Apache Energy Ltd v Alcoa of Australia Ltd [No 2]

[2013] WASCA 213

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Duty of care
4. › Pure economic loss
5. › Contractual matrix
6. › Whether existence of detailed contracts between parties precludes concurrent duty of care in tort
7. › Whether contract terms excluding or limiting liability preclude tortious duty
8. › Whether tortious duty can exist absent correlative implied contractual duty
1. Tort
2. › Negligence
3. › Duty of care
4. › Pure economic loss
5. › Vulnerability
6. › Whether vulnerability is a necessary precondition for duty of care to avoid pure economic loss
7. › Meaning of vulnerability in context of contractual relationship
8. › Whether inability to negotiate preferred contractual terms constitutes vulnerability
1. Tort
2. › Negligence
3. › Duty of care
4. › Pure economic loss
5. › Salient features analysis
6. › Relevance of statutory framework and licence conditions to duty of care owed by private parties
7. › Assumption of responsibility
8. › Whether relationship between parties was 'special'
1. Practice and Procedure
2. › Summary dismissal
3. › Negligence claim for pure economic loss
4. › Whether claim so clearly untenable that it cannot possibly succeed
5. › Developing area of law
6. › Need for factual determination at trial
7. › Petroleum Pipelines Act 1969 (WA), s 36A, s 38

Quick Take

On the current state of Australian law, vulnerability in the Woolcock sense has not been established as a necessary precondition for a duty of care to avoid pure economic loss; the point is at least attended by doubt. A tortious duty of care to avoid pure economic loss may arguably exist between contracting parties even where the contract does not contain a correlative implied duty, provided the tortious duty is not inconsistent with the contract terms. The existence of detailed contractual arrangements, including liability caps and exclusion clauses, does not necessarily preclude a concurrent tortious duty of care where the pleaded tortious duty relates to conduct outside the scope of the contractual obligations.