Hill v Van Erp

In the courts below, however, the learned judges thought that the doctrine of proximity imposed a duty of care on the solicitor so that her breach of duty to her client became a breach of duty to the beneficiary. The other members of this Court accept that this is so. Various reasons are relied on: (1) financial "loss" to the beneficiary is reasonably foreseeable; (2) testators and the public generally rely on solicitors to effectuate testamentary intentions; (3) the solicitor who agrees to draw up a will for a client assumes responsibility for effectuating the testamentary intentions of the client; (4) there is no question of an indeterminate liability to an indeterminate class for an indeterminate time - only one person is usually affected and the extent of the "loss" is known at the time when the will was executed; (5) the only person who has a valid claim has suffered no loss, and the only person who has suffered a loss has no valid claim [99] ; (6) there is no conflict between the duty owed to the client and the duty owed to the beneficiary; (7) if the solicitor retains custody of the will, then upon the testator's death the solicitor owes a duty to the executor to disclose the existence of the will [100] ; (8) by undertaking to draw up the will, the solicitor is in a position to control whether the beneficiary will have the right to have the will administered; and (9) the imposition of liability on the solicitor does not invade any area of liability the subject of an apparent exhaustive coverage by the legislature.

1. cf White [1995] 2 AC 207 at 259 2. Hawkins (1988) 164 CLR 539

However, none of these reasons persuasively differentiates the present case from numerous other areas of social and business activity where a person is under no duty to prevent economic loss to another. Indeed, in many cases where the courts have held that there was no duty to prevent economic loss to the plaintiff, the plaintiff has actually relied on the defendant to perform a task. Individual investors, for example, rely on auditors and the Australian Securities Commission to monitor the activities of companies, and both have statutory duties in respect of their work. Yet in the absence of a representation and reliance or something similar, neither auditors nor the Commission owe a duty of care to prevent economic loss to investors even when only a single investor is involved [101] . Similarly, local government councils, although charged with the statutory duty of inspecting the foundations of new buildings, owe no duty of care to prevent economic loss to a purchaser of the building even though members of the public rely on councils to carry out this duty [102] . I fail to see how liability in negligence can be denied in these cases but imposed in this case. If the doctrine of proximity leads to the imposition of a duty of care in a case like the present, it ought to and must inevitably lead to the imposition of a duty in cases where previously it has been decided or assumed that there was no duty to prevent pure economic loss to another person.

1. Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 Caparo Industries Plc [1990] 2 AC 605. 2. Sutherland Shire Council (1985) 157 CLR 424. Similarly, in Marc Rich [1996] 1 AC 211, the House of Lords held that marine surveyors owed no duty of care to the owners of cargo carried on a ship which sank soon after the surveyors had certified that it was seaworthy.

In my opinion, only one of the grounds put forward to support a duty in the present case gives an arguably persuasive reason for distinguishing this case from the many other cases where it has been decided or assumed that there is no duty to protect against pure economic loss. That is the ground that in this case there is no question of an indeterminate liability to an indeterminate class for an indeterminate time. That ground is undoubtedly true in many will cases. But testators often live for years, even decades, after making a will. Their assets can also increase dramatically between the making of their wills and their deaths. If the gift is a residuary estate, shares in a company which prospers, or a large parcel of land the use of which is rezoned, the value of the gift may have increased many times between the date of the will and the death of the testator. Indeterminacy cannot therefore be regarded as wholly inapplicable in cases like the present one.

Moreover, lack of indeterminacy must be weighed against other factors. The fee for making most wills is very small - often enough it is done or, at all events, used to be done for nothing, particularly when the will is made in the course of or at the end of some other transaction. It does not seem reasonable that the solicitor who has received a small fee from a testator should be liable years after the event for many hundreds of thousands of dollars because a person with whom the solicitor has had no dealings has failed to secure a benefit. In the present case, for example, the solicitor has been held liable for $163,471.50, yet she was probably paid less than $300 for preparing the will.

One factor that has not been put forward but which supports a claim of a duty in a case like the present is that the beneficiary may often be in no position to protect himself or herself against the loss of the "benefit" under the will. No doubt a very careful beneficiary, upon learning of a proposed legacy, might seek his or her own legal advice about it. But many beneficiaries learn about a testamentary gift only upon the death of the testator. The opportunity of the plaintiff to protect himself or herself against loss is an important factor in denying a duty to protect the plaintiff from pure economic loss. Conversely, the absence of such an opportunity is a factor that points in favour of a duty. But it must be evaluated in the context of all the factors. In the present case, imposing a duty represents too great a departure from accepted doctrine and has such potential consequences for social and commercial relationships that the absence of an opportunity to protect against loss cannot be determinative.

In my opinion, imposing a duty of care in favour of a beneficiary is not the way to remedy the problem which arises when the beneficiary has failed to secure a legacy by reason of a solicitor's breach of duty to the testator.

Olive Eileen Currey was born on 7 July 1921 and died, in Queensland, on 8 May 1991. Her husband predeceased her by several years. At the time of the events giving rise to this appeal, Mrs Currey lived alone in her house at 25 Perrott Street, Paddington, a suburb of Brisbane. Mr and Mrs Van Erp lived nearby at 25 Norwood Terrace. They had known Mrs Currey for ten or more years.

Mrs Currey's last will was dated 7 December 1990. In it she revoked all previous wills and appointed Jennifer Melnik sole executrix and trustee. The will was proved in the Supreme Court of Queensland and administration granted to the executrix on 23 July 1991.

By her will, Mrs Currey devised the property at 25 Perrott Street to her son, Mr W J Axen, and to Mrs Van Erp as tenants-in-common in equal shares. Mr Axen was born in 1940. Jennifer Melnik appears to have been the daughter of Mrs Van Erp. Mrs Currey also bequeathed to Mrs Van Erp certain of the furnishings of the house. She left the balance of the contents to Mr W J Axen and Mrs Van Erp as tenants-in-common in equal shares. The residue of the estate was given to Mr W J Axen with a gift over, in the event of his death, to Mrs Currey's three grandchildren. The signature and acknowledgment of the will by Mrs Currey was attested by the solicitor who had drawn the will upon Mrs Currey's instructions. This was the appellant, Mrs Hill, who carried on practice at Paddington. The will also was attested by Mr Van Erp, the husband of a beneficiary under the will, Mrs Van Erp. From this circumstance the present litigation arises.

Section 9 of the Succession Act 1981 Q (the Act) states [103] :

A will shall not be valid unless it is in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary provided that:

(a) the Court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the Court is satisfied that the instrument expresses the testamentary intention of the testator; and

(b) the Court may admit extrinsic evidence including evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument.

Section 15 of the Act deals with gifts to attesting witnesses. It provides:

(1) Where any disposition of property (other than a charge or direction for the payment of any debt or for the payment of proper remuneration to any person, whether executor, administrator, solicitor or conveyancer, for acting in or about the administration of the estate of the testator) is, by will, made in favour of a person who attested the signing of the will, or the spouse of such person, to be held by that person or, as the case may be, that spouse beneficially, the disposition is null and void to the extent that it entitles that person, the spouse of that person or another person claiming under that person or that spouse to take property under it.

(2) The attestation of a will by a person to whom or to whose spouse there is made any disposition as aforesaid shall be disregarded if the will is duly executed without his attestation and without that of any other such person, whether or not the attestation was made upon the execution of a will before the passing of this Act.

