JOHN KENWAY Ltd v ORCANTIC Ltd
| Jurisdiction | Scotland |
| Judgment Date | 08 June 1979 |
| Date | 08 June 1979 |
| Docket Number | No. 35. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Dunpark.
Negligence—Duty of care—Representation—Careless misrepresentation—Representation given by person in course of his business on a matter in which he professes special knowledge—Contract concluded in reliance on representation—Representation proved inaccurate—Circumstances in which duty owed.
The pursuers consulted the defenders about the design and possible construction of a vessel with a carrying capacity of 50 persons for conveying tourists between Mull and Staffa. The defenders had an expertise and were specialists in the design of vessels suitable for this operation. The defenders prepared a design and specification which stated that the vessel would have a seating capacity for a minimum of 50 persons. The defenders stated on a number of occasions that the design was adequate to meet the carrying requirements and that the Department of Trade would be bound to grant a certificate to that effect. The pursuers would not have gone ahead with the project were this not the case. The vessel was then constructed by the defenders for the pursuers. The Department of Trade thereafter issued a certificate restricting the passenger-carrying capacity to 46 persons.
The pursuers claimed reparation from the defenders because the carrying capacity of the vessel had been reduced by at least four persons with a consequent loss in revenue, on the ground that the defenders owed a duty to the pursuers to take reasonable care that the advice given and the representations about the carrying capacity of the vessel made by them were accurate and reliable.
Held (allowing a proof before answer after a procedure roll hearing) that a duty of care existed (1) where a person gives to another advice, information or an opinion (a) in the ordinary course of his business, (b) on a matter in which he professed to have special knowledge or skill, (c) knowing that the recipient was relying upon that special knowledge or skill and intended to act upon the advice, information or opinion received; and (2) where the informant also knew or ought to have known that the recipient was likely to suffer financial loss unless the advice or information was sound or the information accurate.
Dicta of Lord Macmillan in Bourhill v. YoungSC1942 S.C. (H.L.) 78, 88 and of Lord Denning M.R. in Esso Petroleum Co. Ltd. v. MardonELR [1976] Q.B. 801, 820followed.
John Kenway Limited raised an action in the Court of Session against...
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