property.
200
This argument was rejected.
201
Second, the person who misused
the information was in an analogous position to a trustee so the court should
create a remedy similar to breach of trust as a way of compensating the
victim.
202
This argument was rejected also.
203
Contributory Negligence and Contributing Fault
Courts have reasoned by analogy when considering the application of
contributory negligence to
equitable remedies. Contributory negligence had
been developed as a common law defence to the tort of negligence. In its initial
common law form the doctrine was an absolute defence to negligence.
However, in most jurisdictions legislation has now reduced
contributory
negligence to the status of partial defence by providing for apportionment. A
plaintiff’s damages are reduced to the extent that their negligence contributed
to their injury. So, if a plaintiff contributed by 25% to their injury their damages
would consists of 75% of their loss.
Given that common law had invoked the concept of contributory negligence
the court had to consider whether by analogy it applied to equitable remedies,
where it was labelled “contributing fault”.
204
The court held that in the case of
an action for breach of duty by a trustee or other fiduciary this innovation was
unacceptable. One of the major stopping points in applying contributing fault
to was that the comparison that underlay the reasoning process did not hold
up sufficiently. Negligence is founded on a duty to take reasonable care for all
others when we can see that failure to do so is likely to cause harm. In contrast
a fiduciary relationship involves more. The person in whom the trust and
confidence is reposed has a duty “of undivided and unremitting loyalty” as
they represent the interests of the beneficiary who reposes the trust.
205
Because
___________________
200
There was support for this the view by Jacobs P in DPC Estates Pty Ltd v
Grey and Consul Development Pty Ltd [1974] 1 NSWLR 443 at 460.
201
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, paragraph 120,
(2007) 230 CLR 89
202
In support of this argument counsel relied on a brief passage in DPC Estates
Pty Ltd v Grey and Consul Development Pty Ltd[67] [1974] 1 NSWLR 443 at 470 per
Hutley JA, tentatively suggesting that "the position of a third party obtaining from
a fiduciary advantages in the form of information and assistance should be
analogous to that of a third party obtaining property from a fiduciary”.
203
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, paragraphs 120,
195, (2007) 230 CLR 89
204
Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31, paragraphs 167 per Kirby J
205
William Gummow "Compensation for Breach of Fiduciary Duty" in
Youdan (ed), Equity, Fiduciaries and Trusts (1989) 57 at p 86 (footnotes omitted).
This was referred to in Maguire [1997] HCA 23; (1997) 188 CLR 449 at 489 and was
cited by Justice Kirby in Pilmer v Duke Group Ltd (In Liq)
[2001] HCA 31
at
paragraph [171].
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