High Court Upholds Solicitor Liability for Beneficiary Loss

OUTCOME: Dismissed

High Court of Australia [NAME] [NAME], Gaudron, McHugh and Gummow JJ [NAME] v [NAME] [1997] HCA 9

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered: —

18 March 1997 [NAME].

[NAME] [NAME] wished to change her will. Her will had been prepared by the appellant, [NAME] [COUNSEL], a solicitor practising in the Brisbane suburb of Paddington. [NAME] [NAME] asked Mr [NAME], a neighbour, to ask [NAME] [NAME] to call on her. She did so. On or about 3 December 1990, [NAME] [NAME] gave [NAME] [NAME] instructions for a new will. In accordance with her instructions, [NAME] [NAME] drew a will cl 4 of which read as follows:

I Give Devise and Bequeath my [NAME] property situate [ADDRESS], Paddington, Brisbane in the said State, and the contents therein not previously bequeathed unto my son [NAME] and my good friend [NAME] [NAME] as tenants in common in equal shares. Clause 3(b) of the will also provided that [NAME] [NAME] should be given [NAME] [NAME] leather lounge suite, ornate glass top table and antique clock. [NAME] [NAME] is the spouse of Mr [NAME] as [NAME] [NAME] knew.

On 7 December 1990, [NAME] [NAME] brought the draft will to [NAME] [NAME] [NAME]. Mr [NAME] was present. [NAME] [NAME] read the draft will to [NAME] [NAME]. [NAME] [NAME] signed the will as [NAME]. [NAME] [NAME] signed as one attesting witness. [NAME] [NAME] asked Mr [NAME], who was the only [NAME] person present, to sign as the second attesting witness. She pointed to the place where he was to sign and, according to his evidence, he signed "because [NAME] [NAME] asked me to". No advice was sought by him or given to him as to the effect on the gift to his spouse of his being an attesting witness.

The consequence of Mr [NAME] signing as an attesting witness was to attract the operation of s 15(1) of the Succession Act 1981 Q which reads as follows:

Where any disposition of property 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 [NAME] or, as the case may be, that spouse beneficially, the disposition is null and void to the extent that it entitles [NAME], the spouse of [NAME] or another person claiming under [NAME] or that spouse to take property under it. By reason of s 15(1), the testamentary disposition of an interest in the [NAME] property at [ADDRESS] to [NAME] [NAME] failed. Her interest fell into residue and presumably was taken by the residuary [NAME]. She sued [NAME] [NAME] for damages for negligence and recovered a judgment in the District Court for $163,471.50 and interest. [NAME] [NAME] appeal to the Court of Appeal failed. The question on this appeal is whether [NAME] [NAME] is liable in negligence for procuring Mr [NAME] to be an attesting witness whereby [NAME] [NAME] [NAME] failed to acquire the property which [NAME] [NAME] [NAME] to devise to her.

There are conceptual difficulties in the way of allowing a remedy against a [NAME]'s solicitor to an [NAME]. These were rehearsed by [NAME] [NAME] [NAME] in [NAME] v [NAME] [1] , and I respectfully adopt his Lordship's statement of them. In that case, the solicitor for a [NAME] negligently delayed in drawing a will in accordance with [NAME]'s instructions and [NAME] died leaving a will which did not contain the gifts which [NAME] had [NAME] the plaintiffs to receive. The principal conceptual difficulties in the way of allowing a remedy were stated by [NAME] [NAME] in these terms [2] :

First, the general rule is well established that a solicitor acting on behalf of a client owes a duty of care only to his client. The relationship between a solicitor and his client is nearly always contractual, and the scope of the solicitor's duties will be set by the terms of his retainer

A further reason is given which is said to reinforce the conclusion that no duty of care is owed by the solicitor to [NAME] in tort. Here, it is suggested, is one of those situations in which a plaintiff is entitled to damages if, and only if, he can establish a breach of contract by the defendant. First, the plaintiff's claim is one for purely financial loss; and as a general rule, apart from cases of assumption of responsibility arising under the principle in [COMPANY] v [COMPANY] [3] , no action will lie in respect of such loss in the tort of negligence. Furthermore, in particular, no claim will lie in tort for damages in respect of a mere loss of an expectation, as opposed to damages in respect of damage to an existing right or interest of the plaintiff. Such a claim falls within the exclusive zone of contractual liability; and it is contrary to principle that the law of tort should be allowed to invade that zone.

1. [1964] AC 465. His Lordship expanded the reasons advanced for contending that a [NAME]'s claim can lie only in contract [4] : Here I refer not only to the fact that the claim is one for damages for pure economic loss, but also to the need for the defendant solicitor to be entitled to invoke as against the [NAME] any terms of the contract with his client which may limit or exclude his liability; to the fact that the damages claimed are for the loss of an expectation; and also to the fact (not adverted to below) that the claim in the present case can be said to arise from a pure omission, and as such will not (apart from special circumstances) give rise to a claim in tortious negligence. Faced with points such as these, the strict lawyer may well react by saying that the present claim can lie only in contract, and is not therefore open to a [NAME] as against [NAME]'s solicitor. This was indeed the reaction of Lush and Murphy JJ in [NAME] v [NAME] [5] , and is one which is entitled to great respect. 1. [1995] 2 AC 207. 2. [NAME] [1995] 2 AC 207 at 256-257 3. [1964] AC 465. 4. [NAME] [1995] 2 AC 207 at 261-262 5. [1982] VR 193.

Notwithstanding the conceptual difficulties, a majority of the [NAME] held the solicitor liable in negligence to the [NAME] but [NAME] [NAME]. [NAME] [NAME] [6] regarded it of "cardinal importance" that if the law did not recognise a duty owed to the [NAME], there would be a lacuna in the law which, for reasons of practical justice, ought to be filled. Unless such a duty is recognised "the only persons who might have a valid claim (ie, [NAME] and his estate) have suffered no loss, and the only person who has suffered a loss (ie, the [NAME]) has no claim" — a proposition which [NAME] [NAME] [NAME] had expressed in his judgment allowing a [NAME] a remedy in [NAME] v [NAME] [7] .

1. [NAME] [1995] 2 AC 207 at 259-260 2. [1980] Ch 297 at 303.

The conceptual difficulties in the way of allowing a remedy to an [NAME] led a majority of the Supreme Court of Victoria to a contrary view in [NAME] v [NAME] [8] . However, [NAME] was not followed in [NAME] v [NAME]) [9] or in Finlay v Rowlands, Anderson and [NAME] [10] . Accepting that "practical justice" tends in favour of allowing a remedy to an [NAME], it is necessary to address the conceptual difficulties to determine for this country whether the law of negligence provides such a remedy.

1. [1982] VR 193. See at 198-199, per Lush J and at 206-207, per Murphy J; contra at 236ff, per [NAME[NAME]. 2. [1980] WAR 97. 3. [1987] Tas R 60 (see [NAME] [1995] 2 AC 207 at 255-256).

Is there a duty of care in tort?

Although a solicitor's contractual duty is owed solely to the client, the existence of that duty does not necessarily negate a duty of care owed to a third party in tort. To the contrary, the undertaking of a specialist task pursuant to a contract between A and B may be the occasion that gives rise to a duty of care owed to [NAME] who may be damaged if the task is carelessly performed [11] . Thus in [NAME] v [NAME] [12] , in an action by a man and his wife against a surgeon for negligent treatment of the wife, the declaration that the surgeon had been employed for a reward without alleging who had retained him was held to be sufficient. Whether it was the husband or the wife that employed the surgeon, the damage had been suffered by the wife and she had the cause of action. [NAME] said [13] :

The defendant, being a surgeon, undertakes to the [NAME], to cure wounds and [NAME] ailments of the human system, and professes himself ready to be employed by any one for that purpose Then negligence and improper treatment are charged, and [t]he question then is, to whom was the injury done? From the necessity of the thing, the only person who can properly sustain an action for damages, for an injury done to the person of the patient, is the patient himself, for damages could not be given on that account to any [NAME] person, although the surgeon may have been retained and employed by him to undertake the cure. 1. [NAME] v [NAME] Co [1923] 1 KB 539 Stennett v Hancock [1939] 2 All ER 578 [NAME] v [COMPANY] (1935) 51 TLR 551 2. (1822) 11 Price 400 [147 ER 512].

3. Pippin v Sheppard (1822) 11 Price 400 at 407-408[147 ER 512 at 515]; see also at 408-409 [at 515], per [NAME] B, and at 409-410 [at 515], per [NAME] B.

The necessary, but not always sufficient, foundation for a duty of care in tort is reasonable foreseeability of damage to another if the task in hand is carelessly performed. Thus, in [NAME] v Inglewood Shire Council [14] , [NAME[NAME] said of an architect:

Whatever might have been thought to be the position before the broad principles of the law of negligence were stated in modern form in [NAME] v [NAME] [15] , it is now beyond doubt that, for the reasonably foreseeable consequences of careless or unskilful conduct, an architect is liable to anyone whom it could reasonably have been expected might be injured as a result of his negligence. To such a person he owes a duty of care quite independently of his contract of employment. Then his Honour said [16] : [N]either the terms of the architect's engagement, nor the terms of the [NAME] contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with [NAME] is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it. Generally speaking, however, a solicitor's duty is owed solely to the client subject to the rules and standards of the profession [17] . That is because the solicitor's duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client's interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client. But the interests of a client who retains a solicitor to carry out the client's testamentary instructions and the interests of an [NAME] are coincident. 1. (1963) 110 CLR 74 at 84. 2. [1932] AC 562. 3. [NAME] (1963) 110 CLR 74 at 85 4. [NAME] [1995] 2 AC 207 at 223

[NAME] seek the assistance of a solicitor to make their intentions effective. The very purpose of a [NAME]'s retaining of a solicitor is to ensure that [NAME]'s instructions to make a testamentary gift to a [NAME] results in [NAME]'s taking that gift on the death of [NAME]. There is no reason to refrain from imposing on a solicitor who is contractually bound to [NAME] to perform with reasonable care the work for which he has been retained a duty of care in tort to those who may foreseeably be damaged by carelessness in performing the work. The terms of the retainer determine the work to be done by the solicitor and the scope of the duty in tort as well as in contract. A breach of the retainer by failing to use reasonable care in carrying the client's instructions into effect is also a breach of the solicitor's duty to an [NAME] who thereby suffers foreseeable loss. If the solicitor's carelessness results in the loss of a testamentary gift [NAME] to be given to a [NAME], "it is eminently fair, just and reasonable that the solicitor should be liable in damages to [NAME]", as [NAME] [NAME] [NAME] said in [NAME] v [NAME] [18] . Not only is the remedy of damages effective to compensate [NAME]; it is necessary to enforce the duty owed to the client. "Otherwise", as the [NAME] said, "there is no sanction in respect of the solicitor's breach in his professional duty".

1. [1995] 2 AC 207 at 224; see also at 232-233, per [NAME] LJ; at 236, 238, per [NAME] LJ.

Does the loss of an [NAME] gift found an action in tort?

In one sense, [NAME] [NAME] has suffered no loss. She simply failed to obtain a benefit to which she had no legal entitlement. It is of the nature of a gift that the [NAME] has no prior legal entitlement to the thing given, nor any right to compel the donor to give the thing. If some formality must be observed by the donor in order to effect the gift and the formality is not observed, the [NAME] has no equitable right to compel the observance of the formality.

[NAME] to be given may pass from a donor either during the lifetime of the donor or on the donor's death. In the case of an [NAME] gift inter vivos, if the [NAME] disposition fails for some reason, the thing to be given remains the property of the donor; the donor may then dispose of the thing effectively either to the [NAME] first [NAME] or to another. The intention of the donor is not irrevocably frustrated and, as between the donor and the [NAME] [NAME], the property is not lost. But in the case of an ineffective gift [NAME] to be given by a [NAME] to a [NAME], the thing [NAME] to be given passes on [NAME]'s death to another. It is no longer the property of the donor. And, unless the [NAME] can claim the thing from [NAME]'s estate in proceedings under a statute for the relief of [NAME]'s family and dependants [19] , [NAME]'s intention is frustrated and the thing which passed from [NAME] on death is irretrievably lost to the [NAME] [NAME]. That is the nature of the "loss" with which this class of case is concerned. It is a loss that is suffered upon the dropping of [NAME]'s life. It is a loss which follows immediately from breach of the solicitor's duty to safeguard [NAME] from precisely that kind of loss [20] .

1. As suggested in [NAME], A Damnosa Hereditas?, Law Quarterly Review, vol 111 (1995) 357, at p 359. 2. [COMPANY] v [NAME] (1976) 136 CLR 529 at 555

When an [NAME] suffers such a loss as the result of the negligence of a third party, is the loss characterised as a loss which might found an action for damages? This is the novel question for determination.

An action for damages for negligence provides compensation to a plaintiff for loss measured by comparing the plaintiff's actual situation with the hypothetical situation in which the plaintiff would have been but for the negligence of the defendant. If the plaintiff's position is economically worse than it would have been but for the carelessness of the defendant, that is economic loss. Ordinarily, economic loss is recoverable when it is suffered in consequence of physical damage sustained by or manifesting itself in the person or property of the plaintiff or when it is caused by a plaintiff's acting or refraining from acting in reliance on what the defendant has negligently said or done [21] . The present case does not fall within any of these categories.

1. [COMPANY] v The Minister (1986) 162 CLR 340 at 354, 369.

In [COMPANY] v [COMPANY] [22] , there was a mutual relationship between the plaintiff and the [NAME] which gave rise to a duty of care in the making of a representation by the [NAME] on which the plaintiff relied and acted to its financial detriment. In [NAME] v [NAME] , [NAME] [NAME] in dissent held [23] that a cause of action against the careless solicitor in favour of the [NAME] but [NAME] [NAME] could not be based on [NAME[NAME] because there was no undertaking of responsibility by the solicitor to the [NAME] in the context of some mutual relationship between them. Although [NAME[NAME] has been followed in [COMPANY] v Evatt [24] , it has not been thought to limit the recovery of economic loss to cases which exhibit the elements that attracted liability in [NAME].

1. [1964] AC 465. 2. [NAME] [1995] 2 AC 207 at 287-290 3. (1970) 122 CLR 628; [1971] AC 793.

In [NAME]) [COMPANY] v [NAME] , economic loss was treated as a head of damage independent of physical damage which might be recovered when the circumstances were such as to impose on the defendant a duty of care to avoid that damage [25] . The problem was to define the elements additional to mere foreseeability which would allow relief to a plaintiff whose damages consist merely of economic loss. As [NAME] said [26] :

[I]f economic loss is to be compensated its inherent capacity to manifest itself at several removes from the direct detriment inflicted by the defendant's carelessness makes reasonable foreseeability an inadequate control mechanism. [NAME[NAME] is properly to be understood as a case in which damages for pure economic loss were held to be recoverable when they were suffered as a result of the plaintiff's reliance on a statement made by a defendant who had undertaken to the plaintiff, by reason of the relationship between them, to exercise reasonable care in making the statement. The assumption of responsibility by the [NAME] in [NAME[NAME] was a characteristic of the conduct to which a plaintiff's economic loss had to be causally related through inducement and reliance [27] , not an element that exhausted the circumstances in which damages for economic loss could be recovered. In my respectful opinion, [NAME[NAME] is one type of case in which damages for pure economic loss can be recovered but it does not deny the possibility of recovery in [NAME] types of case. 1. [NAME] (1976) 136 CLR 529 at 555-556, 575-579, 591-593, 606 and cf 597. 2. [COMPANY] v [NAME] (1976) 136 CLR 529 at 573-574 3. [COMPANY] v The Minister (1986) 162 CLR 340 at 366-367

The objection that no claim for damages for economic loss lies in negligence unless it is in respect of damage to an existing right or interest is, in my opinion, erroneous. True it is that a plaintiff who has no existing right or interest that is adversely affected by a defendant's carelessness may suffer no loss and hence have no foundation for a claim in negligence. But it does not follow that it is only in contract that damages may be recovered for loss of something to which the plaintiff has no prior legal right. A benefit that a plaintiff would have received but for the negligence of the defendant is a loss, whether or not the benefit would have been gratuitous. So far as the element of causation is concerned, it is sufficient if the links between the negligent act or omission of the defendant and the plaintiff's loss of the benefit are established [28] . Cases of the present kind are not concerned with the loss of a spes successionis; compensation is sought for the loss of the property which, but for the negligence of the defendant, the plaintiff would have taken. The loss of that property is economic loss of which the law of tort takes cognisance.

1. [NAME] v [NAME] NL (1994) 179 CLR 332 at 362

It follows that the principal conceptual difficulties in the way of allowing the claim of an [NAME] are without substance. The lesser difficulties which [NAME] [NAME] stated in [NAME] v [NAME] can be dismissed for the reasons which his Lordship gave [29] . The case then falls for consideration in accordance with the principles of the general law of negligence.

1. [NAME] [1995] 2 AC 207 at 257-258

By accepting [NAME]'s retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a [NAME] on death to an [NAME]; it is foreseeable that, if reasonable care is not exercised in performing the task, [NAME] will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with; and [NAME] thereby loses the property. The elements, additional to the elements required by [NAME] v [NAME] in claims for physical damage, which prevent a case of this kind from being a precedent for claims of indeterminate liability for economic loss [30] are twofold: the claim can be made only by an [NAME] in respect of an [NAME] testamentary gift and the duty of care owed by the solicitor to the [NAME] is in the performance of the work in which he owes a corresponding duty — albeit contractually — to [NAME]. It is immaterial, of course, that the negligent act or omission which causes the loss occurs during the lifetime of [NAME] and the plaintiff's loss is suffered on or after [NAME]'s death.

1. [NAME] (1986) 162 CLR 340 at 353-354.