Section 15(2) has no saving application in the present case. There were but two attesting witnesses, as I have indicated, and a spouse of one of them was the recipient of dispositions of property under the will. It follows that the gifts to Mrs Van Erp were null and void. 1. Minor editorial changes which appear to have been made pursuant to the Reprints Act 1992 Q may be ignored for the disposition of the present appeal.

There is no provision in the Act with the width of s 12(2) of the Wills Act 1936 SA. Whereas s 9(a) of the Act requires "substantial compliance" with the formalities prescribed, the South Australian statute authorises the Supreme Court to admit to probate as the will of a deceased person a document which, whilst not executed with the required formality, the Court is satisfied expresses testamentary intentions of the deceased [104] .

1. See In Estate of Kolodnicky (1981) 27 SASR 374; and see also Wills, Probate and Administration Act 1898 NSW, s 13; Wills Act 1958 Vict, s 13.

One aim of Mrs Currey in enlisting the professional services of Mrs Hill was to ensure attainment of her wish, which it is not suggested changed over the remaining months of her life, to provide benefits from her estate to Mrs Van Erp. Plainly, it was reasonably foreseeable to a solicitor attending to supervise execution of the will that failure to observe the statutory requirements as to the identity of attesting witnesses, as they existed in Queensland, would cause the failure of any gift to a witness or the spouse of that person. The common law provides a remedy to the estate of Mrs Currey against the solicitor but it is accepted that this sounds in nominal damages. The remedy does nothing effectively to remedy miscarriage, by default of the solicitor, in effectuating the intentions of Mrs Currey. Mrs Van Erp enlisted the law of tort to provide her with an effective recourse against Mrs Hill.

Mrs Van Erp sued Mrs Hill in tort, seeking damages for negligence. The action was tried in the District Court at Brisbane (Judge Morley). Judgment was entered for Mrs Van Erp for damages of $163,471.50. An appeal to the Queensland Court of Appeal (Fitzgerald P, Davies and Pincus JJA) was dismissed [105] . The appeal to this Court should also be dismissed.

1. Van Erp v Hill [1995] AustTorts Reports ¶81-317.

The primary judge held that the damage sustained by Mrs Van Erp was the loss of the opportunity to receive and derive the advantage of the due administration of Mrs Currey's estate once the contingencies of death without a later inconsistent testamentary disposition had been satisfied. Had she sued the solicitor during the lifetime of Mrs Currey, Mrs Van Erp would have been claiming no more than the loss of a chance. However, it should be observed that, had the will been correctly attested, then, in the events that happened, Mrs Van Erp would have had, from the death of the testatrix, more than a spes successionis. She would have had, at least, the right to have the estate administered in accordance with the duties of the sole executrix [106] . The parties were agreed that the value of that to which Mrs Van Erp would have succeeded, if the will had correctly been executed and the estate duly administered, was, at all material times, $163,471.50.

1. Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 314

Before the Court of Appeal the sole issue was whether Mrs Hill owed a duty of care to Mrs Van Erp. It was conceded that, if she did, she had been negligent and that negligence caused loss to Mrs Van Erp in the amount awarded. The appeal was dismissed. The reasoning in the Court of Appeal may be summarised by saying that a duty of care, and a sufficient relationship of proximity, were found by reference to the circumstances that the solicitor had undertaken to prepare the will for Mrs Currey with specific bequests and a specific devise to Mrs Van Erp, that it was foreseeable that Mrs Van Erp would not take those gifts if the will were not executed in accordance with the provisions of the Act, and that it was reasonable for Mrs Van Erp to expect that her position would be protected.

It was accepted in argument in this appeal that the law does not impose any general duty of care to avoid pure economic loss or prejudice even if that consequence was reasonably foreseeable. The dispute is as to what Mrs Van Erp had to establish beyond foreseeability in order to make out a duty of care owed to her by Mrs Hill.

Before us the respondent placed particular reliance upon the recent decision of the House of Lords in White v Jones [107] . However, although in that case the majority of the House held against the solicitors, at the outset two observations should be made. The first is that the facts there presented an issue in somewhat broader terms than do those in the present appeal. The second is that the reasoning of the majority contains diverse elements which provide no clear guide for the resolution of the present appeal.

1. [1995] 2 AC 207. The respondent also relied upon other authorities including Biakanja v Irving (1958) 320 P 2d 16; Ross v Caunters [1980] Ch 297 Gartside v Sheffield, Young & Ellis [1983] NZLR 37and the dissenting judgment of McGarvie J in Seale v Perry [1982] VR 193

A fundamental issue in White v Jones was one of how far the law should recognise, by remedy against the solicitor of the testator and in favour of the incipient beneficiary, the intention of a proposed testator which was evinced by means other than a will and which, by reason of default by the solicitor, was not translated into testamentary form with revocation of the current, and in the event, the last will of the testator. Here, the intention of Mrs Currey was evinced by a document executed by her, and effective to revoke all former wills. But, by reason of a failure by her solicitor to ensure compliance with necessary formalities in its execution as a will, the document was in part ineffective. That is to say, the dispositions in favour of Mrs Van Erp were rendered null and void by s 15 of the Act. The question is whether, despite the operation of s 15, Mrs Van Erp has a remedy to approximate her position to that she would have occupied had there been compliance with s 15 [108] .

1. cf Matthews, Round and Round the Garden [1996] Lloyd's Maritime and Commercial Law Quarterly 460, at p 461.

In White v Jones , the first defendant was a "legal executive" employed by the second defendants, a firm of solicitors. He had accepted instructions to prepare a will for a client but, in breach of his professional obligation to the client, was dilatory and the client died before the will had been prepared. Instructions had been received on 17 July 1986 and the testator died on 14 September of that year. The instructions for the new will were that it was to reinstate the plaintiffs, the two children of the testator, who had been disinherited under an earlier will. The result of the inaction of the defendants was to leave that earlier will as the last will of the testator. In those circumstances, the House of Lords by majority (Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Nolan, Lord Keith of Kinkel and Lord Mustill dissenting) dismissed the appeal from the Court of Appeal (Sir Donald Nicholls V-C, Farquharson and Steyn LJJ [109] ) which had allowed the appeal by the plaintiffs against dismissal of their actions.

As I have indicated, the judgments of the majority in the House of Lords reflect different processes of reasoning. These include reliance upon proximity, reasonable foreseeability, quasi-fiduciary law notions of "special relationship" and dependence, and what has been identified as "a transactional theory which utilises the idea of assumption of responsibility" [110] . And the judgments do not follow the same paths as had those in the Court of Appeal. Lord Goff of Chieveley said that [111] :

