Is the Obligation Voluntarily Assumed?
As noted above, Lord Devlin stated categorically in Hedley Byrne that the ‘responsibility' in question ‘is a responsibility that is voluntarily accepted or undertaken' and that he did not understand any of their Lordships ‘to hold that it is a responsibility imposed by law upon certain types of persons or in certain sorts of situations'.[296] If this is correct, then an obligation arising from an assumption of responsibility is an entirely different class of obligation from the ordinary duty of care recognised by the law of negligence, which is imposed by law on the basis that the person who owes the duty is engaging in conduct that so closely and directly affects others that care can reasonably be expected.
A core question, then, is whether the duties arising from assumptions of responsibility can properly be said to be voluntarily created in the sense that the defendant has consented to the obligation.[297]A. Rights and Undertakings
Scholars propounding a rights-based understanding of the law of obligations have enthusiastically embraced Lord Devlin's idea that the assumption of responsibility gives rise to a consent-based or voluntarily assumed obligation.[298] Indeed, the distinctiveness of the assumption of responsibility is pivotal to the rights-based account, because it explains why we sometimes have rights that others confer benefits on us and rights that others do not cause us economic harm. According to the rights-based account, we have a right to bodily safety, a right to reputation and rights in tangible things which are good against the whole world.[299] We do not, however, have rights good against the world that others render assistance, or confer benefits on us, or not cause us economic harm.[300] Rights of those kinds can only arise by way of undertaking, whether contractual or gratuitous.[301] On this view, undertakings create rights and correlative obligations that do not and cannot otherwise exist, and the defining characteristic of those rights and obligations is that they are ‘voluntarily created by the person owing the duty’.[302]
Robert Stevens therefore argues that duties arising from assumptions of responsibility are distinctive because they are ‘voluntarily created’ and that ‘it is the objective manifestation of consent for which we are responsible that is the trigger for the right’.
[303] Similarly, Allan Beever argues that ‘ the basis of liability’ in the assumption of responsibility cases ‘is not negligence per se but the defendant’s consent’,[304] and that the ‘right protected by the so-called tort of negligent misrepresentation is based on the defendant’s consent’. [305] The argument in favour of the voluntary obligation thesis is as follows. The courts are not concerned with the question whether the person said to owe the duty has made an express promise, nor whether they have subjectively consented to the imposition of the duty. The courts adopt an objective approach, so the relevant question is whether the defendant has manifested an intention to assume the obligation. Stevens says:Whether an implied undertaking has been given by conduct is a matter of interpretation, determined by convention as to when it can be concluded that one party is assuming responsibility for another. Like a surgeon, a solicitor owes a duty of care to his client even if he provides his services gratuitously.[306]
The essential problem with this idea is that the courts do not require that the defendant manifest any consent to the obligation in question, and the cases do not support the notion that there is any such requirement.[307] Allan Beever claims that the right protected by the tort of negligent misrepresentation ‘ is based on the defendant’s consent’ and ‘ is a right given by the defendant to the claimant’.[308] But Beever later acknowledges that ‘the issue is not whether the defendant agreed to place herself under a legal obligation’ or ‘agreed to be liable’ but ‘whether the defendant placed herself under a legal obligation by guaranteeing the accuracy of some information, by consenting to do something, etc’.[309] But a person who consents to do something does not thereby place himself or herself under a legal obligation, unless he or she makes a commitment and manifests an intention to be legally bound by that commitment.
If the defendant only consented ‘to do something’, and did not manifest any consent to the legal obligation that arises from that conduct, then there is nothing distinctive about this category of obligation. It is simply imposed by law on the basis of conduct that is potentially harmful. Moreover, as will be discussed below, even in the cases where a commitment to doing something can be discerned, the law of negligence does not impose an obligation to do the thing that is promised, but rather to take reasonable care not to harm the person to whom the commitment is made. As Kit Barker has argued, the notion that the defendant has voluntarily done something that affects the claimant ‘says nothing which is particular to these cases, since voluntary conduct is already a prerequisite to liability throughout the law of negligence (and indeed throughout most other categories of law)’.[310]B. Objectivity and Fairness
There are numerous statements in the cases that the question whether the defendant has assumed responsibility is to be assessed objectively. This may be considered misleading, however, because there is rarely any evidence from which one can draw a conclusion as to whether the defendant objectively manifested a relevant intention. What is called an ‘objective test’ almost inevitably becomes a question as to whether it is reasonable to impose the obligation on the defendant.[311] Two examples illustrate this point: the speech of Lord Hoffmann in Customs and Excise Commissioners v Barclays Bank plc[312] and that of Lord Sumption in Woodland v Swimming Teachers Association.[313]
In Customs and Excise Lord Hoffmann said that whether a defendant who provided information relied upon by the claimant assumed responsibility to the claimant for the accuracy of the information ‘does not depend upon what the defendant intended but, as in the case of contractual liability, upon what would reasonably be inferred from his conduct against the background of all the circumstances of the case’.[314] But Lord Hoffmann went on to say that:
[W]hether a defendant has assumed responsibility is a legal inference to be drawn from his conduct against the background of all the circumstances of the case, it is by no means a simple question of fact.