In [NAME] v [NAME] [31] , [NAME] [NAME] stated the principle under which the majority allowed the plaintiff's claim in negligence. He said:

In my opinion, therefore, your Lordships' [NAME] should in cases such as these extend to [NAME] a remedy under the [NAME[NAME] principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to [NAME] who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his [NAME] legacy in circumstances in which neither [NAME] nor his estate will have a remedy against the solicitor. Such liability will not of course arise in cases in which the defect in the will comes to light before the death of [NAME], and [NAME] either leaves the will as it is or otherwise continues to exclude the previously [NAME] from the relevant benefit. Although, in my respectful opinion, his Lordship's statement describes the loss which may found a claim in negligence by an [NAME], I would not regard the principle underlying recovery against the solicitor as being an extension of the [COUNSEL[NAME] assumption of responsibility. The [NAME] category of case depends upon an assumption of a duty of care as a factual element in the relationship between the plaintiff and defendant. In cases of the present kind, there is no anterior relationship between solicitor and [NAME] and the duty of care is imposed by law. 1. [1995] 2 AC 207 at 268.

I would therefore hold [NAME] [NAME] liable in damages to [NAME] [NAME]. I would dismiss the appeal.

[NAME[NAME].

The question to be determined in this appeal is whether a person deprived of a bequest by the carelessness of a solicitor in attending to the execution of a will may recover damages for negligence from the solicitor.

[NAME], [NAME] [COUNSEL], died on 8 May 1991. She was a widow who, during her lifetime, had become friendly with her neighbours, Mr and [NAME] [NAME]. Some time after her husband's death in 1988, [NAME] [NAME] told Mr [NAME] that she wanted to make a will and asked him to get a solicitor for her. Mr [COUNSEL] contacted [NAME] [COUNSEL], a solicitor practising in the same suburb, and asked her to see [NAME] [NAME]. [NAME] [NAME] did so and, in accordance with [NAME] [NAME] instructions, prepared a will which [NAME] [NAME] executed. By this time [NAME] [NAME] was aware of the existence of [NAME] [NAME] and that Mr [NAME] was her husband.

Subsequently, [NAME] [NAME] wanted to change the will and, again through Mr [NAME], had [NAME] [NAME] call on her. [NAME] [NAME] prepared a new will in accordance with [NAME] [NAME] instructions and returned on 7 December 1990 to have it executed by her. Under this will [NAME] [NAME] was a [NAME], being left property to the value of $163,471.50. [NAME] [NAME] signed the will which was attested and subscribed by [NAME] [NAME]. A second witness is required by s 9 of the Succession Act 1981 Q to attest and subscribe a will, and [NAME] [NAME] requested Mr [NAME] to fulfil that requirement. He did so. Later, both [NAME] [NAME] and Mr [NAME] told [NAME] [NAME] that she was a [NAME] under the will and informed her of the nature and extent of the bequest. [NAME] [NAME] [NAME] did nothing either to secure or to confirm her position as a [NAME].

[NAME] [NAME] death, it became apparent that the bequest to [NAME] [NAME] was null and void under s 15(1) of the Succession Act because it was in favour of the spouse of a person who attested the execution of the will. Being deprived of her bequest, [NAME] [NAME] sued [NAME] [NAME] for damages for negligence in the District Court. [NAME] [NAME] was successful in her action and in an appeal by [NAME] [NAME] to the [ADDRESS] of Appeal. [NAME] [NAME] now appeals to this Court.

[NAME] [NAME] does not contest that her failure to have the will attested by someone [NAME] than Mr [NAME] constituted negligent conduct but asserts that her only duty of care was to [NAME] [NAME], by whom she was retained. She denies that she was under any duty of care to the [NAME], [NAME] [NAME]. The value of the property which [NAME] [NAME] attempted to bequeath to [NAME] [NAME] is not in dispute. Thus the sole question in this appeal is whether, in drawing up the will and attending to its execution, [NAME] [NAME] owed a duty of care to [NAME] [NAME].

[NAME] [NAME] owed a duty of care to [NAME], [NAME] [NAME], and it was a duty both in contract and tort. The view that the relationship between solicitor and client is governed exclusively by the contract of retainer and leaves no room for liability in tort on the part of the solicitor was never based upon a [NAME] foundation and is no longer accepted [32] . Of course, if during her lifetime [NAME] had attempted to sue her solicitor for negligence, she could at most have recovered the cost of the preparation and execution of a new will or the re-execution of the existing one. Likewise, had her estate attempted to sue the solicitor after her death it could have recovered no more than nominal damages because it suffered no loss by reason of the solicitor's negligence. The property which would have passed to [NAME] [NAME] fell into the residue of the estate and passed to [NAME] [COUNSEL] son. But so far as the solicitor's liability in contract is concerned, it did not extend to [NAME] [COUNSEL]. She had no contract with the solicitor and it is not suggested that the law would recognise any jus quaesitum tertio in the present circumstances [33] .

1. [NAME] v [NAME] (1988) 164 CLR 539 [COMPANY] v [NAME], Stubbs & Kemp [1979] Ch 384 [NAME] v [NAME] [1980] Ch 297 [NAME] v [COMPANY] [1995] 2 AC 145 [NAME] [1995] 2 AC 207cf [NAME] v [NAME] (1861) 4 Macq 167 Groom v Crocker [1939] 1 KB 194 2. cf [COMPANY] v [COMPANY] (1988) 165 CLR 107

The existence of a duty of care in negligence on the part of a solicitor to an [NAME] under a will has, since the decision of [NAME] [NAME] [NAME] in [NAME] v [NAME] [34] , been the subject of some controversy. That case decided, contrary to the decision of the [NAME] in [NAME] v [NAME] [35] , that a solicitor may be liable to a [NAME] who fails to receive an [NAME] bequest under a will by reason of the solicitor's negligence. The [NAME]'s reason for not following [NAME] v [NAME] was that it had been superseded by [NAME] v [NAME] [36] and subsequent cases based upon that decision. In [NAME] [37] the [ADDRESS] of the Supreme Court of Victoria declined to follow [NAME] v [NAME] , and there has been a slight indication of a similar view in [NAME] Wales [38] , but otherwise the trend in the cases has been in the opposite direction. In England this culminated in [NAME] [39] where the [NAME] held that a solicitor was liable to a [NAME], not upon the basis of [NAME] v [NAME] , but upon principles to be found in authorities such as [NAME] v [NAME] [40] and [COMPANY] v [COMPANY] [41] which deal with liability in negligence. In New Zealand, the Court of Appeal applied [NAME] v [NAME] in [NAME] v [NAME], Young & Ellis [42] , and in Canada [43] and the United States [44] the tendency has been to allow damages to an [NAME] deprived of a bequest by negligence in the preparation or execution of a will. In Australia, a duty on the part of a solicitor to an [NAME] has been recognised in Western Australia [45] and is supported by dicta in Tasmania [46] . Comments by [NAME[NAME] in [NAME] v [NAME] [47] are consistent with the existence of such a duty.

1. [1980] Ch 297. 2. (1861) 4 Macq 167. 3. [1932] AC 562. 4. [1982] VR 193. 5. [COMPANY] v [NAME] & [COMPANY] [1983] 3 NSWLR 221 at 231 6. [1995] 2 AC 207. 7. [1914] AC 932. 8. [1964] AC 465. 9. [1983] NZLR 37; cf First City Corporation [COMPANY] v [COMPANY] [1990] 3 NZLR 265 at 275 10. See, eg, [NAME] v [NAME] (1978) 88 DLR(3d) 353; [NAME] v [NAME] (1990) 49 BCLR(2d) 245; [NAME] v [NAME] (1991) 57 BCLR(2d) 391 (but see (1993) 77 BCLR (2d) (xxxi)); Smolinski v Mitchell [1995] 10 WWR 68 11. See, eg, Biakanja v Irving (1958) 320 P 2d 16; Lucas v Hamm (1961) 364 P 2d 685; Licata v Spector (1966) 225 A 2d 28; [NAME] v [NAME] (1983) 331 NW 2d 325; Hale v Groce (1986) 730 P 2d 576; Walker v Lawson (1987) 514 NE 2d 629; cf Viscardi v Lerner (1986) 510 NYS 2d 183; Spivey v Pulley (1988) 526 NYS 2d 145; Deeb v Johnson (1991) 566 NYS 2d 688. 12. [NAME] v [NAME] [1980] WAR 97 at 100-103 13. See Finlay v Rowlands [1987] Tas R 60 at 63-64 14. (1988) 164 CLR 539 at 581.

As I have said, in [NAME] v [NAME] [48] the [NAME] reached his conclusion that the solicitor in that case owed a duty of care to a [NAME] by applying [NAME] v [NAME] [49] . However, in [NAME] [50] it was thought that [NAME] v [NAME] did not provide the test which would identify the duty of care, if any, in that situation. Not all foreseeable injuries are compensable in negligence although [NAME] v [NAME] established one category which was. It established that a [NAME] owed a duty of care to the consumer of those products to avoid foreseeable injury to the consumer. In establishing that category, [NAME] [NAME] enunciated the famous neighbourhood principle which, whilst helpful in identifying [NAME] categories of negligence, does not provide any comprehensive guide. The foreseeability of harm, whilst an essential ingredient of the tort of negligence, is not enough by itself to give rise to a duty of care, at all events in cases not involving ordinary physical damage to persons or property. In [NAME] words, it does not set the limits of the tort of negligence: there are situations which lie outside the boundaries of compensable damage even though harm may be reasonably foreseeable.

1. [1980] Ch 297. 2. [1932] AC 562. 3. [1995] 2 AC 207.

The most significant of those situations is where the damage is not physical injury or loss flowing from physical injury to a person or property, but consists of nothing more than economic loss. The law was compelled to recognise that in that situation, although the damage may have been foreseeable, it could not impose liability in every case. As [NAME[NAME] said in [NAME] v [NAME] [51] :

If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition [52] , sterilise many contracts and, in the well-known dictum of Chief Judge Cardozo [53] , expose [NAME] to potential liability "in an indeterminate amount for an indeterminate time to an indeterminate class". So the law set about defining categories of cases of pure economic loss where, without imposing indeterminate liability or destroying commercial competition, it could recognise the existence of a duty of care, the breach of which would sound in damages. The most significant case is, perhaps, [COMPANY] v [COMPANY] [54] in which the [NAME] held that loss caused by a negligent misstatement might give rise to liability in damages, but only where there was an express or implied assumption of responsibility on the part of the person making the statement and reliance placed upon [NAME]'s skill and judgment by the person to whom the statement was made. In [NAME] words, liability for pure economic loss was recognised in the case of a negligent misstatement, but only for the breach of a duty of care arising out of a particular relationship between the parties. 1. (1995) 182 CLR 609 at 632. 2. [NAME] v Home Office [1970] AC 1004 at 1027, per [NAME]. 3. [NAME] v [NAME] (1931) 255 NY 170 at 179[174 NE 441 at 444]. 4. [1964] AC 465.

And in [NAME]) [COMPANY] [COMPANY] v [NAME] [55] this Court held that, although as a general rule damages are not recoverable for pure economic loss even where it is foreseeable, damages are recoverable where the defendant has the knowledge or means of knowledge that a particular person, not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence. Again, the particular relationship between the parties was held to give rise to a duty of care. Of note is the statement of [NAME] [56] that there was a need for "some control mechanism based upon notions of proximity between tortious act and resultant detriment".

1. (1976) 136 CLR 529. 2. [NAME] (1976) 136 CLR 529 at 574.

The notion of proximity in this context was taken up by [NAME] in [NAME] v [NAME] [57] . That was a case of injury in the form of nervous shock and fell within another category of case in which it had been held that foreseeability of damage was not of itself sufficient to impose a duty of care. [NAME], with whom [NAME] agreed, said that the relationship between the plaintiff and defendant in that case gave rise to a duty of care on the part of the defendant because it was a relationship of proximity.

1. (1984) 155 CLR 549 at 578-587.

The concept of proximity has been articulated in subsequent cases and has been accepted by this Court [58] . For instance, in [COMPANY] v The Minister [59] , a majority said:

The notion of proximity, because it limits the loss that would otherwise be recoverable if foreseeability were used as an exclusive criterion of the duty of care, is of vital importance when the plaintiff's claim is for pure economic loss. When the economic loss results from negligent misstatement, the element of reliance plays a prominent part in the ascertainment of a relationship of proximity between the plaintiff and the defendant, and therefore in the ascertainment of a duty of care. But when the economic loss results from a negligent act or omission outside the realm of negligent misstatement, the element of reliance may not be present. It is in this sphere that the absence of reliance as a factor creates an additional difficulty in deciding whether a sufficient relationship of proximity exists to enable a plaintiff to recover economic loss.

1. See, in particular, Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 441, 461-462, 471, 495-498; [NAME] v [COMPANY] (1986) 160 CLR 16 at 30, 49-53; [COMPANY] v The Minister (1986) 162 CLR 340 at 355 Cook v Cook (1986) 162 CLR 376 at 381-382 Burnie Port Authority v [COMPANY] (1994) 179 CLR 520 at 542-543 [NAME] (1995) 182 CLR 609 at 617-618656. 2. (1986) 162 CLR 340 at 355.

The notion of proximity was advanced by [NAME[NAME] to describe in general terms the element in a relationship which would give rise to a duty of care where mere foreseeability of harm was insufficient for that purpose and to provide a unifying conceptual determinant to assist in ascertaining what the content of that element was in any given category of case. Perhaps the attempt was an ambitious one, because the assumption would seem to be that there is a common element in each such relationship and that it can adequately be described as proximity. In [NAME] v [NAME] [60] [NAME[NAME] suggested that the concept "involves the notion of nearness or closeness", but the features of a relationship which gives rise to a duty of care do not always answer the description of nearness or closeness. Likewise, some relationships which would as a matter of language be thought proximate nevertheless do not constitute relationships of proximity [61] . That is because, as [NAME[NAME] recognised in [NAME] v Coffey [62] , the identification of the particular requirements of proximity in developing areas of the law is not divorced from the considerations of [NAME] policy which underlie and enlighten the concept. But if considerations of policy underlie and enlighten the concept of proximity, and if nearness and closeness are neither sufficient nor necessary to establish a relationship of proximity in all cases, then it cannot be said that any unifying common element has emerged which can adequately be described as proximity. That is why in [NAME] v [NAME] I said that [NAME] went too far in [NAME] v [COMPANY] [63] when he said that "the notion of proximity can be discerned as a unifying theme explaining why a duty to take reasonable care to avoid a reasonably foreseeable risk of injury has been recognised as arising in particular categories of case".

1. (1984) 155 CLR 549 at 584. 2. [NAME] v [NAME] (1991) 172 CLR 243 3. (1984) 155 CLR 549 at 585. 4. (1986) 160 CLR 16 at 52.

To the extent that the joint judgment in Burnie Port Authority v [COMPANY] [64] , to which I was subsequently a party, proceeds along similar lines, it would seem to go too far. I have in mind in particular the statement that without proximity as a "general conceptual determinant and the unifying theme" [65] of the categories of case in which a duty of care arises [66] ,

the tort of negligence would be reduced to a miscellany of disparate categories among which reasoning by the legal processes of induction and deduction would rest on questionable foundations since the validity of such reasoning essentially depends upon the assumption of underlying unity or consistency. Reasoning by analogy from decided cases by the processes of induction and deduction, informed by rather than divorced from policy considerations, is not, in my view, dependent for its validity on those cases sharing an underlying conceptual consistency. It is really only dependent upon the fact that something more than reasonable foreseeability is required to establish a duty of care and that what is sufficient or necessary in one case is a guide to what is sufficient or necessary in another. 1. (1994) 179 CLR 520.

2. Burnie Port Authority (1994) 179 CLR 520 at 543 (a quotation from the judgment of [NAME[NAME] in [NAME] v [COMPANY] (1986) 160 CLR 16 at 53).

3. Burnie Port Authority (1994) 179 CLR 520 at 543.

Nevertheless, and notwithstanding the criticism of the concept by Brennan J [67] , whose approach has found favour in the [NAME] [68] , I retain the view which I expressed in [NAME] v [NAME] [69] that the requirement of proximity is at least a useful means of expressing the proposition that in the law of negligence reasonable foreseeability of harm may not be enough to establish a duty of care. Something more is required and it is described as proximity. Proximity in that sense expresses the result of a process of reasoning rather than the process itself [70] , but it remains a useful term because it signifies that the process of reasoning must be undertaken. But to hope that proximity can describe a common element underlying all those categories of case in which a duty of care is recognised is to expect more of the term than it can provide.

1. [COMPANY] v The Minister (1986) 162 CLR 340 at 368 [NAME] v [NAME] (1988) 164 CLR 539 at 555-556 [NAME] v [NAME] (1991) 172 CLR 243 at 260-263 [NAME] (1995) 182 CLR 609 at 652-653 2. [COMPANY] v [NAME] [1990] 2 AC 605 at 618, 633-634. 3. (1991) 172 CLR 243 at 276. 4. [COMPANY] v [NAME] [1990] 2 AC 605 at 632-633 [NAME] v [COMPANY] [1995] 2 AC 296 at 343-344 [NAME] v [NAME] (1992) 91 DLR(4th) 289 at 344, 387.

Both the approach suggested by [NAME] based on proximity, and that suggested by [NAME[NAME], namely "that the law should develop novel categories of negligence incrementally and by analogy with established categories" [71] , posit an overall framework but are not specific propositions of law [72] . When the content of proximity falls to be ascertained in a novel category of case, that is to say, when one engages in the process of reasoning signified by that term, then as [NAME] pointed out in [NAME] v [COMPANY] [73] , one proceeds in accordance with accepted modes of legal reasoning, particularly reasoning by analogy from decided cases. Indeed, although this Court has adopted the approach suggested by [NAME[NAME], the reasoning it has employed in formulating the particular requirements of proximity in a novel category is, in my view, similar to that suggested by [NAME] and does not reflect a unifying theme. [NAME] himself had those similarities in mind when he said in [COMPANY] v The Minister [74] that:

The propositions of law which express the appropriate limitations for each class will be devised having regard, no doubt, to factors of the kind to which [NAME[NAME] referred in Sutherland Shire Council [75] .

1. Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 481 2. cf [NAME] v [NAME] (1988) 164 CLR 539 at 555, per Brennan J. 3. (1986) 160 CLR 16 at 52. 4. (1986) 162 CLR 340 at 369. 5. (1985) 157 CLR 424 at 497-498.

Thus the difference between the approach based on proximity and that suggested by Brennan J is, in my view, far less than the protracted debate on the subject would suggest, and is, perhaps, more a difference of labelling than one of substance. Reasonable foreseeability of harm does not, of itself, always give rise to a duty to take care. Something more is required according to the category of the case in question, and that something more is called proximity. Where a new category is suggested, regard should be had in the first place to the established categories which may be helpful by way of analogy in determining whether to recognise a duty of care. That is how incremental development takes place [76] . The process is affected by relevant policy considerations, such as the need to avoid indeterminate liability or the placing of impediments in the way of ordinary commercial activity. It is also important that the tort of negligence should not be regarded as providing an all-enveloping remedy, supplanting "[NAME] torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic loss" [77] . In the end, policy considerations will set the outer limits of the tort. As [NAME] [NAME] said in [COMPANY] v [COMPANY] [78] :

How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts' assessment of the demands of society for protection from the carelessness of others. 1. [NAME] v Home Office [1970] AC 1004 at 1058-1059, per [NAME]. 2. [COMPANY] v First City Corporation [COMPANY] [1993] AC 295 at 316 3. [1964] AC 465 at 536.

Sometimes the question of proximity will turn upon the nature of the conduct which caused the damage — such as negligent misstatement or a failure to act — as well as the type of damage suffered — nervous shock or economic loss, for example. However, in this case nothing would appear to turn upon the nature of the conduct which constituted carelessness on the part of the solicitor. In [COUNSEL] v [COUNSEL] [79] the carelessness of the solicitor was a failure to carry out his instructions within a reasonable time before the death of [NAME]. That was considered indistinguishable from the carelessness of the solicitor in [COUNSEL] v [NAME] [80] which, as in this case, was his failure to see that [NAME]'s signature was properly attested. It is with the type of loss suffered that any consideration of liability in this case must therefore begin.

1. [1995] 2 AC 207. 2. [1980] Ch 297.

In [NAME] v [NAME] [81] the Supreme Court of Victoria questioned whether an [NAME] [NAME] because of the negligence of [NAME]'s solicitor suffered any loss at all. It was said that at the time of the solicitor's negligence the only interest that [NAME] had in the bequest was an expectation, a spes successionis. There was no enforceable right or interest. That approach overlooks the fact that, in this case, upon [NAME]'s death, [NAME] [NAME] would have had an enforceable right to her bequest had it not been for the negligence of the solicitor. In this case, what [NAME] [COUNSEL] lost was no mere expectation; it was a share in [NAME]'s estate [82] . But in any event there is no rule preventing recovery of damages in tort for loss of an expectation. General damages are routinely awarded in tort for loss of future earnings or profits, which are no more than lost expectations [83] . Had the result of the solicitor's negligence in this case been discovered during the lifetime of [NAME], the will could have been re-executed by her, provided her intentions remained the same. If her intentions had altered and she no longer wished to bequeath anything to [NAME] [NAME], then [NAME] [NAME] would have suffered no loss. But there is nothing to indicate any change of intention on the part of [NAME] before her death, and the fact that the solicitor's mistake could have been rectified if it had been discovered during [NAME]'s lifetime does not mean that [NAME] [NAME] suffered no loss on [NAME]'s death [84] .

1. [1982] VR 193. 2. cf [NAME] v [NAME] [1972] 1 QB 373 at 413 3. [COUNSEL], The Solicitor and the [NAME], Law Quarterly Review, vol 109 (1993) 344, at p 346. 4. [NAME] v Church, Adams, Tatham & Co [1953] Ch 280 at 289

Whilst the loss [NAME] [NAME] has suffered is pure economic loss, the considerations which ordinarily prompt concern about imposing liability for such loss are absent. In the first place, to impose liability upon the solicitor in such a situation is not to raise the prospect of indeterminate liability. An [NAME] under a will is a specific, identifiable individual rather than a member of an unascertained class [85] . Nor is the liability to such a person at large. The maximum amount of the damages which might be awarded is fixed by the size of the [NAME] bequest. Indeed, both [NAME]'s existence and identity and the amount to which he or she is entitled will ordinarily be brought to a solicitor's attention.

1. [COMPANY] v [NAME] (1976) 136 CLR 529 at 555, 593.

Secondly, no question of competitive advantage arises. In appropriate cases that is a consideration which is relevant to the scope of the tort of negligence. As [NAME], [NAME] and Gaudron JJ said in [NAME] v [NAME] [86] :

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. In this case, the solicitor's negligence had nothing to do with her obtaining a commercial or competitive advantage and the recognition of a duty of care would not impede the legitimate pursuit of financial gain. 1. (1995) 182 CLR 609 at 618.

Thirdly, the recognition of a duty of care would not supplant or supplement remedies available in [NAME] areas and would not disturb any general body of rules constituting a coherent body of law [87] . The only areas of law which require particular attention are the law of succession and the law of contract.

1. cf [NAME] v [NAME] (1988) 164 CLR 539 at 584

It has been suggested [88] that loss such as that suffered by [NAME] [NAME] stems, not from the breach of any obligation upon the part of the solicitor, but from the operation of the law governing succession which requires a valid will to dispose of property after death. The intentions of [NAME] have been frustrated, so the line of reasoning goes, because those intentions are required to be expressed in a particular form. Because they were not, the wrong persons have benefited from [NAME]'s estate. In a sense that is true. [NAME] re-executed her will and had her signature been properly attested, her intentions would have been realised. But to say as much is to fail to get to the bottom of the matter.

1. [NAME] [1995] 2 AC 207 at 278, per [NAME]; [NAME], A Damnosa Hereditas?, Law Quarterly Review, vol 111 (1995) 357, at p 359.

In this case, the real reason why [NAME] failed to take under the will was that [NAME] did not embody her intentions in a will which complied with the requirements of the law. Those requirements may be criticised. Indeed, one may point to the absence in Queensland of a provision such as is to be found in s 12(2) of the Wills Act 1936 [COMPANY] which allows admission of a will to probate which, whilst not executed in accordance with the prescribed formalities, expresses the intentions of the deceased to the satisfaction of the Supreme Court [89] . But whatever the requirements, [NAME] retained the services of the solicitor to ensure compliance with them and it was the solicitor's failure to perform that task that resulted in loss to [NAME]. [NAME] during her lifetime and, after her death, her estate, could have sued the solicitor for breach of contract or in tort (albeit only for negligible or nominal damages) and that is because the fault did not lie in the law of succession but with the solicitor. The law relating to wills explains why the solicitor was at fault in acting as she did but in no way relieves her of responsibility for the loss which [NAME] suffered.

1. See also Wills, Probate and Administration Act 1898 NSW, s 13.

It was pursuant to the contract of retainer between [NAME] and the solicitor that the solicitor undertook to prepare the will and attend to its execution. It was an implied term of the contract that the solicitor should exercise due skill and care in carrying out her duties. The origin of the solicitor's obligations lay in contract, but that is no reason for saying that the relationship to which the contract gave rise could not form the basis of a duty or duties owed otherwise than in contract. After all, it is now clear that the solicitor owed [NAME] a duty to take care in tort as well as in contract [90] . And if the relationship between the solicitor and [NAME] gave rise to a duty of care in tort there is no reason in logic or principle why the relationship between the solicitor and [NAME] should not also do so. At any rate, there was nothing in the existence of a contract of retainer between the solicitor and [NAME] which precluded a duty of care in tort being owed to [NAME] any more than it precluded a duty of care in tort being owed to [NAME]. [NAME] v [NAME] [91] makes it clear that these duties can co-exist. In that case the Court held that the builder of a [NAME] pursuant to a contract with the original owner owed a duty of care to a subsequent purchaser with whom the builder had no contract. Breach of the duty imposed liability upon the builder for the economic loss suffered by the subsequent purchaser. Indeed, in [NAME] , unlike this case, the identity of the person who suffered the damage was unknown to the builder at the time he carried out the work.

1. [NAME] v [NAME] (1988) 164 CLR 539 [COMPANY] v [NAME], Stubbs & Kemp [1979] Ch 384 [NAME] v [NAME] [1980] Ch 297 [NAME] v [COMPANY] [1995] 2 AC 145 [NAME] [1995] 2 AC 207 2. (1995) 182 CLR 609.

It has been suggested that a difficulty arises in recognising a duty of care to a third party arising from a contract between others. The suggested difficulty is that the contract may exclude liability for negligence [92] . In that context it is useful to recall what Windeyer J said in [NAME] v Inglewood Shire Council [93] of an architect's duty to strangers to take care to avoid physical damage to them:

[N]either the terms of the architect's engagement, nor the terms of the [NAME] contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with [NAME] is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it. In different terms, the principle expressed in that passage is that a duty of care is imposed on a person who places himself in a relationship which the law will recognise as one of proximity with [NAME] persons where damage to those others is reasonably foreseeable as a consequence of careless behaviour on his part, and merely because a person has placed himself in that relationship by reason of a contract with another does not necessarily preclude a finding of proximity (although in some cases it might do so [94] ). The contract may give rise to an obligation to perform a task but the performance of the task may, in all the circumstances, give rise to a duty of care to perform it so as not to cause damage, whether of a physical or economic kind, to another. Even if one party to a contract can exclude liability to the [NAME] party for negligence in the performance of the contract but cannot do so with respect to someone who is not a party to the contract, that is no reason to deny the existence of a duty of care to that third party. A party to a contract is able to negotiate with respect to the protection of his interests whereas a third party is not in a position to do so.

1. The matter is discussed by [NAME] [NAME] in [NAME] [1995] 2 AC 207 at 294 2. (1963) 110 CLR 74 at 85. 3. [NAME] (1995) 182 CLR 609 at 621

These considerations lead me to conclude that, even though the loss suffered by a [NAME] is purely economic, there are not the same reasons to tread warily in that situation as there are in some [NAME] cases of economic loss. Indeed, as was suggested by [NAME] in [NAME] v [NAME] [95] , even though the loss suffered by a [NAME] is economic, it is suffered in circumstances which, juristically speaking, are as close to [NAME] v [NAME] [96] as they are to [COMPANY] v [COMPANY] [97] .

1. [1980] Ch 297 at 322. 2. [1932] AC 562. 3. [1964] AC 465.

In my view, the relationship between the solicitor, [NAME] [COUNSEL], and [NAME], [NAME] [COUNSEL], was one of proximity which did give rise to a duty of care on the part of [NAME] [NAME] towards [NAME] [NAME]. No single factor, such as an assumption of responsibility by the solicitor, leads me to that conclusion. The relevant circumstances are more complex than that.

A client who retains a solicitor to draw up a will and attend to its execution must ordinarily rely upon the solicitor to carry out those functions to effectuate the client's testamentary intentions. In that situation the responsibility assumed by the solicitor to the client is clearer, if anything, than it was in [COUNSEL] v [NAME] [98] where a solicitor entrusted with custody of a client's will was held to be under a duty to take reasonable steps to find the [NAME] and inform him of the existence, contents and custody of the will. In that case [NAME[NAME] identified the factors which led him to recognise a duty of care [99] :

The critical factors of the relationship between [NAME] and the [NAME] which gave it the character of a relationship of proximity with respect to economic loss of the kind sustained in the present case are those related elements which lie at the heart of the ordinary relationship between a solicitor and his client, namely, assumption of responsibility and reliance. The solicitor, as a specially qualified person possessing expert knowledge and skill, assumes responsibility for the performance of professional work requiring such knowledge or skill. The client relies upon the solicitor to apply his expert knowledge and skill in the performance of that work. In the ordinary case, the only kind of damage which is likely to result from the negligence of the solicitor in the performance of his professional work is pure economic loss. In that context, the elements of assumption of responsibility and of reliance combine with that of the foreseeability of a real risk of economic loss to give the ordinary relationship between a solicitor and his client the character of one of proximity with respect to foreseeable economic loss. In the present case, of course, the relevant parties are not solicitor and client (or, as in [NAME] v [NAME] , the client's [NAME]). The relationship here is between a solicitor attending to the preparation and execution of a will and an [NAME] under the will. Nor does this case have anything to do with the custody of a will after its execution. 1. (1988) 164 CLR 539. 2. [NAME] v [NAME] (1988) 164 CLR 539 at 578-579

To say that in this case the solicitor assumed responsibility to [NAME] may invite argument but for reasons which will appear the argument would be one over terminology rather than substance. The requirements of an assumption of responsibility and the element of reliance to which [NAME] referred in the passage I have just quoted are a means by which the law seeks to avoid undesirable consequences such as indeterminate liability, the destruction of legitimate commercial competition, or the emasculation of [NAME] bodies of legal doctrine. Where there is no threat of those undesirable consequences, the assumption of responsibility by a defendant and reliance, or request, by a plaintiff may suggest policy reasons for recognising the existence of a duty of care, although they may not be determinative. Indeed, the element of reliance may be unhelpful as an indication of a relationship of proximity in cases of economic loss which do not involve misstatement [100] . Of course, in cases involving misstatement, the element of reliance plays a prominent part not only in establishing proximity but also in establishing causation. Even in cases involving misstatement, request is "by no means essential" [101] . This is why [NAME] said in [NAME] v [NAME] [102] that in economic loss cases the requisite relationship of proximity is to be found in "some additional element or elements which will commonly (but not necessarily) consist of known reliance (or dependence) or the assumption of responsibility or a combination of the two".

1. [COMPANY] v The Minister (1986) 162 CLR 340 at 355 2. [COMPANY] v The Minister (1986) 162 CLR 340 at 357 3. (1988) 164 CLR 539 at 576; cf [COMPANY] v [NAME] & [NAME] [1994] 10 WWR 55 at 62

However, in cases such as the present one, there is both an assumption of responsibility of a kind, and reliance of a kind, which at least on grounds of policy suggest that a relationship of proximity might be recognised even though neither is in a form which would suffice in cases where those elements are crucial to a relationship of proximity. The person to whom a [NAME] wishes to make a bequest is the object of [NAME]'s intentions. The reason for engaging a solicitor to make a will is to confer benefits upon the [NAME] [103] . As [NAME] said in the Court of Appeal in [NAME] [104] :

The very purpose of the employment of the solicitor is to carry out the client's wish to confer a particular testamentary benefit on [NAME]. There is no [NAME] purpose. Thus, when a solicitor accepts responsibility for carrying out a client's testamentary intentions, he or she cannot, in my view, be regarded as being devoid of any responsibility to an [NAME]. The responsibility is not contractual but arises from the solicitor's undertaking the duty of ensuring that [NAME]'s intention of conferring a benefit upon a [NAME] is realised. In a factual, if not a legal sense [105] , that may be seen as assuming a responsibility not only to [NAME] but also to [NAME]. 1. cf [NAME] (1995) 182 CLR 609, where the relationship between a builder and a subsequent purchaser was held to be one of proximity even though it could not be said that the reason for engaging the builder was to confer a benefit on the subsequent purchaser. 2. [1995] 2 AC 207 at 222. 3. [NAME] [1995] 2 AC 207 at 273-274, per [NAME]-Wilkinson.

In the present case there was no reliance upon the solicitor by [NAME] [COUNSEL] nor did she request her to do anything for her. [NAME] [NAME] did not change her position in reliance upon anything said or done by the solicitor. It is true that [NAME] [COUNSEL] was told that she was a [NAME] under the will and took no steps to protect her position. In that way it might be said that she relied upon the solicitor to carry out [NAME]'s instructions carefully. However, I make no point of that in the present case [106] .

1. cf [NAME] [1995] 2 AC 207 at 219

What is important is the position of a solicitor as a professional person of specialised skill and knowledge. That is significant with respect to the drawing up and execution of a will because the failure to exercise due care may affect not only the interests of the client but also the interests of others whom the client has in mind as [NAME]. The interests of those others are relevantly the same as the interests of the client in that situation. Because wills are legal documents involving many technicalities, attending to their preparation and execution requires the exercise of professional skill and care. That led [NAME] [NAME] to observe in [NAME] v [NAME] [107] that:

Save in the case of those rash [NAME] who make their own wills, the proper transmission of property from one generation to the next is dependent upon the due discharge by solicitors of their duties. As a result, there is a general reliance extending beyond their clients which is placed upon solicitors in relation to the preparation and execution of wills which is at least analogous with that placed upon [NAME] authorities in relation to statutory powers of inspection. Of that situation, [NAME] in Sutherland Shire Council v [NAME] [108] said: the plaintiff's reasonable reliance will arise out of a general dependence on an authority's performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimise a risk of personal injury or disability, recognised by the [NAME] as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the [NAME] side (the authority) a realisation that there is a general reliance or dependence on its exercise of power. The notion of general reliance or dependence described by [NAME[NAME] is apt also to describe the situation in which, whilst there will usually be no specific reliance by an [NAME] upon a solicitor retained to attend to the will, [NAME]'s interests are totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor. And, it might be added, in that situation the solicitor knows of [NAME]'s dependence and in that respect may be regarded as having assumed responsibility towards [NAME]. 1. [1995] 2 AC 207 at 276. See also [NAME] v [NAME], Young & Ellis [1983] NZLR 37 at 43 2. (1985) 157 CLR 424 at 464.

The distinguishing features of a case such as this do not stop there. In such a case the solicitor's mistake is not ordinarily discoverable by anyone [NAME] than the solicitor. In the ordinary course, the only persons who have access to a will are the solicitor and the client. A client can hardly be expected to review the will for regularity and even if he or she were to do so, could hardly be expected to discover its defects. Indeed, to do so would be to engage in the very task which the solicitor was retained to perform in the first place.

Moreover, and this seems to me to be crucial, in the normal course the solicitor's error only becomes apparent after the death of the client. Upon that event, the hitherto concealed error becomes irreversible. In this respect [NAME] is particularly vulnerable and it is this aspect of the matter that led [NAME] in [NAME] v [NAME] [109] to make the telling remark that in the absence of a duty of care towards [NAME] "[t]he only person who has a valid claim has suffered no loss, and the only person who has suffered a loss has no valid claim".

