Law 1218 Research Assignment, Semester 2, 2019
MAJOR ASSIGNMENT – 30% OF THE FINAL GRADE
In Foodlands Association Ltd & Passarelli v Mosscrop1, Burt CJ (with whom Smith
and Olney JJ agreed) of the Supreme Court of Western Australia (Full Court) was of
the view that the general rule was that, subject to certain recognized exceptions-
“…a person cannot recover damages for economic loss caused to him by the death
of, or injury to, a third party…”.2
However, in Fugro Spatial Solutions Pty Ltd v Cifuentes,3 McLure P (with whom
Martin CJ and Mazza J agreed) of the Supreme Court of Western Australia, Court of
Appeal, held that-
“…a negligent defendant must owe to an employer a common law duty to take
reasonable care to avoid causing pure economic loss by injuring its employees.”4
If it is the case that there are no-
“…different or additional rules that must be satisfied in order for liability for pure
economic loss to attach…”,5
is there justification, having regard to the principles and aims of the tort of negligence,
that subject to certain recognized exceptions, A should not be able to recover damages
from B for the pure economic loss which he suffers as a result of physical injury to a
third person?
PURPOSE AND BASIS OF THE ASSESSMENT AND HELPFUL HINTS
This research assignment is intended to encourage you to analyze and critically
review the content and scope of the tort of negligence occasioning pure economic
loss. This assignment is also intended to develop your ability to carry out informed
and independent legal research, particularly of relevant case law, a generic skill
essential to the study and practice of law.
Your assignment must importantly demonstrate that you have read and understood the
key principles from Willemstad6 and other Australian cases on the tort of negligence
in relation to conduct occasioning pure economic loss. While your answer may make
brief reference to those recognized exceptions (actions under Lord Campbell’s Act7
and the common law action for loss of services), your answer must primarily focus on
the tort of negligence occasioning pure economic loss, and your answer must be
1 [1985] WAR 215
2 Ibid at 222, citing Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976)
136 CLR 529 at 546 per Gibbs J; see also e.g. Harris v Grigg [1988] 1 Qd R 514 at
520 per Dowsett J
3 (2011) Aust Torts Reports 82-087; [2011] WASCA 102
4 Ibid at [110].
5 Ibid at [105]
6 Supra n 2
7 See Fatal Accidents Act 1959 (WA)
Law 1218 Research Assignment, Semester 2, 2019
2
supported by Australian legal authority wherever possible, although you may refer to
relevant case law from other common law jurisdictions.
You must also demonstrate that you have developed a clear argument from this
analysis, and which answers the question. For example, with reference to negligence
principles, you might address whether a duty in respect of pure economic loss
sustained by a plaintiff in consequence of personal injury sustained by a third person
should be determined in all cases in the same way as a duty of care in relation to pure
economic loss sustained by a plaintiff as a result of property damage suffered by a
third party. Does your examination of the principles of negligence which are applied
to cases of negligent conduct occasioning pure economic loss lead you to conclude
that the decision in Mosscrop8 should have been different? Were there any problems
of indeterminacy of liability in that case, and were there factors of proximity which
were overlooked? Was there vulnerability? Do you think that the decision in
Cifuentes9 signaled a case for the general rules on pure economic loss discussed in
Mosscrop to be revisited? What do you make of the High Court’s decision in
Barclay10? Please remember that while I expect these hints will be useful, these hints
are not intended to limit your enquiry.
You are welcome to discuss any queries with me after you have read Willemstad,11
Mosscop12 and Cifuentes,13 but I will not review any drafts of your essay. Your
research assignment will be assessed on your demonstrated competence regarding
these expected learning outcomes.
The use of electronic research tools such as Lexis Advance will be of assistance to you
in researching relevant case law. Any review of statutory provisions should be
confined to the statutes of Western Australia.
LENGTH OF RESEARCH ASSIGNMENT, CITATION AND NONDISCRIMINATORY
LANGUAGE
Your research assignment must not exceed 2,200 words, inclusive of footnotes
containing text (other than case names, statutory provisions, citations and other
referencing), and exclusive of your required bibliography. Marks may be deducted for
any research assignment which exceeds this prescribed word limit. You must clearly
mark your word count on the front page of your research assignment. Your research
assignment must adhere to the citation standards prescribed by the Australian Guide
to Legal Citations, 4th edition. You should avoid the use of discriminatory language in
your research assignment. For further information, please refer to the Unit Plan for
Law 1218.
8 Foodlands Association Ltd & Passarelli v Mosscrop, supra n 1
9 Fugro Spatial Solutions Pty Ltd v Cifuentes, supra n 3
10 Barclay v Penberthy (2012) 246 CLR 258
11 Supra n 2
12 Foodlands Association Ltd & Passarelli v Mosscrop, supra n 1
13 Fugro Spatial Solutions Pty Ltd v Cifuentes, supra n 3
Law 1218 Research Assignment, Semester 2, 2019
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USE OF SECONDARY MATERIALS
Ensure that you use any secondary materials
responsibly. Secondary materials such as
law journal articles and monographs should primarily be used as a source for different
views or arguments, and not as a substitute for your own reading of key cases and
statutes. If you do refer to secondary materials, you should generally limit your use to
refereed law journals, monographs and major texts.
ACADEMIC MISCONDUCT POLICY
Your attention is drawn to the position of ECU regarding
plagiarism, other academic
misconduct and penalties, as summarized in the Unit Plan for Law 1218. In the past, a
small number of law students have used secondary materials and then presented
extracts of such materials as their own work. You can assume that if you do this, you
are likely to be caught and that serious penalties will be imposed upon you. If you still think it is worth the risk, read the case of Re Liveri14 on the effect that such conduct
could have on your ability to later seek admission to the legal profession.
