the pleadings seek to base a duty of care on the foreseeability of loss if the Fergie Report was prepared without due care (including without adequate investigation), on the fact of the contractual duty of reasonable care owed to the ALRM and on the various factors indicative of a close relationship between Luminis and Dr Fergie on the one hand and Binalong on the other hand .
I think there was a sufficiently close relationship between Dr Fergie and Binalong to give rise to a duty of care if such a duty, and its content, were coincident with the work to be done by her and the scope of the duty owed to the ALRM under its contract.
Whether there was a coincident or corresponding duty owed to the ALRM 'to ensure that sufficient tests and all proper investigations were done and that reliable and sufficient information was obtained for the purpose of [the Fergie Report]': see par 43 of the statement of claim.
The precise terms of the arrangement between the ALRM and Luminis/Fergie were not recorded.
For von Doussa, Fergie's overview of the cultural significance of the information supplied by the Ngarrindjeri women, especially Kartinyeri, for the ALRM submission was entirely appropriate.
On the basis of this interpretation of the contractual arrangement von Doussa continued his analysis of the Fergie Report (and Fergie's performance) privileging the reconstructed contractual relationship and the limited instructions from the ALRM.
It was not the purpose of the ALRM instructions to her to do so.
To her clients it was her obligation in the performance of the contract between Luminis and the ALRM to use her professional skills exclusively in their interests to interpret the material provided to her by them, and to formulate the case for threatened injury and desecration to advance their interests, which was to stop the construction of the bridge.
Previously we saw how von Doussa construed the contract and relationship between Fergie/Luminis and ALRM on the basis of statements drawn from the beginning of Fergie's Report.
We begin this version by emphasizing (for the judge it might be the more passive 'recognizing') that Fergie was contracted by the ALRM to provide a report in relation to a declaration under s10 of the HPA (para.
Consequently, there was no obligation to test or investigate the authenticity of any claims, and peer review would have contravened her (retrospectively implied contractual) instructions: 'Dr Fergie was instructed by ALRM to prepare a report exclusively for its use.
From such a standpoint, if Fergie acted in the interests of the ALRM and the Ngarrindjeri women there were minimal professional expectations from which there could be no derogation.