1 [1995] 2 AC 145.

2 [1986] AC 80, 107. For some of the cases in which this dictum has been cited, see Chitty on Contracts (27th edn, 1994) paras 1–048, 1-062-64 (S Whittaker).

3 This view was famously exposed and adopted by Oliver J in Midland Bank Trust Co Ltdv Hen, Stubbs & Kemp [ 1979] 1 Ch 384. For earlier authority, see Brown v Boorman (1842) 3 QB 511, (1844) 11 CI & Fin 1 and F Pollock Torts (1st edn, 1887) p 434 and see Chitty on Contracts, para 1–058.

4 A Burrows ‘Solving the Problem of Concurrent Liability’ (1995) CLP 103,120–121.

5 [1995] IRLR 605.

6 (1995) Times, 22 December (Lexis Transcript used).

7 For the claims by ‘indirect Names’ which went beyond privity see S Whittaker ‘Privity of Contract and the Tort of Negligence: Future Directions’ (1996) 16 OJLS 191.

8 Lords Keith of Kinkel, Browne-Wilkinson, Mustill and Nolan. Lord Browne-Wilkinson added his own observations on the relationship between the claims advanced in the tort of negligence and those based on breach of fiduciary duty: [1995] 2 AC 145, 204–206, on which see JD Heydon ‘The Negligent Fiduciary’ (1995) 106 LQR 1. Cf N McBride & A Hughes ‘Hedley Eyrne in the House of Lords: an Interpretation’ (1995) 15 LS 376, esp at pp 384–385 who argue that the proper basis of liability under Hedley Eyrne is an acceptance of power by the defendant over the plaintiff knowing that he was expected to use reasonable skill and care in exercising that power. This basis is, they argue, closer to the liability of fiduciaries than to liability in the tort of negligence.

9 [1995] 2 AC 145 at 178–181.

10 Ibid at 180–181.

11 Ibid at 181–182.

12 Ibid at 182.

13 Ibid.

14 Ibid at 193–194.

15 Ibid at 194.

16 Ibid.

17 Ibid at 181.

18 Chitfy on Contracts, para 1–056 ff.

19 This rule concerns consensual agency, which may be defined for this purpose as a relationship arising from an agreement under which A, the principal, gives to B, the agent, the power to change his (A's) legal relations, notably by making contracts with third parties on A's behalf.

20 Wilkinson v Coverdale (1793) 1 Esp 74 referring to an unreported decision of Buller J in Wallace v Tellfair and see below, p 183.

21 Burrows, op cit at pp 120–121.

22 [1995] IRLR 605.

23 [1995] QB 214.

24 [1995] IRLR 605, 607.

25 [1995] IRLR 605 at 611.

26 Forsikringsaktieselskapet Vesta v Butcher [1988] 3 WLR 565.

27 d Barclays Bank plc v Fairclough Building Ltd, where Simon Brown U noted the possibility of such a position, asking ‘Are we to have trials at which the defendant calls an expert to implicate him in tortious liability, whilst the plaintiff's expert seeks paradoxically to exonerate him?… The answer … is surely No: [1995] QB 214, 233.

28 [1995] IRLR 605, 611, quoting Lord Templeman in Smith v Eric S Bush [1990] 1 AC 831, 843.

29 Ibid at 612, quoting passages found in [199S] 2 AC 145 at 180–181, 193–194.

30 [1995] IRLR 605 at 612.

31 Ibid.

32 Reference will be made in this discussion to the decisions of the House of Lords in White v Jones [1995] 2 AC 207 and Spring v Guardian Assurance plc [19951 2 AC 296 to the extent to which their judgments cast light on the meaning of the ‘broad principle’.

33 K Barker ‘Unreliable Assumptions in the Modem Law of Negligence’ (1993) 109 LQR 461.

34 Quite apart from the fact that the common law has taken special and restrictive approaches to limitation clauses (construction contra proferentem) and penalty clauses (invalidity if not construed as a genuine pre-estimate of loss), it is difficult to see how such an implied term would pass the test of necessity required of implication by the House of Lords in Liverpool City Council v Irwin [1977] AC 239. See also the rejection of an implied exclusion of liability in the context of accidents at work in Smith v Charles Baker & Sons [1891] AC 325, discussed in Chitty on Contracts, para 1–065.