Questions of fairness and policy will enter into the decision and it may be more useful to try to identify these questions than simply to bandy terms like ‘assumption of responsibility’ and ‘fair, just and reasonable’.[315]But if questions of ‘ fairness’ and ‘policy’ enter into the decision as to whether an assumption of responsibility has been made, then it is difficult to see how the process can be seen as involving any ‘inference' at all. The court is not determining ‘what would reasonably be inferred from his [the defendant's] conduct', but what obligation can fairly be imposed on the defendant in the circumstances.[316] As Lord Hoffmann said, ‘ The purpose of the inquiry is to establish whether there was, in relation to the loss in question, the necessary relationship (or “proximity”) between the parties'.[317]
This tendency to treat the entry into a particular kind of relationship as the acceptance of a duty to take the care that can reasonably be expected in such a relationship is exemplified by the judgment of Lord Sumption in Woodland. The issue in that case was whether the Court should strike out a claim that a non-delegable duty of care was owed by a local education authority (Essex County Council) that engaged an independent contractor to provide swimming lessons to its pupils. The claimant was severely injured as a result of an alleged failure on the part of the independent contractor to supervise the lessons. The claim was struck out at first instance. That decision was upheld by the Court of Appeal, but overturned by the Supreme Court. Lord Sumption JSC, with whom Lord Clarke, Lord Wilson and Lord Toulson JJSC agreed, said that the assumption of responsibility is relevant to determining not only the existence of a duty of care, but also its scope. For a nondelegable duty to arise:
The circumstances must be such that the defendant can be taken not just to have assumed a positive duty, but to have assumed responsibility for the exercise of due care by any one to whom he may delegate its performance.[318]
On the pleaded facts, Lord Sumption said, ‘ the respondent education authority assumed a duty to ensure that the claimant's swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions'.[319] But the only conduct by which the respondent council can be said to have ‘assumed' such a duty was setting up a school system, enrolling the claimant and organising swimming lessons in accordance with the National Curriculum.
That conduct does not manifest any intention to assume a legal responsibility to the claimant. The onerous duty in question was justified by the existence of a relationship between the respondent and the claimant in which the claimant was in the custody, care and control of the respondent, the claimant was dependent on the protection of the respondent, the claimant was particularly vulnerable to the consequences of the respondent's conduct, and the claimant had no control over the way in which the respondent conducted its operations.[320] Those circumstances tell us that it was reasonable to expect the respondent to ensure that the swimming lessons were carefully supervised, and that it was fair to impose a duty on the respondent to do so, but there is nothing to justify an inference that the respondent assumed such a duty. It was not in fact clear that the respondent had any real choice as to whether to run a school system, enrol the claimant and conduct swimming lessons. But, as will be discussed further below, that may be considered irrelevant to the outcome of the case.C. Objectivity and Intention
The strongest authority in support of the view that the courts really are concerned with the question whether the defendant has manifested an intention to assume an obligation to the claimant is Williams v Natural Life Health Foods Ltd.[321] The plaintiffs in that case entered into a franchise agreement in reliance on financial projections prepared by the managing director and principal shareholder of the franchisor company. Although the franchisor company's dealings with the plaintiffs were conducted by another employee, the trial judge and a majority of the Court of Appeal concluded that the managing director had assumed responsibility to the plaintiffs on the basis of the prominence given, in the franchisor's communications with the plaintiffs, to the managing director's personal experience and expertise. Lord Steyn, speaking for a unanimous House of Lords, held that the evidence did not support the conclusion that the managing director was ‘willing to be personally answerable'.