[The] House should in cases such as these extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor. (Emphasis added.) Lord Browne-Wilkinson considered [112] that, whilst the law did not impose any general duty of care to avoid negligent misstatements or to avoid causing pure economic loss even if economic damage to the plaintiff was foreseeable, such a duty will arise if there is a "special relationship" between the parties. Here the intended beneficiary was "wholly dependent" upon the solicitor carefully carrying out his function [113] . His Lordship also used, of the solicitor, the phrase "assumption of responsibility for the task" and then concluded [114] : [B]y accepting instructions to draw a will, a solicitor does come into a special relationship with those intended to benefit under it in consequence of which the law imposes a duty to the intended beneficiary to act with due expedition and care in relation to the task on which he has entered. Lord Nolan said [115] that, in the particular circumstances of the case, "the degree of proximity to the plaintiffs could hardly have been closer". His Lordship referred to the role of the defendants as family solicitors and to dealings in relation to the matter of the revised wishes of the testator between the defendants and one of the testator's daughters and the husband of the other daughter. His Lordship added [116] : It would be absurd to suggest that they placed no reliance upon the [defendants] to carry out the instructions given to them. I do not say that other potential legatees, less intimately concerned with the carrying out of the testator's wishes, would necessarily be deprived of a remedy: I simply point to the facts as being relevant to the pragmatic, case-by-case approach which the law now adopts towards negligence claims. In his dissenting speech, Lord Mustill [117] referred to the conduct of the case on the basis of a stark choice "between a duty of general application or no duty at all". What appeared to his Lordship to be "an intermediate solution" had not been investigated either on the facts or the law and for that reason it was inappropriate to pursue it. What would have been involved in such an attempted "solution" is significant for the present appeal. The "special features" of the case which had not been relied upon by counsel were perceived as follows by Lord Mustill [118] : The solicitor, the testator and the intended beneficiaries were not strangers. When the division within the family had healed the testator convened a meeting at which he indicated his wish that the plaintiffs should benefit from his will, and asked the first plaintiff to telephone the solicitor and tell him that the will should be changed. This is what the first plaintiff in fact did. Some weeks later the first plaintiff made an appointment for the solicitor to see the testator after his return from holiday. This appointment was frustrated by the testator's illness and death. My Lords, I was for a time attracted by the possibility that a judgment in favour of the plaintiffs could be upheld on these particular facts on the ground that there existed a special relationship not very far distant from Hedley Byrne, even if for the reasons given I am unable to recognise a general duty of care towards intended beneficiaries. 1. Cane, Contract, Tort and the Lloyd's Débâcle, in Rose (ed), Consensus Ad Idem (1996) 96, at p 109. 2. White v Jones [1995] 2 AC 207 at 268 3. White v Jones [1995] 2 AC 207 at 274 4. White v Jones [1995] 2 AC 207 at 275 5. White v Jones [1995] 2 AC 207 at 276 6. White v Jones [1995] 2 AC 207 at 295 7. White v Jones [1995] 2 AC 207 at 295 8. White v Jones [1995] 2 AC 207 at 291-292 9. White v Jones [1995] 2 AC 207 at 291

It is appropriate now to look more closely at the facts as found in the present case.

Sometime after Mrs Currey was widowed and at her request, Mr Van Erp located in the telephone book two local solicitors in practice at Paddington, one female and one male. Mrs Currey said that she would prefer to engage the female solicitor, Mrs Hill. Mr Van Erp then, at Mrs Currey's request, made an appointment for Mrs Hill to attend at Mrs Currey's house to take instructions for her will. At this attendance, Mr Van Erp assisted Mrs Currey to receive Mrs Hill. Mrs Hill returned later and a will was executed. By then, the primary judge found, Mrs Hill was aware of the existence of Mrs Van Erp and that she was the spouse of the Mr Van Erp whom she had met and with whom she had spoken before attending upon and performing Mrs Currey's instructions.

After some interval of time, Mrs Currey indicated to Mr Van Erp that she wished to change the provisions of her will. At her request, Mr Van Erp again communicated with Mrs Hill. She attended upon Mrs Currey on or about 3 December 1990 and took instructions. Mrs Hill returned on 7 December with an engrossed will ready for execution. At Mrs Hill's request that he do so, Mr Van Erp attested Mrs Currey's execution of the will. The primary judge found that, whilst Mrs Hill had never met Mrs Van Erp, she was well aware of her existence and marriage to Mr Van Erp, and of her address and telephone number, they being the address and telephone number which she held from her dealings with Mr Van Erp.

Shortly after 7 December 1990, both Mrs Currey and Mr Van Erp told Mrs Van Erp that she was a beneficiary under the will and informed her of the nature and extent of the bequests to be received by her thereunder. On administration of the estate, Mrs Currey's next of kin entitled on an intestacy, claimed and received the bequests which otherwise would have been received, after due administration, by Mrs Van Erp.

I turn to consider the general framework of the legal relationships between the testatrix, her estate, the intended beneficiary, and the solicitor, within which the intended beneficiary makes the present claim in tort. One consideration of some significance when determining the existence of a duty of care is the provision already made, if any, by the general law in that regard. This is not with a view to supplanting by the tort of negligence other established principle, carefully developed in existing authority, but to determine whether there is a need consistently with the overall policy of the law to provide a coherent and comprehensive system of civil obligations, to supplement those established rules [119] .

1. Hawkins v Clayton (1988) 164 CLR 539 at 584 Downsview Ltd v First City Corporation Ltd [1993] AC 295 at 316

One of the important functions of an effective law of personal obligations is to facilitate the operation of those elements of the law of property which enable the transmission of ownership whether by a transaction inter vivos or post mortem. At least since the commencement of the Wills Act 1837 UK [120] , s 3, the law has favoured a full power of testamentary disposition. That previously had not been the case [121] . In Queensland, s 7(1) of the Act empowers a person, by will, to devise, bequeath or dispose of any property to which that person is entitled at the time of his or her death, not being property held on trust and in respect of which that person has no power of disposition by will. That freedom of testation is qualified by formality requirements, including s 15 of the Act, and by the powers in respect of family provision conferred on the Supreme Court by Pt 4 (ss 40-44) of the Act.

1. 7 Will 4 & 1 Vict, c 26. See Lee, Manual of Queensland Succession Law, 4th ed (1995), pars [102]-[103]. 2. Halsbury, Laws of England, 1st ed (1914), vol 28, p 517, n (q).

The respondent submits that it is not to the point that the established rules as to privity and provision of consideration operate to exclude her from recovery in respect of the dereliction by the appellant solicitor in discharge of professional responsibility in and about the making of Mrs Currey's will. The legal profession plays, and is widely perceived to play, an important part in the exercise of the freedom of testation. In practice, the public relies on the legal profession for the preparation of effective wills, and a coherent law of obligations ought not to leave ineffectual, in a practical sense, the undoubted responsibility in that regard of the solicitor to the client.

It is commonplace that, particularly in the auxiliary jurisdiction, equity developed its doctrines and remedies to meet perceived inadequacies in the treatment by the common law of personal and proprietary rights and obligations. One example, with some significance for the present case, is the use of the trust to supplement rules that only a party to a contract can sue on it and that consideration must move from the promisee. In appropriate circumstances, equity recognised and enforced a trust for the benefit of the contractual promise in favour of a third party. That matter was discussed in this Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [122] .

1. (1988) 165 CLR 107 at 120-121, 134-135, 138-139, 146-149, 155-157, 169.

This case, like White v Jones , does not involve a third party C asserting a right to demand performance from the promisor, as where A promises B, for valuable consideration, that A will pay money or will transfer property to C. Nor is it a contract whereby A promises B that A will pay money or transfer property to B on terms that it then be paid by B to C or be applied by B for the benefit of C. Rather, the third party, here the intended beneficiary, seeks recompense which affords her protection against negligent performance by the promisor, the solicitor, of the solicitor's obligations to the promisee, the testator.

