Sir Brian Neill discussed three paths by which a duty of care might be imposed on a party: ‘1. The threefold test of foreseeability, proximity and fair, just and reasonable. 2. The assumption of responsibiy 3. The incremental approach He then identified the following non-exhaustive list of factors to be taken into account in determining whether the threefold test and the assumption of responsibility test are met: ‘(a) the precise relationship between (to use convenient terms) the adviser and the advisee. This may be a general relationship or a special relationship which has come into existence for the purpose of a particular transaction. But in my opinion counsel for Overseas was correct when he submitted that there may be an important difference between the cases where the adviser and the advisee are dealing at arm’s length and cases where they are acting ‘on the same side of the fence’.
(b) the precise circumstances in which the advice or information or other material came into existence. Any contract or other relationship with a third party will be relevant.
(c) the precise circumstances in which the advice or information or other material was communicated to the advisee, and for what purpose or purposes, and whether the communication was made by the adviser or by a third party. It will be necessary to consider the purpose or purposes of the communication both as seen by the adviser and as seen by the advisee, and the degree of reliance which the adviser intended or should reasonably have anticipated would be placed on its accuracy by the advisee, and the reliance in fact placed on it.
(d) the presence or absence of other advisers on whom the advisee would or could rely. This factor is analogous to the likelihood of intermediate examination in product liability cases.
(e) the opportunity, if any, given to the adviser to issue a disclaimer.’
and ‘ the general trend of the authorities makes it clear that liability will depend not on intention but on the actual or presumed knowledge of the adviser and on the circumstances of the particular case.’
Judges:
Sir Brian Neill, Nourse and Brooke LJJ
Citations:
[1998] PNLR 564
Jurisdiction:
England and Wales
Cited by:
Cited – Patchett and Another v Swimming Pool and Allied Trades Association Ltd CA 15-Jul-2009
The claimant suffered damages when the contractor he engaged to construct his swimming pool went into liquidation. Before employing him, he had consulted the defendant’s web-site which suggested that its members were checked for solvency on becoming . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence
Updated: 13 November 2022; Ref: scu.374258