Week Two Lectures 1-3 Law of Tort 2023

WEEK TWO
LECTURES 1 AND 2
DUTY OF CARE: NEGLIGENTLY CAUSED PSYCHIATRIC INJURY AND

DISTRESS
1. Negligently caused psychiatric harm
a. Clerk and Lindsell – you can have a claim from psychiatric damage
b. If you have been injured physically and psyciologicly you are a primary victim
c. Also if they are direct participant
d. Secondary victiom if you get psychiatratic damage from witnessing someone getting
hurt
2. Primary victims
a. White v chief constable of south Yorkshire police (during a crash of stadium police
claimed against empoyer for seeing it
i. A person who, when they suffer psychiatric injury also suffer physical injury
ii. A person who, although no actual physical injury is suffered, is at least
within the range of foreseeable physical injury
b. Simmons v british steel plc (steelworker/ head injury and depression and skin
condition form stress
c. Page v smith
i. No actual physical injury, it was a minor incident, the person suffered chronic
fatigue but were in the range of foreseeable physical injury, (some harm
foreseeable)
3. Primary victims – rescuers and unwilling participants
a. Monk v pc Harrington ltd
i. Was construction work at football stadium an accident, monk went in to
rescue and suffered psychiatric harm from what he saw, he said he was a
rescuer, but to be regarded he had to be exposed to danger or reasonable
belief of danger (physical danger)
ii. Rescuer: Yes, but no duty of care on the facts. Monk was a rescuer as he rendered
help that was neither trivial nor peripheral at the accident. But, in order to be
regarded as a primary victim, he had to have been objectively exposed to danger, or
at least reasonably believe that he had been so exposed. On the facts, he was owed
no duty of care as a primary victim: Monk was not so exposed; and, if he believed
that he was, that belief was not reasonable.
b. Unwilling participant
i. He had to establish that the negligent act of the defendant (i) made him cause,
or (ii) made him think he was or was about to be the cause of the accident
and ensuringpersonal injuries or deaths, and (iii) it was forseeable that he
might suffer psychiatric injury as a result of this belief. It appears that
unwilling participants are primary victims, and exempt from the proximity
principles governing the situation of secondary victims (see esp at [14]-[15]
on this point). Though Monk harboured such a genuine belief, this was not a
reasonably held one.
4. Secondary victim
a. The passive and unwilling witnesses of harm to others
b. Taylor v A novo
i. A mother who suffered an accident at work and got fatal thrombosis and
then died, the daughter witnessed her mother get ill and die and suffered ptsd
and brought a claim against an employer
1 Ally Farnhill amending handout by M. Campbell, with permission

9 January 2023
ii. Was that psychiatric illness reasonably forseeable as a result of the
defendant’s negligence, and them must be in arelationship of sufficient
proximity to the defendant (the employers work causeing the daughter ptsd)
1. Need proximity to the accident/ event (when the accident happened)
c. What are the genral requirements of a duty to take care
i. Page v smith
- Reasonable foreseeability in this context is hindsight-based. It is not based on what was
foreseeable at the time of the event giving rise to the psychiatric injury.
- Psychiatric injury must be reasonably foreseeable in a person of ordinary fortitude.
-
d. A control mechanism tonot open the flood gates
5. Secondary victim- proximity
a. Alcock v chief constable fo south Yorkshire police
i. It was being broadcasted and people saw their firend or maybe just sitting on
the couch or listeneing on the radio, or in the stadium but away
ii. Different criteria for proximity
b. Discussed and reaffirmed in Liverpool women;s hospital nhs founataion trust v
ronayne
i. Saw his wife siffering and emergency treatment (was he a secondary victiom)
ii. Four cirteria
1. The claimant must have close tie of love and affection with the person
killed, injured =, or suffering
2. The claimant must have benn close to the incident in time and space
3. The claimant must have directly perceived the incident rather than,
for example, hearing about it form a tird person; and
4. The claimants illness must have been induced by a sudden shocking
event
iii. One additional requiremr
1. Psychiatric injury must be “recongnised” as opposed to what lord
oliver described in alcock as
2. “grief, sorrow, deprivation and the necessity for caring for loved ones who
have suffered injury or misfortune [which] must, I think, be considered as
ordinary and inevitable incidents of life which, regardless of individual
susceptibilities, must be sustained without compensation.”
c. Who is a ‘close tie of love and affection’
i. White v chief consable of south Yorkshire polec
1. Sometimes presumed
a. Parents
b. Children
c. Spouces
‘The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some
cases (eg spouses, parent and child) but must otherwise be established by evidence. [In Alcock [1992] 1 AC
310,] Mr Harrison, who was present elsewhere at the [football] ground and whose two brothers died, failed
[to satisfy this] condition […] because the House refused to presume that close ties of love and affection ex-
ist between brothers and he had adduced no evidence to prove that they existed in his case.’
ii. Evidence needed
iii. Shorter v surrey and Sussex healthcare nhs trust
1. Two sisters had amoost mother and daughter like level of closeness
on the facts
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iv. Re v calderdal and huddersfield nhs foundation trust
1. Grandmother witnessing traumatic birth of her grandchild was in a
close enough rleatinship
v. Mcfalane v ee Caledonia ltd
1. friends and colleagues insufficiently close. Claimant was a painter,
berthed on a fire-fighting support boat during catastrophic explosions
on and destruction of the Piper Alpha oil rig, suffering depression
after the disaster; not a primary victim, and, inter alia, did not have
sufficiently close ties with his friends and colleagues among the 164
men who died, and many others who were injured, to make himself a
secondary victim.
Lecture 2
1. what constitutes ‘physical proximinty in time and space’ or ‘immediate aftermath