In the present case there were no personal dealings between Mr Mistlin and the plaintiffs. There were no exchanges or conduct crossing the line which could have conveyed to the plaintiffs that Mr Mistlin was willing to assume personal responsibility to them.[322]
Standing alone, the case would seem to provide support for the view that an objective manifestation of an intention to assume an obligation to the plaintiff is not only sufficient to establish a duty of care, but also necessary. Indeed, the case may be considered a model of a voluntaristic approach to the assumption of responsibility, which is concerned only with the question whether the defendant has manifested a willingness to accept an obligation to the plaintiff.[323]
In many cases in which a duty of care has been held to arise on the basis of an assumption of responsibility, however, there was no manifestation of a willingness to assume an obligation to the plaintiff.[324] A good example is provided by Smith v Bush, where it was held that a valuer providing a valuation to a mortgagee owes a duty of care to a mortgagor who is likely to purchase the property in reliance on it.[325] Lord Templeman attributed this to the fact that the valuer knows that the mortgagor has paid for the valuation, will probably rely on it, and may suffer disastrous consequences if the valuer fails to exercise reasonable care and skill.[326] Lord Griffiths rejected a submission that a ‘ “voluntary assumption of responsibility” on the part of the person giving the advice' was ‘ essential to found liability for a negligent misstatement'.[327] He said:
I do not accept this submission and I do not think that voluntary assumption of responsibility is a helpful or realistic test for liability... Obviously, if an adviser expressly assumes responsibility for his advice, a duty of care will arise, but such is extremely unlikely in the ordinary course of events. The phrase ‘assumption of responsibility' can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice.[328]
Like Lord Templeman, Lord Griffiths found that the valuer owed a duty to the mortgagor because it was ‘ highly probable' that the mortgagor would act on the valuation, even though that was not its primary purpose.[329] For Lord Jauncey the relevant question was whether ‘by reason of the proximate relationship between them' the valuer must ‘be deemed to have assumed responsibility to [the mortgagor]'.[330] The duty of care ‘resulted from the proximate relationship between' the valuer and the mortgagor, and that in turn depended on knowledge of the mortgagor's likely reliance on the valuation being brought home to the valuer.[331]
Another strong example is provided by Costello v Chief Constable of the Northumbria Police.[332] The plaintiff, a police officer, was attacked and injured in a cell by a prisoner who had just been taken into custody and was known to be violent. A second officer, Inspector Bell, stood nearby and failed to render assistance. A prisoner who was known to be violent would not normally be left in the charge of a single police officer, and a third officer, Sergeant Hall, had left the cell area on the assumption that Inspector Bell would render assistance if required. By positioning himself near the cell as the prisoner was led in, Inspector Bell was held to have assumed a responsibility to the plaintiff. May LJ said:
There was an obvious close relationship between [the plaintiff] and Insp Bell. Insp Bell may readily be said to have assumed a responsibility to help the plaintiff if she needed help. The chief constable, through Insp Bell and on his own account, may readily be said to have assumed an equivalent responsibility.[333]
In that case, the effect of Inspector Bell's conduct on the plaintiff did not occur through the plaintiff's reliance, but through its effect on the behaviour of the third officer, Sergeant Hall, who would have stood by to render assistance had it not been for Inspector Bell's presence. The assumption of responsibility was implied only from Inspector Bell's presence in circumstances in which, following normal police procedure, he could have been expected to render assistance to the plaintiff.
The mere presence of a senior military officer was held to amount to an assumption of responsibility in Ministry of Defence v Radclyffe.36 Captain Jones was in charge of a group of soldiers stationed in Germany for adventure training. On a day on which there was no training, a group of soldiers went to a nearby reservoir to swim, accompanied by Captain Jones and the claimant, a second lieutenant. Some of the soldiers asked Captain Jones for permission to jump from a 20-metre-high bridge into the water. Captain Jones authorised the jump, and told the claimant that it would be ‘ bad form' for the officers not to join in the jump to show the men that they were not frightened. The following day the claimant brought another group of soldiers to the reservoir, felt obliged to allow them to jump and also to jump before them and injured himself in doing so. It was accepted that rank and military discipline remained relevant even though the soldiers were off duty, and that Captain Jones had authority to prevent the jump. The Court of Appeal held that Captain Jones owed his subordinates a duty to take reasonable care to guard them against the risk of foreseeable injury:
By his own presence there in the circumstances that pertained and by reason of his rank, he assumed responsibility to prevent them from taking undue risks of which he was or ought to have been aware. They asked him if they might jump. The very fact that they asked predicates reliance sufficient for a duty of care and their assumption that he had authority to order them not to jump.[334] [335] In those circumstances it is difficult to see how Captain Jones could be said to have manifested any intention to assume an obligation to his subordinates with respect to their safety. Moreover, if the obligation arose merely from his rank and his presence, it is difficult to see the duty as arising from anything resembling a choice on the part of Captain Jones. Rather, to borrow the language used by Lord Sumption in Woodland, the duty would appear to arise from Captain Jones' custody, care and control of those under his command, and the claimant's consequent particular vulnerability to the consequences of Captain Jones' conduct. D. Express Undertakings In a small number of cases an assumption of responsibility has been held to arise from an express undertaking made by the defendant to the claimant. Two features of these cases are instructive. The first is that the obligations recognised do not reflect the undertakings made by the defendants. In W v Essex County Council, for example, the claimant foster parents were assured by employees of the defendant council that no adolescent known or suspected to be a sexual abuser would be placed with them.