[1] The respondents (Mr Carter and Ms Wright), to whom it is convenient to refer as the plaintiffs, have brought proceedings in the High Court against the present appellants. The plaintiffs claim to have suffered economic loss as a result of the negligent survey of the ship Nivanga. The first appellant is the Attorney General sued in respect of the Marine Division of the Ministry of Transport (the MOT) which gave an interim certificate of survey on 16 May 1994. The second appellant (M&I) is a company called Marine and Industrial Safety Inspection Services Limited, to whom the Ministry’s survey responsibilities devolved on and from 1 June 1994. M&I issued certificates after that date which the plaintiffs claim were also issued negligently to their financial detriment. The appellants applied in the High Court to strike out the proceedings and for summary judgment on the basis that they owed no duty of care to the plaintiffs. They also contended they could not be liable civilly for negligent breach of statutory duty which was an alternative cause of action brought against them.
[2] Williams J, in a judgment delivered at Auckland on 20 March 2002, struck out the common law negligence claims, but held that the claims based on breach of statutory duty should go to trial, in spite of the fact that they were asserted on the basis of a negligent breach of statutory duty. The Attorney General and M&I have appealed on the basis that the Judge should have struck out the statutory duty causes of action, as well as those based on negligence at common law. The plaintiffs have cross-appealed contending that their common law negligence claims should not have been struck out. A number of subsidiary issues were raised but it is convenient to concentrate first on whether the causes of action are tenable. If they are not, the other matters, which involve limitation, reliance, causation, and remoteness of loss, do not arise. We will start by setting out as much of the quite extensive background as is necessary to put the primary issues in context.

Background

[3] During the early part of 1994 the plaintiffs were interested in acquiring the Nivanga from its then Fijian owner, JKS Holdings Ltd (JKS). The purchase was to be taken in the name of Carter Wright Holdings Ltd (CWH) of which, as its name implies, the plaintiffs, Mr Carter and Ms Wright, were directors and shareholders. At the time the plaintiffs were trading under the name Great Barrier Freight Services (GBFS). On 15 April 1994 the MOT wrote to GBFS advising that, based on the documentation provided, “the hull construction and machinery [of the Nivanga] would be acceptable for survey as a vessel plying within Extended River Limits subject to our inspection” (emphasis added).
[4] Mr Hooker, for the plaintiffs, faintly suggested in this Court that they could rely on this letter as representing that the vessel was in good condition. Clearly, however, they cannot do so because of the reservation that what was said was subject to inspection. It is only the MOT’s later certificate, given after inspection, that could possibly be the subject of complaint by the plaintiffs.
[5] On 20 April 1994 JKS, as vendor, and CWH, as purchaser, entered into an unconditional agreement for the sale and purchase of the Nivanga. The obligations of CWH as purchaser under the agreement were guaranteed by the plaintiffs personally. At the same time a bare boat charter agreement was entered into between JKS and CWH for a period of 12 months, after which the sale and purchase was to take effect. On 27 April 1994 the purchaser paid a non-refundable deposit to JKS of $58,000.00. The vessel, which was in Fijian waters at the time of the two agreements, was sailed to New Zealand and entered New Zealand waters on 6 May 1994.
[6] On 16 May 1994 Mr Peter Chard of the MOT inspected the Nivanga and under s217 of the Shipping and Seamen Act 1952 issued the interim certificate of survey referred to above. Later in the same month a Mr R J Hawkins, of a company then called Dunsford Marine Ltd, inspected the Nivanga and prepared a valuation addressed to the Bank of New Zealand. Dunsford Marine under a changed name is also sued in the plaintiffs’ proceedings but that is of no present moment.
[7] As noted above, M&I took over the MOT’s surveying role under the Shipping and Seamen Act on 1 June 1994 as a result of its purchase from the MOT of that aspect of the Ministry’s operations. On 21 June 1994 Mr Peter Chard, now acting on behalf of M&I, completed a declaration of survey and forwarded it to the Director of the Maritime Safety Authority, a body recently established to take over the relevant parts of the Ministry’s functions. The interim certificate, issued by MOT on 16 May 1994, had been expressed to operate for a period of three months. Accordingly on 16 August 1994 Mr Peter Chard on behalf of M&I issued a further interim certificate, this time to run for two months to 16 October 1994. On 24 August 1994 the Maritime Safety Authority issued a certificate of survey for the Nivanga to GBFS, stated to remain in force until 15 June 1998, subject to annual/intermediate surveys in accordance with s206 of the Shipping and Seamen Act.
[8] During the period from August 1994 to February 1995 negotiations took place between the plaintiffs and JKS for reductions in the purchase price on account of defects which had been discovered in the vessel. One amendment was negotiated but, when the plaintiffs endeavoured to obtain a further amendment, JKS, as vendor, declined to agree. The plaintiffs aver in their pleadings that, by virtue of an oral assignment entered into between CWH and themselves, all the rights and liabilities of CWH as purchaser of the Nivanga were assigned from CWH to the plaintiffs and accordingly they purchased the Nivanga from JKS on 8 February 1995.
[9] It is not necessary to traverse in detail the sequence of events which then ensued. The next occurrence of moment for present purposes is that on 9 May 1996 CWH was placed in liquidation. A little more than a year later, on 31 August 1997, the Auckland Harbour Board seized the Nivanga and later sold it for scrap realising $500.00. This can be compared with the original purchase price which, in New Zealand dollars, was about $200,000.00. The plaintiffs assert that the various survey certificates were issued negligently, in that the condition of the Nivanga, at the relevant times, did not justify their issue.
[10] In their statement of claim they sue for a variety of financial losses in several different capacities. Those capacities include their role as guarantors of the original purchase, their becoming purchasers by assignment, their position as shareholders in CWH, their position as employees of CWH, their position as borrowers from a finance company in relation to repairs which were undertaken, their position as investors in CWH and GBFS, and their interest as lessors of the vessel to CWH and later to GBFS. All that needs to be said for present purposes about these various capacities is that they each allege different forms of economic loss said to have been incurred by the plaintiffs as a result of relying on the allegedly negligent and erroneous survey certificates.