a. Galli-Atkinson v Seghal [2003] EWCA Civ 697 esp [15]-[16], [25]-[26] (Latham LJ, with
whom Thorpe LJ agreed) (fatal rta/daughter/mortuary 2 hours later).
i. Girl in fatal car accident, and mother was told, seriously in denial and taken
to the mortriy to see her daughter, finally sinks in,
ii. “As regards proximity to the accident, it is obvious that this must be close in both
time and space… Experience has shown that to insist on direct and immediate sight
or hearing would be impractical and unjust and that under what may be called
the ‘aftermath’ doctrine one who, from close proximity, comes very soon upon
the scene should not be excluded. In my opinion, [what is necessary is (reference
omitted)] ‘direct perception of some of the events which go to make up the accident
as an entire event, and this includes the immediate aftermath’.Subject only to these
qualifications, I think that a strict test of proximity by sight or hearing should be
applied by the courts.”
iii. Immediate aftermath is ok but it should not be spread to far
b. Taylor v A Novo (uk) ltd

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i. There must be physical proximity with the actual original accident, and not the peril,
injury, or death suffered by one with whom one has close ties of love and affection,
etc.
ii. The claimant’s mother was injured at work due to the defendant employer’s
negligence
iii. days and weeks is too far
2. what does ‘direct perception’ entail
a. two points
i. the claimant must perceive the event or its aftermath itself, not just ie merely
be informed about it by a third party
ii. indirect perception will not usually make someone a secondary victim
b. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (HL) 398 (Lord Keith
of Kinkel), 405 (Lord Ackner), 416-417 (Lord Oliver).
i. The reporting of the events on the tv screens (football match)
ii. Seeing events on tv was not considered equivalent to seeing or hearing the
event itself in real time, though there may be cases in which it is, and the
question was left open bt lord ackner and lord oliver.
3. What is the sudden shock rule and what does it entail
a. The sudden assault on the nervous system
b. North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, [2003] PIQR P16 esp [35],
[37], [41]-[42] (baby/conflicting reports re prognosis/ultimately withdrawing treatment)
i. A baby started to get sick and took him to hospital and said it doesn’t look as
bad as it looks well do this and it will be ok, and starts fitting and says its
more serious, then it gets very serious and they said they he is probably wont
make it and it is best to withdraw treatment, brought suit for psychiatric harm
ii. Is this a shocking event that assaults the nervous system
iii. Is this an event
1. A case by case analysis “no one right answer”
2. “…It is a seamless tale with an obvious beginning and an equally
obvious end. It was played out over a period of 36 hours, which for
her both at the time and as subsequently recollected was undoubtedly
one drawn-out experience. […]…”
a. The court said this was one even instead of multiple events
iv. was it horrifying
1. court said yes
v. was this sudden
1. “this is not a case of the gradual dawning of realization that her
child’s life had been put in dagr by the defendants
vi. There was a claim for negligently caused psychiatric harm
c. Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588,
[2015] PIQR P20.
i. Became more ill after surgery
ii. Happened over 36 hours
iii. One event?
1. “, which concerned a seamless sequence with an obvious beginning
and end, what happened here was that the claimant knew before even
first seeing his wife that she was going for immediate surgery and that
there was a serious problem. So the facts singled out by the judge
were not distinct from what went before. There was no sudden shock
to the senses.”
2. This was more than one event and he had prior
iv. Was it horrifying?

