Duty of Care owed to the first plaintiff by the defendant?
 The first issue is whether the defendant, as a government entity
(see s 3C
of the Transport Administration Act 1988 (NSW)) which was engaged in the construction
of local infrastructure, owed a duty of care to the first plaintif
to take reasonable care to avoid causing SSM economic loss.
 The law has long recognised that whether a duty of care exists partly
depends on the type of harm which it is alleged has occurred. In cases of
"pure economic loss" such as the present claim, it is clear that a duty of
care will only be found where the case falls into one of the limited categories
of the law recognised by previous authority, except where it can be
established by analysis of "salient features" of the case that a novel
category ought to be recognised for the first time.
 The comments of McHugh J in McHugh J in Perre v Apand Pty Ltd
 HCA 36 suggest that the appropriate test is the "incremental"
approach to determination of a new duty, at para :
In my view, given the needs of practitioners and trial judges, the most helpful
approach to the duty problem is first to ascertain whether the case comes within
an established category. If the answer is in the negative, the next question is,
was the harm which the plaintif sufered a reasonably foreseeable result of the
defendant's acts or omissions? A negative answer will result in a finding of no
duty. But a positive answer invites further inquiry and an examination of
analogous cases where the courts have held that a duty does or does not exist2.
The law should be developed incrementally by reference to the reasons why the
material facts in analogous cases did or did not found a duty and by reference to
the few principles of general application that can be found in the duty cases.
 As indicated, I am not aware of any clearly established category of case
where a duty of care has been imposed on a government body to avoid
causing economic loss through its infrastructure decisions. There was no
pre-existing contract between the parties, no negligent misstatement by
the defendant on which the first plaintif relied, no set of defective
premises. Nor did the defendant harm any third party to whom the first
plaintif was related.
 Indeed, such analogous cases as there are point clearly against a duty.
In Precision Products (NSW) Pty Ltd v Hawkesbury City Council 
NSWCA 278 the local Council had ordered a business to be shut down
due to pollution concerns. A claim was made for economic loss caused as
a consequence, but the Court of Appeal held that there was no duty of
care of the sort claimed. MM Constructions (Aust) Pty Ltd v Port Stephens
Council (No 7)  NSWCA 417 also points to this result- see para .
I do not think that the diferent majority decision in Meshlawn Pty Ltd v
Queensland  QCA 181 is persuasive, even were I as a trial judge
free to follow that decision in preference to decisions of the NSW Court of
 I have given consideration to the "salient features" which require
consideration under the authority of Caltex Refineries (Qld) Pty Ltd v
Stavar  NSWCA 258, but these do not persuade me that a diferent
outcome is appropriate. In particular, a very important feature considered
in almost all "economic loss" cases is the question of "vulnerability".
Although I accept that it is not an "essential" part of a such a claim (see
Apache Energy Ltd v Alcoa of Australia Ltd (No 2)  WASCA 213 at
), it is always very important. Here I find that SSM were not relevantly
vulnerable- they are a fairly profitable business which could have insured
against the disruption caused by major works, and indeed would have had