35 [1990] 1 AC 831.

36 [1990] 1 AC 831, 862.

37 Barker, op cit, at 474.

38 Lord Goff referred to ‘the undertaking to fumish the relevant service’ being given on an informal occasion, a form of expression clearly indicating meaning (ii): [1995] 2 AC 145, 181. He also accepted (ibid) that the ‘broad principle’ may apply to cases of omissions to act, a view which is apparently inconsistent with meaning (iii) of ‘assumption of responsibility’ (though cf below, p 182 ff).

39 Lord Goff accepted there that ‘there is great difficulty in holding, on ordinary principles, that the solicitor has assumed any responsibility towards an intended beneficiary under a will which he has undertaken to prepare on behalf of his client but which, through his negligence, has failed to take effect in accordance with his client's instructions. The relevant work is plainly performed by the solicitor for his client; but, in the absence of special circumstances, it cannot be said to have been undertaken for the intended beneficiary’: [19951 2 AC 207,262. Here, the term ‘undertaken ‘appears to have the sense of ‘agreed’, the thrust of the passage being that it cannot be said that the sol icitor has agreed to prepare the will for the beneficiary but rather only for the client. It is to be noted, however, that later in his speech, Lord Goff held that an extension of the ordinary principle in Hedley Byrne should be made for the special circumstances of the case: ibid at 268.

40 Lord Browne-Wilkinson considered that ‘assumption of responsibility’ should refer to ‘a conscious assumption of responsibility for the task rather than a conscious assumption of legal liability to the plaintiff for its careful performance:’ [1995] 2 AC 207, 274 Cf Lord Nolan's speech, ibid, pp 293–294, in which he used ‘assumption of responsibility’ to refer to a driver's liability for negligent driving, a usage which is closest in meaning to (iii) (‘assumption by doing’).

41 This meaning is, therefore, similar to that described by Barker, op cit, at pp 464–469, in terms of a model of ‘promise’ though the latter rests on an implied promise to take care.

42 For Lord Goff, this exception is indicated by the nature of the concept of ‘assumption of responsibility’: Henderson [1995] 2 AC 145, 181.

43 This was because, according to authority, the defence of contributory negligence can apply to a claim for breach of contract only where it arises from breach of a (contractual) obligation to take reasonable care concurrent with a tortious duty of the same content. See above.

44 [1995] 2 AC 145, 194.

45 This also means that the stricter contractual standard is not to be applied to liability in the tort of negligence: A iken v Stewart Wrightson Members Agency Ltd [1995] 1 WLR 1281, esp at pp 1300–1301.

46 [1995] 2 AC 145,180.

47 Ibid at p 182 and see above, p 171.

48 Henderson [1995] 2 AC 145,180; Spring [1995] 2 AC 296, 318.

49 A old-fashioned understanding of the term professional could restrict it to categories such as lawyers, doctors and accountants. The distinguishing feature could be said to be that, quite apart from questions of expertise, such persons belong to professional organisations which regulate their behaviour and impose on them duties to act (to an extent) in the interests of their clients and not merely for their own commercial interests in dealings with them. To this extent it may be linked to the notion of ‘fiduciary’.

50 [1995] 2 AC 296. Lord Goff again relied on the broad principle of Hedley Byrne in deciding this case (ibid at 316); Lords Slynn of Hadley and Woolf relied on the broader basis for the imposition of liability founded on ‘proximity, fairness, justice and reasonableness’ (ibid at pp 335 and 342 respectively); Lord Lowry agreed with both bases for the imposition of liability (ibid at p 325). Lord Keith of Kinkel dissented.

