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The courts have identified the concept of 'vulnerability' as a relevant limiting factor in cases of negliugent misstatement causing purely economic harm. A duty of care to avoid such harm will only arise if, in the circumstances, a plaintiff is vulnerable, dependent or powerless, and the defendant is in a position of control or power. In such cases the defendant will very likely owe the plaintiff a duty of care to avoid the harm that is likely to result from the defendant's acts or omissions.
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.
Western Districts Developments Pty Ltd v Baulkam Hills Shire Council (2008) 160 LGERA 422.
Perre v Apand Pty Ltd (1999) 198 CLR 180.
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 313 ALR 408.
The common law requirements explained in this section can be difficult to satisfy. For this reason, an action for misleading conduct under s18 of the Australian Consumer Law (ACL) would most likely be preferable to an action in tort. However, an action under s 18 of the ACL is only available if the misrepresentation takes place 'in trade or commerce'.
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