In White v Jones , in the Court of Appeal, Sir Donald Nicholls V-C said [123] :

The law of contract is unable to provide the remedy [against the solicitor]. In some cases, where the purpose of a contract is to confer a benefit on a third party, the purpose can be achieved, in the event of breach, by the court making an order compelling the party in breach specifically to perform his obligation to make a payment or confer some other benefit on a third party [124] . That route is not available here. The solicitor did not agree to confer a benefit on the intended beneficiary. He agreed to take steps to enable his client to do so. Specific performance of that agreement is no longer possible once the client has died. I have, indeed, considered whether a remedy for breach of contract could be shaped whereby, the client having lost the opportunity to make a gift to the intended beneficiary, (1) his estate should be regarded as having lost a sum equal to the amount of the intended gift, and (2) the executors should hold that sum, when recovered from the solicitor, upon trust for the intended beneficiary. [125] In the event, his Lordship did not shape any such remedy. In the House of Lords Lord Goff of Chieveley considered but rejected [126] the possibility of bringing the instant case within the group of decisions described in The Albazero [127] . There a plaintiff may sue in contract and recover damages for a loss suffered by a third party on the footing that the plaintiff be accountable to the third party for the damages so recovered [128] . It should be borne in mind that whatever criticisms may fairly be made of the privity doctrine, there remains "a sensible concern not to allow every breach of contract to generate a tort claim by any third party who had an interest in the performance of that contract" [129] . 1. White v Jones [1995] 2 AC 207 at 223-224The more relaxed view of privity doctrine taken in various jurisdictions in the United States has led to decisions in which the prospective beneficiary has recovered in contract against the testator's lawyer; see the authorities discussed in Eisenberg, Third-Party Beneficiaries, Columbia Law Review, vol 92 (1992) 1358, at pp 1393-1396. 2. See Beswick v Beswick [1968] AC 58 3. See as to that latter possibility Briggs, Privity Problems in Damages for Breach of Contract, New Law Journal, vol 131 (1981) 343; Barker, Are We up to Expectations? Solicitors, Beneficiaries and the Tort/Contract Divide, Oxford Journal of Legal Studies, vol 14 (1994) 137, at pp 140-141. 4. White v Jones [1995] 2 AC 207 at 266-267 5. [1977] AC 774 at 846-847. 6. cf in tort, as to recovery of the value of services to be gratuitously provided, Griffiths v Kerkemeyer (1977) 139 CLR 161 Nguyen v Nguyen (1990) 169 CLR 245 at 261-263 Kars v Kars (1996) 187 CLR 354 at 370-371and cf Hunt v Severs [1994] 2 AC 350 at 363-364 7. Stapleton, Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence, Law Quarterly Review, vol 111 (1995) 301, at p 324; cf Fleming, Tort in a Contractual Matrix, Osgoode Hall Law Journal, vol 33 (1995) 661, at p 677.

Mrs Van Erp does not frame her complaint as one against the next of kin, alleging their unjust enrichment at her expense [130] . She is correct in not doing so. There has been some support in the academic literature for development of a remedy to force the party taking under the unaltered or unrevoked will to transfer the benefit in question to the intended beneficiary [131] , at least where that party knew of the later and, in the event, unfulfilled intentions of the testator [132] . But in the present case the qualifying or vitiating factor would be negligence of Mrs Hill, something for which the next of kin bore no responsibility. Moreover, the judgment of Peter Gibson LJ in Halifax Building Society v Thomas [133] and the writings of the commentators suggest that a claim of this nature would fail for additional reasons. The enrichment of the next of kin was not "at the expense of" Mrs Van Erp [134] . At best she was a volunteer. Nor is it clear that the wealth in question would "certainly" have vested in Mrs Van Erp had it not been "intercepted" by Mrs Hill and diverted to the next of kin whilst "en route" from the testatrix [135] . Moreover, it appears [150] that much restitutionary theory is concerned with restoration of benefits subtracted from the wealth of the plaintiff rather than with provision of a means of fulfilling expectations [151] .

1. cf Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 174-177 2. Luntz, Solicitors' liability to third parties, Oxford Journal of Legal Studies, vol 3 (1983) 284, at pp 288-289; Cane, Negligent Solicitors and Doubly Disappointed Beneficiaries, Law Quarterly Review, vol 99 (1983) 346; Matthews, Round and Round the Garden [1996] Lloyd's Maritime and Commercial Law Quarterly 460. 3. Birks, An Introduction to the Law of Restitution, revised ed (1989), pp 133-136. 4. [1996] Ch 217 at 227; discussed Watts, The Limits of Profit-Stripping for Wrongs, Law Quarterly Review, vol 112 (1996) 219, at pp 220-221. 5. The expression "at the expense of another" appears first to have been used by Professor Ames in his article, "The History of Assumpsit", Harvard Law Review, vol 2 (1988) 53, at pp 64, 66. This is pointed out by Morritt LJ in Kleinwort Benson Ltd v Birmingham City Council [1996] 3 WLR 1139 at 1157[1996] 4 All ER 733 at 750 6. See Smith, Three-Party Restitution: A Critique of Birks' Theory of Interceptive Subtraction, Oxford Journal of Legal Studies, vol 11 (1991) 481, at pp 482-487, 511-514. 7. In his article "Rationalizing Restitution", California Law Review, vol 83 (1995) p 1191, the American scholar, Professor Andrew Kull, after referring (p 1195) to decline in teaching of the subject in that country, turns (pp 1219-1220) to the basic definitional issue of whether restitution is "merely a description of the end result" or "a reference to the basis of liability", and continues (p 1241): "Before we can tell a straight story about restitution, we must decide what the subject is about. Is restitution the body of law concerned with avoiding unjust enrichment? Is it mostly that but partly other things as well? Or is the identification with unjust enrichment altogether an illusion, and restitution merely a hodgepodge of devices for undoing, unwinding, throwing into reverse, and giving things back?" 8. Soh, Privity of Contract and Restitution, Law Quarterly Review, vol 105 (1989) 4; Jackman, Recent Cases, Australian Law Journal, vol 63 (1989) 368; Proksch, Restitution and Privity, Australian Law Journal, vol 68 (1994) 188; Barker, Unjust Enrichment: Containing the Beast, Oxford Journal of Legal Studies, vol 15 (1995) 457, at pp 468-471.

Nor is it suggested that at any time before her death Mrs Currey made an agreement with Mrs Van Erp to make and leave unrevoked a valid will containing a specific legacy or devise to Mrs Van Erp. In such cases, but subject to any necessary compliance with the requirements as to writing specified by the Statute of Frauds and its modern successors, repudiation of the promise by the testator during the lifetime of the testator may found an action in damages for breach of contract [152] . Failure to perform the contract by reason, for example, of the promisor dying intestate may found an action against the estate for damages. At least in certain circumstances, particularly if the contract is to devise or bequeath specific property, a trust may bind the estate in favour of the proposed beneficiary. Relevant principles are discussed by the Privy Council in Schaefer v Schuhmann [153] and in this Court in Palmer v Bank of New South Wales [154] .

1. Parker v Clark [1960] 1 WLR 286[1960] 1 All ER 93 2. [1972] AC 572. 3. (1975) 133 CLR 150.

I have referred to the intervention of equity by the enforcement of trusts in this area. As the illustrations given above show, the intended beneficiary usually will be a volunteer, unable to rely upon contractual rights in his or her favour. In Seale v Perry [155] , Murphy J was a member of the majority which allowed the appeal by the solicitor against the award of damages to the plaintiffs, the testamentary gift to whom by the solicitor's client had failed because the will had not been attested according to law. His Honour said [156] that the plaintiffs were volunteers whom equity would not assist; nor would equity perfect the imperfect gift.

