Aims and Overview

There is therefore much to think about. The purpose of this work is to look anew at Hedley Byrne from a variety of different perspectives, drawing on the more recent experience of five important common law jurisdictions—the United King­dom, the United States, Canada, New Zealand and Australia.

Part 2 opens the debate with a discussion of historical, conceptual and theo­retical issues. The focus here is on the background to Hedley Byrne and the way it has been received in Australia (Chapter 2); the nature, meaning(s) and use(s) of the concept of ‘assumption of responsibility', both in negligent misstatement cases and more broadly in negligence law (Chapter 3); the proper way of understand­ing the foundational basis of negligent misstatement liability (Chapter 4); and its rationality (or otherwise) from the liberal-economic point of view (Chapter 5). Part 3 then examines the intersections between tort liability and the liability of advisors and others for equitable fraud (Chapter 6) and under the strict liability statutory regime for misleading or deceptive trade practices that now dominates the field in Australia (Chapter 7). These chapters, along with some of the later contributions in the work, set tort liabilities and concepts in their context and address the challenge of how properly to configure and co-ordinate liability rules that have different sources and historical traditions.

The final Part of the book (‘ Comparative Perspectives' ) contains specific con­tributions addressing aspects of the law in each of the main common law jurisdic­tions. As well as having a distinct, jurisdictional focus, these contributions build upon discussions in previous chapters and contribute further to the development of their themes. Chapter 9 hence examines the modern English law, but revisits in the process the analytical and theoretical debates that raged in Part 2. Chapter 10 tracks the American law of negligent misstatement from its early days to the most recent Third Restatement draft, highlighting ideological and political shifts (from classical private ordering to public ordering, and back again) along the way. Chapter 11 examines the modern Canadian law and advocates a return to Hedley Byrne’s earlier logic and concepts. Chapter 12 considers both the way in which the negligence liability posited in Hedley Byrne came to be applied to pre-contractual misrepresentations (the author clearly thinks this was a mistake) and comments on the New Zealand experience with two statutory regimes—one governing pre- contractual misrepresentations, which is unique in the common law world, the other governing misleading or deceptive trade practices, which is similar to that existing in Australia. The lessons here are salutary, but not very encouraging. Finally, Chapter 13 highlights some of the consequences for negligence law of its neglect in Australia in the shadow cast by the powerful statutory protections now prevailing in that jurisdiction. It focuses on the confusions currently attending duty of care rules in ‘three-party' misstatement cases and tries to bring greater order and rationality to them.

III.