The Assumption of Responsibility as Proximity

If the assumption of responsibility is to be understood as a question of proximity, then it is crucial to consider the potential effect of the defendant's conduct on the claimant.

This section considers some of the common types of assumption of responsibil­ity cases and the kinds of factors that are considered by the courts to be necessary to establish a duty of care in those cases. The cases demonstrate that what is needed to establish a duty of care varies according to the type of case. In many situations, for example, it is the likelihood of reliance by the claimant that is crucial. In others there is no reliance by the claimant, but the defendant's conduct affects the actions of others in a manner that is detrimental to the claimant.

A. Rescue

It is well established that a person who simply chances upon another in need of easy rescue is under no legal duty to effect the rescue. This is the case even if the potential rescuer has some special skill that would be of particular assistance to the would-be rescuee.^[369] If the potential rescuer and rescuee are alone in an isolated situation, then the potential rescuer does exercise a certain measure of control over the rescuee's interests, because the potential rescuer is in a unique position to effect the rescue and the rescuee is vulnerable to the consequences of the actions of the potential rescuer.

Even if the potential rescuer has a statutory function to receive calls for help, a duty may not arise. A fire brigade called upon to help fight a fire is not, without more, under a common law duty to answer the call for help.^[370] A similar conclusion applies to the police^[371] and the coastguard.^[372] In these cases, the receipt of a call for help alone does not create a sufficiently close relationship between the parties to establish a duty to respond.^[373] In contrast, the courts have found that a duty will arise where the claimant has been told that help is forthcoming.^[374] The key factor in these latter cases appears to be the impact that the defendant's actions have had on the conduct of the claimant or of others.

In Densmore v City of Whitehorse,^{[375] [376]} the court observed that because the fire bri­gade had said it would attend the plaintiff's house, the plaintiff did not herself take any further protective action, such as removing her possessions from the house or enlisting neighbours to assist her in fighting the fire. The court framed the fire brigade's duty as a duty not to mislead the claimant about whether help was on its way. Similarly, in Kent v Griffiths,¹²³ in which an ambulance accepted a call for help but took 40 minutes to arrive, the Court of Appeal said that ‘The acceptance of the call in this case established the duty of care... If wrong information had not been given about the arrival of the ambulance, other means of transport could have been used'.^[377] As discussed above, Costello^[378] is a case where the defendant's actions affected the conduct of others to the detriment of the claimant, thus giving rise to a duty of care. Inspector Bell's presence near the claimant meant that Sergeant Hall left the area and was not on hand to assist the claimant when she was attacked.

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. In Horsley v MacLaren (The Ogopogo), Laskin J (dissenting, but not on this point) described the boat operator's duty to passengers as follows:

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. That obligation extends, in my opinion, to rescue from perils of the sea where this is consistent with his duty to see to the safety of his other passengers and with concern for his own safety. [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.^[379]

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. As the final sentence in the above quote indicates, it is not the boat operator's undertak­ing, but the passenger's dependency that is the basis of the passenger's entitlement.

The above cases considered the circumstances in which a potential rescuer might owe a duty to embark on a rescue. Another question is whether a person who d oes embark on a rescue comes under a duty to take reasonable care to com­plete it, or simply under a duty not to make the rescuee's situation worse. The Court of Appeal in Capital & Counties^[380] was of the latter view, holding that a fire brigade that attends a fire and takes control of the scene does not owe a duty to the owner/occupier to take reasonable care to fight the fire effectively; the fire brigade only owes a duty not to make things worse through positive negligent action.^[381]

Stuart-Smith LJ in Capital & Counties applied the same analysis to doctors, asserting that if a doctor who witnesses a road accident goes to the assistance of an injured person, ‘his only duty as a matter of law is not to make the victim's condition worse'.^[382] Lord Morris took a different view in Hedley Byrne, stating that a doctor who proceeds to treat someone in such a situation ‘must exercise reason­able skill and care in doing so'.

