The Assumption of Responsibility

Abstract

The concept of an assumption of responsibility plays a central role in liability for pure economic loss, liability for omissions and at least some non-delegable duties of care. Since its emergence or revival in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, a half-century of case law has yielded a wealth of fact situations and analysis, but has left unresolved fundamental questions about the assumption of responsibility as a basis of obligation. The speeches in Hedley Byrne exhibit an ambivalence about the nature of the concept which has haunted the field ever since. This paper argues that the assumption of responsibility is not a distinctive category of obligation, but simply a particular manifestation of the neighbour principle. The core idea underlying the assumption of responsibility appears to be that the defendant has engaged in some conduct in relation to the claimant, or a class of persons including the claimant, which has changed the legal relationship between the parties. The obligations arising from that conduct cannot be understood as voluntarily assumed or self-imposed. Nor can we even say that the assumption of responsibility cases are distinctive because the defendant has willingly entered into a relationship with the claimant in which it can reasonably be expected that the defendant will be mindful of the claimant’s interests. That model, too, is difficult to reconcile with the case law, and shades into a more general conception of proximity. What characterises the assumption of responsibility cases is simply that the defendant has accepted a role, or embarked on a task, in which the claimant is so closely and directly affected by the defendant’s acts and omissions that the defendant ought to have the claimant in contemplation when considering whether and how to act.

Keywords: negligence, duty of care, economic loss

JEL Classification: K13