In the case of Hedley Byrne v Heller8 the courts allowed claims from the information provided by a defendant as long as a ‘special relationship’ exists. The obiter of this case also suggests that in some circumstances there a duty does exist to give careful advice to another person. Lord Reid9 explains that the ‘special relationship’ requires a voluntary assumption of responsibility by the party giving the advice as well as a reasonable reliance by the claimant on that advice and this was further explained by Lord Morris.10 Was Pure Analysis assuming a duty in creating the study and was it foreseeable and reasonable that Allegra was to later rely upon their information in deciding to swim in the canal?
The two-stage test11 in Anns v Merton12 had often been viewed as too broad so its overruling in Murphy v Brentwood D.C.13 was to little surprise and makes it unnecessary to use the two stage test as the main test in this case, however policy implementations can still be an important factor in making the decision.
The modern approach that should be the main focus of this case is the three-stage test for duty of care offered to us by the judgment in Caparo v Dickman14 It has been referred to by my learned friends in earlier stages of this case and asks three questions; Was the damage to the claimant reasonably foreseeable? Was the relationship sufficiently proximate and is it just and reasonable to impose a duty of care? Despite this test being fairly broad in nature, we are also aware that the test can be modified with the different types of damage and different circumstances including those where the damage was caused by; acts, omissions or even third parties. We also need to consider whether the claimant in this case belongs to a category of people that require special rules; for example the claimants in the case of Alcock v Chief Constable of South Yorkshire.15 In this case the type of damage is personal injury so the basic questions in Caparo v Dickman are the ones used in order to establish a duty of care and it had been found that in earlier courts that it was foreseeable that an individual would be injured if the defendant had failed to take reasonable care in producing the report but there was insufficient proximity between the parties. It was also found that it would not be fair, just and reasonable to impose a duty of care on the defendant and these decisions were also upheld in the Court of appeal. We shall dissect the three main criteria in order to look at each stage in more detail.
In deciding whether the damage was foreseeable, we use an objective test based on the reasonable person as applied in Kent v Griffiths.16
In deciding on proximity between the parties we have seen that with regards to the duty owed to the general public that there is a requirement for a special relationship between the parties and this could not be found in Hill v Chief Constable of West Yorkshire.17 The Home Office v Dorset Yacht Co18 case differs due to physical proximity however in the case before us neither this nor a special relationship can be found.
The last stage of the Caparo test asks whether it is fair, just and reasonable to impose a duty of care and a claim can still be denied even if the first two criteria are fulfilled. A claim can be denied if it is contrary to policy and forces us to consider other interests than just to do justice between the parties including public interest, expedience, economic considerations and morality.
Cardozo J, in the early case of Ultramares v Touch, 19 applies the “floodgates argument” which can help to safeguard defendants from unfair levels of liability. Laws LJ in K v Secretary of state for the Home Department20 also applies such a limit on liability.
The case of Goodwill v B.P.A.S21 shows that there can be no liability to an ‘indeterminate class’ and therefore applies the floodgates argument of Cardozo J22 which we must consider in making our judgment as it might be unfair to allow liability in this case as it may lead to floods of similar claims and be unfair to the defendant.
If we do find that no duty of care is owed due to policy considerations including the floodgates argument we must take into consideration Article six of the Human Rights Act23 as in Osman v United Kingdom. 24
In the Caparo v Dickman25 case the courts held that it was not reasonable for the claimant to rely on the information or advice for one purpose when it was actually given for another purpose. We would need to consider what the actual purpose was for information provided by the defendants and ask if the defendant was aware that the claimant would be likely to rely on it and whether it was reasonable for the claimant to rely on this information before deciding to swim in the canal.
Reliance by the claimant has to be on advice that that he knows the defendant has provided and this was shown in the case of Abbot v Strong26 where accountants couldn’t be held liable for the shareholders losses as the information they had provided was conveyed as coming only from the directors and the claimants hadn’t known that the information was from accountants when they had relied upon it in making their investment. Had the claimants in this case known about the information provided by the defendant at the time he had made his decision to swim in the canal? I would assume not.
