Imposed and Assumed Obligations

In AG v Carter, the New Zealand Court of Appeal maintained that ‘Concerns have been expressed about the appropriateness of the concept of assumption of responsibility... The potential difficulty is with the word “assumption”, which suggests a voluntary act.

The first point to be made in this context is that, even if we accept that obliga­tions in tort are imposed rather than assumed, we cannot presuppose that actions based on Hedley Byrne genuinely belong to tort law in this sense. This matter will be revisited in the following section. The second point is that it is plain that tort law sometimes deals with assumed obligations. The cases examined in the follow­ing are ordinary negligence cases. They are not Hedley Byrne actions. Neverthe­less, it is clear that they turn on obligations that exist because of a responsibility assumed by the defendant.

A telling case in this context is Depue v Flateau,^[494] a decision of the Supreme Court of Minnesota. The plaintiff cattle buyer visited the defendant at about 5 pm or 5.30 pm on a winter’s evening. He decided that it was too dark to inspect the defendant’s cattle properly and asked the defendant if he could stay the night in the defendant’s house and inspect the cattle in the morning. The defendant refused. The plaintiff then conducted some other business with the defendant and was asked to stay for a meal. The plaintiff accepted. After the meal, the plaintiff suffered a fainting spell, again asked to stay the night, but was again refused. It was clear that the plaintiff was very unwell and unfit to travel through a Minne­sota winter’s night. But he was ushered to his cutter by the defendant and left the defendant’s property.

According to Brown J:

In the case at bar defendants were under no contract obligation to minister to plaintiff in his distress; but humanity demanded that they do so, if they understood and appreci­ated his condition. And, though those acts which humanity demands are not always legal obligations, the rule to which we have adverted applied to the relation existing between these parties on this occasion and protected plaintiff from acts at their hands that would expose him to personal harm. He was not a trespasser upon their premises, but, on the contrary, was there by the express invitation of Flateau, Sr. He was taken suddenly ill while their guest, and the law, as well as humanity, required that he be not exposed in his helpless condition to the merciless elements.^[495]

It is impossible to explain the outcome of this case according to the view that obli­gations in tort are imposed and not assumed. The defendant in Depue v Plateau was entitled to turn the plaintiff away from the beginning, but having invited the plaintiff into his house, became responsible for him in a way he was not previously responsible. One could regard this as an imposed obligation, but it makes no sense to say that it was imposed rather than assumed. The obligation arose because of the defendant's invitation to the plaintiff. It did not exist before that invitation.

A similar case is the decision of the Supreme Court of Canada in Horsley v MacLaren.^[496] The defendant had invited a number of guests onto his boat. One of the guests fell into the water and drowned. It was alleged that the defendant had been negligent in manoeuvring his boat and that this had contributed to the two deaths. The majority in Horsley v MacLaren found that the defendant had not acted negligently, but all agreed that, had the defendant been negligent, he would have been liable.

As owner and operator of a boat on which he was carrying invited guests, [the defendant] was under a legal duty to take reasonable care for [the] safety [of the passengers]. Having brought his guests into a relationship with him as passengers on his boat, albeit as social or gratuitous passengers, he was obliged to exercise reasonable care for their safety.^[497]

In other words, in inviting the guests on board, the defendant came under an obligation to ensure their safety, an obligation that the defendant would not have possessed had he not entered into that relationship with the guests. The notion that obligations in tort are imposed rather than assumed can only damage our understanding of this case.

Against this, one might maintain that the obligations in these cases are never­theless imposed and not assumed. In Depue v Plateau, the imposed obligation is that if one invites another into one's house then one must provide extra care for that person. In Horsley v MacLaren, the same rule was imposed with respect to boating. But if we say this, we might as well also say that obligations in contract are imposed: if one accepts an offer then one is bound, etc. Thus, the response under­mines the supposed separation between tort and contract under examination.^[498]

In their contribution to this volume, Robertson and Wang maintain in relation to Horsley v MacLaren that ‘The Supreme Court of Canada has held that a person who invites another onto his boat owes a duty to take reasonable care of the pas­senger's safety'.^[499] They then quote from Laskin J's judgment, including the follow­ing sentence: ‘ [T]he employee or passenger, who falls overboard from whatever cause, should be entitled to look for succour to the operators of the ship because of the necessary dependency on them for return to shore’.^[500] Robertson and Wang then conclude:

Thus, what differentiates the boat operator from someone who simply comes across another person in need of rescue is that there is an antecedent relationship between the boat operator and his passenger in which the passenger is particularly vulnerable to the consequences of the boat operator’s action or inaction.

This position overlooks the fact that it was the defendant’s invitation that created the alleged vulnerability and dependency that the deceased had with respect to this defendant. It was the invitation that generated, in fact characterised, the ‘antecedent relationship’. The deceased was vulnerable and dependant because he was relying on the defendant, which he did because the defendant had assumed responsibility to him by inviting him on board. Here again we see the negligence model piggybacking on the model it sets out to reject.

What is more, it is wrong to suggest that the invitation is necessary to the general vulnerability and dependency that existed for the deceased in this case. Imagine that the deceased in Horsley v MacLaren swam towards another boat and that the operators of that boat failed to conduct a rescue. Here, the deceased would have been dependant on and vulnerable to the operators of this vessel. But those operators would not owe any special obligation to conduct a rescue.^[502] Thus, their position would not be on a par with that of the defendant in Horsley v MacLaren, despite the fact that vulnerability and dependency is identical in each case.^[503]

Incidentally,^[504] though it is sometimes said that these cases (properly under­stood at least) require detrimental reliance in order to be actionable, this point is irrelevant and, in any case, comes to nothing. There are four reasons for this. First, the supposed need for detrimental reliance does not show that an assumption of responsibility is inessential to liability in these cases. Whatever the restriction on damages, the invitation was a necessary condition for liability in Depue v Flateau, for instance. Secondly, the need for detrimental reliance in many cases is read­ily explicable in terms of assumption of responsibility.

The importance of this discussion is that it undermines the notion that liability in Hedley Byrne-type cases cannot be based on an assumption of responsibility because in tort law responsibilities are imposed rather than assumed. The twofold response is that liability in Hedley Byrne is not properly understood as tortious and that, in any case, a great deal of liability in tort results from obligations that are assumed. As we have seen, there is even a sense in which this is true of Donoghue v Stevenson. In that case, the defendant would not have been liable had he not decided to manufacture ginger beer and present it to the market as potable. There is nothing to be gained from insisting that obligations in tort are imposed rather than assumed.^[505]

VI.