1. [1980] Ch 297 at 303. See also [NAME] [1995] 2 AC 207 at 259

These circumstances distinguish the present case from others in which a solicitor has been held to owe no duty to anyone [NAME] than his client. No doubt that is the general rule [110] . Thus in [COMPANY] v [COMPANY] [111] no duty was owed to a purchaser to whom the solicitor's client was selling an underlease. In [NAME] v [NAME] [112] it was said that no duty of care was owed by a solicitor to a client's opponent in adversarial litigation. And in [NAME] v [NAME] [113] no duty was owed by a solicitor to a [NAME] under a client's will in relation to a [NAME] dealing with property during the client's lifetime.

1. See Moss v Solomon (1858) 1 F& F 342 [175 ER 756]; [NAME] v Meek (1889) 14 AC 558 [NAME] [1982] VR 193 at 203 [NAME] [1995] 2 AC 207 at 223 2. [1992] Ch 560. 3. [1988] QB 665 at 672, 675. 4. [1988] 1 WLR 881; [1988] 1 All ER 364.

Recognising a duty of care in a case such as the present one does not involve any conflict of duties on the part of the solicitor such as might occur in [NAME] situations, because the interests of the client are in all relevant respects the same as the interests of [NAME]. The interests of [NAME] exist only because of the client's intentions and in carrying out those intentions the solicitor is necessarily serving the interests of [NAME]. As [NAME] observed in [NAME] v [NAME] [114] the duty to [NAME] "far from diluting the solicitor's duty to his client, marches with it, and, if anything, strengthens it".

1. [1980] Ch 297 at 322.

For all of these reasons, I am of the view that a solicitor retained to draw up and attend to the execution of a will is in a relationship of proximity with an [NAME] under the will. That relationship gives rise to a duty to exercise reasonable skill and care in the performance of those tasks. That will be so whether or not [NAME] knows of the bequest. The duty arises from the special considerations involving testamentary dispositions which I have discussed above. There is nothing in what I have said which is [NAME] to convey the view that whenever a person's performance of a contractual obligation may, if performed negligently, injure a third party's economic interests, [NAME] owes the third party a duty of care. Nor is anything I have said [NAME] to convey the view that, [NAME] than in a case of the present kind, a solicitor owes a duty of care to persons [NAME] than his client whose interests may be affected by the solicitor's performance of his or her duties to the client. The duty of care which I would recognise in the present case arises from the particular relationship between the parties, that relationship being analogous to [NAME] relationships of proximity in which a duty of care has been held to arise. It is that which, in addition to the foreseeability of harm, provides the basis in this case for the recognition of tortious liability for negligence.

I would therefore dismiss the appeal.

[NAME[NAME].

I would dismiss this appeal for the reasons given by [NAME] with which I am in general agreement.

The only comments I wish to make relate to the place of proximity in the jurisprudence of this Court. The authorities according recognition to proximity, and they are noted by [NAME], culminate in the majority judgments of the Court in Burnie Port Authority v [COMPANY] [115] and in [NAME] [116] . Those authorities do not preclude analysis of the relationship of proximity to the duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. But, as the weight of authority stands, the general conception must be taken as controlling the circumstances which might otherwise, by application of reasonable foreseeability alone, give rise to a duty of care.

1. (1994) 179 CLR 520. 2. (1995) 182 CLR 609.

The point is made in the judgment of [NAME], [NAME] and [NAME] in [COMPANY] v The Minister [117] where their Honours said:

The notion of proximity, because it limits the loss that would otherwise be recoverable if foreseeability were used as an exclusive criterion of the duty of care, is of vital importance when the plaintiff's claim is for pure economic loss. 1. (1986) 162 CLR 340 at 355.

To speak, as was said in [NAME] [118] , of proximity as "the general conceptual determinant and the unifying theme" in liability in negligence directs attention to [NAME] [NAME] observation in [NAME] v [NAME] [119] :

And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. As [NAME] observed in [NAME]) [COMPANY] v [NAME] [120] : The articulation, through the cases, of circumstances which denote sufficient proximity will provide a body of precedent productive of the necessary certainty. Dawson J has made clear why this is so. 1. (1994) 179 CLR 520 at 543, quoting [NAME] v [COMPANY] (1986) 160 CLR 16 at 53, per [NAME]. 2. [1932] AC 562 at 580. 3. (1976) 136 CLR 529 at 575.

To say that proximity represents the general conceptual determinant and the unifying theme focuses attention on the categories of cases in which proximity has been held to exist. It is the category of cases with which proximity is concerned, rather than whether a relationship of proximity exists on the facts of a particular case. The category may be an established one; it may not.

In [COMPANY] v [COMPANY] [121] [NAME] said in relation to [NAME] v [NAME] [122] :

Now, it is not a sensible application of what [NAME] was saying for a judge to be invited on the facts of any particular case to say whether or not there was "proximity" between the plaintiff and the defendant. That would be a misuse of a general conception and it is not the way in which English law develops. [NAME] [NAME] did was to use his general conception to open up a category of cases giving rise to a special duty [NAME] v [NAME] did may be described either as the widening of an old category or as the creation of a new and similar one An existing category grows as instances of its application multiply until the time comes when the cell divides. 1. [1964] AC 465 at 524-525. And see [NAME] v Coffey (1984) 155 CLR 549 at 585 Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 497 Cook v Cook (1986) 162 CLR 376 at 387where various parts of this passage are referred to with approval. 2. [1932] AC 562.

Used in that way, there is no difficulty in treating proximity as the general conceptual determinant and the unifying theme. That does not mean that proximity of itself identifies with any precision a common element underlying all those cases in which liability in negligence has been held to exist. But the general conception does operate as a limitation on any notion that liability in negligence arises simply from a duty to avoid harm that is reasonably capable of being foreseen, at any rate in cases not involving direct physical injury or damage. It designates "a separate and general limitation upon the test of reasonable foreseeability in the form of relationships which must exist between plaintiff and defendant before a relevant duty of care will arise" [123] .

1. [NAME] v Coffey (1984) 155 CLR 549 at 584, per [NAME].

Attention is focused on established categories in which a duty of care has been held to exist; analogies are then drawn and policy considerations examined in order to determine whether the law should recognise a further category, whether that be seen as a new one or an extension of an old one. Thus in [NAME] v [NAME] the existence of a duty of care on the part of the builder to exercise reasonable care in relation to the [NAME] work to avoid a foreseeable risk of physical injury to someone who was a subsequent purchaser of the [NAME] was a starting point in a consideration of the recoverability for a particular kind of economic loss arising from inadequacies in the performance of the work. At the same time policy considerations, such as avoiding the imposition of an indeterminate liability, were examined to see whether they presented an obstacle to holding that liability existed in that type of case. And so, by the process of reasoning to which reference has been made, the builder was held liable to a subsequent purchaser for diminution in the value of the [NAME] because of inadequate footings. Seen in that way, I doubt whether the difference between an approach based on proximity and the incremental approach favoured by Brennan J in Sutherland Shire Council v [NAME] [124] is as stark as is sometimes suggested.

1. (1985) 157 CLR 424 at 481.

Dawson J has referred to the considerations which warrant imposing liability in the type of situation with which this appeal is concerned, including some assumption of responsibility on the part of the solicitor and reliance of a kind, and the absence of compelling considerations for refusing liability. I shall not repeat them. But, for the reasons advanced by his Honour, I conclude that a solicitor retained to draw up and attend to the execution of a will is in a relationship of proximity with an [NAME] under the will which gives rise to a duty to exercise reasonable skill and care in those matters. As [NAME] noted in [NAME] v [NAME] [125] , a comparable case:

The basis of the solicitor's liability to others is either an extension of the [NAME[NAME] principle or, more probably, a direct application of the principle of [NAME] v [NAME] . 1. [1980] Ch 297 at 322.

As I said at the outset, I would dismiss the appeal.

[COUNSEL[NAME].

The appellant, Ms [COUNSEL], is a solicitor. She was retained by the late [NAME] [COUNSEL] ([NAME]) to prepare and to attend on the execution of her last will and testament. [NAME] [NAME] wished to devise a one-half interest in her [NAME] and to bequeath certain items of household furniture to her friend and neighbour, [NAME] [RESPONDENT] [NAME], the respondent to this appeal. Ms [RESPONDENT] prepared a testamentary document to give effect to [NAME] [NAME] intentions and attended at her home for the purpose of witnessing its execution as her last will and testament. At the request of Ms [RESPONDENT], Mr [RESPONDENT], the respondent's husband, also witnessed the will. [NAME] [RESPONDENT] died some few months later without altering or revoking her will and, apparently, without taking any step in that regard.

Section 15 of the Succession Act 1981 Q (the Act) relevantly provides, as it has since 1981, that where a disposition of property "is, by will, made in favour of a person who attested the signing of the will, or the spouse of such person the disposition is null and void". Thus, the provisions of [NAME] [NAME] will [NAME] to benefit [NAME] [NAME] were of no effect. The property which she would otherwise have taken fell into residuary estate and passed to [NAME] [NAME] son.

On learning of the failure of the testamentary provisions [NAME] for her benefit, [NAME] [APPELLANT] brought proceedings in negligence against the appellant in the District Court of Queensland. She recovered judgment in the sum of $163,471.50, the conceded value of the property she would otherwise have taken under the will, together with interest and costs. The appellant appealed unsuccessfully to the Court of Appeal of the Supreme Court of Queensland and now appeals to this Court.

It has at all times been common ground that the appellant was not retained by [NAME] [APPELLANT], whether in relation to [NAME] [NAME] will or any [NAME] matter. Indeed, it is clear from the evidence that at the time the will was executed [NAME] [NAME] had not met Ms [NAME]. It is in this context that Ms [NAME] denies that she owed a duty of care to [NAME] [RESPONDENT]. In her defence to the respondent's plaint, Ms [RESPONDENT] also denied that [NAME] [RESPONDENT] suffered loss by reason of the failure of the testamentary provisions [NAME] for her benefit. However, this seems not to have been argued as a separate issue in the trial.

The trial judge, Judge Morley, made findings as to the circumstances in which the appellant received instructions to act for [NAME] [APPELLANT]. Those findings were to the effect that, some time after 1988, Mr [NAME] telephoned Ms [NAME] on behalf of [NAME] [NAME] requesting Ms [NAME] to visit [NAME] [NAME] at her home to take instructions with respect to her will. Ms [NAME] agreed and, when she later attended at [NAME] [NAME] home, she was received by Mr [NAME]. She attended again, some little time later, for the execution of the will. In 1990, [NAME] [NAME] wished to change her will and again requested Mr [NAME] to telephone Ms [NAME]. He did so with the result that, on or about 3 December 1990, Ms [NAME] again attended on [NAME] [NAME] and received instructions that [NAME] [NAME] wished to make provision in her will for [NAME] [NAME]. Ms [NAME] returned on 7 December with an engrossed will for execution. As earlier indicated, [NAME] [NAME] then signed the will in the presence of Ms [NAME] and Mr [NAME] as attesting witnesses.

It is not now in issue that the circumstances in which Ms [NAME] was retained by [NAME] [NAME] were such that she knew or ought to have known of the marital relationship between [NAME] [NAME], [NAME], and Mr [NAME], the attesting witness. Nor is it in issue that Ms [NAME] had a professional duty to [NAME] [NAME] to ensure that her testamentary intentions were not defeated by operation of s 15 of the Act. And although Ms [NAME] originally denied that [NAME] [NAME] suffered any loss by reason of her, Ms [NAME], failure to ensure that the intentions of [NAME] were carried into effect, that was not argued as a separate issue in this Court or in the Court of Appeal. The only matter for determination in this Court is, as it was in the Court of Appeal, whether Ms [NAME] owed a duty of care to [NAME] [NAME].

The question whether Ms [NAME] owed a duty of care to [NAME] [NAME] was determined in [NAME] [NAME] favour in the Court of Appeal on the basis that there existed a relationship of proximity between Ms [COUNSEL], as a solicitor with a professional duty to ensure that [NAME] [COUNSEL] testamentary intentions were carried into effect, and [NAME] [NAME], as the person [NAME] to benefit from her will. In approaching the matter in this way, the Court of Appeal followed the decisions of this Court which establish that a duty of care arises only if there is a relationship of proximity between plaintiff and defendant [126] . However, [RESPONDENT[NAME] has rejected the notion of proximity as a separate requirement for liability, most recently in [NAME] v [NAME] [127] . And its usefulness as a universal criterion of liability was questioned by Dawson J in [NAME] v [NAME] [128] . Thus, the arguments in this Court ranged wider than in the Court of Appeal.

1. See, eg, [NAME] v Coffey (1984) 155 CLR 549 at 583-585 Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 495 [NAME] v [COMPANY] (1986) 160 CLR 16 at 52-53 [COMPANY] v The Minister (1986) 162 CLR 340 at 355 Cook v Cook (1986) 162 CLR 376 at 381-382 [NAME] v [NAME] (1988) 164 CLR 539 at 545, 576; [NAME] v [NAME] (1991) 172 CLR 243 at 252-253 Burnie Port Authority v [COMPANY] (1994) 179 CLR 520 at 542-543 [NAME] (1995) 182 CLR 609 at 617 2. (1995) 182 CLR 609 at 652-655. 3. (1991) 172 CLR 243 at 276-280.

It is well settled that where, as here, a plaintiff sues in negligence to recover pure economic loss — "financial loss which is not "causally consequent" upon physical injury to the plaintiff's own person or property" [129] — he or she must establish more than the foreseeability of loss. As earlier indicated, the focus of this Court in that regard has been directed to the relationship of proximity and it has been said authoritatively that "the categories of case in which the requisite relationship of proximity with respect to mere economic loss is to be found are properly to be seen as special" [130] .

1. [NAME] (1995) 182 CLR 609 at 657, per Toohey J, referring to [NAME], Economic Negligence, 2nd ed (1989), p 1. 2. [NAME] (1995) 182 CLR 609 at 619See also [NAME] v [NAME] (1988) 164 CLR 539 at 576

The need for a special relationship in cases of pure economic loss derives from two policy considerations. The first is the need "to avoid the imposition of liability "in an indeterminate amount for an indeterminate time to an indeterminate class" " [131] . The [NAME] is 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 may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage" [132] . Neither consideration applies in this case. Liability, if it exists, is confined to [NAME] [NAME], and it is liability in a definite amount which was ascertained or, at least, was ascertainable within a short time of [NAME] [NAME] death. Moreover, the duty asserted by [NAME] [NAME] is co-extensive with the duty owed to [NAME] [NAME] and, on that account, must be viewed as not inconsistent with community standards as to what is legitimate in the pursuit of a personal advantage.

1. [NAME] (1995) 182 CLR 609 at 618referring to [NAME] v [NAME] (1931) 255 NY 170 at 179[174 NE 441 at 444], per Chief Judge Cardozo. See also [COMPANY] v [NAME] (1976) 136 CLR 529 at 568, 591; Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 465 2. [NAME] (1995) 182 CLR 609 at 618See also [NAME] v Coffey (1984) 155 CLR 549 at 578 Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 503

Quite apart from any consideration of proximity, the recognition of a duty of care on the part of a solicitor to an [NAME] whose interests (in the sense of rights he or she would otherwise have acquired) are defeated by the solicitor's negligent failure to carry a [NAME]'s instructions into effect would bring the law of this country into line with the weight of authority in [NAME] common law countries.

Despite the statement by [NAME] [NAME] in [NAME] v [NAME] [133] that it "[was] not the law of Scotland, nor of England, and it [could] hardly be the law of any country where jurisprudence has been cultivated as a science" that a [NAME] legatee can sue the solicitor employed by a [NAME] if the will is void for not being properly signed and attested, it was later held in [NAME] v [NAME] [134] that that was, in truth, the law of England [135] . However, the decision in that case was reached by the two-stage approach adopted by the [NAME] in [NAME] v Merton London Borough Council [10] . On that approach it was necessary, at the first stage, to determine whether there was a sufficient relationship of proximity to establish a prima facie duty of care. The second stage involved a consideration of policy issues to determine whether the duty should be excluded [11] .

1. (1861) 4 Macq 167 at 177. 2. [1980] Ch 297. 3. Note that in Scotland, the [NAME] of the Court of Session has held that it is bound by [NAME] v [NAME] ; see [NAME] v J M Hodge & Son [1990] SLT 266 [NAME] v [NAME]'s Executors [1994] SLT 1178 4. [1978] AC 728. 5. [NAME] [1978] AC 728 at 751-752

The two-stage approach adopted in [NAME] was later rejected by the [NAME] in favour of what is generally considered to be a more stringent proposition, namely, that the law will develop novel categories of negligence "incrementally and by analogy with established categories" [12] — a proposition earlier advanced in this Court by Brennan J in Sutherland Shire Council v [NAME] [13] . Recently, the [NAME], proceeding on the "incremental" approach, affirmed in [NAME] [14] that a solicitor is under a duty of care to an [NAME] whose interests are defeated as a result of the solicitor's negligence.

1. [COMPANY] v [NAME] [1990] 2 AC 605 at 618, per [NAME] of Harwich, citing Brennan J in Sutherland Shire Council v [NAME] — see n 14. See also [NAME] v [COMPANY] [1995] 2 AC 145The [NAME] approach continues to be followed in New Zealand: see, eg, [NAME] v Heathcote County Council [1986] 1 NZLR 76 [COMPANY] v [COMPANY] [1992] 2 NZLR 282which was applied in Invercargill City Council v Hamlin [1994] 3 NZLR 513(upheld in the Privy Council [1996] AC 264). It has also been followed to some extent in Canada: see, eg, City of Kamloops v Nielsen (1984) 10 DLR(4th) 641; [NAME] v [COMPANY] (1992) 91 DLR(4th) 289. See also [NAME] v [NAME] (1992) 92 DLR(4th) 403 at 430. 2. (1985) 157 CLR 424 at 481. See also [NAME] v [NAME] (1988) 164 CLR 539 at 556 3. [1995] 2 AC 207.

