The appellants were engaged on the basis that they would be paid "remuneration calculated by reference to a percentage of the sale price of the produce caught and sold on each fishing voyage ...". It was admitted that if the "Antonia" had not been damaged, the appellants would have worked as crew on it and would have been paid $15.00 per kilo for craytails during the period in which the "Antonia" was being repaired. The judge referred to evidence that those in charge of the "Fiji Gas" knew that there were fishing vessels in the areas in which it sailed and that a collision with one of those vessels would cost its crew money.

The judge found that it was reasonably foreseeable that negligent navigation causing damage to the "Antonia" would cause its crew loss of employment, but that the appellants "as individuals were not shown on the evidence to be known to Captain Pope [Master of the 'Fiji Gas'] or the defendant owner" and that they were not in the contemplation of Pope or the owner "as specific individuals who would suffer economic loss in consequence of any negligent collision between the 'Fiji Gas' and the 'Antonia'".

His Honour held that there was no reliance or dependence, on the part of the appellants, on the conduct of the owner or master of the "Fiji Gas" or any assumption of responsibility on the part of the latter to take positive steps to avoid economic loss to the appellants. The judge described the appellants as an "unascertained class the precise membership and identity" of which was unknown to the master or owner of the "Fiji Gas" before the collision. He held that the appellants had no interest in the "Antonia" nor property in nor a right to any particular share of the catch, but that their right to income derived from their contracts of employment and the discharge of their duties as crewmen.

The judge drew a distinction between "the direct consequence of economic loss from the deprivation of use of a profit-earning chattel" and the "possible loss of income of an employee paid by his or her employer from the latter's exploitation of the chattel ...". His Honour observed that damaging the "Antonia" did not necessarily prevent the appellants from earning income, and that loss on their part was premised upon a further circumstance namely their inability to obtain equally well-renumerated work elsewhere. His Honour held that although the loss to the appellants was foreseeable, there were not established any of the "special elements necessary to establish a relationship of proximity".

The proposition underlying his Honour's reasons may perhaps be generalised by saying that one who negligently damages a fishing vessel is not ordinarily liable to the crew, not being owners of the vessel, for their loss of income while the fishing vessel is unusable, even if that loss is a foreseeable consequence of the damage to the vessel.

The distinction between knowledge that there was a crew of the "Antonia" and knowledge that the crew was composed of certain identified persons was an important aspect of the judge's reasons, although it was only one of many points addressed by his Honour in reaching a conclusion. Such a distinction may be seen as one of the tests of proximity between the wrongdoer and those who may be affected by his act. Standing alone, it is a less than satisfactory determinant, because it would seem strange if the result were different merely if, perhaps by social contact while ashore, those responsible for "The Fiji Gas" had happened to come to know the appellants as members of the crew of the fishing vessel. However, there has to be some dividing line that prevents persons indirectly affected by the act of another becoming an endless chain of claimants. The tests which have so far been framed may be seen as designed to contain liability and litigation within reasonable limits, and also perhaps to discourage claims based on indirect loss which may be difficult to determine.

The need to limit claims by persons having so called "relational interests" is thought by Professor Fleming to be based not so much upon the circumstance of pecuniary detriment as upon the fact that "the burden of compensating anyone besides the primary casualty is feared to be unduly oppressive because most accidents are bound to entail repercussions, great or small, upon all with whom he had family, business or other valuable relations". The case against recovery, in Professor Fleming's view, "becomes even stronger when the claimant has a non-vested expectancy, like employees who lost their jobs when their factory was burnt down ..." (Fleming 'The Law of Torts' 7th Edition p.163). Two American decisions support the last example, namely Adams v. S.P. 123 Cal. Rptr. 216 [1975], and Stevenson v. E. Ohio Gas 73 NE 2d 200 [1946]. The difficulty confronting courts at the present time is the formulation of principles which will permit an acceptable dividing line to be identified with a reasonable degree of predictability.

The appellants' counsel argued that the appellants had a relationship of proximity with the owner of the "Fiji Gas", relying on the knowledge of the owner and master of that vessel of the likely results of the collision and also upon the physical circumstances; the "Fiji Gas" was said to have been "engaged in an activity which involved a foreseeable risk of causing direct physical injury to those nearby".

It was also contended that the damages claimed by the appellants were directly consequential on the collision and that the master and owner knew the identity of the appellants sufficiently to create a duty of care.

