On what basis are you claiming the company owes you a duty of care. A special relationship or proximity must exist between two parties before a duty of care will be established. The test is the foreseeability test: another person will owe a duty of care to you where it is reasonably foreseeable that his or her act or omission might harm you.
It is complicated further if the only loss you have suffered is economic loss. Australia treats negligence claims for pure ecnomic loss (i.e. where there has been no injury or damage, just financial loss) as different to other claims and are reluctant to allow recovery in such cases. While Australian does allow claims for pure economic in some circumstances, the law is unclear as to what circumstances those are.
Case law to date suggests you would need to establish the following:
- The harm you suffered was reasonably foreseeable;
- The other party had knowledge that his conduct was likely to cause economic loss to you;
- It is not a case of indeterminate liability;
- The other party knew or had the means of knowing that you were a member of an ascertainable class of vulnerable persons who were unable to protect themselves from harm in this situation;
- The imposition of a duty would not impair the legitimate pursuit by the other party of their commercial interests; and
- The damage suffered flowed from the occurrence of activities within the other party's control.
