Conclusion

We have encountered the claim that Lord Atkin was wrong to maintain in Donoghue v Stevenson that there must be and is a general conception of the duty of care. In this volume, Robertson and Wang maintain against this view that Lord Atkin was right.

At least in the area of private law, Hedley Byrne and Donoghue v Stevenson are often said to be the two most important cases of the twentieth century. Apart from that, properly understood they have nothing to do with each other. The idea that the former is a species of the latter has done considerable, perhaps irrepa­rable, damage to both areas of the law. It has occluded the basis of the Hedley Byrne action, leading to the invention of a host of tests, guidelines, markers etc for liability that do no more than confuse the real issues at stake. And the attempt to accommodate Hedley Byrne within the law of negligence has corrupted that law by furthering the expansion to meaninglessness of concepts such as proximity, neighbourhood, reasonableness and the duty of care.

If I cause you physical injury or property damage, then I am liable if I create an unreasonable risk of the injury that you suffered and that risk materialised in your injury. This is not nearly sufficient for liability under Hedley Byrne. That liability requires an assumption of responsibility by the defendant to the plaintiff, usually giving the plaintiff a right to rely on information provided. In short, despite the way in which it has been pigeonholed, Hedley Byrne is contractual in nature. And this state of affairs is precisely what should be expected in a legal system that offi­cially maintains three things that simply cannot be true: that Hedley Byrne liability is based on Donoghue v Stevenson’s neighbour principle, that only contract law as recognised in the common law deals with assumed obligations and that agree­ments or promises are legally binding only if accompanied by consideration.