1. [1982] VR 193. 2. Seale v Perry [1982] VR 193 at 220

Nevertheless, in Seale v Perry consideration no doubt passed from the client to the solicitor. The plaintiffs would have benefited from proper performance of that contract but were strangers to it. It is true that the general principle is that equity does not assist volunteers. But, as Mason CJ and McHugh J pointed out Corin v Patton [157] , the rationale for refusing to complete an incomplete gift is that the donor should not be compelled to do so, the decision to give being a personal one for the donor to make. That consideration does not apply where the complaint of the prospective donee is that the donor died with an apparently unchanged intention to confer testamentary bounty, but that intention has miscarried for want of compliance with legal formalities.

The cases grouped under the headings "secret trust" and "mutual wills" illustrate equitable intervention which has the effect of protecting the intended object of testamentary bounty against the consequences of the failure of the testator to comply with legal formalities. Three of the mainsprings of equitable intervention have for a long time been "[f]raud, [a]ccident, and things of [c]onfidence" [158] .

1. See Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 46, per Megarry J; Keeton & Sheridan, Equity, 3rd ed (1987), pp 37-38.

An example is provided by the reasoning in the decisions of the Irish Court of Chancery in Segrave v Kirwan [159] and of the House of Lords in Bulkley v Wilford [160] . This suggests that if Mrs Hill had been the next of kin of Mrs Currey, Mrs Hill would have been treated as trustee for Mrs Van Erp of her interest as next of kin in the Perrott Street property. In the second case, the Earl of Eldon attributed, with approval, to the Irish Chancellor, Sir Anthony Hart, the following statement with respect to the lawyers in these cases [161] :

That is what you ought to have known; you ought to have known it, and you shall not take for your own benefit that which you have derived from your professional ignorance. 1. (1828) 1 Beatty 157. 2. (1834) 2 Cl & F 102 [6 ER 1094]. See also Re Birchall; Wilson v Birchall (1881) 44 LT 243 at 245, per Malins V-C. 3. Bulkley v Wilford (1834) 2 Cl& F 102 at 178 [6 ER 1094 at 1122]. See also at 177 [at 1122], per the Earl of Eldon and at 182 [1124], per Lord Wynford.

However, where a testator has failed to revoke an earlier testamentary gift, by reason of non-compliance with legal formalities, there is, without more, nothing fraudulent or unconscientious on the part of the beneficiary which calls for the imposition upon the beneficiary of a constructive trust in favour of the intended substitute beneficiary [162] . Nor is there any relevant "accident" to enliven equity.

1. cf Posner, Law and Legal Theory in England and America (1996), pp 47-48.

From this concern with "accident" developed equity's intervention in cases of mistake, and the remedies of rectification and rescission. Nevertheless, from at least the time of Lord Hardwicke LC [163] , where there is no equitable fraud, in general equity has set its face against relieving against mere "accidents" or errors which cause to miscarry the intention to make a legally effective voluntary disposition of property on death [164] .

1. Whitton v Russell (1739) 1 Atk 448[26 ER 285]. 2. Story, Commentaries on Equity Jurisprudence, 13th ed (1886), vol 1, pp 58-59, 186, 263-264; Pomeroy, Equity Jurisprudence, 5th ed (1941), vol 3, par 828. But cf the so-called rule in Strong v Bird identified by Kitto J in Cope v Keene (1968) 118 CLR 1 at 8, and the doctrine of donatio mortis causa.

Accordingly, the claim by Mrs Van Erp in negligence was made in circumstances where, as they presently exist, the other constituent elements comprising the general law of civil obligations afforded her no satisfactory remedy in respect of the failure of Mrs Currey successfully to implement her testamentary intentions in favour of Mrs Van Erp. The question then becomes one of the role, if any, of the law of tort, particularly negligence, to provide a remedy.

The primary task of the courts is to quell controversy, not only as to matters of fact, but by appropriate development of principle. The goal must be that, so far as practicable, the rights of litigants, individual, corporate, or governmental, may be ascertained, and the correlative liabilities accepted, by reference to criteria of some specificity and without recourse to the courts at trial, let alone appellate, level. The expansion of statutory regimes which operate upon private rights by reference to broadly expressed curial powers plainly impedes the attainment of such objectives. However, in the present case one is dealing not with statute but with the development by the courts themselves of the general law. The content of the applicable principles of general law in a given case should not be a jury question. If it were, so that no case was certain and none hopeless, such a state of affairs would be a standing reproach to the common law system [165] .

1. See, further, the discussion by Brennan J in San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 367-369 Hawkins v Clayton (1988) 164 CLR 539 at 555-556 Gala v Preston (1991) 172 CLR 243 at 258-263 Bryan v Maloney (1995) 182 CLR 609 at 652-655

It may be expressing the point too strongly to say that any attempts to establish a single general principle of liability for all negligence cases, "which run the gamut from physical injury to emotional distress to various kinds of economic loss", will be shown "to be as hopeless as it is unwise" [166] . Nevertheless, some such concern does appear to be reflected in the joint judgment in Bryan v Maloney [167] . There their Honours described as "special" the categories of case in which a duty to take reasonable care to avoid causing mere economic loss would arise. They added:

Commonly, but not necessarily, they will involve an identified element of known reliance (or dependence) or the assumption of responsibility or a combination of the two. The use of the imprecise and beguiling but deceptively simple terms "known reliance" and "assumption of responsibility" in a number of recent decisions in this field has been subject to stringent criticism by judges [168] and in academic writing. Doubt has been expressed that they have sufficient coherence to dispose of novel cases [169] . Further, it has been said that the picture of liability, now hidden by the language of voluntariness and reliance, is particularly untidy and beset with a multiplicity of concerns, and that the law of negligence would benefit greatly were the courts to set aside these conceptual veils and confront this complex picture [170] . 1. Christie, The Uneasy Place of Principle in Tort Law, in Owen (ed), Philosophical Foundations of Tort Law (1995) 113, at p 123. 2. (1995) 182 CLR 609 at 618-619, per Mason CJ, Deane and Gaudron JJ. 3. Smith v Bush [1990] 1 AC 831 at 864-865, per Lord Griffiths; Caparo Plc v Dickman [1990] 2 AC 605 at 628, per Lord Roskill. 4. Steele, Scepticism and the Law of Negligence, Cambridge Law Journal, vol 52 (1993) 437, at p 444. 5. Barker, Unreliable Assumptions in the Modern Law of Negligence, Law Quarterly Review, vol 109 (1993) 461, at pp 483-484; see also Stapleton, Duty of Care and Economic Loss: A Wider Agenda, Law Quarterly Review, vol 107 (1991) 249, at pp 259-263, 284-288.

The objective of such confrontation should be that thereafter, on given facts, issues of liability will be susceptible of determination without recourse to the courts. However, the field of liability in negligence for pure economic loss is a comparatively new area. It also is a developing area. The case law will advance from one precedent to the next.

In the present case, the respondent, Mrs Van Erp, did not assert in her favour any identified element of known reliance or dependence by her upon the discharge by Mrs Hill of her professional obligations in seeing to the execution of Mrs Currey's will. However, it was contended that Mrs Hill voluntarily assumed responsibility for the making by the testatrix of a valid will reflecting her intentions, including the bounty to the respondent. The submission was that Mrs Hill did so by holding herself out as having and lending a professional skill for that purpose.