51 Above, p 173.

52 Harmer v Cornelius (1858) 5 CBNS 236, 240.

53 This was affirmed and generalised as regards those agreeing to perform services in the course of a business in the Supply of Goods and Services Act 1982, s 13.

54 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

55 D 50. 17. 132 (attributed to Gaius): J Inst IV 3. 7 & 8. For its acceptance by the common law, see, for example, Harmar v Cornelius (1858) 5 CBNS 236, 246–247 per Willes J.

56 Cf though, the way in which the distinction between pre-contractual misrepresentations and contractual warranties has been drawn: eg Esso Petroleum Co Ltdv Mardon [1976] QB 801.

57 Henderson [1995] 2 AC 145,180 per Lord Goff.

58 [1995] 2 AC 296, 319. Cf Ministry of Housing v Shnrp [1970] 2 QB 223, where, however, ‘voluntary assumption of responsibility’ was by no means clearly the basis for the decision of Cross and Salmon LJJ: ibid at pp 278–279, 290–291 respectively. Lord Denning MR agreed with their decision imposing liability, but refused to accept voluntary assumption of responsibility as its basis: ibid at pp 268–269.

59 [1995] 2 AC at 182.

60 See above, p 174.

61 [1995] 2 AC 207.

62 [1995] 2 AC 145, 262.

63 Ibid at 268.

64 Ibid at 262.

65 [1995] 2 AC 207, 272 and cf at 275.

66 [1996] 1 AC 211.

67 Ibid at 242.

68 Above, pp 176–77.

69 Cf Burrows, , op cit, pp 123–124 Google Scholar.

70 [1977] 1 WLR 444, 461.

71 Cornish v Mid Zund Bunk Ltd [1985] 3 All ER 513, 521–523.

72 Banque Keyser Ullmunn SA v Skandiu (UK) Co Insurance Ltd [1990] 1 QB 665, 794 per Slade LJ.

73 [1979] Ch 384, 416.

74 [1995] 2 AC 145,181.

75 This case could be considered not to have been one of ‘pure omission’ at all, but rather one of ‘omission in action’, as it concerned liability for a step in the conduct of litigation which was missed out. It could be argued, therefore, that it is no more a case of liability for an omission than is that of a driver being liable for harm caused by his failure to signal. A similar interpretation could be taken to AZ-Kundari v JRBrown & Co [1988] QB 665.

76 Clerk & Lindsefl on Torts (17th edn, 1995) para 1–39.

77 Smith v Littlewoods Orgunisation Ltd [1987] 2 AC 241, 272 (Lord Goff), citing Stunsbie v Tromun [1948] 2 KB 48.

79 Wilkinson v Coverdale (1793) 1 Esp NPC 74.

80 Balfe v West (1853) 13 CB 466, 472.

81 (4th edn, 1848) p 112.

82 See Bowstead & Reynolds on Agency (16th edn, 1996) by FMB Reynolds, pp 186 188.

83 General Accident etc Corpn v Tanter, The Zephyr [1985] 2 Lloyd's Rep 529, 538.

84 Cf Burrows, , op cit, 121 Google Scholar.

85 [1995] 2 AC 296,316. Cf the grounds of the rest of the majority, noted above, n 50

86 Ibid at p 324.

87 Ibid.

88 [1995] 2 AC 145,181.

89 Cf the approach of Lord Steyn, to the question of ‘justice and reasonableness’ in Marc Rich & Co AGv Bishop Rock Marine Co [1996] 1 AC 221 at pp 236 Google Scholar ff, where he weighs various factors for and against the imposition of a duty of care on the facts.

90 Above, p 174 ff.

91 [1969] 1 AC 191.

92 See especially at pp 260–261, 263–265 (per Lord Pearce), 281 (per Lord Upjohn) and 289 (per Lord Pearson).

93 (1996) Times, 19 July [1996] TLR 441.

94 Ibid at 442. Cf Rose LJ, ibid at 441–442, with whose decision Ward and Judge WJ agreed, who considered that on the facts the existence of the local authority's statutory powers afforded no reason why they should not be liable under Hedley Byrne as the officer acted outside the legislative powers in question.