It is well established that if a doctor proceeded to treat a patient gratuitously, even in a case where the patient was insensible at the time and incapable of employing him, the doctor would be bound to exercise all the professional skill and knowledge he possessed, or professed to possess, and would be guilty of gross negligence if he omitted to do so.^{[385] [386]}

Two cases in which a defendant who embarked on a rescue was found to owe a duty to take reasonable care in carrying out that rescue are Zelenko v Gimbel Bros¹³³ and Barrett v Ministry of Defence.^[387] In Zelenko, a customer was taken ill while in the defendant's store. The defendant was alleged to have placed the customer in an infirmary and left her alone for several hours without medical care. She eventually died. On an unsuccessful motion to dismiss, the defendant was held to owe a duty to the plaintiff not to omit to do what an ordinary person would do in assisting the plaintiff. Importantly, the court observed that:

If defendant had left plaintiff's intestate alone, beyond doubt some bystander, who would be influenced more by charity than by legalistic duty, would have summoned an ambulance. Defendant segregated this plaintiff's intestate where such aid could not be given and then left her alone.^[388]

Thus in Zelenkoi as in Costelloi it was essential to the finding of the duty of care that the defendant's conduct had excluded others from having the opportunity to assist the plaintiff. The duty of care was not founded on the mere fact that the defendant had embarked on a rescue; a necessary element was that the defendant's conduct had an effect on the conduct of others, to the detriment of the plaintiff.

In Barrett v Ministry of Defence the plaintiff's husband, a naval officer stationed in Norway, lost consciousness due to heavy intoxication.

Robert Stevens points to B arrett as demonstrating that a defendant who com­mences a rescue owes a duty to place the claimant in the position that reasonable care would achieve, and that this duty arises because of the defendant's voluntary assumption of responsibility for the claimant.^[389] However, Barrett is a weak author­ity on this issue, as the Ministry of Defence conceded that it had breached a duty to the officer after the officer lost consciousness, so the Court of Appeal did not con­sider the basis of any such duty. Had the Court of Appeal considered the question, it may have adopted a similar approach to Zelenko and found that a necessary element of the duty was that, by taking the officer to his bunk, the rescuer had deprived the rescuee of the opportunity to receive more effective assistance from others.

Whether the rescuer-rescuee relationship carries with it expectations beyond not making the situation worse is a controversial question which may be resolved by the choice between the ‘voluntary assumption of obligation' and ‘proximity' models of liability. If, as Stevens argues, the basis of obligation is the implied undertaking made by the rescuer, then that could properly be understood to give rise to a positive obligation to perform the rescue with reasonable care. The making of the undertaking gives the promisee a right against the promisor to its perfor­mance. Proximity analysis, on the other hand, depends on the claimant being in some way vulnerable to the effects of the defendant's conduct.

B. Railway Gates and Navigational Lights

A similar question to that posed by the rescue cases is whether a person who takes it upon himself or herself to warn others of a danger comes under a positive duty of care which could be breached by failing to maintain those warnings.

This question was considered in a number of historical ‘railway gate' cases— cases where the defendant maintained, absent any legal duty to do so, a practice of locking pedestrian gates at level crossings when a train was passing, and where, on a particular occasion, the defendant failed to lock the gate and the claimant was struck by a train at the crossing. The defendant railway company was held liable for its failure to lock the gate in Mercer v South Eastern & Chatham Railway Companies’ Managing Committee.^[390] Lush J in that case observed:

In this case I think that the defendants gave a tacit invitation, and that it was in conse­quence of his acting upon that invitation that the plaintiff was injured.

It may seem a hardship on a railway company to hold them responsible for the omission to do something which they were under no legal obligation to do, and which they only did for the protection of the public. They ought, however, to have contemplated that if a self-imposed duty is ordinarily performed, those who knew of it will draw an inference if on a given occasion it is not performed. If they wish to protect themselves against the inference being drawn they should do so by giving notice, and they did not do so in this case.^[391]

The courts in Skelton v London and North Western Railway Co^[392] and Soulsby v City of Toronto^[393] reached a different conclusion. Skelton was decided on the basis that the claimant had been guilty of contributory negligence and thus was not entitled to recover. However, Willes J held that in any event the defendant did not owe a duty of care, and Montague Smith J rejected the argument that the defendant's failure to fasten the gate amounted to an invitation to pedestrians to cross the line. A stumbling block for the claimant in Skelton was that, while the defendant usually fastened the gate at the approach of a train, there was no evidence that this was an invariable practice. This made it difficult to conclude that an unfastened gate con­stituted a signal or invitation by the defendant to pedestrians to cross the line.^[394]