[336] In Calvert v William Hill Credit Ltd a pathological gambler was told that his betting account would be closed and that he would be prevented from reopening it for six months.[337] In these cases, the promise expressly made by the defendant was not a promise to take care, but a promise to perform a task. The defendant's legal responsibility cannot be said to arise from any express assumption of a legal duty to take care. At most, it may be said that, in the promise to perform a task, there is an implied promise to take care in doing so. The second instructive point about the cases involving express undertakings is that, even in the strongest cases, the giving of the undertaking is not in itself sufficient to establish a duty of care. The duty of care arises not from the undertaking itself, but from the potential for the undertaking to harm the claimant, which in many cases will occur through the claimant's reliance. In Lennon v Commissioner of Police of the Metropolis, for example, a police officer transferring from one force to another asked the personnel officer handling the transfer whether taking time off between the appointments would affect his entitlements.[338] The personnel officer told him to leave everything to her, that she would make the arrangements and that taking the time off would not affect his entitlements. Mummery LJ, with whom Rix and Ward LJJ agreed, followed Lord Morris in Hedley Byrne in holding that in this kind of case the duty of care arises from the defendant taking it upon himself or herself to give information or advice knowing it will be relied upon.[339] ‘ The striking feature of this case is that the duty of care arises from an express assumption of responsibility for a particular matter, on which Mr Lennon relied', and that the personnel officer ‘led Mr Lennon to believe that he could leave it to her and rely on her to be responsible for handling the [transfer] arrangements'.[340] The case thus exemplifies the point that even in the case of an express undertaking, the obligation to take care does not arise from the making of an undertaking alone, but depends on a consideration of the effect of the defendant's promise on the claimant, either directly through reliance, or indirectly through its effect on the conduct of others. E. Disclaimers The fact that a disclaimer can prevent a duty of care arising by way of an assumption of responsibility, as it did in Hedley Byrne, would seem to provide strong support for the view that the law is concerned in these cases to determine whether a voluntary commitment has been made. In Hedley Byrne the disclaimer was unanimously found to be effective to prevent a duty arising, although different reasons were offered in support of that conclusion. Lord Reid held that the disclaimer prevented the undertaking of a duty to exercise care from being inferred.[341] His Lordship regarded this as ‘a very different matter' from a contractual exclusion of liability. Lord Morris held that the words ‘were apt to exclude any liability for negligence', citing a case concerned with a contractual exclusion of liability for property damage caused by negligent driving.[342] Lord Hodson held that the effect of the disclaimer was that the respondents did not assume a duty of care and ‘nor was such a duty imposed upon them'.[343] Lord Devlin held that a person ‘cannot be said voluntarily to be undertaking a responsibility if at the very moment when he is said to be accepting it he declares that in fact he is not'.[344] Lord Pearce held that the words prevent a special relationship arising because they make it impossible to say that ‘a duty of care and a liability for negligence was assumed'.[345] Disclaimers have been held in subsequent cases to prevent duties of care arising by way of an assumption of responsibility.[346] In Smith v Bush an assumption of responsibility was held to arise in the face of a disclaimer, but that was because the Unfair Contract Terms Act 1977 required the court to determine whether a duty of care was owed by considering whether it would have been owed but for the disclaimer.[347] Lord Griffiths held that, since the disclaimer was prominent and clearly worded it would, on the authority of Hedley Byrne, have been effective at common law to ‘exclude the surveyors' liability for negligence',[348] while Lord Jauncey held that, if the circumstances had arisen before 1977, the disclaimers would undoubtedly have been effective to negative the assumption of responsibility.[349] The effectiveness of a disclaimer is most simply explained on the basis that the disclaimer precludes a finding that an obligation has been assumed. It can also be explained, however, on the basis that the disclaimer prevents a relationship of proximity arising.[350] The disclaimer damages the nexus between the statements made by the defendant and the economic harm suffered by the claimant. Because reliance in the face of the disclaimer would be unreasonable, the provision of advice or an opinion along with a disclaimer does not create a sufficiently serious risk of harm, and the recipient cannot be said to be sufficiently closely and directly affected by the conduct of the defendant to justify a duty of care. Thus, for example, a solicitor giving casual legal advice in a social situation with an express disclaimer that the advice is not to be relied upon is in a similar position to the bankers in Hedley Byrne. It cannot be said that the recipient of the advice is so closely and directly affected by the giving of the advice that the solicitor ought to be mindful of the recipient's economic interests, or be made to answer for the consequences of a failure to do so. This proximity-based explanation of the effectiveness of a disclaimer only works in those situations in which reliance is the only possible source of harm. In situations in which the source of potential harm is not the claimant's reliance, the effectiveness of a disclaimer is dependent on the operation of another legal mechanism.[351] III.