The difficulty with that submission is that the evidence does not disclose, in any specific sense, any assumption of responsibility by Mrs Hill other than to her client. In Marc Rich & Co v Bishop Rock Ltd [171] , Lord Steyn, speaking for the majority of the House of Lords, responded to the submission that the classification society had assumed responsibility to the cargo owners when conducting a survey of the vessel in question (which later sank) on instructions of the ship owners, by stressing that it was "not even suggested that the cargo owners were aware that [the society] had been brought in to survey the vessel". On the other hand, in White v Jones [172] Lord Nolan said:

[A] professional man who undertakes to exercise his skill in a manner which, to his knowledge, may cause loss to others if carelessly performed, may thereby implicitly assume a legal responsibility towards them. 1. [1996] 1 AC 211 at 238. 2. [1995] 2 AC 207 at 294.

In White v Jones [173] , Lord Browne-Wilkinson sought to meet criticism of the use in such contexts of the phrase "assumption of responsibility". His Lordship said that it should be understood as referring "to a conscious assumption of responsibility for the task rather than a conscious assumption of legal liability to the plaintiff for its careful performance". Any such general notion of "assumption of responsibility" by reference to the performance of services and without identification of those to whom or for whose benefit they are performed has attracted criticism [174] , with which I agree.

1. [1995] 2 AC 207 at 274-275. 2. Murphy, Expectation Losses, Negligent Omissions and the Tortious Duty of Care, Cambridge Law Journal, vol 55 (1996) 43, at pp 49-50; Whittaker, Privity of Contract and the Tort of Negligence: Future Directions, Oxford Journal of Legal Studies, vol 16 (1996) 191, at pp 204-205; Cane, Contract, Tort and the Lloyd's Débâcle, in Rose (ed), Consensus Ad Idem (1996) 96, at p 108.

Bingham LJ has observed that, like equity, the law of torts may, in appropriate circumstances, fill what otherwise are perceived to be "gaps" in what should be one coherent system of law [175] . Professor Francis Reynolds has written [176] :

The aim of the law should be to devise principles which provide a way of solving disputes between private persons (including of course corporations); rivalry between principles, as opposed to a study of their interaction and interrelation, is unlikely to be productive. We are used to such interaction of the principles of restitution with contract and (subject to problems of integration) equity. We should accept it also in the case of tort. That, of course, is not to assert that the function of the law of tort, with respect to recovery of economic loss caused other than by reliance upon deceitful statements, is limited to the filling in of gaps left by the law of contract. But it is a starting point for consideration of the present case. 1. Simaan Contracting Co v Pilkington Ltd [No 2] [1988] QB 758 at 782 2. "Contract and Tort: The View from the Contract Side of the Fence", Canterbury Law Review, vol 5 (1993) 280, at p 281.

The point may be illustrated by reference to Hawkins v Clayton [177] . In that case Brennan J (a member of the majority) pointed out [178] that there was no pleading of a contract between the solicitors and the testatrix which governed the obligations of the solicitors to disclose the will to the nominated executor or beneficiaries after the death of the testatrix. Had there been such a contract, the benefit, on the death of the testatrix, would have passed to the executor if no beneficial interest in the promise had been conferred on the executor when the promise was made. In his Honour's judgment, the duty of care upon the solicitors, to find the executor after the death of the testatrix and to inform him of the existence and contents of the will and of their custody of it, arose from two considerations. The first was the purpose for which custody had been accepted by the solicitors. The second was that concealment of the will of a deceased testatrix would preclude enjoyment of the interests in property created by it, as well as from the foreseeable consequences of non-disclosure [179] . Brennan J said [180] :

If the custodian of the will has reasonable grounds for believing that the executor is ignorant of the will, it is foreseeable that non-disclosure of the will to the executor will result in the will not being produced and not being made effectual. Unless some duty of disclosure be imposed on the custodian and be discharged by him, the will would have to continue in the custodian's safekeeping indefinitely, and the purpose for which the custodian accepted custody would go unfulfilled. Some duty of disclosure must be imposed on the custodian. 1. (1988) 164 CLR 539. 2. Hawkins v Clayton (1988) 164 CLR 539 at 549 3. Hawkins v Clayton (1988) 164 CLR 539 at 551-553 4. Hawkins v Clayton (1988) 164 CLR 539 at 552

The result was that the law of tort assisted, by the recovery of damages from the custodian solicitors, realisation of the intention of the testatrix in making the will and leaving it unrevoked, and the expectation of those whom the testatrix intended, subject to due administration, to receive her estate. The custodian solicitors had been in a position of control over the realisation of the testamentary intentions of the testatrix [181] . This affords guidance as to the appropriate path to be followed in the present case.

1. Hawkins v Clayton (1988) 164 CLR 539 at 597-598, per Gaudron J.

Does it matter that the result of so doing will be to compensate for failure in the mere expectation of receipt of the testatrix's bounty? A basic difference between the measure of damages recoverable in contract and tort often is said to be that it is only in contract that damages may be recovered for expectations or benefits not realised, as opposed to losses actually suffered or expenses incurred. The substance of the proposition is that the objective of damages in contract is to put the plaintiff in the position the plaintiff would have enjoyed if the contract had been performed whilst award of damages in tort seeks to place the plaintiff in the position that would have been occupied if the tort had not been committed. However, care is needed before accepting any such propositions as universally applicable [182] . In this case, the complaint of the plaintiff arises from failure to perform services so that the testamentary benefit has not been provided. The allegation here of pure economic loss thus embraces (and may properly embrace) failure to provide the benefit, an "expectation interest" [183] .

1. Cane, Tort Law and Economic Interests, 2nd ed (1996) at pp 136-145 and Whittaker, Privity of Contract and the Tort of Negligence: Future Directions, Oxford Journal of Legal Studies, vol 16 (1996) 191, at pp 207-212, where various illustrations are given. They include Ross v Caunters [1980] Ch 297and White v Jones [1995] 2 AC 207 2. Burrows, Solving The Problem of Concurrent Liability, Current Legal Problems, vol 48 (1995) 103, at pp 119-120.

One asks what there was in the circumstances, including the existence of Mrs Van Erp as the object (identified by Mrs Currey to Mrs Hill) of intended testamentary bounty, which was sufficient to generate, between Mrs Hill and Mrs Van Erp, a duty of care in tort to supplement the dry right of action by the estate against Mrs Hill [184] .

1. cf White v Jones [1995] 2 AC 207 at 276, 291, 295.

The matter may be approached by asking whether the relationship between Mrs Hill and Mrs Van Erp was "equivalent to contract". That term was used by Lord Shaw in Nocton v Lord Ashburton [185] and taken up by Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners Ltd [186] . It was directed by their Lordships immediately to cases where there was an "assumption of responsibility" in circumstances in which, but for the absence of consideration, there would be a contract. Here there was a contract. But Mrs Van Erp was not a party to it, although if the contract had been duly performed she would have benefited therefrom. The use of contractual analogies in development of new duties of care may make little sense where what is involved is the attachment of responsibilities to relationships which in substance and form are non-contractual. However, that is not this case.

1. [1914] AC 932 at 972. 2. [1964] AC 465 at 529-530.

The expression "equivalent to contract", in the context of the present factual matrix, may be understood as embracing a situation where (a) the transmission of the property in question from the client of the defendant to the plaintiff was the objective sought to be accomplished by the contract, and (b) the plaintiff had no interest in the matter adverse to that of the client, yet default by the defendant in performance of her contractual obligations otherwise sounds only in ineffective legal remedies. The duty of the solicitor was one of imperfect obligation. The law of tort operates in such circumstances to complete and vindicate fulfilment of that contractual obligation.

