WhataboutReliance?
Having established that the defendant must intend the plaintiff to rely to his or her detriment, it is necessary to give the notion of reliance greater attention. A provocative question, given that assumption of responsibility and the related ‘end and aim' test are incorporated into the proximity analysis, is whether reliance need be part of the duty analysis at all.
It is tempting to say ‘no' for two reasons. First, the Hedley Byrne principle is often referred to by the courts and writers as a reliance-based duty of care. In some ways this is accurate, but it is also a description that may invite the misconÂceived Hercules approach. Second, there is at least a possibility that an assumption of responsibility approach might apply in cases that do not involve reliance at all, or at least not reliance by the plaintiff. The frustrated beneficiary cases come to mind as posÂsibilities.[1403] In any event, I do not claim such cases exist, but I am reluctant to endorse an approach that seems to exclude the possibility of their doing so.Reliance in fact is necessary to establish causation. It may also be one of several indicators that the defendant, on an objective test, had assumed responsibility. It is true that there must be detrimental reliance to make the claim actionable. GraÂtuitous undertakings are not actionable otherwise. But this requirement could be treated as a requirement of actionable damage, rather than a matter of duty.
Nevertheless, I think it is most accurate to include detrimental reliance as an element of duty along with assumption of responsibility. The courts agree that the plaintiff's reliance must be reasonable or justifiable to support liability. This does not mean merely that it was reasonable to rely in fact that the information or advice was prepared with due care. What makes the plaintiff's reliance reasonable or justifiable is what responsibility was assumed by the defendant.[1404] If we define properly the responsibility actually assumed, and hold the defendant to it, then a further inquiry into whether the plaintiff was reasonable or justified in relyÂing is redundant. The plaintiff may justifiably rely on the defendant fulfilling the responsibilities it voluntarily assumed, no more and no less. This is a question of duty. It is the right not to be induced by the plaintiff's invitation to act in reliance to one's detriment that justifies the misrepresentation action in the first place.[1405]
VI.