In concluding that the defendant in Soulsby owed no duty of care, Britton J pointed to the fact that, when the plaintiff came to the crossing, the watchman responsible for closing the gate was nowhere to be seen. ‘ That in itself should have suggested to [the] plaintiff the possibility at least that the gate was open, not as an intimation that there was no danger, but that the watchman had been withdrawn'.^[395] Further, the watchman was employed by the city corporation and not the railway company, and did not have access to train timetables, but rather relied solely on observation to know when a train was approaching. The plaintiff was thus in just as good a position as the watchman to see approaching trains.^[396]

An analogous category of cases is the ‘navigational light’ category, in which the defendant (usually the Crown) constructed navigational lights for ships, but failed to take reasonable care to maintain those lights. In The Queen v Nord-Deutsche Versicherungs-Gesellschaft,^[397] range lights on the coast, which were by statute under the control of the Crown,^[398] had shifted so that they were no longer accu­rate in indicating a ship’s position. The ship Hermes used the lights to navigate and collided with the ship Transatlantic; the Transatlantic consequently sank. The Crown was found partially^[399] liable for the damage. While there was evidence that the pilot of the Hermes knew that the range lights were not entirely accurate,^[400] the Supreme Court of Canada held that ‘mariners were entitled to place reliance’ on the lights to assist their navigation.^[401]

Similarly, in Indian Towing Co v United States,^[402] the coastguard was held liable in negligence for allowing a lighthouse it operated to go out, causing a tug to run aground. Frankfurter J held for the majority:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guid­ance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order, and if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning.^[403]

The railway gate and navigational light cases therefore turn on reliance by the claimant. The defendant in these cases creates a risk of harm by engaging in conduct that engenders reasonable reliance on the part of others, and then failing either to behave consistently, or to warn those who might be relying on its conduct. The situation in these cases is very closely analogous to promissory and proprietary estoppel cases, where A induces an assumption as to his or her future behaviour, which is reasonably relied upon by B. That sequence of events justi­fies an obligation on the part of A to behave consistently, warn B of an intended departure, or answer for the loss suffered by B as a result of A’ s failure to behave consistently or prevent harm by providing an adequate warning.^[404]

C. Valuers and Third Parties

Valuers have been found to owe duties of care to persons other than their clients on the basis of assumptions of responsibility in a number of circumstances. A valuer engaged by a mortgagor to value a property has been held to owe a duty to the mortgagee who made an advance in reliance on the valuation.^[405] A valuer engaged by a mortgagee to value a property has been held to owe a duty to the mortgagor who purchased a property in reliance on the valuation.^[406] A valuer engaged by a mortgagee to value a property has been held to owe a duty to the mortgagor whose property was sold at a significant undervalue in reliance on the valuation.^[407] And an auditor engaged by a company to value shares has been held to owe a duty to a shareholder whose shares were compulsorily acquired at a significant undervalue in reliance on the valuation.^[408]

In all of these cases, the courts have emphasised the fact that the valuer knew that the claimant was very likely to rely on the valuation. This expectation of reli­ance may arise, for example, because the valuer directly addressed its valuation to the claimant with the purpose of inducing the claimant to rely on it,^[409] because the valuer was aware that the claimant was unlikely to obtain his or her own independent valuation (for example because the claimant was not well off),^[410] or because, in the circumstances, the claimant had no ability to challenge the valuation.^[411] As Lord Jauncey said in Smith v Bush:

It is critical to this conclusion that the appellants knew that Mrs Smith would be likely to rely on the valuation without obtaining independent advice... I would not... conclude that the mere fact that a mortgagee’s valuer knows that his valuation will be shown to an intending mortgagor of itself imposes upon him a duty of care to the mortgagor. Knowl­edge, actual, or implied, of the mortgagor’s likely reliance upon the valuation must be brought home to him.^[412]

In cases such as Smith v Bush and Yianni v Edwin Evans & Sons, it was also a relevant feature that the defendant’s failure to take care had devastating finan­cial consequences for the claimant—namely, causing a not-very-well-off claimant to sink most, if not all, of their savings into an unsound property. That has not, however, been a feature of all of the cases. In Killick v PricewaterhouseCoopers the claimant was the estate of a shareholder who had owned some 16 million shares which had been sold at an undervalue; and in Capita Alternative Fund Services v Drivers Jonas^[413] the claimants were the trustee and sponsor respectively of an investment vehicle representing 480 individual investors. It was not suggested in either of those cases that the defendant's conduct had the effect, or potential effect, of denuding the claimant of all of his or her financial resources.