As noted by [NAME] [NAME] [NAME] in [NAME] [15] , it has been held in New Zealand, in [NAME] v [NAME], Young & Ellis [2] , that a solicitor is under a duty of care to an [NAME] whose [NAME] interest is lost as a result of the solicitor's negligence. His Lordship also observed that the law appeared to be developing in the same direction in Canada [3] , his observations in this regard having been confirmed, to some extent, by the subsequent decision of the Supreme Court of British Columbia in Smolinski v [NAME] [4] . Moreover, as was also observed in [NAME] v [NAME] , "the trend appears to be moving strongly in favour of liability" in the United States [5] .

1. [1995] 2 AC 207 at 255. 2. [1983] NZLR 37. 3. [NAME] [NAME] cited [NAME] v [NAME] (1990) 49 BCLR(2d) 245 and [NAME] v [NAME] (1991) 57 BCLR(2d) 391 (note that this case has been reversed by the Court of Appeal although its reasons do not appear to have been reported — see (1993) 77 BCLR (2d) (xxxi)). 4. [1995] 10 WWR 68. 5. [NAME] [1995] 2 AC 207 at 255See also the materials there referred to, namely, [NAME], "What constitutes negligence sufficient to render attorney liable to person [NAME] than immediate client" (1988) 61 ALR (4th) pp 464, 473-475; American Law Institute, Restatement of the Law, Third, The Law Governing Lawyers, Tentative Draft No 7 (7 April 1994) p 16, par 73(3) and the cases cited in the Reporter's Note under par 73.

Policy considerations also favour the recognition of a duty of care on the part of solicitors in cases such as the present. As [NAME] [NAME] pointed out in [NAME] v [NAME] , the proper transmission of property from one generation to the next is, as a general rule, "dependent upon the due discharge by solicitors of their duties" [6] . The same point was made by [NAME] in [NAME] when he observed that "[i]n practice the [NAME] relies on solicitors (or statutory officers with similar functions) to prepare effective wills" [7] .

1. [NAME] [1995] 2 AC 207 at 276 2. [NAME] [1983] NZLR 37 at 43

There is also the consideration that, unless there is a duty of the kind presently in question and if, as is usually the case, the defect is not discovered until [NAME]'s death, "the only persons who might have a valid claim (ie, [NAME] and his estate) have suffered no loss, and the only person who has suffered a loss (ie, the [NAME]) has no claim" [8] . Thus, the recognition of a duty of care to an [NAME] not only promotes the proper transmission of property but also promotes the proper performance by solicitors of their professional duty to those who employ them to give effect to their testamentary intentions.

1. [NAME] [1995] 2 AC 207 at 259, per [NAME], referring to [NAME] v [NAME] [1980] Ch 297 at 303, per [NAME] [NAME].

A further and more pragmatic consideration in favour of the recognition of a duty of care on the part of solicitors is that, as a result of the decision in [NAME] v [NAME]) [9] , a remedy has been allowed to [NAME] in Western Australia for several years, apparently without problem. A similar consideration was taken into account in [NAME] v [NAME] [10] , it being observed by [NAME] [NAME] of [NAME] that the decision in [NAME] v [NAME] had been applied in the United Kingdom for fifteen years without apparent problems in practice.

1. [1980] WAR 97. See also Finlay v Rowlands, Anderson & [NAME] [1987] Tas R 60where [NAME] v [NAME] [1980] Ch 297was accepted as correct. 2. [1995] 2 AC 207 at 255.

The position in Victoria is different from that established by the course of judicial decision in Western Australia. In [NAME] v [NAME] [11] , the Supreme Court of Victoria held in a majority decision (Lush and Murphy JJ, [COUNSEL[NAME] dissenting) that a solicitor does not owe a duty of care to an [NAME]. The reasoning in that case placed emphasis on the contractual relationship between solicitor and [NAME], it being said by [COUNSEL[NAME] [12] .

A contract is not a one-sided matter. The solicitor undertakes to perform his side of a bargain and the client undertakes to perform his. To say that the solicitor is, apart from his contractual duties, bound also by some superimposed duty of care arising, irrespective of the terms, express or implied, of his contract, appears to me to be unwarranted, for it runs counter to the law of contract. His Honour also indicated that, in his view, the recognition of liability to an [NAME] involved "the introduction, through the back door, of a jus quaesitum tertio" [13] . Lush J expressed similar concerns, albeit that they were stated in terms of a solicitor's duty to his or her client. Thus, his Honour noted that, in that case, "[t]he content of the [solicitor's] duties was entirely within the control of [NAME]" [14] . He also observed that there were serious difficulties in "the concept that a solicitor may owe a duty of care to any person [NAME] than his client in the discharge of his client's instructions", adding that "[t]he result might well be the existence of conflicting duties" [15] . 1. [1982] VR 193. 2. [NAME] [1982] VR 193 at 212See also at 198-199, per Lush J. 3. [NAME] [1982] VR 193 at 209 4. [NAME] [1982] VR 193 at 199 5. [NAME] [1982] VR 193 at 199

The concerns expressed in [NAME] v [NAME] must yield to later developments in the law. In particular, they must yield to the recognition by this Court in [NAME] v [NAME] [16] and in [NAME] v [NAME] [17] that a party to a contract may owe a third party an additional or concurrent duty in tort. That is not to say that contractual duties are irrelevant to a consideration of proximity or the content of a duty of care owed by the contracting party. The relevance of a contractual relationship was expressed in [NAME] in these terms [18] :

In some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity either between the parties to the contract or between one or both of those parties and a third person. In [NAME] circumstances, the contents of a contract may militate against recognition of a relationship of proximity under the ordinary law of negligence or confine, or even exclude the existence of, a relevant duty of care. 1. (1988) 164 CLR 539. 2. (1995) 182 CLR 609 at 620-622. See also [NAME] v Inglewood Shire Council (1963) 110 CLR 74 at 84 3. [NAME] (1995) 182 CLR 609 at 621

One way in which the terms of a contract may impact upon tortious liability was indicated by the Supreme Court of Canada in [COMPANY] v [NAME] , it being said in that case that "[a] concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual limitation of liability" [19] . And in my view, a contract between solicitor and client obliging the solicitor to act in the client's interests and contrary to those of a third party excludes any relationship of proximity between the solicitor and the third party. Similarly in my view, there can be no duty of care owed to a third party if the duty asserted is inconsistent with the duty owed to the client or if the solicitor is obliged to act exclusively in his or her client's interests [20] .

1. [COMPANY] (1986) 31 DLR (4th) 481 at 522; [1986] 2 SCR 147 at 206. 2. [NAME] [1995] 2 AC 207 at 231, per [NAME] LJ and at 239, per Steyn LJ. See also Smolinski v Mitchell [1995] 10 WWR 68 at 88

In [NAME] v [NAME] , one [NAME] matter was viewed by Murphy J as dictating the conclusion that a solicitor does not owe a duty of care to an [NAME]. His Honour was of the view that, as the [NAME] in that case had only a spes successionis, they were to be equated with volunteers and, thus, "the loss of [the] testamentary gift [did] not fall into any category of legally recognised damage" [21] . Seemingly, this was the matter [NAME] to be raised by the appellant's denial that [NAME] [APPELLANT] suffered any loss. As loss or damage is an essential element of the action in tort, it is necessary that this issue be considered, notwithstanding that it has not been the subject of separate argument.

1. [NAME] [1982] VR 193 at 222

Once it is accepted, as it is by the appellant in this case, that but for negligence on the part of a solicitor, a person would have benefited under the will of a [NAME], the would-be [NAME]'s loss is not properly treated as the loss of a mere spes successionis. To determine what has been lost, it is necessary to look to the situation as it would have been had there been no negligence. And when viewed in that way, it is apparent that [NAME] has lost a legal right, namely, the right to have [NAME]'s estate properly administered in accordance with the terms of the will. There is nothing novel in the imposition of liability in tort for the loss or impairment of a legal right.

Discussion of tortious liability for pure economic loss often begins with [COMPANY] v [COMPANY] [22] . The notions of "assumption of responsibility" and "reliance", as indicative either of a relationship of proximity or of liability in negligence for pure economic loss derive from that case [23] . However, it is in my view wrong to consider questions of liability for pure economic loss in isolation from older established torts dealing with economic loss, particularly the tort of interference with contractual rights identified in [NAME] v [NAME] [24] . That tort was recognised without undue regard to the fact that it was concerned with economic loss. To that extent, it is no different from trespass, conversion, detinue and slander of title which, as I pointed out in [NAME] v [NAME] [25] , are directly concerned with the protection of legal rights.

1. [1964] AC 465. 2. [NAME[NAME] [1964] AC 465 at 486-487, 502-503, 529-530. 3. (1853) 2 El & Bl 216 [118 ER 749]. See also, eg, Northern Territory v Mengel (1995) 185 CLR 307 at 341-344 4. (1988) 164 CLR 539 at 594.

The torts to which reference has just been made are intentional torts and, thus, are not directly comparable with negligence. However, they are significant in this respect: they illustrate that where, as here, the question is that of liability for the loss or impairment of a precise legal right, the policy questions which necessitate that there be a special relationship of proximity in cases of pure economic loss do not arise. No question arises as to the possibility of liability in an indeterminate amount for an indeterminate time to an indeterminate class, although as occurred in [NAME] v [NAME] , difficult questions may arise as to limitation of actions. Nor is there any question of liability for actions which, by community standards, are legitimate in the pursuit of personal advantage. It is simply not legitimate to infringe the legal rights of others. And that is so whether they are infringed intentionally or negligently.

It follows from what has been said that, in my view, where a plaintiff suffers loss or impairment of a precise legal right, the need for a special relationship of proximity is somewhat less stringent than in [NAME] cases of pure economic loss. Rather, where the interest infringed is a precise legal right, it may sometimes be appropriate to treat the loss as more closely analogous to property damage.

Although the main focus for the purposes of proximity in relation to cases of pure economic loss has been on the assumption of responsibility and on reliance, it was acknowledged in [NAME] that they are not the only criteria [26] . Moreover, there are difficulties in speaking of reliance in cases where, as here and as in [NAME] v [NAME] [27] , the plaintiff is not even aware that his or her position may be affected.

1. [NAME] (1995) 182 CLR 609 at 619See also Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 498 [NAME] v [NAME] (1988) 164 CLR 539 at 593 2. See also [NAME] [1995] 2 AC 207 at 262

The relationship in this case as between Ms [NAME] and [NAME] [NAME] is not one that is characterised either by the assumption of responsibility or reliance. Rather, what is significant is that Ms [NAME] was in a position of control over the testamentary wishes of her client and, thus, in a position to control whether [NAME] [NAME] would have the right which [NAME] clearly [NAME] her to have, namely, the right to have her estate properly administered in accordance with the terms of her will.

The importance of control as a factor in proximity and also as a factor governing the content of the duty of care is apparent in Burnie Port Authority v [COMPANY] [28] . And although [NAME[NAME] rested his judgment in [NAME] v [NAME] on assumption of responsibility and reliance [29] , it seems to me that that case is more easily explained in terms of control. Thus, there was a duty on the part of the solicitor in that case to take reasonable steps to make the contents of a will known to the named [NAME] because, as [NAME[NAME] pointed out, "the [NAME] need[ed] to know of the will and its contents before he [could] accept the office and undertake administration of the estate in accordance with the will" [30] . Or as I put it in that case, "a person in that position of control ought to have [the [NAME]] in contemplation as one affected by his failure to disclose [the contents of the will]" [31] . Moreover, control is in some respects a more stringent test than assumption of responsibility. Certainly neither law nor logic excludes it from consideration as a determinant of proximity in cases of pure economic loss.

1. (1994) 179 CLR 520 at 551. 2. [NAME] v [NAME] (1988) 164 CLR 539 at 578-579 3. [NAME] v [NAME] (1988) 164 CLR 539 at 552-553 4. [NAME] v [NAME] (1988) 164 CLR 539 at 597

I am of the view that, by reason of her position of control, in particular her position to control whether [NAME] [NAME] would acquire the right to have [NAME] [NAME] estate properly administered in accordance with the terms of her will, there was a relationship of proximity between Ms [NAME] and [NAME] [NAME] such that Ms [NAME] was under a duty of care to take reasonable steps to ensure that [NAME] [NAME] testamentary intentions were not defeated by s 15 of the Act.

As earlier indicated, there has been some criticism of proximity as a criterion of liability, it having been said, for example, by Brennan J in [NAME] v [NAME] that it lacks the "specificity of a precise proposition of law" [32] . The same may be said of the proposition that the law should develop incrementally and by analogy. Inevitably, there will be imprecision in any developing area of the common law. However, the quest must be for precision whenever possible.

1. [NAME] v [NAME] (1988) 164 CLR 539 at 555

It is in the interests of precision that I have attempted to show that the loss involved in this case is not sufficiently described as "pure economic loss". Rather, it is the loss of a precise legal right which, in turn, has resulted in economic loss. And it is a loss which occurred by reason of the negligence of a person who was in a position to control the enjoyment of that right. Again, as I have pointed out, control is a stricter requirement than assumption of responsibility.

The nature of the loss involved when a legal right is defeated or its enjoyment is impaired and the particular nature of the relationship involved when one person is in a position to control the enjoyment of another's legal right, including a right which but for the first person's act or omission would have come into existence, lead me to conclude that, subject to one qualification, it should now be held that a person in such a position owes a duty of care to the [NAME] to take reasonable steps to prevent any reasonably foreseeable loss or impairment of that right. The qualification which I would make is that the duty of care will not arise if it is inconsistent with some overriding duty, as for example occurred in [NAME] v [NAME] [33] where a duty to see to the expeditious execution of a will was inconsistent with the duty, which arose in the circumstances of that case, for the solicitor engaged by [NAME] to refer his client for independent legal advice.

1. [1995] 10 WWR 68.

The appeal should be dismissed.

[NAME[NAME].

By a grant of special leave, Ms [COUNSEL], a solicitor, appeals against an order of the Court of Appeal of Queensland upholding a judgment against her for damages for negligence in the course of her practice as a solicitor. The question in the appeal is whether a solicitor who prepares the execution of a will owes an [NAME] a duty to take reasonable care to ensure that the will is not witnessed by a spouse of [NAME] in jurisdictions where this may result in [NAME] forfeiting the gift. In my opinion, in the absence of an assumption of responsibility for [NAME]'s interest or a representation or promise to [NAME] which is relied on by [NAME], a solicitor owes no such duty of care to [NAME].

An [NAME] gift fails because a solicitor is careless

In December 1990, [NAME] [COUNSEL], [NAME], instructed Ms [COUNSEL] (the solicitor) to prepare a will for her. [NAME] [COUNSEL] wanted to leave her [NAME] to her son and [NAME] [NAME] ([NAME]), as tenants-in-common in equal shares. On 7 December 1990, [NAME] executed the will in the presence of the solicitor and [NAME]'s husband who attested the execution of the will. The solicitor had never met [NAME], but she knew that Mr [NAME] was the husband of [NAME]. Section 15 of the Succession Act 1981 Q provides that a disposition by will to the spouse of an attesting witness is void. As a result, [NAME] failed to receive the bequest that [NAME] had [NAME] to give her.

Upon these facts, [NAME] sued the solicitor for damages for negligence. At first instance, Judge Morley held that the solicitor owed [NAME] a duty of care to ensure that she received the bequest if [NAME] died without varying her will. He awarded [NAME] $163,471.50, the value of the bequest that she would have received under the will. The solicitor appealed to the Court of Appeal of Queensland, but that Court dismissed the appeal.

The solicitor did not owe a duty of care to [NAME]

In this Court, the solicitor contended that she owed no duty of care to [NAME] because all the traditional benchmarks of such a duty in a claim for pure economic loss [34] were absent. No professional relationship or contract existed between her and [NAME]; she had not given [NAME] any advice or assumed any responsibility towards her; she had not given any assurance to [NAME] that her interest under the will was protected; and she had not caused [NAME] to lose any property that she owned. Nor, so far as the evidence discloses, had [NAME] relied on the solicitor to prepare a will that would be effective to give her the bequest.

1. That is, economic loss not resulting from physical damage.

The solicitor's breach of duty to [NAME] clearly gave rise to a reasonably foreseeable risk of harm to [NAME]. But that is not enough to make her liable to [NAME]. In cases where the only damage that the defendant has caused to the plaintiff is economic loss, reasonable foresight of the risk of that damage occurring is a necessary but not sufficient condition for imposing liability on the defendant [35] . Given the current state of the authorities on claims for pure economic loss, the absence of any representation or assumption of responsibility on the part of the solicitor or any reliance by [NAME] on the conduct of the solicitor makes a powerful case for concluding that the solicitor owed no duty of care to [NAME]. However, the weight of precedent in Australia, England, New Zealand, Canada and the United States favours the right of [NAME] to recover damages in the present case [36] .

1. [COMPANY] v [NAME] (1976) 136 CLR 529 at 555, 573, 592-593; [NAME] v [NAME] (1984) 155 CLR 549 at 552-554, 575, 582-587; Sutherland Shire Council v [NAME] (1985) 157 CLR 424 at 441, 467, 477, 495; [COMPANY] v The Minister (1986) 162 CLR 340 at 355, 367-370; [NAME] v [NAME] (1988) 164 CLR 539 at 579 [NAME] v [NAME] (1991) 172 CLR 243 at 254-255 [NAME] (1995) 182 CLR 609 at 617-619 2. [NAME] v [NAME]) [1980] WAR 97(Australia); [NAME] v [NAME] [1980] Ch 297 [NAME] [1995] 2 AC 207(England); [NAME] v [NAME], Young & Ellis [1983] NZLR 37(New Zealand); [NAME] v [NAME] (1978) 88 DLR(3d) 353; [NAME] v [NAME] (1991) 57 BCLR(2d) 391 (Canada); Biakanja v Irving (1958) 320 P 2d 16; Lucas v Hamm (1961) 364 P 2d 685; [NAME] v [NAME] (1983) 331 NW 2d 325; Hale v Groce (1986) 730 P 2d 576 (United States).