Legislative environment

[11] The legislative provisions which applied to the circumstances of this case were those contained in Part IV of the Shipping and Seamen Act 1952, as inserted in 1987 by the Amendment Act of that year. Part IV is concerned with the construction, survey and equipment of ships. Section 199 introduced a number of sections concerned with the requirement of survey. Subject to stated exceptions, every ship (and this included the Nivanga) over six metres in length had to be surveyed in accordance with s206, unless it was a fishing vessel of less than 12 metres in length; a pleasure vessel; or an unmanned barge. The Nivanga fulfilled none of the exceptions and was therefore subject to survey under the Act. The owner of any ship requiring survey committed an offence against s199 if that owner failed to cause the ship to be surveyed.
[12] Section 206 provided that all ships requiring survey under s199 had to undergo initial, intermediate and periodical surveys as prescribed by regulation. The purpose of such surveys was set out in s206(2) as follows (emphasis added):

(2) Every initial survey, and every intermediate survey, and every periodical survey of a ship shall be of such extent as will enable the surveyor to determine whether or not the relevant requirements of this Act and of any rules and regulations made under this Act are being complied with, and as to whether or not the ship is in all respects satisfactory for the service for which the ship is intended to be used having regard to the period for which the issue or endorsement of any certificate in respect of the ship is sought.

[13] Section 207 empowered the MOT to require an additional survey in certain circumstances including, in terms of paragraph (d), where:

A surveyor has good cause to suspect that any alteration of or damage to or deterioration in the ship, or any loss of or damage to any equipment of the ship, has occurred since the last survey to the detriment of the seaworthiness or safety of the ship.

[14] Section 216, which dealt with declarations of survey, provided that such declarations should contain:

(a) Such statement of the particulars of the ship; and

(b) Such report by the surveyor on the condition of the ship’s hull, and its machinery and equipment; and

(c) Such statement of the ship’s fitness, in the opinion of the surveyor, to ply on the voyages or the trade for which the certificate is issued, -

as the Director may require, and shall also specify the maximum number of passengers (if any) that the surveyor considers the ship is fit to carry.