I would agree with previous decisions on this case on the grounds that there is insufficient proximity and it wouldn’t be fair, just and reasonable to impose a duty of care. The Human Rights Act 1998 has been considered and some reasoning may lack clarity due to precedent and relies upon policy but we would still find insufficient proximity between parties as seen in the case of Sutradar v Natural Environment research council.27 I would argue that Allegra would not have been aware of the study when he swam in the canal and the Act also provides a fair hearing for the defendant who should not have to suffer indeterminate numbers of claims. I would expect the water authorities to have conducted more research than a mere pilot study to ensure the water was safe.
REFERENCES
Bourhill v Young [1943] AC 92, HL; "the duty to avoid doing or omitting to do anything which may have as its reasonable and probable consequence injury to others and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”
2 Howarth [1991] CLJ 58 at 93 – 94, HL; “duty of care cases are really about giving the defendant immunity against liability in negligence.”
3 Human Rights Act 1998, Article 6; “everyone is entitled to a fair and public hearing.”
4 Donaghue v Stevenson [1932] AC 562 HL; “you must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
5 Home Office v Dorset Yacht Co Ltd [1970] AC 1004, HL
6 Donaghue v Stevenson [1932] AC 562, HL
7 Candler v Crane, Christmas and Co [1951] 2 KB 164, CA
8 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, HL
9 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, HL
10 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, HL;“a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who he knows or should know will place reliance on it.”
11 Anns v Merton LBC [1978] AC 728, HL
12 Anns v Merton LBC [1978] AC 728, HL
13 Murphy v Brentwood District council [1991] 1 AC 398, HL
14 Caparo Industries plc v Dickman [1990] 2 AC 605, HL
15 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, HL
16 Kent v Griffiths [2001] QB 3, CA “it was reasonably foreseeable that a person would suffer if the ambulance failed to arrive.”
17 Hill v Chief Constable of West Yorkshire Police [1989] AC, 53, HL
18 Home Office v Dorset Yacht Co Ltd [1970] AC 1004, HL
19 Ultramares Corporation v Touch, Niven & Co [1931] 174 NE 441; “liability in an indeterminate amount, for an indeterminate time, to an indeterminate class.”
20 K v Secretary of State for the Home Department [2002] EWCA Civ 983;“A defendant does not become the world insurer against grave danger posed by a third party; which he might control but doesn’t.”
21 Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397, CA
22 Ultramares Corporation v Touch, Niven & Co [1931] 174 NE 441
23 Human Rights Act 1998, Article 6; “everyone is entitled to a fair and public hearing.”
24 Osman v United Kingdom [1999] 1 FLR 193
25 Caparo Industries plc v Dickman [1990] 2 AC 605, HL
26 Abbot v Strong [1998] 2 BCLC 420
27 Sutradar v Natural Environment research council [2004] EWCA Civ. 175
BIBLIOGRAPHY
CASES
Bourhill v Young [1943] AC 92, HL
Donaghue v Stevenson [1932] AC 562 HL
Candler v Crane, Christmas and Co [1951] 2 KB 164, CA
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, HL
Anns v Merton LBC [1978] AC 728, HL
Murphy v Brentwood District council [1991] 1 AC 398, HL
Caparo Industries plc v Dickman [1990] 2 AC 605, HL
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, HL
Kent v Griffiths [2001] QB 3, CA
Hill v Chief Constable of West Yorkshire Police [1989] AC, 53, HL
Home Office v Dorset Yacht Co Ltd [1970] AC 1004, HL
Ultramares Corporation v Touch, Niven & Co [1931] 174 NE 441
Osman v United Kingdom [1999] 1 FLR 193
Abbot v Strong [1998] 2 BCLC 420
Sutradar v Natural Environment research council [2004] EWCA Civ. 175
BOOKS
Lunney, M. and Oliphant, K. Tort Law Text and Materials (2nd ed). Oxford: Oxford University Press, 2003
Turner, C. Tort (2nd ed). London: Hodder education, 2005.
Elliot, C. and Quinn, F. Law for AQA London: Pearson education, 2001.
STATUTES
Human Rights Act 1998
JOURNALS
Howarth [1991] CLJ 58 at 93 – 94, HL