D. Solicitors and Potential Beneficiaries

It is firmly established that a solicitor engaged by a testator to draw up a will owes a duty to the beneficiaries of that will to undertake that task with reasonable care.^[414] A solicitor who fails to ensure that a will is drawn up in accordance with the testa­tor's intentions,^[415] or who fails to ensure that the will is duly attested,^[416] or who fails to take steps to ensure that purported gifts in the will are effective,^[417] will be liable to any disappointed beneficiaries.

Gummow J in Hill v Van Erp identified a ‘complex of factors' that combine to bring into existence a solicitor's duty of care to a beneficiary, namely that the engagement of the solicitor was designed to enhance the economic position of the intended beneficiary, the solicitor exercised control over the realisation of the testator's intentions, and there was a close connection between the solicitor's conduct and its effect on the intended beneficiary.^[418] Also important is the fact that a solicitor embarks on the task of drawing up a will ‘ knowing that the ben­eficiary is wholly dependent upon his carefully carrying out his function'. ^[419] In Ross v Caunters, Sir Robert Megarry VC said that ‘ There is no question' that the defendant solicitors could fairly have been expected to contemplate the plaintiff beneficiary as a person likely to be affected by any lack of care on their part.^[420]

E. Solicitors and Opposing Parties

As a general rule, solicitors representing a party in hostile litigation do not owe a duty of care to an opposing party. It has, however, been said that an exception to this rule arises where there is a specific assumption of responsibility.^[421] The Court of Appeal in Elguzouli-Daf v Commissioner of the Police of the Metropolis^[422] maintained that this was the basis on which Welsh v Chief Constable of Merseyside Police^[423] was decided.

In Welsh, a Crown Prosecution Service (CPS) solicitor agreed to inform the Magistrates' Court that the plaintiff's charges in that court had already been taken into account in sentencing in the Crown Court. The CPS solicitor failed to carry out this task, and the plaintiff was arrested and held in custody for not answering his bail at the Magistrates' Court. The CPS was held to owe the plaintiff a duty of care. Fundamental to this conclusion was the plaintiff's reliance on the CPS to carry out the task it had agreed to undertake. Because the CPS solicitor had agreed to notify the Magistrates' Court that the plaintiff's charges in that court had already been taken into account, the plaintiff did not expect to have to answer his bail and did not take any steps himself to inform the Magistrates' Court of the developments. The plaintiff in Welsh could easily have protected his own position, but the CPS solicitor's conduct meant that he did not do so.

In Al-Kandari v JR Brown & Co,^[424] the defendant solicitors represented a husband in a custody battle and agreed to hold the husband's passport to prevent the husband fleeing the country with his children. The defendant was held to owe a duty of care to the plaintiff wife to ensure the passport remained in its posses­sion. It was significant that, if the solicitors had not agreed to hold the husband's passport, the plaintiff would have requested someone else, such as the court, a bank, or an independent firm of lawyers to do so to prevent the husband obtaining the passport and absconding overseas with the children.^[425] The solicitors' accept­ance of the task of safeguarding the passport meant that the plaintiff did not take other measures to protect herself from the harm which eventuated. While the solicitors held the husband's passport, they had almost total control over the risk of harm to the plaintiff and the plaintiff was heavily dependent on their carrying out their task with reasonable care.

F. SafetyRegulation

There have been a number of cases where a quasi-regulatory sporting body has been held to owe a duty of care in relation to the safety of participants on the basis of assumption of responsibility. In Watson v British Boxing Board of Control Ltd,^[426] the defendant Board was held to owe a duty to professional boxers to take reasonable care in setting the rules for boxing matches to ensure that immediate and effective medical attention would be provided where required. In Wattleworth v Goodwood Road Racing Co Ltd,^[427] the Motor Sports Association, the national governing body for motor sports in the UK, was held to owe a duty to users of the Goodwood motor racing circuit to take reasonable steps to ensure that the circuit was safe. And in Perrett v Collins,^[428] the Popular Flying Association, which arranged for inspections of hobby aircraft to ensure that they were fit to fly, was held to owe a duty of care to passengers of inspected aircraft.