Dean Prosser has pointed out [187] that, in the development of the law relating, for example, to the duties of bailees to bailors and of occupiers of land to invitees and licensees, there have been other instances of extension of liability in negligence by reference to concurrent contractual relationships. More recently, in Al-Kandari v J R Brown & Co [188] , Bingham LJ said:

A solicitor owes a duty of care to his client. If the client intends to confer a benefit on a third party, the solicitor may owe a duty to the third party to take reasonable care to see that effect is given to the client's intentions. This is an illustration of the proposition espoused by Mason CJ, Deane and Gaudron JJ in Bryan v Maloney [189] that, in some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the existence of, a liability in negligence between one or other of the parties to the contract and a third party. 1. Prosser, Selected Topics on the Law of Torts (1982), Ch VII, The Borderland of Tort and Contract, pp 391-402. See also Cane, Tort Law and Economic Interests, 2nd ed (1996), pp 325-334. 2. [1988] QB 665 at 675. 3. (1995) 182 CLR 609 at 621.

It is, as I have indicated, well understood that the trust may operate to protect the interests of those concerned in a contractual relationship and to vindicate rights derived therefrom. This was stressed by Mason and Deane JJ in Gosper v Sawyer [190] . In a case such as the present, so also does the law of tort. That was the approach taken by Sir Donald Nicholls V-C in White v Jones [191] . The result is to assist the desirable coherence of the law of obligations.

1. (1985) 160 CLR 548 at 568-569. 2. [1995] 2 AC 207 at 223.

Not only the foreseeability of harm to Mrs Van Erp as specific legatee and devisee but a complex of other factors combine to summon into existence a duty of care owed by Mrs Hill to Mrs Van Erp to ensure execution of the will in such a manner as not to attract the invalidating operation of s 15 of the Act. These matters include the extent to which the engagement of Mrs Hill by the testatrix plainly was designed to enhance the economic position of Mrs Van Erp as a particular individual, the control exercised (as a practical matter) over the realisation by the testatrix of her testamentary intentions towards Mrs Van Erp, and the closeness of the connection between the request by Mrs Hill to Mr Van Erp that he attest the will and the direct legal effect thereof, being the consequent failure of the gifts to Mrs Van Erp by the will. There is also the public interest in the promotion of professional competence and the avoidance of disappointment of the wishes and expectations of testators and beneficiaries by negligent actions of solicitors [192] .

1. Gartside v Sheffield, Young & Ellis [1983] NZLR 37 at 51

So to determine the present matter is to accept what Lord Mustill, in the passage from his dissenting judgment in White v Jones [193] set out earlier in these reasons, would have found attractive as an "intermediate solution" deriving from the special features of the particular case. It is by no means to espouse any general proposition to the effect that if A promises B to perform a service for B which B intends, and A knows, will confer a benefit on C if performed, A owes to C a duty in tort to perform that service with reasonable skill and care [194] . The question whether this or any variant of a proposition in such broad terms [195] should be accepted must be left for another day. The present case lies in a narrower compass. Recently, in Goodwill v Pregnancy Advisory Service [196] , Peter Gibson LJ said:

It must be recognised that White v Jones belonged to an unusual class of cases. A remedy in tort was fashioned to overcome the rank injustice that the only persons who might have a valid claim (the testator and his estate) had suffered no loss and the only persons who had suffered a loss (the disappointed beneficiaries) had no claim. 1. [1995] 2 AC 207 at 291-292. 2. cf Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 181, where Lord Goff of Chieveley, in delivering the leading speech given in the House, said: "[I]f a person assumes responsibility to another in respect of certain services, there is no reason why he should not be liable in damages for that other in respect of economic loss which flows from the negligent performance of those services." See also Gran Gelato Ltd v Richcliff Ltd [1992] Ch 560 at 569-571and the criticism thereof in Bernstein, Economic Loss (1993), pp 420-423. 3. Variants of the proposition of Lord Goff of Chieveley, namely that the defendant is liable in damages if (i) the plaintiff has entrusted the defendant with the conduct of the plaintiff's affairs, the defendant has failed to exercise reasonable care and skill in so doing and the plaintiff has suffered loss as a result, and (ii) the defendant undertook the exercise of power over the plaintiff, knowing the plaintiff expected the defendant to use reasonable care and skill in so doing and the defendant failed to do so, thereby causing loss to the plaintiff, are considered by McBride and Hughes, Hedley Byrne in the House of Lords: an interpretation, Legal Studies, vol 15 (1995) 376, at pp 382-385. 4. [1996] 1 WLR 1397 at 1403; [1996] 2 All ER 161 at 167.

In Bryan v Maloney [197] , Mason CJ, Deane and Gaudron JJ said:

One policy consideration which may militate against recognition of a relationship of proximity in a category of case involving mere economic loss is the law's concern to avoid the imposition of liability "in an indeterminate amount for an indeterminate time to an indeterminate class". Their Honours were referring to the well-known passage in the judgment of Chief Judge Cardozo in Ultramares Corporation v Touche [198] . They continued [199] : Another consideration is the perception that, in a competitive world where one person's economic gain is commonly another's loss, a duty to take reasonable care to avoid causing mere economic loss to another, as distinct from physical injury to another's person or property, may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage. Neither of these considerations applies in the present case in a manner adversely to the recognition of liability in the appellant. The existence of a duty of care owed to Mrs Van Erp by Mrs Hill does not involve the creation of a liability which is indeterminate as to quantum, identity of plaintiff, or time. There is no occasion for imposition of the "control mechanisms" which have been seen as necessary curbs upon liability for negligent misstatement or for pure economic loss in such cases [200] . 1. (1995) 182 CLR 609 at 618. 2. (1931) 255 NY 170 at 179 [174 NE 441 at 444]. 3. Bryan v Maloney (1995) 182 CLR 609 at 618 4. See Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241

Further, escape by Mrs Hill from financial responsibility for failure to exercise professional skill in accordance with her undertaking would be inconsistent with what might be thought ordinarily legitimate in the pursuit of personal advantage. Nor, as I have sought to demonstrate, does the law otherwise offer to a person in the position of Mrs Van Erp recourse in respect of the consequences of negligent performance by Mrs Hill as promisor of professional duties owed to Mrs Currey as promisee.

Lord Browne-Wilkinson pointed out in White v Jones [201] that in a class of case (which includes this appeal) the consequences of the negligence of a solicitor usually will not immediately be apparent and will take effect only on the death of the testator. At that point in time the interest of the intended beneficiary would have matured beyond a spes, yet the error which will cause this not to come to pass will have become permanently incapable of direct remedy in jurisdictions where there is no statutory provision such as those found in South Australia, New South Wales and Victoria [202] .

1. [1995] 2 AC 207 at 276. 2. Wills Act 1936 SA, s 12(2); Wills, Probate and Administration Act 1898 NSW, s 13; Wills Act 1958 Vict, s 13.