[15] From these provisions it can readily be seen that the survey requirement was and is focused on matters of safety and seaworthiness of ships. We cannot accept Mr Hooker’s attempt to suggest a difference between the concepts of safety and seaworthiness. The latter obviously has, in context, a safety connotation. The purpose of the survey requirement is underlined by the passages we have emphasised in the citations from the legislation made above. It is also apparent from the general scheme of this part of the legislation.
[16] Further support for the proposition that safety is the purpose of the statutory survey regime comes from the kinds of uses to which a ship may be put so as to justify an exemption from survey under s204. The uses set out in that section all have as their linking thread the reduction or absence of risk to the vessel from the perils of the sea. Mr Hooker placed some reliance on s206 and the expression “in all respects satisfactory for the service for which the ship is intended to be used”. We regard it, however, as obvious from the context that Parliament meant that the ship had to be satisfactory from the safety point of view. There is nothing in the legislative scheme, or in the individual sections, suggesting that survey certificates were intended to be issued or relied on for economic purposes.
[17] That the purpose of survey is safety is clearly apparent from the relevant provisions of the Shipping and Seamen Act as they stood at the relevant time. The point is reinforced by the legislative changes which occurred in 1993 and 1994. The Maritime Transport Act 1993 established the Maritime Safety Authority to which the survey and allied functions of the MOT were transferred. The very name of the new Authority emphasises its purpose and the purpose of the functions transferred to it. In short, that purpose was the safety of ships and the safety of the sea in the sense of protecting it, as far as possible, from pollution. One of the reasons for the changes brought about by the 1993 Act was to bring New Zealand law more into line with international safety requirements.
[18] The new Maritime Safety Authority had, as its principal, effectively its sole, objective, the promotion of a safe maritime environment and effective pollution control, at a reasonable cost. That is stated in s4(1) of the 1993 Act. In furtherance of its principal objective, the Authority was given the functions described in s5. These do not need to be set out but it is immediately apparent that marine safety and pollution control were at the heart of these functions. The point is that the statutory changes brought about in 1993 (prior to any of the relevant events), and to a lesser extent those that were brought about in the Maritime Transport Act 1994, underlined the safety connotations of the statutory requirement for survey of ships. Indeed the Maritime Safety Authority, with its limited functions, became the issuer of the final survey certificate. There is no suggestion anywhere in any of the relevant legislation that survey certificates were intended by Parliament to be relied on by anyone, let alone the owners (actual or prospective) of ships, when making commercial decisions concerning a particular vessel. The protection of commercial interests is not a purpose of the legislation.
[19] It is against that background that the legal issues must be considered. First we will address the judgment under appeal.

The High Court judgment

[20] Williams J, after citing from a substantial number of authorities, held that there were strong policy arguments leading to the conclusion that it would not be fair, just and reasonable to impose a duty of care on MOT and M&I in relation to the survey certificates in question. It is not entirely clear what view the Judge took on the earlier proximity issue. In that respect the Judge tended to merge causation matters with those concerning the existence of a duty of care. It is preferable if the two are kept conceptually separate: see Price Waterhouse v Kwan [2000] 3 NZLR 39, 46; albeit matters of causation, remoteness and other aspects of the composite inquiry may in practical terms shade into each other: see Wellington District Law Society v Price Waterhouse [2002] 2 NZLR 767, at 776 and 780. We agree with the Judge’s ultimate conclusion that no common law duty of care existed but reach that conclusion by a rather different process of reasoning.
[21] In addressing the question of breach of statutory duty, the Judge was not invited, so it appears from his judgment, to make any distinction between a negligent and a non-negligent breach of statutory duty. In the light of the argument in this Court it will be necessary to touch on that subject. The Judge’s principal reason for holding that it was arguable that the MOT and M&I were civilly liable for breach of statutory duty was that the lack of liability, as he had earlier found, for common law negligence, could be taken as an indication that Parliament intended there to be civil liability for breach of statutory duty. With respect, whether one is talking about a negligent breach of statutory duty or a non-negligent breach, there is difficulty with that reasoning, for reasons to be developed below. It is, however, convenient to address the topic of common law negligence first.

