"The fundamental difficulty with Mr. Sparkes’ submission is that he has failed to plead a basis on which the court could conclude that he suffered an economic “loss” in the sense of an economic injury. Such a loss is a constituent element of a claim in negligence. The above paragraphs in the statement of claim relate to damages sought by way of compensation. The need to first establish a loss is clear from paragraph 14(2)(b) of the Trade Practices Act which provides for an award of damages “for a loss suffered by the consumer” (emphasis added). Paragraphs (c) and (e), respectively, authorize the court to make an order rescinding or reopening the consumer transaction. As discussed above, there is no basis on which a court could conclude there was a consumer transaction between Mr. Sparkes and the Tobacco Companies. The question of damages, that is, compensation for a loss or injury, arises only after the loss or injury has been established. In the case on appeal, the sole ground on which an economic loss could possibly be found from the facts as pleaded is breach of the statute. Mr. Sparkes’ claim is simply that he bought a product which he alleges was advertised in a manner that contravenes section 5(1) of the Trade Practices Act. The facts as pleaded provide no other basis on which a court could conclude that Mr. Sparkes suffered a loss or injury, an essential element of a claim in negligence. The applications judge did not err in concluding that the sole foundation for Mr. Sparkes’ claim is the nominate tort of statutory breach. Such an action is precluded in law. "