Date: Fri, 11 May 2007 14:39

From: Duncan Sheehan

Subject: Good news/bad news

In which case, and acknowledging that counting cows is, as Steve in his inimitable way points out, somewhat more trivial than whether I'm going to die, the question is still the effect of "I think". It's clearly not a guarantee of accuracy (quite the contrary); we're all agreed on that, I hope. Even in Esso v Marden, there wasn't a guarantee of accuracy, but a guarantee that the estimate was done with reasonable care. To what extent is it then a disclaimer of responsibility if I don't die? We can take an extreme view and say I shouldn't ever rely on a statement of opinion and expect there to be liability for misstatement, or we can take a less extreme view. Even on the basis though that I'm entitled to believe what the consultant tells me, because consultants know about medicine and academic lawyers don't, the fact it counts as a statement of opinion means it might still be an implicit disclaimer of liability, or a statement that you rely on this at your own risk. In which case I guess we're back where we started, talking about the scope of disclaimers, and have in the end disagreed about very little.

The more interesting question as Rob says is this. If the consultant says (charming man) "Duncan, I guarantee 100% that you'll be dead by next week" is he liable? I'm not sure how (like Rob) he can be if he is careful, but somehow I instinctively dislike that conclusion, and I wonder whether anybody else does and has any bright ideas to make him liable.

Duncan

Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

>-----Original Message-----
> Robert Stevens
>Sent: Friday, May 11, 2007 1:57 PM
>To: BEEVER A.D.
>Subject: RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

Assuming he is not daft he knows, as we do, that there is no guarantee that it is accurate. What he relies upon is that it has been made with reasonable care and skill. See Denning in Esso. It is the assumption of responsibility as to the care which has been taken which generates the right, as it would have done in Hedley Byrne absent the disclaimer. If there had been no disclaimer, there would have been no right in Hedley Byrne that the statement was accurate. If the bank had taken all reasonable care, there would be no liability.

A more interesting question is what the law should be where the defendant does go further and guarantees a statement’s accuracy. If the claimant suffers loss relying upon it does he have a claim if the defendant has taken all care and skill? I suppose the orthodox answer on the state of the current law is no.

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