The appellants' counsel said that in one sense they were engaged in a common venture with the owner of their vessel. The evidence was that they were treated as employees for tax purposes, but were not paid a wage. Some uncertainty exists as to the precise basis on which they were paid. One of the owners of the vessel, Mr. G.V. Christopher, said that the crayfish caught were "weighed individually for each diver", but the general burden of his evidence appeared to be that the allocation of the proceeds of the catch depended substantially upon estimation. Mr. Christopher gave evidence to the effect that the appellants and he would decide on a likely price for the product, say $32 a kilogram, and that sum would then be divided between the owners and the crew, allowing $2 or $3 a kilogram for the owners' expenses and dividing the remaining proceeds equally between the owners, on the one hand, and the crew on the other. The important point is that whether they were employees or not, the appellants' return from their activities was a share of the amounts received, or estimated to be likely to be received, for the catch. The appellants had no proprietary or possessory interest in the fishing vessel and were far removed from any proprietorial role. They had no interest in the vessel or the business, and the best description of the arrangement is that they were crewmen who were paid under an incentive system.

The case on which the appellants principally rely is Caltex Oil (Australia) Pty. Limited v. The Dredge "Willemstad" [1976] HCA 65; (1976) 136 C.L.R. 529. There, Caltex recovered damages in respect of a loss to them caused by the breaking of an oil pipeline connecting their oil refinery with a terminal. Caltex did not own the pipeline, but did own the oil which passed through it. The fracture of the pipeline deprived Caltex for a time of that means of transporting oil, resulting in extra transport costs.

All the judges of the High Court held that Caltex was entitled to recover its additional expenses from the persons through whose fault the pipe was broken, but their grounds for doing so were not all the same. In San Sebastian Pty. Ltd. v. The Minister [1986] HCA 68; (1986) 162 C.L.R. 340 at 354, the views of four of the judges in Caltex were summarised:

"It will be recalled that in that case Gibbs J. (45) considered that economic loss is recoverable in negligence where the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence. Mason J. (46) expressed a similar view, while Stephen J. (47) said that recovery depended upon sufficient proximity between the tortious act and the injury. And Jacobs J. (48) concluded that if economic loss arises out of the physical effect on the person or property of the plaintiff, it is not irrecoverable simply because it is economic loss".

The fifth judge in Caltex decided the case on a broader basis, involving rejection of the "contention that economic loss not connected with physical damage to the plaintiff's property is not recoverable" (606). That must be taken to be unorthodox, for the view of the majority in Caltex was that damages based upon purely economic loss not connected with damage to the person or property of the plaintiff are not, in general, recoverable. However, the Caltex case has, so far as presently relevant, no ratio other than that rule; there was no majority in favour of the "unascertained class" test favoured by two of the judges. As to the other two judges, Stephen J. favoured development of a case by case "proximity" test (575), whereas Jacobs J. appeared to favour a "physical propinquity" test (604).

In subsequent cases, these principles have undergone some further analysis, but it is desirable to determine in the first place what is the result if one applies what was said in Caltex itself.

The unascertained class principle was discussed before us; it was submitted, in effect, that because the identity of the fishermen working on the damaged vessel was easily and precisely ascertainable both before and after the collision, there was an ascertained class. In discussing the concept, Gibbs J. at 555 referred to "exceptional cases in which the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss ...". When speaking of knowledge of the defendants in the Caltex case, the judge pointed out that the defendants knew the pipeline led to Caltex's terminal and "should have known" that it was the physical means by which products flowed to the terminal. Mason J. expressed himself similarly (593) and also said:

"The defendant would only be liable for economic damage due to his negligent conduct when he can reasonably foresee that a specific individual, as distinct from a general class of persons, will suffer financial loss as a consequence of his conduct".

Applying this test in the present case, there is no evidence that the owner or master of "Fiji Gas" knew anything of the crew of the "Antonia". No doubt they knew there was a crew and that they were few in number, but as it seems to us that should not make a difference. Negligence putting out of action a passenger liner providing employment to hundreds should not for this purpose be distinguished from negligence damaging a small vessel employing only a few people.

There must necessarily be a difficulty, at the margins, in differentiating between loss caused to people who are, from the point of view of the tortfeasor, identified individuals and loss caused to those who are, from that point of view, an unascertained class. Nevertheless, it appears to us that if such a division exists, the appellants are on the wrong side of it. The master could certainly foresee that the crew of what he knew to be a fishing vessel would be likely to suffer damage if the "Antonia" was unavailable to them, but his only knowledge of the crew was an inference that there was a group of people who at the relevant time constituted the crew. As to constructive knowledge, there was nothing in the evidence to show that the master of the "Fiji Gas" had special means of knowledge of the identity of the members of the crew of the "Antonia", or to support a conclusion that he should have known who they were.

