji Gas”

How the test was dened in Christopher:

• To require knowledge of the plain) at the me of the breach i.e.: the fact that the

plain)’s may have been “ascertainable” a8er the fact was insu-cient.

Fortuna Seafoods Pty Ltd v The Ship ‘External Wind’

How the test was dened in Fortuna:

• The test was applied less strictly. Sased if the plain)s were members of an

“ascertainable class”, that is if the defendant had knowledge or the means of

knowledge that the plain)s were members of an “ascertainable” class of vulnerable

persons

• Parcular signicant a:ached to the closeness of the commercial relaonship

between the plain) and the owner of the damaged property

Some a:empt at cricism/crique of the test:

• The test is not su-cient of itself to found a duty of care for pure economic loss – see,

e.g. Fortuna Seafoods which states that the test requires supplementaon