The Voluntary Entry into a Relationship
If we accept that the obligation created by an assumption of responsibility is not voluntarily assumed, but imposed by law, the obligation could nevertheless be regarded as distinctive on the basis that it arises from the defendant's volitional entry into a particular kind of relationship with the claimant.
On this view, the ‘assumption of responsibility' refers not to the assumption of a legal obligation, but the volitional entry into a position of responsibility in which the law imposes a duty. In other words, the defendant has brought himself or herself into a relaÂtionship with the claimant in which care for some interest of the claimant can reasonably be expected.[352]It might be said that what is distinctive about the class of cases involving an assumption of responsibility is that the duty arises out of an antecedent relationÂship between the claimant and the defendant, and, generally speaking, that relationÂship is one that the defendant has freely entered into. This view of the assumption of responsibility was articulated in White v Jones by Lord Browne-Wilkinson, who suggested that the key to understanding the concept was to understand that it is concerned with the assumption of responsibility for a task. A ‘special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff's affairs or by choosing to speak'.[353]
If the responsibility for the task is assumed by the defendant he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not the defendant) attaches a duty to carry out carefully the task so assumed.[354]
Does the defendant's volitional entry into a relationship with the claimant mark out the assumption of responsibility as a special duty category? There is no doubt that choice is a feature of many of the assumption of responsibility cases.[355] In most cases the defendant has willingly entered into a relationship with the claimÂant, or has willingly embarked upon a task that renders the claimant particularly vulnerable to the consequences of the defendant's actions.
The existence of an antecedent relationship between the claimant and the defendant arising from conduct on the part of the defendant that is more or less freely chosen does factually mark out the assumption of responsibility cases, but it does not provide an explanation for the obligations that are recognised. There are three reasons for this. First, there is no requirement that the defendant manifest a willingness to enter into any kind of relationship with the claimant; it is enough that he or she has taken on responsibility for a task which may have an effect on the claimant. Secondly, there are cases in which an assumption of responsibility has been found despite the defendant having had no real choice but to take on the task. Thirdly, as we will see in the next section of this chapter, it is not sufficient to establish a duty to say that the defendant has taken on a task which may affect the claimant or a class of persons including the claimant. It is still necessary to consider the closeness and directness of the effect of the defendant's conduct on the claimant.
An assumption of responsibility can arise without the defendant manifesting a willingness to enter into a relationship with the claimant. This can be seen most clearly in the cases recognising that a solicitor preparing a will may owe a duty of care to the proposed beneficiaries, and the cases recognising that a valuer engaged by a mortgagee may owe a duty of care to a mortgagor who may be expected to rely on the valuation. In each case, the defendant agrees to do something that he or she knows or should know will have a close and direct effect on the claimant, but there is no basis for saying that the defendant has manifested a willingness to enter into any kind of relationship with the claimant. In each case, there is antecedent conduct on the part of the defendant that establishes a relationship of proximity, and the defendant has accepted responsibility for a task that he or she could have avoided, but that is all.
Some assumption of responsibility cases involve a clear choice by the defendant to act in the matter in question, and that decision seemed to play an important role in the establishment of the relevant obligation. In White v Jones, for example, Lord Browne-Wilkinson emphasised the fact that the solicitor ‘ has assumed to act in a matter closely touching the economic well-being of the intended beneficiary’.[356] In other cases, assumptions of responsibility have been held to have been made even though it is not clear that the defendant had any real choice but to enter into the relationship in question. Woodland is a good example. As noted above, the issue was whether it was arguable that the local education authority owed a non-delegable duty of care to its pupils that required the authority to procure the exercise of reasonable care in the conduct of swimming lessons provided by contractors. Lord Sumption JSC held that for a non-delegable duty to arise in a case of this kind, it was necessary for the defendant ‘not just to have assumed a positive duty, but to have assumed responsibility for the exercise of due care by anyone to whom he may delegate its performance’. [357] It is difficult to see how anyone could assume such a specific duty without spelling it out expressly, but Lord Sumption said:
In my opinion, on the limited facts pleaded or admitted, the respondent education authority assumed a duty to ensure that the claimant’s swimming lessons were careÂfully conducted and supervised, by whomever they might get to perform these functions. The claimant was entrusted to the school for certain essential purposes, which included teaching and supervision. The swimming lessons were an integral part of the school’s teaching function. They did not occur on school premises, but they occurred in school hours in a place where the school chose to carry out this part of its functions.[358]
Clearly there was an ‘antecedent relationship between the claimant and the defenÂdant, independent of the negligent act or omission itself’, [359] but the defendant exercised little, if any choice, in entering into that relationship.
The Education Act 1996 required the defendant to secure that sufficient primary and secondary schools were available to meet the needs of the population in its area and empowÂered the defendant to establish and maintain schools for that purpose.[360] While it may not have been required to admit a particular child to one of its schools, the defendant was required to allow parents to express preferences and was under a qualified obligation to comply with any such preference.[361] The defendant was required to secure that the National Curriculum was followed in its schools, and the National Curriculum at the time appears to have included the teaching of swimming to students in years three to six.[362]Under that legal framework, the defendant exercised very little choice in the establishment and operation of the relevant school, the enrolment of the claimant or the establishment of swimming lessons. Not only is it difficult to see how it is possible to impute from that conduct ‘the assumption of a positive duty to protect the claimant from harm',[363] it is difficult to see the defendant's relationship with the claimant as the result of any meaningful choice on the part of the defendant. The defendant owed a non-delegable duty to the claimant not because it assumed such an obligation, nor because it chose to be in a relationship of the relevant kind (involving care and control and particular vulnerability), but because it was in a relationship in which its conduct closely affected the claimant. It clearly did not matter on the facts of the case whether the defendant had chosen to enter into that relationship or not. What mattered was that there was such a relationship.
What characterises the assumption of responsibility cases is that the defendant has accepted a role or embarked on a task in which the claimant is so closely and directly affected by the defendant's acts and omissions that the defendant ought to have the claimant in contemplation when considering whether and how to act.[364] In most of the situations that are regarded as falling within this category, there will not be such a relationship of proximity between the defendant and the claimant unless the defendant has chosen to enter into one.
It is not, however, the defendÂant's exercise of choice in entering into the relationship that is significant, but the capacity of the defendant to affect the claimant's interests. In cases such as Woodland the defendant did not exercise any real choice in entering into the relaÂtionship, and in third party cases such as Smith v Bush and White v Jones we cannot say that the defendant willingly entered into a relationship with the claimant.[365] The fact that, in most cases, the defendant would not have had any capacity to affect the claimant absent his or her willed entry into the relevant relationship with the claimant may create the false impression that it is the willed entry into the relationship with the claimant that is significant, rather than the nature of that relationship.IV.