In our opinion therefore, the appellants were known to the tortfeasors only as members of a class. It follows that the test applied by Gibbs C.J. and Mason J. would not suffice to give the appellants success.

It remains to consider whether that favoured by Stephen J. or by Jacobs J. would do so. Stephen J. applied a proximity test; by "proximity", his Honour plainly did not mean merely physical nearness. That this is so may be seen by looking at the first two features his Honour considered in determining that there was sufficient proximity. They were, in summary, (1) that to damage a pipeline is very likely to cause users of the pipeline economic loss and (2) that the defendant knew or should have known that the pipeline extended to the plaintiff's terminal (576). His Honour added:

"These two factors lead to the conclusion that Caltex was within the reasonable contemplation of the defendants as a person likely to suffer economic loss if the pipelines were cut" (577).

That implies that because the damage to Caltex was foreseeable, it was more proximate than it otherwise would have been. The same might apply even where the negligent act was very remote in distance and even perhaps in time from the damage.

The proximity test as explained by Stephen J. does not give any clear answer, in the present case. His Honour recognised that its precise content would have to be worked out in the course of time:

"The articulation, through the cases, of circumstances which denote sufficient proximity will provide a body of precedent productive of the necessary certainty ..." (575).

The overwhelming consideration in favour of holding that the damage to the crewmen was sufficiently proximate is that it must have been obvious to the tortfeasor that there would be a crew of the vessel and that damaging the vessel would cause economic loss to the crew. But the argument, to our minds, is too wide. In pure economic loss claims, one can very often bring the claimants within a class of people likely to be economically damaged by a particular physical loss.

There remains for consideration the test proposed by Jacobs J. The primary test applied by his Honour was that of the physical propinquity of property of the plaintiff to the place where the tort was committed (604); and that would not suffice to enable the appellants to succeed.

The conclusion thus is that tests adopted by a majority of the judges in the Caltex case - Gibbs C.J., Mason J. and Jacobs J. - are not of such a character as to bring success to the appellants.

Subsequent decisions in the High Court have, in our opinion, not been such as to encourage reliance on the proximity test and have tended to support the view expressed by McHugh J.A. in Finn "Essays on Torts" at p.36; there his Honour described the doctrine as "a legal rule without specific content". In discussing the notion of proximity in Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549 at 584, Deane J. remarked, speaking of Lord Atkin's treatment of the subject:

"It was left as a broad and flexible touchstone of the circumstances in which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another. ... The identity and relative importance of the considerations relevant to an issue proximity will obviously vary in different classes of case and the question .... may involve value judgments on matters of policy and degree".

See also his Honour's remarks in Sutherland Shire Council v. Heyman [1985] HCA 41; (1985) 157 C.L.R. 424 at 497, 498.

In San Sebastian Pty. Ltd. v. Minister [1986] HCA 68; (1986) 162 C.L.R. 340 at 368, 369, Brennan J. remarked:

"I beg leave to doubt whether proximity, if it is understood as having a wider connotation than reasonable foreseeability of loss, will prove to be a unifying rationale of particular limiting propositions of law. The particular propositions have not hitherto revealed a common element".

In our opinion, while it is accepted that judges may develop the law by exposition of the meaning of a word like "proximity", used in a metaphorical sense, it is idle to pretend that the process necessarily gives rise to a satisfactory degree of predictability of result. The criteria which may in particular cases be used to determine whether there is the requisite proximity are various: physical closeness, reliance, degree of foreseeability of the existence and identity of the claimant, the degree of probability that a loss will be inflicted upon the claimant, the urgings of justice and no doubt others. The extent to which each of these should be given weight in a particular case would be hard to define in advance, even if a comprehensive list of the relevant criteria were established. Agreeing as we respectfully do with the view expressed by McHugh J. when a member of the New South Wales Court of Appeal, we are not inclined to rely on the proximity test in this case. It is now 16 years since the High Court decided Caltex and it is not obvious that hopes which might then have been raised for settlement of a more precise notion of the doctrine of proximity, as applied to economic loss cases, have been realised.