In each of these cases, the defendant sporting body was closely involved in, and had considerable control over, safety measures. The British Boxing Board imposed rules regarding medical assistance with which all promoters of professional boxing matches had to comply.^[429] The Motor Sports Association's representatives conducted multiple inspections of the Goodwood circuit and made a number of substantive recommendations as to safety improvements.^[430] The inspectors provided by the Popular Flying Association were closely involved in the process of constructing the hobby aircraft they inspected and the aircraft could not be flown without the Association issuing a certificate for fitness for flight.^[431] An impor­tant consequence of this close involvement and control was that the defendant in each of these cases influenced the conduct of someone else who had a role in relation to the claimant's safety. In Watson, the Board's rules ‘delimited [the] obligations' of the match promoters;^[432] in the absence of the Board's intervention, the promoters would probably have been responsible for taking steps in relation to boxers' safety.^[433] In Wattleworth, the operators of the Goodwood circuit relied on the advice provided by the Motor Sports Association and would have followed whatever suggestions were made by the Association.^[434]

Also relevant to each case was the defendant's knowledge that participants such as the claimant would be relying on them to look after their safety,^[435] although the participants might not be aware of the precise role played by the defendant in relation to safety measures.^[436] This expectation of reliance was traced to the defendants' superior knowledge in relation to safety measures, as compared to the claimants themselves or to others who could have taken steps to protect the safety of the claimants. So, for example, the court in Watson referred to the fact that box­ers would be unlikely to have an innate or well-informed concern about safety,^[437] and the court in Wattleworth observed that the Association was the ‘acknowledged expert' in relation to safety, to whom others would defer.^[438]

The position of the Motor Sports Association in Wattleworth was con­trasted with that of the Federation Internationale de L'Automobile (FIA), the international association of national automobile clubs, which was held not to owe Goodwood circuit users a duty to take reasonable care of their safety. In coming to this conclusion, Davis J noted that the FIA had considerably less involvement with and less knowledge of the Goodwood circuit; that its role was limited to consider­ing use of the track for international events and everyone understood that its role was so limited; and that its code indicated that responsibility for circuit safety was left to national associations, such as the Motor Sports Association.^[439] Thus, the key features of control and expectation of reliance that underpinned a duty of care on the part of the Association were absent when it came to the FIA.

An analogous case in a non-sporting context is Chandler v Cape plc,^[440] where a parent company was held to owe a direct duty of care to the employees of its subsidiary to take reasonable care with respect to their safety at a worksite rid­dled with asbestos. The Court of Appeal in Chandler identified similar factors to those in the sporting cases: the parent company had a practice of intervening in operations of its subsidiary; it had actual knowledge of the presence of asbestos on the worksite; it had superior knowledge to its subsidiary regarding the risks of asbestos, having employed specialist medical advisers to research these risks; and it knew, or ought to have foreseen, that the subsidiary or its employees would rely on its using that superior knowledge for the employees' protection.^[441]

G. Police Informers

The decision of the House of Lords in Hill v Chief Constable of West Yorkshire^[442] established that there will usually be insufficient proximity between the police and a potential victim of crime to give rise to a duty of care on the part of the police, unless it can be shown that the victim was at ‘special distinctive risk'^[443] and that therefore there was a ‘special relationship' between the police and the victim. Subsequent police cases have latched onto the assumption of responsibility as a basis for the requisite ‘special relationship'. This is particularly evident in the police informer cases.

It is now relatively well settled that the police owe a duty to take reasonable care with respect to the physical safety of informers. The issue was first considered at length by the Court of Appeal in Swinney v Chief Constable of Northumbria Police Force.^[444] Being a strike-out application, Swinney merely concluded that the duty of care was arguable, but when the matter was remitted to the Queen's Bench Division for trial the reasoning of the Court of Appeal was applied to establish a duty of care.^{[445] [446] Most recently, the existence of such a duty was confirmed in An Informer v A Chief Constable.193}

In Swinney, the plaintiff had called the police with information that identified a potential suspect in a murder investigation. During the call, the plaintiff empha­sised that she was providing the information on a confidential basis and that she did not want the information to be traced back to her. The members of the Court of Appeal in Swinney concluded in separate judgments that it was arguable that the police owed a duty of care to the plaintiff. Hirst LJ emphasised the fact that the police knew of the violent and ruthless nature of the suspect and knew, or should have known, that the confidential information given by the plaintiff was very sensitive.^[447] Peter Gibson LJ referred solely to the fact that the police had assumed responsibility towards the plaintiff in finding that a special relationship arose between them.^[448] Ward LJ held that a sufficiently proximate relationship arguably arose because the police had assumed responsibility to preserve the con­fidentiality of the information, the plaintiff had relied upon that assumption of responsibility, and failure to maintain confidentiality would expose the plaintiff to a special risk of damage from the criminal acts of others.^[449]

While the judgments in Swinney differ somewhat on the question of proximity, it would appear that for Hirst LJ and Ward LJ at least, reliance and the plaintiff's vulnerability were central to the conclusion that the requisite ‘special relationship' existed between the police and the plaintiff. Once the plaintiff had given her infor­mation to the police, she had no choice but to rely on the police to take reasonable care to maintain the confidentiality of her identity and protect her from potential retribution from a suspected murderer.