The case law

The earliest case which considered the present issue was [NAME] v [NAME] [37] where the [NAME] dealt with a set of facts far removed from the present case. In discussing the issues involved in that case, their Lordships referred as an example to a claim against a solicitor by a [NAME] legatee as being so contrary to principle as to illustrate clearly why the claim in the case before them was unfounded. [NAME] [NAME] said [38] :

If this were law a [NAME] legatee might sue the solicitor employed by a [NAME] to make a will in favour of a stranger, whom the solicitor never saw or before heard of, if the will were void for not being properly signed and attested. I am clearly of opinion that this is not the law of Scotland, nor of England, and it can hardly be the law of any country where jurisprudence has been cultivated as a science. 1. (1861) 4 Macq 167. 2. [NAME] v [NAME] (1861) 4 Macq 167 at 177

In [NAME] v [NAME] [39] , where the facts were very similar to the present case, [NAME] held that a solicitor preparing a will owed a duty of care to a potential [NAME]. In [NAME] , the [NAME] prepared a will for a [NAME] and sent it to him for execution. But they failed to warn him that it should not be witnessed by the spouse of a [NAME]. They also failed to notice, when the will was returned to them, that one of the attesting witnesses was the plaintiff's husband. As a result, the plaintiff forfeited her benefit under the will. The [NAME] did not dispute that they had been negligent. The central issue was whether they owed a duty to the plaintiff.

1. [1980] Ch 297.

In deciding for the plaintiff, [NAME] said [40] :

A solicitor who is instructed by his client to carry out a transaction that will confer a benefit on an identified third party owes a duty of care towards that third party in carrying out that transaction, in that the third party is a person within his direct contemplation as someone who is likely to be so closely and directly affected by his acts or omissions that he can reasonably foresee that the third party is likely to be injured by those acts or omissions. His Lordship summarised the injustice that would result from denying a duty of care to [NAME] as follows [41] : 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. However grave the negligence, and however great the loss, the solicitors would be under no liability to pay substantial damages to anyone. 1. [NAME] [1980] Ch 297 at 322-323 2. [COUNSEL] [1980] Ch 297 at 303

In finding that the solicitor owed a duty of care to [NAME], [NAME] applied the two-stage test in [NAME] v Merton London Borough Council [42] . However, [NAME] was subsequently overruled in England [43] . The reasoning upon which [NAME] was based has therefore gone.

1. [1978] AC 728 at 751-752: "First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter — in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise."

2. See Murphy v Brentwood District Council [1991] 1 AC 398In this country, its persuasive force finished with the decision of this Court in Sutherland Shire Council (1985) 157 CLR 424.

[NAME] has been followed in New Zealand [44] , but rejected in Victoria [45] and Scotland [46] . In [NAME] v [NAME] [47] , where the facts were similar to the present case, a majority of the Full Supreme Court of Victoria (Lush and Murphy JJ) held that a solicitor did not owe [NAME] a duty of care and that in any event they had suffered no damage recognisable at law. [COUNSEL] thought the solicitor owed the [NAME] no duty of care because: (i) [NAME] owed them no duty, so neither should the solicitor; (ii) the solicitor's duties were entirely within the control of [NAME]; (iii) there were difficulties in the concept that a solicitor could owe a third party a duty of care in the discharge of his or her client's instructions; (iv) the only interest which the [NAME] had at the time of the solicitor's negligence was a spes successionis, which was not a right capable of protection at law or in equity; and (v) there was no assumption of responsibility by the solicitor. Murphy J came to the same conclusion. He could not see that the [NAME] had suffered any "loss", they had not acted in reliance on the solicitor's work to their detriment, and they had not lost title to any property. [COUNSEL[NAME] held that the solicitor did owe a duty of care but that the court was precluded from so holding by [NAME] [48] , even though he did not think that that case would be followed in the future by the High Court of Australia or the [NAME].

1. See Scott Group [COMPANY] v McFarlane [1978] 1 NZLR 553 [NAME] v Heathcote County Council [1986] 1 NZLR 76 2. [NAME] [1982] VR 193 3. [NAME] v J M Hodge & Son [1990] SLT 266 4. [1982] VR 193. 5. (1861) 4 Macq 167.

The [NAME] decision in [NAME] v [NAME] [49]

In [NAME] v [NAME] by a 3:2 majority, the [NAME] upheld a finding by the Court of Appeal that a [NAME] owed a duty of care to the [NAME] under a will and that their delay in preparing the will — which resulted in loss to the [NAME] — was a breach of their duty. Since most of the arguments that the parties put to us were discussed in that judgment, it is convenient to examine the reasons of their Lordships in some detail.

[NAME] [NAME] [NAME] wrote the leading judgment. He pointed [50] to the "reasons of justice" which had prompted judges and academics to conclude that a solicitor should owe a [NAME] a duty of care: (1) the only person who would otherwise have a cause of action (ie [NAME]) has suffered no loss, and the person who has suffered a "loss" (ie the [NAME]) has none; (2) inheritance is an important aspect of people's lives; (3) there would be no injustice to hold negligent solicitors liable, even if the damages are paid not to the estate, but to the [NAME] directly; and (4) to deny a remedy would be to deny the role that solicitors play in society and the reliance that members of the [NAME] place on them to prepare effective wills.

1. [NAME] [1995] 2 AC 207 at 259-260

[NAME] [NAME] then examined whether it was possible for the [NAME] to give legal effect to the "strong impulse for practical justice" [51] . He rejected the suggestion that [NAME] could be given contractual remedies on the ground that the law relating to consideration and privity of contract prevented it [52] . He thought, however, that [NAME] had a remedy under an extension of the [COMPANY] v [COMPANY] [53] principle. He said that [54] :

[T]he assumption of responsibility by the solicitor towards his client should be held in law to extend to [NAME] who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his [NAME] legacy in circumstances in which neither [NAME] nor his estate will have a remedy against the solicitor. His Lordship was not convinced by the suggestion that it would be impossible to place sensible limits on liability. He thought that liability would be limited to particular [NAME], whom the client [NAME] to benefit through the particular will [55] . He therefore dismissed the appeal. But with great respect to his Lordship, I do not think that anything in [NAME[NAME] or any [NAME] decision authorised the step which he took, and a judge's sense of injustice by itself does not authorise the judge to invent a new legal right. 1. [NAME] [1995] 2 AC 207 at 260 2. [NAME] [1995] 2 AC 207 at 267 3. [1964] AC 465. 4. [NAME] [1995] 2 AC 207 at 268 5. [NAME] [1995] 2 AC 207 at 269

[NAME] [NAME] agreed with [NAME] [NAME]. But he added reasons of his own. He said that he would extend the principle of assumption of responsibility in [NAME[NAME] by analogy. He contended that the concept of "assumption of responsibility" was not invented in [NAME[NAME] but emanated from [NAME] v [NAME] [NAME] [56] , a decision which showed that a duty of care could arise from a "special relationship" (in that case, a fiduciary relationship) which was "dependent neither upon mutuality of dealing nor upon actual reliance by the plaintiff on the defendant's actions" [57] . [NAME] [RESPONDENT] said that in [NAME[NAME] (where negligent advice had been given) the [NAME] had also found a "special relationship". His Lordship held that the legal relationship giving rise to the duty in [NAME] and [NAME[NAME] was created not by an assumption of legal liability but by an assumption of responsibility for a task [58] . He said [59] :

As a matter of contract, a solicitor owes a duty to [NAME] to use proper skill in the preparation and execution of the will and to act with due speed

[NAME] a cause of action based on breach of a duty of care owed by the solicitor to [NAME]? The answer to that question is dependent upon whether there is a special relationship between the solicitor and [NAME] to which the law attaches a duty of care. In my judgment the case does not fall within either of the two categories of special relationships so far recognised. There is no fiduciary duty owed by the solicitor to [NAME]. Although the solicitor has assumed to act in a matter closely touching the economic well-being of [NAME], [NAME] will often be ignorant of that fact and cannot therefore have relied upon the solicitor.

However, it is clear that the law in this area has not ossified In my judgment, this is a case where development should take place since there is a close analogy with existing categories of special relationship giving rise to a duty of care to prevent economic loss.

[NAME] [COUNSEL] said that a solicitor accepting instructions to draft a will knows that the future welfare of an [NAME] is dependent on his or her proper execution of the task. By accepting instructions, the solicitor assumes "responsibility for the task of procuring the execution of a skilfully drawn will knowing that [NAME] is wholly dependent upon his carefully carrying out his function" [60] . His Lordship said that there were "therefore present many of the features which in the [NAME] categories of special relationship have been treated as sufficient to create a special relationship to which the law attaches a duty of care" [61] . [NAME] [NAME] added that general factors such as the transmission of property from one generation to the next being dependent upon the work of solicitors made it fair, just and reasonable to impose a duty of care in favour of a [NAME]. 1. [1914] AC 932. 2. [NAME] [1995] 2 AC 207 at 272 3. [NAME] [1995] 2 AC 207 at 273-274 4. [NAME] [1995] 2 AC 207 at 275 5. [NAME] [1995] 2 AC 207 at 275 6. [NAME] [1995] 2 AC 207 at 276

As [NAME] has pointed out, [NAME] [NAME] use of the term "assumption of responsibility" was "most unconventional" [62] . Prior to [NAME] that term had been taken to mean an assumption of legal liability [63] . His Lordship's reasoning therefore departed from the law as previously understood. Moreover, with great respect to his Lordship, the decisive features that led the [NAME] to impose a duty in [NAME[NAME] — reliance by, and an assumption of responsibility to, the plaintiff were missing in [NAME] .

1. [NAME], Expectation Losses, Negligent Omissions and the Tortious Duty of Care, Cambridge Law Journal, vol 55 (1996) 43, at p 50: "most unconventional notion of "assumption of responsibility"." See also the use of the term "assumption of responsibility" by this Court in [NAME] (1995) 182 CLR 609 at 627 2. cf [NAME] (1995) 182 CLR 609 at 627

[NAME] [NAME] agreed with the reasons of [NAME] and [NAME] but added some comments of his own. He said that the [NAME] "have suffered damage because of the [solicitors'] breach of their professional duty, and they are therefore entitled to the remedy — the only remedy — which the law can offer, notwithstanding the fortuitous aspects of the case and its unusual consequences" [64] . He was heartened by the fact that [NAME] — which held that a "[NAME]" could recover against a solicitor who had failed to warn [NAME] that the will should not be witnessed by a spouse of a [NAME] — had stood unchallenged for fifteen years and had met with the approval of many academic writers [65] . [NAME] [NAME] said that [66] :

[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. The fact that he is doing so in pursuance of a contractual duty or a statutory function cannot of itself exclude that responsibility. The most that can be said is that it may be one of the circumstances to be taken into account in determining the nature and extent of the responsibility. 1. [NAME] [1995] 2 AC 207 at 293 2. [NAME] [1995] 2 AC 207 at 293 3. [NAME] [1995] 2 AC 207 at 294

[NAME] [NAME] of Kinkel and [NAME] [NAME] dissented. Their Lordships would have allowed the appeal. [NAME] [NAME] questioned two assumptions of the [NAME]' argument: (1) that there must be something wrong with the law if the [NAME] did not recover money from the solicitors [67] ; and (2) that the remedy must come from the law of tort [68] . He began his analysis of the suggested tortious cause of action by considering [NAME[NAME], in which he detected the four themes of " "mutuality", "special relationship", "reliance", and "undertaking of responsibility" " [69] . His Lordship thought that the [NAME] had found "that the liability arose internally from the relationship in which the parties had together chosen to place themselves" [70] . [NAME] [NAME] said that the element of mutuality was central to the decision and "that the legal responsibility accepted or undertaken by the person in question was one where the acceptance or undertaking was a reflection of the relationship in question." [71]

1. [NAME] [1995] 2 AC 207 at 277 2. [NAME] [1995] 2 AC 207 at 279 3. [NAME] [1995] 2 AC 207 at 283 4. [NAME] [1995] 2 AC 207 at 287 5. [NAME] [1995] 2 AC 207 at 287

[NAME] [NAME] then considered whether the principles in [NAME[NAME] could help an [NAME]. But he held that there was no "special relationship" between the solicitor drafting the will and [NAME] [72] . He said [73] :

[[NAME]] neither invites the solicitor to prepare the will, nor determines [his or her] conduct on the assumption that it will be skilfully and diligently prepared. There is no mutual relationship. His Lordship went on to consider whether a new duty of care not based on the existing law should be developed for solicitor-[NAME] cases — "a specialist pocket of tort law". But he refused to create such a category because [74] : A broad new type of claim may properly be met by a broad new type of rationalisation, as happened in the [NAME[NAME] case [75] ; but rationalisation there must be, and it does not conduce to the orderly development of the law, or to the certainty which practical convenience demands, if duties are simply conjured up as a matter of positive law, to answer the apparent justice of an individual case. Be that as it may, the present case does not as it seems to me concern a unique and limited situation, where a remedy might be granted on an ad hoc basis without causing serious harm to the general structure of the law; for I cannot see anything sufficiently special about the calling of a solicitor to distinguish him from others in a much broader category I cannot discern a principled reasoning which could lead to the recognition of such an extensive new area of potential liability. [NAME] [NAME] agreed, saying that "[t]o admit the plaintiffs' claim would in substance be to give them the benefit of a contract to which they were not parties" [76] . Further there was no basis on which to ground an action in tort [77] : The intention to benefit the plaintiffs existed only in the mind of [NAME], and if it had received legal effect would have given them only a spes successionis of an ambulatory character. 1. [NAME] [1995] 2 AC 207 at 289 2. [NAME] [1995] 2 AC 207 at 289 3. [NAME] [1995] 2 AC 207 at 291 4. [1964] AC 465. 5. [NAME] [1995] 2 AC 207 at 251 6. [NAME] [1995] 2 AC 207 at 251

If this case had to be decided by the English cases, I would reach the same conclusion as [COUNSEL] and [COUNSEL]. Their Lordships' conclusion that the solicitor owed no duty of care to [NAME] accorded with both negligence doctrine and the decided cases. Furthermore, I find [NAME] [NAME] reasons for not extending the law persuasive. However, the test for determining whether the defendant owed the plaintiff a duty of care in negligence cases is not the same in Australia as it is in England.

The duty of care in negligence cases

In England, the courts consider three matters: (1) reasonable foreseeability of damage; (2) the existence of a relationship of proximity; and (3) the justice and reasonableness of imposing a duty of care in that category of case [78] . The best known definition of proximity is that of [NAME] in [NAME] v Coffey [79] where his Honour said:

It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained The identity and [NAME] importance of the considerations relevant to an issue of proximity will obviously vary in different classes of case and the question whether the relationship is "so" close "that" the common law should recognise a duty of care in a new area or class of case is likely to be "difficult" of resolution in that it may involve value judgments on matters of policy and degree. In England, the judges seem to be increasingly sceptical [80] of the value of proximity in determining whether a duty of care exists. One view is that it merely records a result that has been reached on [NAME] grounds [81] . 1. [NAME] v Bishop Rock Marine Co [COMPANY] [1996] 1 AC 211 at 235 2. (1984) 155 CLR 549 at 584-585.

3. See, eg, [COMPANY] v [NAME] [1990] 2 AC 605 at 616-618, per [NAME] of Harwich; at 628, per [NAME] [NAME]; at 633, per [NAME[NAME].

4. See, eg, [NAME] in [COMPANY] [1990] 2 AC 605 at 633: " "Proximity" is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists."

In Australia, on the [NAME] hand, to date this Court has consistently emphasised the central place that proximity holds in determining whether a duty of care exists. In [NAME] v [COMPANY] [82] , [NAME[NAME] said that "the notion of proximity can be discerned as a unifying theme explaining why a duty to take reasonable care to avoid a reasonably foreseeable risk of injury has been recognised as arising in particular categories of case". The current emphasis in Australia on proximity as the central determinant of a duty of care reduces the persuasive force of English decisions on the duty of care in economic loss cases.

1. (1986) 160 CLR 16 at 52.

In addition, the English doctrine of duty of care in economic loss cases has been subjected to strong criticism by academic writers, particularly by Dr [NAME] [83] who argued in a powerful and, to my mind, persuasive article that the "outcome of three decades of litigation is a complex, uncertain and anomalous pattern of decisions". She argued [84] that:

The central flaw in the [NAME]' approach to economic loss is the assumption that difficult issues of duty should be analysed within and by analogy to pockets of "relevant" case law. With respect, this can become a process akin to the tail wagging the dog, because the selection of the "relevant" pocket can, at the outset, preclude consideration of factors or "policies" which would provide a more coherent overall approach. If the "pocket analysis" approach is abandoned and replaced by the more coherent approach of analysing the duty issue according to the policies which the courts have decided should govern the recognition of a duty of care, we would find like cases falling into pockets of like outcomes. But those pockets would be the natural end product of the analysis, not its dictator.

1. Duty of Care and Economic Loss: A Wider Agenda, Law Quarterly Review, vol 107 (1991) 249, at p 258. 2. "Duty of Care and Economic Loss: A Wider Agenda", Law Quarterly Review, vol 107 (1991) 249, at pp 284-285.

Much of Dr [NAME] criticism concerning the English decisions on economic loss is equally applicable to Australian decisions. Australian courts like the English courts have also approached the question of duty in pure economic loss cases by focusing "on how the economic loss was caused rather than on characteristics, such as potential for indeterminate liability, on which policy concerns should centre" [85] .

1. "Duty of Care and Economic Loss: A Wider Agenda", Law Quarterly Review, vol 107 (1991) 249, at p 259.

