In addition to being a watershed case with respect to liability for negligent misstateÂment and the negligent infliction of pure economic loss, Hedley Byrne & Co Ltd v Heller & Partners Ltd1 is significant for its revival of the idea of the assumption of responsibility as the foundation for a duty of care in the law of negligence.2
While the assumption of responsibility has deep historical roots,3 Hedley Byrne ushered in a focus on the concept which has been and continues to be enormously influenÂtial.
The assumption of responsibility plays a central role in liability for pure ecoÂnomic loss, liability for omissions and at least some non-delegable duties of care. Its role in establishing duties of care not to cause economic loss, duties of positive action and non-delegable duties is so significant that, in all three areas, it is someÂtimes considered to be the exclusive pathway to establishing the relevant duty.4 Duties arising from assumptions of responsibility are considered in some instances not to be affected by policy considerations that would bar the recognition of ordiÂnary duties of care.5 The appeal and potential reach of the concept are illustrated by the fact that it has been maintained in both the Court of Appeal[254] and the House of Lords[255] that even the duty of care owed by a motorist to other road users is based on an assumption of responsibility.A remarkably full and rich half-century of case law on the assumption of responsibility since Hedley Byrne has yielded a wealth of fact situations and analysis, but has left unresolved fundamental questions about the nature of the concept. The most basic question is whether we are concerned here with obliÂgations that are self-imposed, or obligations that are imposed by the law. The speeches in Hedley Byrne exhibit an ambivalence on that question which has haunted the field ever since. If the obligations are not self-imposed or consensual then what, if anything, is distinctive about the assumption of responsibility as a basis of obligation? The strong association the concept has with more onerÂous duties (not to cause economic loss; to take positive protective action; and to ensure that care is taken by delegates) suggests that there might be something disÂtinctive about the assumption of responsibility, but if it is not that the obligation is voluntarily created or adopted by the person by whom it is owed, then it is not easy to identify what it might be.
This chapter will first consider the different conceptions of assumption of responsibility that emerged from Hedley Byrne: one focused on the idea of a voluntarily assumed duty, the other on the assumption of responsibility as simply a particular instance of neighbourhood or proximity.
The second section of the chapter will explain why the idea of a voluntarily assumed duty does not fit with the case law. In the third section we will explore the idea that, even if the obligations in question cannot be understood as voluntary, they may nevertheless be regarded as distinctive because the defendant has willingly entered into a relationship with the claimant in which it can reasonably be expected that the defendant will be mindful of the claimant's interests. We will see that that model, too, is difficult to reconcile with the case law, and shades into a more general conception of proximity.[256] The fourth and final section explores the relevant indicia of proximity in a number of situations that are commonly treated as falling within the assumpÂtion of responsibility principle. Analysis of these fact situations sheds light on the nature of the obligation in question and on the circumstances in which it arises.I.