Barclay v. Penberthy and the Collapse of the High Court's Tort Jurisprudence

Abstract

A critical examination of the High Court of Australia's decision in Barclay v. Penberthy.

Five employees of the plaintiff company were injured in a plane crash. Two died. The accident occurred because of a substandard part negligently designed by an engineer (the first defendant) that caused one of the plane’s engines to fail and because the pilot (his employer being the second defendant) responded negligently to the emergency. The plaintiff brought suit against the defendants, attempting to recover inter alia for the loss to it caused by the injuries to its employees. By the time the case reached the High Court, the issues were whether the plaintiff could recover in an action per quod servitum amisit and for pure economic loss in the tort of negligence.

Keywords: tort, High Court of Australia