In summary, our view of the application of Caltex to the present case is that of the judges who started from the position that pure economic loss is generally irrecoverable in a negligence suit, only one (Stephen J.) used a test which could help the appellants here; that test, proximity, is difficult to apply on other than a discretionary basis. It may be that "proximity" is a compendious expression of what has to be shown to establish liability in these cases, and that it is intended as a composite of all the other tests that have been formulated by the courts. It is, however, impossible to see how the application of such a wide test requires a conclusion favourable to the appellants.

Something should be said of two more recent decisions, in England. In Leigh and Sillavin Ltd. v. Aliakmon Shipping Co. Ltd. [1985] UKHL 10; [1986] 1 A.C. 785, plaintiff buyers of steel happened to have, at the time the steel was damaged by negligence, neither legal ownership nor possessory title. They had, however, a contract under which their rights had been adversely affected. But that was held not to be enough, the House of Lords preferring to apply -

"... a general rule, which is simple to understand and easy to apply ... established by a long line of authority over many years ..." (816, 817).

"... in order to enable a person to claim in negligence for loss caused to him by reason of loss of or damage to property, he must have had either the legal ownership of or a possessory title to the property ..." (809).

Then in Esso Petroleum Co. Ltd. v. Hall Russell and Co. Ltd. [1989] 1 A.C. 643, what was said in the 1986 case was referred to with approval (675, 676).

Counsel for the appellants, reasonably enough, relied upon Main v. Leask [1910] S.C. 772 and Morrison Steamship Co. Ltd. v. Greystoke Castle [1947] A.C. 265. In the former case, a claim of the present kind succeeded in the Court of Session for reasons described in Caltex as "not entirely clear" (547). In the latter, an economic loss claim succeeded in circumstances which are not similar to those of the present case.

Main v. Leask appears to be too old an authority to provide useful guidance as to the proper result of a pure economic loss claim under current doctrine and, as to Greystoke Castle, no principle helpful to the appellants is to be found stated therein.

It is our opinion that one either starts from the general proposition that damages are not recoverable for negligence causing pure economic loss, or from the narrower proposition that those without a proprietary right in respect of property which is negligently damaged may not sue for that negligence. Here, success for the appellants depends on our acting on the view that a small group of persons who have suffered loss, but whose identity was unknown to the tortfeasor at the time when the tort was committed, should succeed in their claim, so long as such a loss by such a group was foreseeable by the tortfeasor.

That should not be taken to represent the law in this country. We should add that the distinction between an ascertained class or group and an unascertained one, for relevant purposes, does not appear to be very satisfactory as a criterion of liability. However, no alternative test of reasonable precision seems to have attained general acceptance.

In our opinion, the appeal should be dismissed, with costs.

H.P. & T. GARNIER, WUNING DARUA IPA AKI and SOBOVA DANIEL

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Joint reasons of Pincus J.A. and Thomas J., McPherson J.A. delivering separate reasons. All concurring as to the order made.

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H.P. & T. GARNIER, WUNING DARUA IPA AKI and SOBOVA DANIEL

CATCHWORDS: NEGLIGENCE - DUTY OF CARE - ECONOMIC LOSS - Second plaintiffs/crew members lost income when defendant collided with first plaintiffs - whether relationship of proximity established sufficient to give rise to duty of care to avoid economic loss to second plaintiffs - whether sufficiently directly casual connection between negligence and loss.

Counsel: C.F. Wall Q.C., with him M.E. Pope for the Appellants

[1993] QCA 022

CATCHWORDS: NEGLIGENCE DUTY OF CARE ECONOMIC LOSS Second

relationship of proximity established sufficient to

give rise to duty of care to avoid economic loss to

Joint reasons of Pincus J.A. and Thomas J. McPherson J.A.

delivering separate reasons. All concurring as to the order made.

On 23 September 1987, the Antonia was damaged in a maritime collision

caused, as was found by the trial judge, by the negligence of the master of

the defendant m.v. Fiji Gas. As a result of the collision the damaged vessel

was laid up for repair and prevented for some months from engaging in the

lucrative business of fishing for crayfish. As owners of the Antonia, the

first plaintiffs recovered damages for profits lost during the period she was

out of operation. The question on appeal is whether the four individuals,

collectively designated second plaintiffs in the action, were rightly denied

recovery of their share of the profits lost during the same period.

