Date: Fri, 11 May 2007 15:27

From: Graeme Halkerston

Subject: Good news/bad news

There should be, and hopefully after Customs & Excise, will be a greater degree of distinction between relational liability (ordinary negligence) and assumption of responsibility.

In relational liability, the question is whether by reason of the relationship between A and B, A owes a duty of care to B. All one needs to plead is the relationship between A and B - doctor/patient, ginger beer vendor / ginger beer drinker to establish a duty. The scope of the duty is determined by the relationship. In determining whether a duty occurs in these circumstances the Caparo test ought to prevail.

To establish assumption of responsibility as a determinant of duty of care, specific conduct of A which indicates that his actions/work/statement were to be relied upon by B and the scope to which it could be relied is required and this specific conduct ought to be pleaded. Thus one can assume responsibility towards people to whom a relational duty of care is not ordinarily owed - ADT v. BDO is a good example of where there would be no relational duty and assumption of responsibility was required.

Whatever the historical case law, this distinction does practically assist when running cases involving negligence claims. The need to plead and prove specific facts as to the existence and scope of duty beyond the relationship alone also shows that assumption of responsibility shares elements of tort and contract claims - it truly sits between relational negligence and contract. This hybrid status could be a rationale for allowing wider recovery of economic loss (contractual) than in ordinary relational claims.

I read C&E v. Barclays as supporting this - Bingham dismisses assumption of responsibility briefly and Walker and Hoffmann stress that the use of assumption of responsibility language in determining relational liability is of little use. In C&E the case was clearly a relational liability case - Barclays did not do anything specific that was relied upon to vary or extend the ordinary relationship of an applicant to a freezing order and a third party bank. Accordingly the only basis upon which duty of care should be considered was the ordinary Caparo-type approach. Assumption of responsibility was not in play.

Turning to the doctor and his patient example - the answer must be simple. This is a relational liability and the scope of the tortious duty is defined by the relationship. Thus the scope of that duty does not extend to financial decisions by a patient.

Therefore talk of assumption of responsibility in determining the existence and extent of a duty of care between a doctor and a patient is loose and falls into the trap criticised by Hoffmann in Barclays unless specific statements or conduct are relied upon by the patient to show that the doctor assumed a wider liability than the professional relational liability.

Graeme Halkerston

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From: Jones, Michael
Sent: Friday, May 11, 2007 8:35 AM
To: Robert Stevens; BEEVER A.D.
Subject: RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

I agree with Robert on this point (I think - therefore I do not guarantee [after Descartes?]).

If my solicitor negligently advises me that my action against a third party has very good prospects of success, and I go ahead with the claim but lose, my subsequent action against my solicitor for the costs of the initial litigation is on the basis that he has been negligent in advising me and I relied upon that advice, sustaining loss as a result. I am not claiming on the basis that the solicitor guaranteed that I would win the case.

When doctors come up with a prognosis involving an estimate of life expectancy, no-one (not even the most naive patient) could think that it was anything more than an estimate. On the other hand, if the doctor's estimate was 6 months and the patient lived for 20 years, we could reasonably conclude that the doctor got it seriously wrong, though whether it was negligently wrong would depend on more than just the outcome itself.

On the other hand, I don't think (again, no guarantees) that disclaimers are the solution. For me, the real issue is the nature (or scope, or extent) of the doctor's duty. I'm not a fan of assumption of responsibility [there are almost no criteria for deciding when it does or does not apply; and in any event tort duties are imposed not "assumed" by the defendant - there are by now plenty of judicial dicta indicating that defendants are "deemed" to have assumed responsibility, which is just another way of saying "In all the circumstances we consider that you are responsible", which is no different from what the HL did in Donoghue v Stevenson].

Since no-one has (yet) dissented from the proposition that where a false positive diagnosis induces depression and results in suicide the doctor should be liable for the foreseeable consequences, the only difference between this and the good news/bad news patient is the nature of the loss (purely financial). We might legitimately want to protect the health service from claims in respect of pure economic loss, but if that is the case, then I think we should be up front about the policy judgment, rather than scrambling about in the thickets of disclaimers and assumptions of responsibility.

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