Weaknesses in the concept of proximity

The use of the concept or principle of proximity as the criterion of duty has not increased the predictability of judicial decisions or given a real explanation of the grounds upon which a duty of care is imposed in many economic loss cases. In a paper written [86] before I joined this Court, I expressed my scepticism about the usefulness of proximity as a principle or a guide for determining the existence of a duty of care. In [NAME] v [NAME] [87] , however, I was a party to a joint judgment which held that a plaintiff's action failed because there was no proximity between the plaintiff and the defendant. But the present case has reinforced my scepticism as to whether the concept of proximity gives any real guidance in determining the existence of a duty of care in difficult and novel cases. In cases concerning economic loss where the plaintiff has not relied on the defendant's conduct, the concept of proximity provides no assistance in distinguishing between the cases (if any) where a duty of care is owed and those where it is not owed. Indeed, a majority of this Court recognised these difficulties in [COMPANY] v The Minister [88] when it said:

The notion of proximity, because it limits the loss that would otherwise be recoverable if foreseeability were used as an exclusive criterion of the duty of care, is of vital importance when the plaintiff's claim is for pure economic loss. When the economic loss results from negligent misstatement, the element of reliance plays a prominent part in the ascertainment of a relationship of proximity between the plaintiff and the defendant, and therefore in the ascertainment of a duty of care. But when the economic loss results from a negligent act or omission outside the realm of negligent misstatement, the element of reliance may not be present. It is in this sphere that the absence of reliance as a factor creates an additional difficulty in deciding whether a sufficient relationship of proximity exists to enable a plaintiff to recover economic loss. 1. "Neighbourhood, Proximity and Reliance" in [NAME] (ed), Essays on Torts (1989) 5, at pp 36-39. 2. (1991) 172 CLR 243. 3. (1986) 162 CLR 340 at 355.

That "additional difficulty" is certainly present when the issue is whether a solicitor who prepares a will for a client owes a duty of care to a [NAME] with whom the solicitor has had no dealings. In accepting the retainer to prepare the will, the solicitor owes the client contractual and tortious duties of care in respect of the preparation and execution of the will [89] . But absent an assumption of responsibility for [NAME]'s interest or a promise or representation to [NAME], why should the solicitor owe a duty of care to [NAME] merely because [NAME] may or will be affected by the solicitor's work for the client? After all, [NAME] owed no duty of care to [NAME]. If [NAME] in this case had prepared her own will and had it witnessed by [NAME]'s husband, [NAME] would have had no cause of action against the estate of [NAME]. So why should the law impose a duty of care in favour of [NAME] upon the solicitor who is employed to do what [NAME] could have done free of duty? The fact that the solicitor is a professional person seems irrelevant to the existence of a duty to [NAME] when [NAME] has not relied on the solicitor to protect his or her potential interest. The common law rules of negligence liability do not impose any general duty on professional persons to protect [NAME] persons from the consequences of professional carelessness. Absent a contract with the plaintiff or [NAME] mutuality, the professional standing of a person should be irrelevant to the existence of a duty.

1. [COMPANY] v [NAME], Stubbs & Kemp [1979] Ch 384

No general duty to prevent economic loss to another

It is true that the solicitor owes a duty of care to [NAME] and, in a case like the present, is liable in nominal damages for breach of that duty. But upon what social, moral or economic principle can the law permit [NAME] to be a free rider on the contract between the solicitor and the client? It cannot be because the careless conduct of the solicitor may cause economic loss to [NAME]. Anglo-Australian law has never accepted the proposition that a person owes a duty of care to another person merely because the first person knows that his or her careless act may cause economic loss to the latter person [90] . Social and commercial life would be very different if it did. Indeed, leaving aside the intentional tort cases of wrongful interference with another person's legal rights (inducing breach of contract, intimidation and conspiracy, for example) a person will generally owe no duty to prevent economic loss to another person even though the first person intends to cause economic loss to another person. In our free enterprise society, no one questions the right of the trader to increase its advertising or cut its prices even though that action is done with the intention of taking the market share of its rivals.

1. [NAME] v Home Office [1970] AC 1004 at 1027, per [NAME].

In a case like the present, there is an additional reason for doubting the existence of a duty of care. The plaintiff suffered no loss in the sense of damage to her person, property or existing legal rights. The damage for which she seeks compensation is her failure to secure a benefit [91] . Speaking generally, damages for expectation losses are the province of contract law where an award of damages for the failure to secure a benefit results from the agreement of the defendant to subject himself or herself to an obligation to secure that benefit. Liability for an expectation loss in contract is voluntarily incurred. Tort law, on the [NAME] hand, typically imposes an obligation on a defendant independently of his or her agreement or wishes. But ordinarily in negligence cases, it imposes that obligation only in respect of some existing interest of the plaintiff [92] . As [NAME[NAME] pointed out in [NAME] [93] to succeed in a common law action of negligence, "it was essential that some right of the plaintiff should be infringed by the defendant". Consequently, tort law has compensated for expectation losses only when those losses are the consequence of a wrongful invasion of the person, property or legal interest of the plaintiff. If the likelihood of an expectation loss constitutes a sufficient interest to found a duty of care in negligence cases, the basis of tort liability will be changed and the scope for claims of damages for economic loss is bound to increase.

1. cf [NAME], Tort and the Lloyd's Débâcle in [NAME] (ed), Consensus Ad Idem, Essays in the Law of Contract in Honour of [NAME] (1996) 96, at pp 110-111. 2. [NAME] v [NAME] (1992) 834 P 2d 745 at 760, per [NAME]: "The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion." 3. [1982] VR 193 at 202.

Moreover, if the solicitor owes a duty of care to [NAME], it would seem to follow that the solicitor has an affirmative duty to warn or advise [NAME] as well as [NAME] in cases like the present. If the solicitor owes a duty to [NAME], he or she must do all that is reasonable to protect the interests of [NAME] and there must be some situations at least where reasonable care requires the solicitor to warn or advise [NAME]. But the history of the law of negligence points against such an obligation.

Parallel with and derived from the principle that an action for negligence required an invasion of some legal right of the plaintiff was another fundamental rule of the common law. Absent a special relationship [94] between the plaintiff and the defendant — ordinarily arising from contract, the control of person or property or an assumption of responsibility by the defendant for the plaintiff's existing interests — the common law imposed no affirmative duty on a person to protect another. This rule was the natural outcome of the common law doctrine that the personal action on the case and later the tort of negligence protected only existing rights and interests. As [NAME] has pointed out [95] :

The legal principle that there is no liability for nonfeasance articulates a severely limited idea of responsibility toward others: individuals must only not injure what already belongs to others; protected interests are defined in terms of what others have ("suum"), not what they need or want. 1. [NAME] [1970] AC 1004 at 1027, per [NAME] [NAME]. 2. [NAME], The Basis for Excluding Liability for Economic Loss in Tort Law in [NAME] (ed), Philosophical Foundations of Tort Law (1995) 427, at p 457.

To require the solicitor to take steps to protect a potential gift to [NAME], a person with whom the solicitor has had no dealings seems a radical departure from the principles of the common law.

Preserving doctrinal integrity

Few would doubt that a person in [NAME]'s position in this case should have a remedy against someone. But I do not think that the tort of negligence is the appropriate area of the law to remedy the "loss" which [NAME] has suffered. In an ideal legal world, the plaintiff should be able to get the amount of the legacy that was [NAME] for her, the residual [NAME] should not obtain what is effectively a windfall and the careless solicitor should be punished by her professional body by fine or suspension from practice. But the law of tort knows no means by which it can compel the residual [NAME] under this will to disgorge his "windfall". As a result, the solicitor will pay for more than the net social cost of her carelessness [96] . The residual [NAME] will keep his windfall even though [NAME] did not intend him to have it and even if the law gives [NAME] a remedy against the solicitor. So for the courts to impose a duty of care on the solicitor in favour of [NAME] and make her responsible for [NAME]'s "loss" solves only part of the problem that arises from a case like the present one. Perhaps this would not matter if the decision in this case and the decision in [NAME] v [NAME] could be shunted off to some siding in the law of torts to be brought out only for use against errant solicitors. But, like [NAME] [NAME] in [NAME] , I cannot see how a decision in favour of [NAME] can be quarantined from the general law of torts. [NAME], for example, has said [97] that, if he had to make a prediction, he "would see the Canadian courts applying [NAME] v [NAME] outside [NAME] situation based on an assumption of professional responsibility".

1. [NAME], Law and Legal Theory in England and America (1996), pp 46-47. 2. "The Recovery of Pure Economic Loss in Canada: Proximity, Justice, Rationality, and Chaos", Manitoba Law Journal, vol 24 (1996) 1, at p 12.

If the law imposes an obligation on the solicitor to take reasonable care to protect the expectation interest of the named [NAME], the obligation must be justified by reference to some principle or doctrine of negligence law. If the rule of law is to have any meaning, if judicial decisions are to be based on more than a judge's sense of justice, like cases must be decided alike and in accordance with a principle that transcends the immediate facts of the case. Proximity is too indeterminate a doctrine to provide a justification for imposing a duty on solicitors to protect the expected benefits of [NAME]. So we must look for a principle. If one looks at the material facts of the present case, the principle that gives rise to the duty must be that a professional person owes a third party a duty to perform a service with proper care whenever the professional person promises to perform that service for a client and the client intends, and the professional person knows, that it will confer a benefit on the third party if it is performed [98] . The ramifications of such a principle are unpredictable, but it must have significant economic effects.

1. cf [NAME] [1995] 2 AC 207 at 283, per [NAME] [NAME]. In [NAME] [1980] Ch 297 at 322-323, [NAME] decided for the plaintiff by reference to a principle defined in substantially similar terms.

One certain effect is that the cost of professional services will increase. Insurers of professional persons are bound to increase their premiums. These days most professional persons practise their professions in very competitive environments. Few professions are so lucrative that practitioners can absorb costs and not increase their fees. Any increase in practitioners' insurance premiums is therefore likely to be passed on to those who retain their services.

The application of such a principle must also lead to a considerable, perhaps massive, expansion of the law of economic loss. Consider, for example, the case of the accountant who is paid a fee by a client to investigate the prospects of a business knowing that the client intends to purchase the business as a gift for a [NAME]. Does the accountant owe the [NAME] a duty of care? Is the accountant liable for the profits that the [NAME] would have earned if, but for the accountant's negligence in assessing its viability, the business had been purchased? Does the insurance [NAME] who is instructed to take out a life assurance policy for a client owe a duty of care to the [NAME]? Is the [NAME] liable to [NAME] if, as the result of the [NAME]'s undue delay, the "assured" dies before the policy is taken out? Moreover, it is difficult to see why the duty should be confined to gifts as opposed to benefits. In that event, professional persons, acting in purely commercial situations, may often owe duties to third parties who stand to benefit from the retainer of a professional person by a client.

To give [NAME] a remedy in negligence involves too great a departure from accepted doctrine and must inevitably extend the frontiers of legal liability. How far this extension will go in a world where commercial operations are becoming increasingly integrated and sophisticated is impossible to foresee. If change in the law is to be made, it should be done by the [NAME] which can deal with this special case, perhaps by amending the legislation relating to wills, rather than by extending the law of negligence in a way that departs from its basic doctrines.

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 [NAME]. The [NAME] members of this Court accept that this is so. Various reasons are relied on: (1) financial "loss" to [NAME] is reasonably foreseeable; (2) [NAME] and the [NAME] 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 [NAME]; (7) if the solicitor retains custody of the will, then upon [NAME]'s death the solicitor owes a duty to the [NAME] 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 [NAME] 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 [NAME].

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

However, none of these reasons persuasively differentiates the present case from numerous [NAME] 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 [NAME] even though members of the [NAME] 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 [COMPANY] v Evatt (1970) 122 CLR 628 [NAME] v Attorney-General of Hong Kong [1988] AC 175 [COMPANY] [1990] 2 AC 605.

2. Sutherland Shire Council (1985) 157 CLR 424. Similarly, in [NAME] [1996] 1 AC 211, the [NAME] 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 [NAME] 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 [NAME] 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 [NAME]. Indeterminacy cannot therefore be regarded as wholly inapplicable in cases like the present one.

Moreover, lack of indeterminacy must be weighed against [NAME] 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 [NAME] transaction. It does not seem reasonable that the solicitor who has received a small fee from a [NAME] 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 [NAME] 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 [NAME], upon learning of a [NAME] legacy, might seek his or her own legal advice about it. But many [NAME] learn about a testamentary gift only upon the death of [NAME]. 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.

Conclusion

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

The appeal should be allowed.

[NAME[NAME].

The nature of the case

[NAME] was born on [DATE] 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, [NAME] [NAME] lived alone in her [NAME] at [ADDRESS], Paddington, a suburb of Brisbane. Mr and [NAME] [NAME] lived nearby at [ADDRESS]. They had known [NAME] [NAME] for ten or more years.

[NAME] [NAME] last will was dated 7 December 1990. In it she revoked all previous wills and appointed [NAME] 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, [NAME] [NAME] devised the property at [ADDRESS] to her son, Mr [NAME], and to [NAME] [NAME] as tenants-in-common in equal shares. Mr [NAME] was born in 1940. [NAME] appears to have been the daughter of [NAME] [NAME]. [NAME] [NAME] also bequeathed to [NAME] [NAME] certain of the furnishings of the [NAME]. She left the balance of the contents to Mr [NAME] and [NAME] [NAME] as tenants-in-common in equal shares. The residue of the estate was given to Mr [NAME] with a gift over, in the event of his death, to [NAME] [NAME] three grandchildren. The signature and acknowledgment of the will by [NAME] [COUNSEL] was attested by the solicitor who had drawn the will upon [NAME] [COUNSEL] instructions. This was the appellant, [NAME] [APPELLANT], who carried on practice at Paddington. The will also was attested by Mr [NAME], the husband of a [NAME] under the will, [NAME] [NAME]. 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 [NAME] or by some [NAME] person in his presence and by his direction and such signature shall be made or acknowledged by [NAME] 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 [NAME] 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 [NAME]; and

(b) the Court may admit extrinsic evidence including evidence of statements made at any time by [NAME] 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 ([NAME] than a charge or direction for the payment of any debt or for the payment of proper remuneration to any person, whether [NAME], administrator, solicitor or conveyancer, for acting in or about the administration of the estate of [NAME]) 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 [NAME] or, as the case may be, that spouse beneficially, the disposition is null and void to the extent that it entitles [NAME], the spouse of [NAME] or another person claiming under [NAME] 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 [NAME] 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 [NAME] [NAME] 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 [COMPANY]. Whereas s 9(a) of the Act requires "substantial compliance" with the formalities prescribed, the [NAME] 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 [NAME] [NAME] in enlisting the professional services of [NAME] [NAME] 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 [NAME] [COUNSEL]. 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 [NAME]. The common law provides a remedy to the estate of [NAME] [COUNSEL] 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 [NAME] [COUNSEL]. [NAME] [NAME] enlisted the law of tort to provide her with an effective recourse against [NAME] [NAME].

The course of the litigation

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

1. [NAME] v [NAME] [1995] AustTorts Reports ¶81-317.

The primary judge held that the damage sustained by [NAME] was the loss of the opportunity to receive and derive the advantage of the due administration of [NAME] [NAME] estate once the contingencies of death without a later inconsistent testamentary disposition had been satisfied. Had she sued the solicitor during the lifetime of [NAME] [COUNSEL], [NAME] [COUNSEL] 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, [NAME] [NAME] would have had, from the death of [NAME], 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 [NAME] [NAME] 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 [NAME] owed a duty of care to [NAME] [NAME]. It was conceded that, if she did, she had been negligent and that negligence caused loss to [NAME] [NAME] 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 [NAME] [COUNSEL] with specific bequests and a specific devise to [NAME] [NAME], that it was foreseeable that [NAME] [NAME] 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 [NAME] [NAME] 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 [NAME] [NAME] had to establish beyond foreseeability in order to make out a duty of care owed to her by [NAME].

[NAME] us the respondent placed particular reliance upon the recent decision of the [NAME] in [NAME] v [NAME] [107] . However, although in that case the majority of the [NAME] 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 [NAME] authorities including Biakanja v Irving (1958) 320 P 2d 16; [NAME] v [NAME] [1980] Ch 297 [NAME] v [NAME], Young & Ellis [1983] NZLR 37and the dissenting judgment of [NAME[NAME] in [NAME] [1982] VR 193

A fundamental issue in [NAME] v [NAME] was one of how far the law should recognise, by remedy against the [NAME] and in favour of the [NAME], the intention of a [NAME] which was evinced by means [NAME] 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 [NAME]. Here, the intention of [NAME] [NAME] 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 [NAME] [NAME] were rendered null and void by s 15 of the Act. The question is whether, despite the operation of s 15, [NAME] [NAME] has a remedy to approximate her position to that she would have occupied had there been compliance with s 15 [108] .

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

In [RESPONDENT] v [RESPONDENT] , the first defendant was a "legal executive" employed by the second [NAME], a [NAME]. 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 [NAME] 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 [NAME], who had been disinherited under an earlier will. The result of the inaction of the [NAME] was to leave that earlier will as the last will of [NAME]. In those circumstances, the [NAME] by majority ([NAME] [NAME] [NAME], [NAME] and [NAME] of Kinkel and [NAME] [NAME] dissenting) dismissed the appeal from the Court of Appeal ([NAME] [NAME] [NAME], [NAME] and Steyn LJJ [109] ) which had allowed the appeal by the plaintiffs against dismissal of their actions.

1. [NAME] [1995] 2 AC 207 at 216ff.