The second plaintiffs worked as crew on board the Antonia diving for

crayfish. They were remunerated by sharing in the catch, or the proceeds of

its sale, taken in the course of a voyage. Evidence of how the share was

calculated is perhaps not as precise as might be wished; but the practice was

to deduct an amount for expenses and then to apportion the residue between

ship owners and crew. The crew divided the amount they received according to

the contribution each of them had made to the catch in question. It seems

clear that their relationship to the ship owners was that of independent

contractors rather than employees, even if from 1987 the Commissioner of

Taxation had, for reasons of his own, been requiring the procedure of group

tax deductions and certificates to be applied to them. The vessel usually

worked for two and a half or three weeks at a time; then took a week off; and

then went to sea again. At the time of the collision she was in port

preparatory to being slipped to have her bottom painted.

At the trial, it was admitted that if the Antonia had not been laid up

the plaintiffs would have worked on the vessel and would have been paid their

share of the catch or its proceeds. Using the agreed figure of $15 per kilo

for crayfish caught on the two or three voyages that would otherwise have

taken place during the period of repair, it is possible to calculate the

quantum of the probable loss suffered by the second plaintiffs.

While it was, as the trial judge accepted, reasonably foreseeable to

both the master and the owner of the defendant vessel that negligent

navigation leading to a collision that disabled the Antonia could cause the

second plaintiffs a loss of their employment on board an incomeearning

fishing vessel, he nevertheless held that the defendant owed them no duty of

care to avoid losses of that kind. His Honour considered there was, between

those plaintiffs and the defendant, no sufficient relationship of proximity

as to enable them to recover the purely economic loss they had sustained.

"Proximity" in this context does not mean, or is not confined to,

physical proximity or nearness. So much appears from Lord Atkin's use of the

term in Donoghue v. Stevenson [1932] A.C. 562, 581. Decisions on the point

now openly treat proximity as a "control mechanism" enabling effect to be

given to policy considerations in allowing or denying recovery in borderline

cases of negligent breach of the common duty to take care : see Candlewood

Navigation Corporation Ltd. v. Mitsui O.S.K. Lines Ltd. [1986] A.C. 1, 25;

Carparo Plc v. Dickman [1990] UKHL 2; [1990] 2 A.C. 605, 618619.

In identifying the persons to whom a duty of care is owed, the language

used by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580, was

primarily that of reasonable foresight. A person, he said, is my "neighbour"

to whom a duty of care is owed if he or she is among those:

"so closely and directly affected by my act that I ought reasonably to

have them in contemplation as being so affected when I am directing my mind

to the acts and omissions which are called in question".

The difficulty about this formulation is that, apart from the reference

in it to being "closely and directly" affected, it simply repeats the test

already applied in deciding whether or not there has been a breach of duty;

that is, a departure from the standard of reasonable care.

In consequence, Professor W.W. Buckland in an article published in the

aftermath of Donoghue v. Stevenson, doubted the utility of duty of care as a

separate element in the tort of negligence. While acknowledging it to be

"certainly a part of our law", he condemned it as "an unnecessary fifth wheel

on the coach, incapable of sound analysis and possibly productive of

injustice". See (1935) 51 L.O.R. 637, 639. According to the view he advanced,

Roman law functioned satisfactorily without a conception like the duty of

care insisted on in the English law of negligence. It took another leading

student of Roman law to show that some form of control device for limiting

the range of persons permitted to recover for negligence causing loss is

common to all legal systems. See (1947) 22 Tulane Law Review 111 (F.H.

Lawson); cf also K.W. Ryan : An Introduction to the Civil Law, at 114116.

It remains a weakness of the common law approach that in attempting to

define the limits of liability in this area it tends to concentrate on the

actions of the defendant. So long as the control mechanism continues to be

formulated in terms of the defendant's foresight it is difficult to isolate

it from the test used for deciding whether the duty has been breached. Once a

defendant is found to have been negligent in failing reasonably to foresee

and guard against injury to the plaintiff, it is not easy to conceive of a

case in which the same plaintiff will fail to qualify as a "neighbour" when

viewing him or her as someone who ought reasonably to have been in

contemplation as likely to be affected by the defendant's acts. A person who

is foreseeable for one purpose will ordinarily be foreseeable for any other.

The problem whether or not a duty of care exists cannot be solved by

repeatedly asking the same question in the futile hope of receiving a

Whatever its shortcomings, the merit of Professor Buckland's review of

Roman law was its focus on the interest of the plaintiff as the critical

element attracting the law's protection : see 51 L.Q.R. 637, 645; and cf.

Restatement 2d; Torts, 281a. Some interests are universally protected by law.

The integrity of an individual's person and property are obvious examples. No

such right or interest of the second plaintiffs was invaded, or even

threatened, by what the defendant did in the present case. The second

plaintiffs were not injured in either their persons or their property. The

vessel that sustained damage by the negligence of the defendant belonged not

to them but to the first plaintiffs, who were compensated in the action for

It was nevertheless submitted that the second plaintiffs had an

interest in common with the first plaintiffs as joint venturers.