Common law negligence (general principles)

[22] Whether it is fair, just and reasonable to hold that a duty of care is owed by defendant to plaintiff in a situation not covered by authority is conventionally addressed in terms of proximity and policy: see for example Price Waterhouse v Kwan (supra) at page 41 paragraph [6], and of course South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282. Generally speaking, proximity is concerned with the nature of the relationship between the parties whereas policy is concerned with the wider legal and other issues involved in deciding for or against a duty of care. In cases of negligent mis-statement, the proximity inquiry generally focuses on the inter-dependent concepts of assumption of responsibility and foreseeable and reasonable reliance.
[23] Concerns have been expressed about the appropriateness of the concept of assumption of responsibility in the present context: see Todd on The Law of Torts in New Zealand (3rd ed – 2001) at 224ff (4.8.4). The potential difficulty is with the word “assumption”, which suggests a voluntary act. In tort obligations are imposed, not assumed, as they are in contract. But, that said, the idea of one person assuming, in the sense of coming under, a responsibility to another in tort, does have value when understood in the sense that in certain circumstances the law requires responsibility to be assumed. Responsibility is then deemed in law to have been assumed. The expression “deemed assumption of responsibility” conveniently expresses this process of thought and is thus conceptually consistent with the conventional difference between tort and contract.
[24] If the defendant has, or is deemed to have, assumed responsibility to the plaintiff to be careful in what is said or written, thereby creating proximity, it will usually, subject to policy considerations, be fair, just and reasonable to hold the defendant liable for want of care. Assumption of responsibility can be viewed as the rationale for liability for negligent mis-statement and the underpinning of the tort at the highest level of generality. Indeed it can be said that whether the defendant should in any situation be required to assume responsibility to the plaintiff for negligently caused loss is simply another way of expressing the conventional inquiry whether it is fair, just and reasonable to impose a duty of care.
[25] The concept of reliance is involved in determining whether there has, in the particular case, been an assumption of responsibility, whether actual or deemed. In some, albeit relatively rare cases, the defendant’s assumption of responsibility is voluntary. In other words the defendant is found to have undertaken to exercise reasonable care. In such circumstances, which are analogous to, but short of, contract, it is both reasonable and foreseeable that the plaintiff will rely on the undertaking.
[26] In most cases, however, there will be no voluntary assumption of responsibility. The law will, however, deem the defendant to have assumed responsibility and find proximity accordingly if, when making the statement in question, the defendant foresees or ought to foresee that the plaintiff will reasonably place reliance on what is said. Whether it is reasonable for the plaintiff to place reliance on what the defendant says will depend on the purpose for which the statement is made and the purpose for which the plaintiff relies on it. If a statement is made for a particular purpose, it will not usually be reasonable for the plaintiff to rely on it for another purpose. Similarly, if the statement is made to and for the benefit of a particular person or class of persons, and the plaintiff is not that person or within that class, it will not usually be reasonable for the plaintiff to place reliance on it so as to oblige the defendant to assume responsibility for carelessness in its making.
[27] Hence, before the law of torts will impose on the author of a statement a duty to take care the plaintiff must show that it is appropriate, on the foregoing basis, to hold that the author has or must be taken to have assumed responsibility to the plaintiff to take reasonable care in making the statement. If that is shown, the necessary proximity will have been established, leading to a prima facie duty of care. The second inquiry is of course whether policy considerations negate or confirm that prima facie duty. When, as in the present case, the environment which brings the parties together is legislative, the terms and purpose of the legislation will play a major part in deciding the issues which arise. It is the legislation which creates and is at the heart of the relationship between the parties. It will often contain policy signals bearing on that aspect of the inquiry.
[28] It is as well to indicate that no new criteria are involved in the foregoing discussion. Our purpose is simply to set out a structure within which the necessary analysis can take place. We should, however, note the matters raised by Andrew Barker in his article entitled Defining an Approach to the Duty of Care: The New Zealand Court of Appeal and Claims for Negligent Mis-statement published in (2001) 10 Otago Law Journal Review No. 1 at 91: see also the same author’s article The duty of care and the search for certainty in [2003] NZLJ 44. The author suggests in his first article that this Court has not in recent times adopted a consistent approach to the duty of care issue; particularly in cases of negligent mis-statement.
[29] He identifies two different approaches. The first is the conventional two stage (proximity/policy) approach described as such in Price Waterhouse v Kwan, as mentioned in paragraph [22] above. The second and stricter approach is identified by the author as the Hedley Byrne approach: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465. The judgments of the majority and to a lesser extent of the minority in R M Turton & Co Ltd (in liquidation) v Kerslake and Partners [2000] 3 NZLR 406 are cited as the most recent example. The Hedley Byrne approach has at its heart the existence of some special skill and its application for the assistance of the plaintiff before one gets to the questions of assumption of responsibility and reliance. The author observes that which of these two approaches is adopted can materially influence the outcome of an individual case.
[30] The outcome of a duty of care issue should not depend on what analytical method is employed. The ultimate inquiry is whether it is fair, just and reasonable to require the defendant to take reasonable care to avoid causing the plaintiff loss or damage of the kind for which compensation is being sought. Each case will have its own particular combination of circumstances against which the necessary judgment must be made. To assist in answering the ultimate question, a two stage approach, under the headings of proximity and policy, has been found helpful and is now firmly established in our law. Recent examples of the application of the conventional approach can be found in the cases of Shrimpton v Brownie Wills [1998] 2 NZLR 320, and Boyd Knight v Purdue [1999] 2 NZLR 278.
[31] In cases of negligent mis-statement, as we have seen, the concepts of assumption of responsibility and foreseeable and reasonable reliance have been adopted to assist in reaching a principled and reasonably predictable answer to the proximity inquiry. It is only to be expected that in deciding different cases, Courts have tended to highlight matters seen as particularly material in the individual circumstances of those cases. The way judgments are expressed can also be influenced by the basis upon which the case has been argued. Such was the position in Turton v Kerslake which should not be viewed as introducing any materially different approach to the two stage inquiry.
[32] The contractual matrix and special skill points, of which particularly the former assumed prominence in Turton v Kerslake, should be seen simply as matters upon which the Court considered it appropriate to focus in the particular circumstances of that case and the way it was argued. We do not consider that these two matters should be treated as other than relevant ingredients of the conventional two stage approach.