95 [1996] 1 AC 211.

96 (1995) Times, 22 December (Lexis transcript used).

97 The plaintiffs also claimed against their solicitors, but no issue relating to their liability arose before the Court of Appeal.

98 [1986] 1 AC 80,107.

99 [1995] 2 AC 145,193.

100 Lexis transcript, pp 15–16.

101 Chitry on Contracts, at para 1–064.

102 Notably [1995] 2 AC 145,178 and 193–194.

103 [1990] 2 AC 605, 638.

104 Transcript, p 12. See also Goodwill v Pregnancy Advisory Service [1996] 1 WLR 1397,1404–1405 where Peter Gibson LJ cited this reliance by the Court of Appeal in Holt v Payne Skillington on the dictum of Lord Oliver in Capuro and applied the same approach to deny the existence of a duty of care in respect of an alleged failure in advice concerning the consequences of a vasectomy operation on A to B, A's subsequent sexual partner.

105 Above, p 174 ff.

106 Chitry on Contracts, at paras 1-063-1-064.

107 [1990] 1 WLR 212, 229.

108 Treitel, G The Law of contract (London: Butterworths, 9th edn, 1995) pp 327–331 Google Scholar; Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623; Esso Petroleum Co Ltdv Mardon [1976] QB 801; J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078.

109 At least where the goods are other than one or other of the cars in question, as the contract could be relevant if the accident were caused by the defective state of the vehicle which had been sold.

110 Cf Cane, P Tort Law and Economic Interests (1991) p 327.Google Scholar

111 Moreover, before Henderson the courts had sometimes held that the parties' silence is to be taken as evidence of a choice not to impose liability in respect of a particular matter and here the contract was held ‘inconsistent with any assumption of responsibility beyond that which has been expressly undertaken’ (Greater Nottingham Co-Operative Society Ltd v Cementation Piling & Foundations Ltd [1989] QB 71,106 per Woolf LI). Of course, to the extent to which the reasoning in such cases as Reid v Rush & Tompkins Group plc relied on Lord Scarman's observations in Tai Hing Cotton Mill Ltd [1986] AC 80, 107 as establishing that there should be never be concurrent liability in tort and contract then this reasoning has been vitiated by the decision of the House of Lords in Henderson itself.

112 There may be other reasons relating to the contractual structure between the parties which could be held to be inconsistent with the ‘assumption of responsibility’, for example, the existence of a legally established immunity in respect of the subject-matter of the agreement: see the discussion in Chitty on Contracts at 1–062 but cf Banque Keyser Ullmann SA v Skandia (UK) Co Insurance Ltd [1990] 1 QB 665, 801–802 per Slade LJ.

113 Cf the discussion to this effect in respect of the liability of the solicitors beyond privity in White v Jones [1995] 1 AC 207,260 (Lord Goff); 276 (Lord Browne-Wilkinson).

114 Stapleton, J ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820Google Scholar.

115 Above, p 182 ff.

116 Of course, the idea of ‘something in return’ itself finds an exception in cases where a promise is supported by detriment in the promisee which is not reflected in benefit to the promisor.

117 [1991] 1 QB 1.

118 See Chitiy on Contracts at 1-068-069 concerning differences in rules as to damages.

119 Burrows, , op cit, pp 122–124 Google Scholar.

120 As has been suggested, Henderson may be justified on the special nature of consensual but non-contractual agency, above, p 172. The present writer has suggested elsewhere that the decision in White v Jones be supported but by way of a special exception to the rules of privity of contract rather than by liability in the tort of negligence: op cit, n 7. The majority of the House of Lords in Spring felt able to impose a duty of care without recourse to the principle of assumption of responsibility: above, n 50.

121 As the present writer has suggested in relation to liability beyond privity: op cit n 7.

122 Stapleton, J ‘Duty of Care and Economic Loss: A Wider Agenda’ (1991) 107 LQR 249Google Scholar.