Unincorporated joint stock ventures were at one time a feature of English

commercial enterprise. Some took the form of a single marine adventure.

Almost invariably, however, the venturers jointly held shares conferring a

proprietary interest in the vessel, or in the cargo, which was their stock in

trade. Had the Antonia been sunk while returning to port with a catch of

crayfish, the second plaintiffs would arguably have had an enforceable claim

for damages for loss of their interest in that catch or the proceeds of its

sale. However, the vessel was not engaged in crayfishing when it was damaged

on 23 September 1987, and the second plaintiffs were not working or even on

It is because of this that the Scots decision in Main v. Leask 1910

S.C. 772 is really no help to the second plaintiffs in this case. It was

referred to with evident approval by the United States Court of Appeals Ninth

Circuit in Union Oil Company v. Oppen [1974] USCA9 260; 501 F.2d 558, 567 (1974) (the Santa

Barbara oil spillage). It was also mentioned, but in noncommittal fashion,

by Gibbs J. in Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad"

[1976] HCA 65; (1976) 136 C.L.R. 529, 547. Whatever may be thought of its correctness, the

decision is plainly distinguishable on its facts from this. The pursuers were

crew members of a fishing vessel sunk by the negligence of the defenders

while working at sea under an agreement by which the profits of the voyage

were divisible among the ship owners, the fishing net owners, and the crew.

The profit sharing arrangement was similar to that in the case of the

Antonia. The factual difference is that in Main v. Leask the loss was

suffered at a time when the pursuers were, in accordance with that

arrangement, serving as crew members on the fishing vessel, for which they

There is nothing in the present case to show that the second plaintiffs

were contractually or otherwise engaged in any form of joint venture or

undertaking with the owners at the time the Antonia was damaged. At the time

of the loss the vessel was not involved in crayfishing; and, although there

is every reason for supposing that the second plaintiffs would have been

taken on as crew when the vessel next went to sea, there is nothing to show

that there was any form of contractual relationship to that effect between

the first and second plaintiffs at the time the damage was inflicted on 23

September 1987. The interest possessed by the second plaintiffs is therefore

one step removed even from that of the claimants in Cattle v. Stockton

Waterworks Co. (1875) L.R.10 Q.B. 453; Societe Anonyme de Remorguage a Helice

v. Bennetts [1911] 1 K.B. 243; Morrison Steamship Co. Ltd. v. Greystoke

Castle [1947] A.C. 265; Margarine Union G.m.b.H. v. Cambay Prince Steamship

Co. Ltd. [1969] 1 Q.B. 219; French Knit Sales Pty. Ltd. v. N. Gold & Sons

Pty. Ltd. [1972] 2 N.S.W.L.R. 132; Caltex Oil (Australia) Pty.

Ltd. v. The Dredge "Willemstad" [1976] HCA 65; (1976) 136 C.L.R. 529, and other cases

commonly cited in this context. In some of those cases the plaintiffs

recovered; in most they did not; but in all of them the plaintiff had, at the

very least, a contract with the party whose property was damaged by the

If, therefore, in this sphere the interest of a contracting party is

sufficient to attract the law's protection, the second plaintiffs fell short

of possessing such an interest in or in relation to the damaged subject

matter or its owners. They had at the time of the collision no contract

entitling them to work on the vessel for the purpose of crayfishing, nor were

they or the vessel engaged in the activity at the time of the loss. The

result might possibly be different if the loss had been deliberately

inflicted; but, as several commentators have pointed out, the protection

afforded no contractual rights in the law of torts has hitherto been confined

to relief against intentional, and not merely negligent, interference with

those rights. See, for example, Fleming The Law of Torts, 7th ed., at 657,

citing La Societe Anonyme v. Bennetts [1911] 1 K.B. 243; and Cattle v

Stockton Waterworks Co. (1875) L.R. 10 Q.B. 453; Trinidade & Cane, Law of

In my opinion no legally recognised right of the second plaintiffs was

invaded or infringed by any act on the part of the defendant on 23 September

1987. It follows that to those persons the defendant was rightly held to owe

Counsel: C.F. Wall Q.C., with him M.E. Pope for the Appellants

Solicitors: Corrs Chambers Westgarth t/a for Middletons,

Williams Graham & Carman, Cairns for the Respondent