Common law negligence (this case)

[33] Mr Ring and Mrs Fee argued that as the legislative purpose in the present case was safety, it was not reasonable for the plaintiffs to rely on the survey certificates for the quite different purpose of protecting their economic interests. Mr Hooker, who accepted that safety was certainly one of the purposes of the survey regime, did not, in our view, advance any other tenable purpose. He argued that the Court should find that protection of economic interests was within the statutory purpose. We find ourselves quite unable to accept that contention. The statutory scheme and language simply do not support it.
[34] It cannot reasonably be said that the MOT and M&I assumed or should be deemed to have assumed responsibility to the plaintiffs to take care in issuing the certificates not to harm their economic interests in the Nivanga. Hence the necessary proximity between the parties is absent. There are essentially two reasons for that conclusion, one more fundamental than the other; albeit each is fatal to the plaintiffs’ case. The first and more fundamental problem the plaintiffs face is that, as we have discussed, the statutory environment is such that the purpose of the certificate was entirely different from the purpose for which the plaintiffs claim to be entitled to place reliance on it. The second is that in none of the capacities in which the plaintiffs claim to have suffered loss were they the person or within the class of persons who were entitled to rely on the certificates. They do not sue as passengers on the vessel or as crew or as other seafarers, damaged in a material way by the allegedly negligent certificates. In a sense the second problem can be viewed as a manifestation of the first. We mention it simply to exemplify the plaintiffs’ essential difficulty in another way. For these reasons we hold that there was no relevant proximity between the parties so as to satisfy that criterion for the imposition of a duty of care.
[35] Had it been necessary to address policy issues, we would have found that the plaintiffs were in difficulty on that limb of the inquiry as well. The MOT and M&I were in the position of regulators of the safety of shipping in New Zealand. There is a legitimate public interest in regulatory bodies being free to perform their role without the chilling effect of undue vulnerability to actions for negligence. Whether it be a case of failing to issue or of issuing a survey certificate, the threat of legal liability for economic loss might subject the survey authority to inappropriate pressures to the detriment of the overall public interest. For this kind of reason the trend of authority is generally not to hold the regulator liable to the regulated for economic loss, even if negligence can be shown: see Yuen Kun-yeu v Attorney-General for Hong Kong [1987] 2 All ER 353 (PC); Fleming v Securities Commission [1995] 2 NZLR 278; and Cooper v Hobart (2001) SCC 79. We agree with Mrs Fee that the New Zealand building inspector cases are sui generis.
[36] The safety focus of the survey regime is another policy reason which, in addition to its influence on the question of proximity, points away from the imposition of a duty of care to guard against economic loss. From a policy point of view this factor reinforces the lack of proximity.
[37] The decision to which we have come, on the basis of the legislative environment in this case, is supported by decisions in England dealing with comparable circumstances there. It is unnecessary to make extensive citations. In The Morning Watch [1990] 1 Lloyd’s Rep 547, Phillips J (as the present Master of the Rolls then was) held that a classification society which had surveyed a vessel did not owe a duty of care to potential purchasers of the vessel so as to render it liable to them in damages for economic loss. His Lordship found the proximity requirement was not satisfied.
[38] In Reeman v Department of Transport [1997] 2 Lloyd’s Rep 648 the Court of Appeal applied the same reasoning to a body which, as here, was charged with the duty of certifying vessels with a view to promoting safety at sea: see in particular Peter Gibson LJ at 685 who said that he found clear and compelling the analogy with a classification society, as in The Morning Watch, and the decision of the House of Lords in Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 211. Broadly similar approaches were taken with regard to the safety and airworthiness of aircraft in Philcox v Civil Aviation Authority (UKCA The Times, 8 June 1995), and by this Court in Oceania Aviation Ltd v Director of Civil Aviation (NZCA163/00, 13 March 2001). At a higher level of generality, the view we take and those taken in the cases mentioned can be regarded as consistent with the decision of the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605: see in this respect the discussion of Caparo in Reeman.
[39] For all these reasons our ultimate conclusion is that it would not be fair, just or reasonable to impose on the MOT and M&I duties of care of the kind asserted against them, ie. to take care to guard the plaintiffs against economic loss as a result of their relying on the survey certificates upon which the case is based. We therefore uphold the Judge’s decision to strike out causes of action based on common law negligence, and turn to the question of breach of statutory duty.

