The MV 'Eternal Wind' Case: Implications for the law of economic loss

Abstract

Readers should note that although the cover page for this paper states that it is by Paul David, the paper is actually by Philip Hunter. David's paper cannot be located at this time.

The two cases examined in this paper are:

• Fortuna Seafood Pty Ltd (As Trustee for the Rowley Family Trust) v The Ship 'Eternal Wind' [2005] QCA 405
• Fortuna Seafood Pty Ltd (As Trustee for the Rowley Family Trust) v The Ship 'Eternal Wind' [2005] QSC 004

Hunter also provides the following abstract for his paper, which is reproduced below:

The decision in the MV Eternal Wind case creates a favourable environment for claims for economic loss by related small business, where while the businesses run may themselves have different purposes and aims, the link between them will be adequate to favour a claim for economic loss so long as it can be shown that those businesses were effectively operating as one or that the businesses are economically dependent or inter-dependent upon one another.

The decision places a heavy onus on defendants in relation to the extent of the knowledge which they are expected to be able to acquire to ascertain a class of vulnerable persons. It opens the law of economic loss up to a wider class than previously. It is now likely to be more difficult to ascertain those circumstances in which a duty will be owed in relation to claims for economic loss, particularly where it has been found that a duty exists on the basis only that there was knowledge that an ascertainable class of vulnerable persons might exist and in circumstances where membership of that class was somewhat difficult to identify.