H. Employment References

Hedley Byrne involved a linear advice relationship between the defendant and claimant. A less straightforward relationship occurs where a person is requested to give advice to another, and the negligent advice causes loss to the s ubject of the advice rather than the recipient. In what circumstances will the giver of the advice owe a duty of care to the subject of the advice?

In Spring v Guardian Assurance plc,^[450] the plaintiff had been authorised to sell life insurance policies on behalf of the defendants. After being fired from his job, the plaintiff sought to enter into business selling another insurance company's policies. The latter company sought a reference for the plaintiff from the defend­ants. The reference was negligently prepared and was highly critical of the plaintiff; the plaintiff unsurprisingly was not hired. The House of Lords held (Lord Keith dissenting) that the defendants owed a duty of care to the plaintiff in the preparation of the reference. Lord Goff applied an assumption of responsibil­ity analysis, while the other majority judges only relied upon proximity. Between them, their Lordships enumerated a number of factors relevant to the finding of a duty of care. One was that a negligently prepared reference had potentially dev­astating consequences for the plaintiff's future employment prospects,^[451] and this was something of which the defendants should have been aware.^[452] Emphasis was also placed on the prior relationship between the defendants and the plaintiff: the reference related to events which occurred while the plaintiff was working for the defendants,^[453] and thus the defendant had special knowledge of the plaintiff's abilities.^[454] Lord Goff also observed that references are part of the currency of the modern employment market and are provided not just for the assistance of the recipient of the reference, but also for the assistance of the employee.^[455]

Spring can be contrasted with Kapfunde v Abbey National plc.^[456] The plaintiff in Kapfunde applied for a job and, as part of the application process, completed a medical questionnaire. The prospective employer asked a doctor it employed part­time to assess the questionnaire. The defendant doctor concluded that, due to the matters disclosed by the plaintiff in the questionnaire, the plaintiff was likely to have a higher-than-average level of absence and was unsuitable for employment. The Court of Appeal in Kapjunde unanimously held that the doctor did not owe a duty of care to the plaintiff. There was no doctor-patient relationship between the defendant and the plaintiff; the doctor had never seen the plaintiff and had merely assessed her on the basis of the questionnaire.^[457] The plaintiff did not rely on the doctor's report and had never seen it,^[458] and when the plaintiff submitted her questionnaire she probably did not know of the existence of the doctor.^[459] Millett LJ concluded that there was no pre-existing relationship between the doctor and the plaintiff from which a duty of care could be derived.^[460] This marked the case out from Spring, which ‘was firmly based on the pre-existing relationship of employer and employee’.^[461] According to Millett LJ, what led the House of Lords in Spring to find that a duty was owed to someone other than the person who received and relied on the reference was the fact that:

A reference by an employer... is likely to be regarded as provided to the former employee who is subject of the reference for his use as a passport to future employment rather than as a service to any particular prospective new employer.^[462]

In both Spring and Kapfunde, the defendant’s advice prevented the plaintiff from obtaining employment. The different outcome in Kapfunde shows that a claim­ant’s vulnerability to the consequences of a defendant’s negligent conduct is not enough to establish a duty of care. A pre-existing relationship which carries with it an expectation that the defendant will assist the claimant is required. This proposi­tion is supported by observations made by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council.^[463] In one of the cases considered in X (Minors), a local authority engaged social workers and psychiatrists to examine the plaintiff. The social workers and psychiatrists concluded that the plaintiff had been sexu­ally abused and the plaintiff was taken into care. Lord Browne-Wilkinson rejected the argument that the social workers and psychiatrists owed a duty of care to the plaintiff, stating:

The social workers and psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carry­ing out of the retainer involves contact with and relationship with the child cannot alter the extent of duty owed by the professionals under the retainer from the local authority. The Court of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for life insurance. The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant.^[464]

V.