Breach of statutory duty

[40] It will be recalled that although Williams J struck out the causes of action based on common law negligence, he held that it was at least arguable that the causes of action based on negligent breach of statutory duty could be sustained. With respect, we have difficulty with that conclusion, both as a matter of logic and as a matter of law. It seems that the argument in this Court may have been materially different from that in the High Court.
[41] In X (minors) v Bedfordshire County Council [1995] 2 AC 633 the House of Lords held that there was no such cause of action as negligent breach of statutory duty. If the statute itself creates a duty to take care, a breach of that duty will result in a breach of statutory duty simpliciter, not a negligent breach of statutory duty. At 730H Lord Browne-Wilkinson, who delivered the leading speech, said:

Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (ie irrespective of carelessness; (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; and (D) misfeasance in public office, ie the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.

[42] A little later at 732C His Lordship added, as regards his category (B):

This category comprises those cases in which the plaintiff alleges (a) the statutory duty and (b) the “negligent” breach of that duty but does not allege that the defendant was under a common law duty of care to the plaintiff. It is the use of the word “negligent” in this context which gives rise to confusion: it is sometimes used to connote mere carelessness (there being no common law duty of care) and sometimes to import the concept of a common law duty of care. In my judgment it is important in considering the authorities to distinguish between the two concepts: as will appear, in my view the careless performance of a statutory duty does not in itself give rise to any cause of action in the absence of either a statutory right of action (category (A) above) or a common law duty of care (category (C) below).