As I have indicated, the judgments of the majority in the [NAME] 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. [NAME] [NAME] [NAME] said that [111] :

[The] [NAME] should in cases such as these extend to [NAME] a remedy under the [NAME] principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to [NAME] who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his [NAME] legacy in circumstances in which neither [NAME] nor his estate will have a remedy against the solicitor. (Emphasis added.) [NAME] [COUNSEL] 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. [NAME] 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 [NAME] to benefit under it in consequence of which the law imposes a duty to [NAME] to act with due expedition and care in relation to the task on which he has entered. [NAME] [NAME] 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 [NAME] as family solicitors and to dealings in relation to the matter of the revised wishes of [NAME] between the [NAME] and one of [NAME]'s daughters and the [NAME]. His Lordship added [116] : It would be absurd to suggest that they placed no reliance upon the [[NAME]] to carry out the instructions given to them. I do not say that [NAME] potential legatees, less intimately concerned with the carrying out of [NAME]'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, [NAME] [NAME] [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 [NAME] [COUNSEL] [118] : The solicitor, [NAME] and the [NAME] were not strangers. When the division within the family had healed [NAME] 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 [NAME] after his return from holiday. This appointment was frustrated by [NAME]'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 [NAME[NAME], even if for the reasons given I am unable to recognise a general duty of care towards [NAME]. 1. [NAME], Contract, Tort and the Lloyd's Débâcle, in [NAME] (ed), Consensus Ad Idem (1996) 96, at p 109. 2. [NAME] [1995] 2 AC 207 at 268 3. [NAME] [1995] 2 AC 207 at 274 4. [NAME] [1995] 2 AC 207 at 275 5. [NAME] [1995] 2 AC 207 at 276 6. [NAME] [1995] 2 AC 207 at 295 7. [NAME] [1995] 2 AC 207 at 295 8. [NAME] [1995] 2 AC 207 at 291-292 9. [NAME] [1995] 2 AC 207 at 291

The facts

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

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

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

Shortly after 7 December 1990, both [NAME] [NAME] and Mr [NAME] told [NAME] [NAME] that she was a [NAME] 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, [NAME] [NAME] next of kin entitled on an intestacy, claimed and received the bequests which otherwise would have been received, after due administration, by [NAME] [NAME].

The legal framework

I turn to consider the general framework of the legal relationships between [NAME], her estate, [NAME], and the solicitor, within which [NAME] 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 [NAME] 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. [NAME] v [NAME] (1988) 164 CLR 539 at 584 [COMPANY] v First City Corporation [COMPANY] [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 [NAME] is entitled at the time of his or her death, not being property held on trust and in respect of which [NAME] 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. [NAME], Manual of Queensland Succession Law, 4th ed (1995), pars [102]-[103]. 2. [NAME], 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 [NAME] [NAME] will. [NAME] plays, and is widely perceived to play, an important part in the exercise of the freedom of testation. In practice, the [NAME] relies on [NAME] 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 [COMPANY] v [COMPANY] [122] .

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

This case, like [NAME] v [NAME] , 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 [NAME], seeks recompense which affords her protection against negligent performance by the promisor, the solicitor, of the solicitor's obligations to the promisee, [NAME].

In [NAME] v [NAME] , in the Court of Appeal, [NAME] [NAME] [NAME] 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 [NAME] benefit on a third party [124] . That route is not available here. The solicitor did not agree to confer a benefit on [NAME]. 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 [NAME], (1) his estate should be regarded as having lost a sum equal to the amount of the [NAME] gift, and (2) the executors should hold that sum, when recovered from the solicitor, upon trust for [NAME]. [125] In the event, his Lordship did not shape any such remedy. In the [NAME] [NAME] [NAME] [NAME] considered but rejected [126] the possibility of bringing the instant case within the group of decisions described in [NAME] [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. [NAME] [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 [NAME] has recovered in contract against [NAME]'s lawyer; see the authorities discussed in [NAME], Third-Party [NAME], 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 [NAME], Privity Problems in Damages for Breach of Contract, New Law Journal, vol 131 (1981) 343; [NAME], Are We up to Expectations? Solicitors, [NAME] and the Tort/Contract Divide, Oxford Journal of Legal Studies, vol 14 (1994) 137, at pp 140-141. 4. [NAME] [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. [NAME], Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence, Law Quarterly Review, vol 111 (1995) 301, at p 324; cf [NAME], Tort in a Contractual Matrix, Osgoode Hall Law Journal, vol 33 (1995) 661, at p 677.

[NAME] [NAME] 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 [NAME] [131] , at least where that party knew of the later and, in the event, unfulfilled intentions of [NAME] [132] . But in the present case the qualifying or vitiating factor would be negligence of [NAME] [NAME], something for which the next of kin bore no responsibility. Moreover, the judgment of [NAME] LJ in [COMPANY] v [NAME] [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" [NAME] [NAME] [134] . At best she was a volunteer. Nor is it clear that the wealth in question would "certainly" have vested in [NAME] [NAME] had it not been "intercepted" by [NAME] [NAME] and diverted to the next of kin whilst "en route" from [NAME] [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 [COMPANY] v [COMPANY] (1988) 165 CLR 107 at 174-177 2. [NAME], Solicitors' liability to third parties, Oxford Journal of Legal Studies, vol 3 (1983) 284, at pp 288-289; [NAME], Negligent Solicitors and [NAME] [NAME], Law Quarterly Review, vol 99 (1983) 346; [NAME], Round and Round the Garden [1996] Lloyd's Maritime and Commercial Law Quarterly 460. 3. [NAME], An Introduction to the Law of Restitution, revised ed (1989), pp 133-136. 4. [1996] Ch 217 at 227; discussed [NAME], 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 [NAME] 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 [COMPANY] v Birmingham City Council [1996] 3 WLR 1139 at 1157[1996] 4 All ER 733 at 750 6. [NAME], Three-Party Restitution: A Critique of [NAME] 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, [NAME], 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 [NAME] 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. [NAME], Privity of Contract and Restitution, Law Quarterly Review, vol 105 (1989) 4; [NAME], Recent Cases, Australian Law Journal, vol 63 (1989) 368; [NAME], Restitution and Privity, Australian Law Journal, vol 68 (1994) 188; [NAME], 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 [NAME] made an agreement with [NAME] to make and leave unrevoked a valid will containing a specific legacy or devise to [NAME] [NAME]. 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 [NAME] during the lifetime of [NAME] 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 [NAME]. Relevant principles are discussed by the Privy Council in [NAME] v [NAME] [153] and in this Court in [NAME] v [COMPANY] [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, [NAME] usually will be a volunteer, unable to rely upon contractual rights in his or her favour. In [NAME] [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. [NAME] [1982] VR 193 at 220

Nevertheless, in [NAME] v [NAME] 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 [NAME] and [NAME[NAME] pointed out [NAME] v [NAME] [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 [NAME] 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.

1. (1990) 169 CLR 540 at 558.

The cases grouped under the headings "secret trust" and "mutual wills" illustrate equitable intervention which has the effect of protecting the [NAME] object of testamentary bounty against the consequences of the failure of [NAME] 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 ([COMPANY] [1969] RPC 41 at 46, per [NAME[NAME]; Keeton & Sheridan, Equity, 3rd ed (1987), pp 37-38.

An example is provided by the reasoning in the decisions of the [ADDRESS] of Chancery in [NAME] v [NAME] [159] and of the [NAME] in Bulkley v Wilford [160] . This suggests that if [NAME] [NAME] had been the next of kin of [NAME] [NAME], [NAME] [NAME] would have been treated as trustee for [NAME] [NAME] of her interest as next of kin in the [ADDRESS] property. In the second case, the Earl of Eldon attributed, with approval, to the [NAME], [NAME] [NAME], 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 [NAME] 157. 2. (1834) 2 Cl & F 102 [6 ER 1094]. See also Re Birchall; Wilson v Birchall (1881) 44 LT 243 at 245, per [NAME].

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 [NAME] [NAME].

However, where a [NAME] 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 [NAME] which calls for the imposition upon [NAME] of a constructive trust in favour of the [NAME] substitute [NAME] [162] . Nor is there any relevant "accident" to enliven equity.

1. cf [NAME], 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 [NAME] [NAME] [NAME] [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. [NAME], Commentaries on Equity Jurisprudence, 13th ed (1886), vol 1, pp 58-59, 186, 263-264; [NAME], Equity Jurisprudence, 5th ed (1941), vol 3, par 828. But cf the so-called rule in [NAME] v [NAME] identified by [NAME[NAME] in Cope v Keene (1968) 118 CLR 1 at 8, and the doctrine of donatio mortis causa.

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

Known reliance and assumption of responsibility

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 [COMPANY] v The Minister (1986) 162 CLR 340 at 367-369 [NAME] v [NAME] (1988) 164 CLR 539 at 555-556 [NAME] v [NAME] (1991) 172 CLR 243 at 258-263 [NAME] (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 [NAME] [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. [NAME], [ADDRESS] of Principle in Tort Law, in [NAME] (ed), Philosophical Foundations of Tort Law (1995) 113, at p 123. 2. (1995) 182 CLR 609 at 618-619, per [NAME] [NAME], [NAME] and Gaudron JJ.

3. Smith v Bush [1990] 1 AC 831 at 864-865, per [NAME]; [COMPANY] v [NAME] [1990] 2 AC 605 at 628, per [NAME]. 4. [NAME], Scepticism and the Law of Negligence, Cambridge Law Journal, vol 52 (1993) 437, at p 444. 5. [NAME], Unreliable Assumptions in the Modern Law of Negligence, Law Quarterly Review, vol 109 (1993) 461, at pp 483-484; see also [NAME], 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, [NAME] [RESPONDENT], did not assert in her favour any identified element of known reliance or dependence by her upon the discharge by [NAME] [NAME] of her professional obligations in seeing to the execution of [NAME] [NAME] will. However, it was contended that [NAME] [NAME] voluntarily assumed responsibility for the making by [NAME] of a valid will reflecting her intentions, including the bounty to the respondent. The submission was that [NAME] [RESPONDENT] 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 [NAME] [NAME] [NAME] than to her client. In [NAME] v [COMPANY] [171] , [NAME] [NAME], speaking for the majority of the [NAME], 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 [NAME] hand, in [NAME] [172] [NAME] [NAME] 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 [NAME] v [NAME] [173] , [NAME] [NAME] 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. [NAME], Expectation Losses, Negligent Omissions and the Tortious Duty of Care, Cambridge Law Journal, vol 55 (1996) 43, at pp 49-50; [NAME], Privity of Contract and the Tort of Negligence: Future Directions, Oxford Journal of Legal Studies, vol 16 (1996) 191, at pp 204-205; [NAME], Contract, Tort and the Lloyd's Débâcle, in [NAME] (ed), Consensus Ad Idem (1996) 96, at p 108.

The role of the law of tort

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] . [NAME] 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 [NAME]); 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 [NAME] 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. [NAME] v [COMPANY] [No 2] [1988] QB 758 at 782 2. "Contract and Tort: [ADDRESS] 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 [NAME] v [NAME] [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 [NAME] which governed the obligations of the solicitors to disclose the will to the nominated [NAME] or [NAME] after the death of [NAME]. Had there been such a contract, the benefit, on the death of [NAME], would have passed to the [NAME] if no beneficial interest in the promise had been conferred on the [NAME] when the promise was made. In his Honour's judgment, the duty of care upon the solicitors, to find the [NAME] after the death of [NAME] 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 [NAME] would preclude enjoyment of the interests in property created by it, as well as from the foreseeable consequences of non-disclosure [179] . [NAME[NAME] said [180] :

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

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

1. [NAME] v [NAME] (1988) 164 CLR 539 at 597-598, per [NAME].

Does it matter that the result of so doing will be to compensate for failure in the mere expectation of receipt of [NAME]'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. [NAME], Tort Law and Economic Interests, 2nd ed (1996) at pp 136-145 and [NAME], 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 [NAME] v [NAME] [1980] Ch 297and [NAME] [1995] 2 AC 207 2. [NAME], Solving The Problem of Concurrent Liability, Current Legal Problems, vol 48 (1995) 103, at pp 119-120.

The disposition of this appeal

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

1. cf [NAME] [1995] 2 AC 207 at 276, 291, 295.

The matter may be approached by asking whether the relationship between [NAME] [NAME] and [NAME] [NAME] was "equivalent to contract". That term was used by [NAME] [NAME] in [NAME] v [NAME] [185] and taken up by [NAME] [NAME] in [COMPANY] v [COMPANY] [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 [NAME] [NAME] 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.

[NAME] 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 [NAME] instances of extension of liability in negligence by reference to concurrent contractual relationships. More recently, in [NAME] v [NAME] [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 [NAME], Deane and Gaudron JJ in [NAME] [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 [NAME] of the parties to the contract and a third party. 1. [NAME], Selected Topics on the Law of Torts (1982), Ch VII, The Borderland of Tort and Contract, pp 391-402. See also [NAME], 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 [NAME] v [NAME] [190] . In a case such as the present, so also does the law of tort. That was the approach taken by [NAME] [NAME] [NAME] in [NAME] [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 [NAME] [NAME] as specific legatee and devisee but a complex of [NAME] factors combine to summon into existence a duty of care owed by [NAME] [NAME] to [NAME] [NAME] 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 [NAME] [NAME] by [NAME] plainly was designed to enhance the economic position of [NAME] [NAME] as a particular individual, the control exercised (as a practical matter) over the realisation by [NAME] of her testamentary intentions towards [NAME] [NAME], and the closeness of the connection between the request by [NAME] [NAME] to Mr [NAME] that he attest the will and the direct legal effect thereof, being the consequent failure of the gifts to [NAME] [NAME] by the will. There is also the [NAME] interest in the promotion of professional competence and the avoidance of disappointment of the wishes and expectations of [NAME] and [NAME] by negligent actions of solicitors [192] .

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

Consequences

So to determine the present matter is to accept what [NAME] [NAME], in the passage from his dissenting judgment in [NAME] v [NAME] [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 [NAME] promises B to perform a service for B which B intends, and [NAME] knows, will confer a benefit on [NAME] if performed, [NAME] owes to [NAME] 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 [NAME] v [NAME] [196] , [NAME] LJ said:

It must be recognised that [NAME] v [NAME] 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 ([NAME] and his estate) had suffered no loss and the only persons who had suffered a loss (the [NAME] [NAME]) had no claim. 1. [1995] 2 AC 207 at 291-292. 2. cf [NAME] v [COMPANY] [1995] 2 AC 145 at 181, where [NAME], in delivering the leading speech given in the [NAME], 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 [NAME] in respect of economic loss which flows from the negligent performance of those services." See also [COMPANY] v [COMPANY] [1992] Ch 560 at 569-571and the criticism thereof in [NAME], Economic Loss (1993), pp 420-423.

3. Variants of the proposition of [NAME] [RESPONDENT] [NAME], 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 [NAME] and [NAME[NAME] in the [NAME]: 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 [NAME] v [NAME] [197] , [NAME] [NAME], 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 [COMPANY] v [NAME] [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 [NAME] [APPELLANT] by [NAME] [NAME] 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. [NAME] (1995) 182 CLR 609 at 618 4. [COMPANY] v [NAME] (1997) 188 CLR 241

Further, escape by [NAME] [NAME] 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 [NAME] [NAME] recourse in respect of the consequences of negligent performance by [NAME] [NAME] as promisor of professional duties owed to [NAME] [NAME] as promisee.

[NAME] [NAME] pointed out in [NAME] [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 [NAME]. At that point in time the interest of [NAME] 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 [NAME] Australia, [NAME] Wales and Victoria [202] .

1. [1995] 2 AC 207 at 276. 2. Wills Act 1936 [COMPANY], 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 [NAME] and the [NAME]. To impose upon the solicitor a duty in tort towards the [NAME] is not to mandate a conflict of interest. The duty owed by [NAME] [NAME] to [NAME] [NAME] involved the implementation of [NAME] [NAME] wish to bestow her property upon [NAME] [NAME]. The existence of a duty of care in tort owed by [NAME] [NAME] to [NAME] [NAME] 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 [NAME] parties with whom the client is dealing in the relevant transaction.

In [NAME] v [NAME] [203] , the [NAME] 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 [NAME] v [NAME] [206] . The plaintiffs were the step-children of [NAME]. They had been residuary [NAME] 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 [NAME], [NAME] than his step-children, then took on intestacy. The solicitor who drew the will had raised with [NAME] the possibility of intestacy on the prior death of his wife, but [NAME] 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 [NAME] had deliberately refused himself to nominate.

1. [1995] 2 AC 207 at 223. 2. cf [COMPANY] v [COMPANY] [1992] Ch 560 at 569-571 3. [NAME] v [NAME] [1988] QB 665 at 672, 675; cf as to prosecuting authorities [NAME] 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 [NAME] has dealt with in the Act in a fashion [NAME] 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 [NAME].

"Proximity"

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. [NAME], Tort in a Contractual Matrix, Osgoode Hall Law Journal, vol 33 (1995) 661, at p 664. 2. cf [NAME] (1995) 182 CLR 609 at 617-618 3. [NAME], Are We up to Expectations? Solicitors, [NAME] 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 [NAME] 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 [NAME] v [COMPANY] [1996] 1 AC 211, [NAME] delivered the speech attracting majority support in the [NAME]. [NAME] [NAME] 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 [NAME] [NAME] in [NAME] v Merton London Borough [1978] AC 728 at 751-752: [NAME], Of Duty, Law Quarterly Review, vol 112 (1996) 209, at pp 213-214. 2. [NAME], 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 [COMPANY] [212] and [NAME] [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 [COMPANY] v [NAME] [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 [NAME].

Likewise, in [COMPANY] v [COMPANY] 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. [ADDRESS] 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. [NAME] (1992) 175 CLR 353 at 378-379.

To speak of "proximity" is to invite a series of questions which [NAME] 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 [NAME] v [NAME] [218] ), proximity "expresses a result, rather than a principle". Nevertheless, I would, with respect, accept (as [NAME[NAME] put it in [NAME] v [NAME] [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 [NAME[NAME] at 1178, expressed after consideration of the judgments of Brennan J and the extrajudicial writing of McHugh J. In [COMPANY] v [NAME] [1990] 2 AC 605 at 632-633(a passage recently repeated by [NAME] [NAME] in [NAME] v [COMPANY] [1995] 2 AC 296 at 343-344), [NAME] of [NAME] 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 [NAME] v [NAME] of [NAME] [NAME] [1992] 1 AC 310 at 411 2. (1991) 172 CLR 243 at 277.

3. This passage was accepted and applied by [NAME[NAME] in [NAME] (1995) 182 CLR 609 at 654

Conclusion

The appeal should be dismissed with costs.