Moreover, in a case such as the present there can be no conflict of interest between the solicitor and the testatrix and the intended beneficiaries. To impose upon the solicitor a duty in tort towards the intended beneficiaries is not to mandate a conflict of interest. The duty owed by Mrs Hill to Mrs Currey involved the implementation of Mrs Currey's wish to bestow her property upon Mrs Van Erp. The existence of a duty of care in tort owed by Mrs Hill to Mrs Van Erp does not cut across the basic proposition that, subject to professional rules and standards, the solicitor owes duties to the court as well as its officers and to the client but not, in general, to the other parties with whom the client is dealing in the relevant transaction.

In White v Jones [203] , the Vice-Chancellor illustrated this basic proposition by contrasting cases such as that before him with various examples. These illustrated such propositions as that the solicitor for the vendor does not normally become subject to a duty of care to the purchaser [204] . The solicitor acting for a party who is engaged in "hostile" civil litigation owes a duty to the client and to the court but normally does not owe any duty to the opponent of the client [205] . Reference might also be made to Sutherland v Public Trustee [206] . The plaintiffs were the step-children of the testator. They had been residuary beneficiaries under his earlier will. He had firmly made up his mind to make a will which excluded them and left his entire estate to his wife who, in the event, predeceased him. Relatives of the testator, other than his step-children, then took on intestacy. The solicitor who drew the will had raised with the testator the possibility of intestacy on the prior death of his wife, but the testator would not countenance inclusion of any gift over. The New Zealand Supreme Court held that there was no duty of care on the part of the solicitor to persons who the testator had deliberately refused himself to nominate.

1. [1995] 2 AC 207 at 223. 2. cf Gran Gelato Ltd v Richcliff Ltd [1992] Ch 560 at 569-571 3. Al-Kandari v J R Brown & Co [1988] QB 665 at 672, 675; cf as to prosecuting authorities Elguzouli-Daf v Commissioner of Police [1995] QB 335 at 348-349, 352. 4. [1980] 2 NZLR 536.

The imposition of liability upon the appellant in tort as sought by the respondent does not invade any area which the legislature has dealt with in the Act in a fashion intended to be exhaustive. The effect is not to gainsay the operation of s 15, but to reinforce the need for professional advisers to ensure compliance with it by testators.

The result I have reached may be expressed as consistent with a finding of sufficient proximity. However, I have eschewed use of that term in endeavouring to explain the path by which I conclude that the appeal should be dismissed. "Proximity" may be no more than "the currently fashionable touchstone of "duty" " [207] . My own view is that, in the field of liability for pure economic loss, as elsewhere, the concept of proximity is of limited use in the determination of individual disputes [208] . It may provide a broad conceptual "umbrella" beneath which the concerns particular to discrete categories of case can be discussed. As one recent English commentator has put it [209] :

Judges now accept that the concept is no more than a broad umbrella beneath which more specific criteria for the imposition of duties operate in particular categories of case. 1. Fleming, Tort in a Contractual Matrix, Osgoode Hall Law Journal, vol 33 (1995) 661, at p 664. 2. cf Bryan v Maloney (1995) 182 CLR 609 at 617-618 3. Barker, Are We up to Expectations? Solicitors, Beneficiaries and the Tort/Contract Divide, Oxford Journal of Legal Studies, vol 14 (1994) 137, at p 147.

To my mind, there is real difficulty in treating the requirement of a relationship of proximity as an overriding requirement which provides the conceptual determinant (or a determinant [210] ) for the recognition of an existence of a duty to take reasonable care to avoid reasonably foreseeable risk of injury. It may well be that the notion of proximity provides a unifying theme for various categories of case, the genus of which they are species. Each species provides what Professor Morison identified as "a short method of referring, with some particularity and correctness, to the specific set of concrete circumstances giving rise to the duty of care in the individual case" [211] .

1. In Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211, Lord Steyn delivered the speech attracting majority support in the House of Lords. Lord Steyn approved (at 236) a formulation in which proximity, with foreseeability and "fairness", are elements for the imposition of a duty of care, but added that these three elements are really facets of the same thing. The result, it is suggested, is no different from the application of the rejected two-stage test favoured by Lord Wilberforce in Anns v Merton London Borough [1978] AC 728 at 751-752: Tan, Of Duty, Law Quarterly Review, vol 112 (1996) 209, at pp 213-214. 2. Morison, A Re-Examination of the Duty of Care, Modern Law Review, vol 11 (1948) 9, at p 18.

Thus, each of Burnie Port Authority v General Jones Pty Ltd [212] and Bryan v Maloney [213] provides authority for a distinct species of negligence. The first is concerned with a person who takes advantage of the control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things. The second deals with the duty of a builder to a subsequent owner as regards diminution in value of the structure when the inadequacy thereof first becomes manifest by reason of consequent damage to its fabric. Each species displays a particular manifestation of the notion of a relationship of proximity [214] . But, by itself, the notion of proximity, used as a legal norm, has the uncertainties and perils of a category of indeterminate reference, used with shifting meanings to mask no more than policy preferences [215] .

1. (1994) 179 CLR 520. 2. (1995) 182 CLR 609. 3. cf Caparo Plc v Dickman [1990] 2 AC 605 at 618 4. The Hon Justice McHugh, Neighbourhood, Proximity and Reliance, in Finn (ed), Essays on Torts (1989) 5, at p 13.

An analogy may help make the point. In a sense it is true that much of equity is concerned with the prevention, or unravelling of the consequences, of unconscientious conduct. Many such situations may usefully be addressed from that starting point. But recitation of the precept stops far short of conveying the content of that sophisticated body of law. This includes the complex doctrines and particular remedies devised and developed by the learning and sagacity of the great equity judges since at least the Chancellorship of Lord Nottingham.

Likewise, in David Securities Pty Ltd v Commonwealth Bank of Australia [216] , this Court decided that it was not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. The Court rejected the proposition that unjust enrichment is a definitive legal principle according to its own terms, and not just a concept. Accordingly, in a given case, recovery depends upon the existence of some qualifying or vitiating factor such as mistake, duress or illegality [217] .

1. (1992) 175 CLR 353. 2. David Securities (1992) 175 CLR 353 at 378-379.

To speak of "proximity" is to invite a series of questions which spring from the particular circumstances of the case in question. Put another way, as it was in the Supreme Court of Canada (by La Forest J in Canadian National Railway Co v Norsk Pacific Steamship Co [218] ), proximity "expresses a result, rather than a principle". Nevertheless, I would, with respect, accept (as Dawson J put it in Gala v Preston [219] ) that it would be going too far to say that the notion of proximity is entirely without legal content and that no principles emerge from the process of extrapolation from decided cases or categories of decided cases. His Honour said:

For example, there are reasons of general, if not universal application, which lie behind the rule which, for the most part, denies recovery of damages for pure economic loss or the rule which restricts the recovery of damages for nervous shock to a particular kind of plaintiff. But it is obvious that the search for a single principle underlying the concept of proximity is bound to be unsuccessful. [220] 1. [1992] 1 SCR 1021 at 1115. His Lordship agreed with the views to this effect of Stevenson J at 1178, expressed after consideration of the judgments of Brennan J and the extrajudicial writing of McHugh J. In Caparo Plc v Dickman [1990] 2 AC 605 at 632-633(a passage recently repeated by Lord Woolf in Spring v Guardian Assurance Plc [1995] 2 AC 296 at 343-344), Lord Oliver of Aylmerton said that "proximity" embraces not a definable concept but is "merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists". His Lordship spoke later to similar effect in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 411 2. (1991) 172 CLR 243 at 277. 3. This passage was accepted and applied by Brennan J in Bryan v Maloney (1995) 182 CLR 609 at 654