[43] We respectfully agree with this approach. It is consistent with, indeed the logical culmination of, a developing trend to place increasing emphasis on the terms of relevant legislation when, in a common law negligence case, that legislation is central to the relationship between the parties. The trend of authority has also regarded the legislative environment as informing the duty of care question rather than as providing an alternative basis upon which a claim for negligence might be maintained. As noted above, a negligence claim can logically be brought as one for breach of statutory duty only if there is a statutory duty to take care.
[44] The statutory duty involved in this case is the duty to issue the relevant survey certificates. In statutory terms the MOT and M&I were obliged to issue the certificates. They were not, however, in statutory terms, obliged to take care in doing so. Any question of an implied duty to take care is to be assessed in the context of whether a common law duty of care exists. Hence there could be no breach of statutory duty in issuing a certificate negligently but, if at all, only in issuing it erroneously. Whether the error resulted from carelessness would, on this basis, be irrelevant.
[45] It is perfectly plain from the plaintiffs’ pleading that, up to the point at which the matter was argued in this Court, the contention was that the MOT and M&I were guilty of the negligent performance of their statutory duties. Mr Hooker did his best to persuade us to the contrary but the position is really plain beyond argument. On this basis alone the existing causes of action should have been struck out as unmaintainable. They should also, in our view, have been struck out on the basis that as the statutory environment did not support a common law duty of care, it could not logically support the view that Parliament intended there should be a cause of action under the statute for economic loss deriving from the negligent issue of a certificate. We are unable to accept the Judge’s suggestion that the absence of a common law cause of action for negligence might somehow support the presence of a cause of action for negligent breach of statutory duty.
[46] Faced with these difficulties Mr Hooker argued that his clients were entitled to amend so as to plead a breach of statutory duty simpliciter. Therefore, so he contended, judgment should not be given for the appellants. There are two difficulties with the suggested amendment. The first is that if, as has been held, the statute does not support a common law duty of care to persons in the plaintiffs’ circumstances, it must be difficult, if not impossible, to come to the conclusion that Parliament intended that civil liability to such persons should fall on someone giving an erroneous certificate without negligence. To come to that conclusion would be tantamount to holding that the issuer of a certificate was to be treated as guaranteeing its accuracy to people in the plaintiffs’ circumstances, and further that Parliament intended that any person relying on the certificate for economic purposes, as did the plaintiffs, was to be entitled to recover damages against the issuer accordingly. In our view such absolute liability cannot possibly have been intended.
[47] The second difficulty the plaintiffs face is that the limitation period for fresh causes of action has already expired. The material events took place in 1994 and 1995. Rule 187(3)(a) of the High Court Rules states that an amended pleading may introduce a fresh cause of action which is not statute-barred. Mr Hooker argued that an amendment to plead breach of statutory duty simpliciter would not introduce a fresh cause of action. We cannot accept that contention.
[48] The question of what amounts to a new or fresh cause of action so as to be caught by Rule 187(3) was discussed by this Court in Chilcott v Goss [1995] 1 NZLR 263, 273 per Richardson J. The circumstance that the underlying facts may be the same or similar does not save a cause of action from being fresh if the plaintiff seeks to derive a materially different legal consequence from those facts. Obviously matters of degree can be involved but here the position is plain. The plaintiffs’ breach of statutory duty causes of action have hitherto asserted negligence as an ingredient. Now they wish to assert liability without negligence. From the point of view of the appellants, as intended defendants, that change must amount to “a new departure” as Lord Wright put it in the leading English case of Marshall v London Passenger Transport Board [1936] 3 All ER 83, 87. The proposed change is also a change in character by means of an alteration in a matter of law, to adopt other words which Lord Wright used.
[49] Further citation of authority in which different expressions, to the same general effect, have been used could only lead to the same conclusion. What the plaintiffs now wish to assert is materially different in law from what they have hitherto asserted, and represents a fresh cause of action within the meaning of Rule 187(3). The proposed amendments cannot be made because they are statute-barred. The consequence is that the existing causes of action should all be struck out as untenable. The appellants, as defendants, are entitled to orders to that effect and also to summary judgment overall.

Other issues

[50] Before concluding this judgment, it is appropriate to say that the plaintiffs would have been in difficulty on further aspects of the case. They asserted reliance on the interim certificate at a point in time before it had been given. They attempted to circumvent the logical difficulty inherent in that stance by suggesting an implied term in the original contract of purchase, to the effect that it was conditional on a New Zealand survey certificate. We found that argument unpersuasive. The plaintiffs would also have encountered difficulties in relation to aspects of causation, other limitation issues, and in relation to remoteness of damage. It is unnecessary to lengthen this judgment by going further into those matters.

Conclusion/formal orders

[51] For the reasons given both appeals are allowed, and both cross-appeals are dismissed. The Judge’s order striking out the common law negligence causes of action is affirmed. The Judge’s order declining to strike out the causes of action for breach of statutory duty is set aside. In its place we order that those causes of action be struck out. As that disposes of the plaintiffs’ whole claim, we direct that summary judgment be entered for the appellants, as defendants in the High Court, with costs to be determined by the High Court. For costs in this Court we award the appellants $7,500.00 each against the plaintiffs jointly and severally, plus disbursements, including the reasonable travel and accommodation expenses of one counsel for each appellant, to be fixed if necessary by the Registrar.

Solicitors:
Jacqui Goodall, Wellington for Appellant in CA72/02
Jones Fee, Auckland, for Appellant in CA74/02
Vallant Hooker & Partners, Auckland, for Respondents

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