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1. “No. Whether an event is horrifying enough is assessed by reference
to a person of ordinary robustness or fortitude; so if normal people
would not foreseeably suffer psychiatric injury from what you see,
there is no recovery. Specialist knowledge (eg medical) is not relevant
to whether an event would be more or less horrifying (at [13]); and
events within the normal human experience, such as the death of a
loved one in hospital, are not sufficiently horrifying unless
accompanied by wholly exceptional additional circumstances”.
a. people should be able to cope whth these things
v. was it sudden
1. no this was a ‘gradual realization… at each stage he was condition for
what he was about to perceive
4. two concluding points
a. Greatorex v Greatorex [2000] 1 WLR 1970 (QB): Rescuers cannot sue as primary
victims, unless they are in physical danger or at least reasonably believe themselves
to be so when they help (see Monk, above); and secondary victims cannot sue
immediate victims of the incident which sparks off a psychiatric illness, whether
they are rescuers or not.
b. Attia v British Gas Plc [1988] QB 304 (CA). Psychiatric illness resulting from
factors other than personal injury or imperilment, such as destruction of property.
i. A woman who came home and saw her house on fire beacuae of negliganec
due to britihs gas and suffered psyciatiric harm
ii. She was able to recover
c. Note the uncertain future of this precedent - although not overuled in Yearworth v
North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1. See esp [55], Lord
Judge CJ (with whom Sir Anthony Clarke MR, and Wilson LJ agreed) conveniently
summarised this case.
i. Did not overrule attia
ii. It is good law but attia is still uncertian
Lecture 3- economic loss
1. Pure economic loss

a. Unconnected to aphysical or mental injury
b. Economic loss that resutlst form damage to the planitfs rights
i. Wage losses, cost of cure incurred, value of lost production caused by
damage to machienary
2. What is consequential economic loss
a. If a claimant suffers damage to property
3. Spartan steel & alloys ltd v martin & co
a. While digging up a road, they negligently cut through a cable supplying power to the
claimants factory. There was a power cut last voer fourteen hours
i. Damage to the melt at the time of the power cut – physical damage to
property
ii. Loss of profit on the sale of the melt- economic loss consequent upon
physical damage to property
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iii. Loss of profits, on the four ments that would bave been processed during the
14 hours for which the factory had closed- purely economic loss due to lack
of associated physical damage
b. First two were recoverable but not the third
4. Why treat negligently caused economic loss differently from negligently caused physical
loss
a. The potentially indeterminate nature of carelessly inflicted economic loss is onreason
to treat it differently from physical loss
i. Loss can be very distant, and where does it end
b. The need to keep tort law form interfering with contract law and statutory regimes
5. Economic loss resulting frome reliance on statements or dependence serveses
a. Another type of harm receiving special treatment; financial / economic loss, 1: resulting
from reliance on statements, or dependence on services:
i. Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018] UKSC 43,
[2018] 1 WLR 4041(reference from bank);
ii. Steel v NRAM Ltd (formerly NRAM Plc) [2018] UKSC 13, [2018] 1 WLR 1190
(conveyance/inaccurate statement by solicitor re securities/reliance)
b. These Are ssential to a duty of care to avoid negligently caused economic loss
i. (i) The defendant must, objectively, voluntarily assume responsibility to the
claimant for the careful execution a particular task (be it the rendering of a statement
or service).
ii. (ii) The claimant must be identifiable, whether as an individual or a type of person.
iii. (iii) The claimant must rely on the defendant’s care and skill in the latter’s execution
of the task.
iv. (iv) The defendant must foresee, or be taken reasonably to foresee, that the claimant
would so rely.
v. (v) the claimant’s reliance must be reasonable
6. The need for a ‘special relationship’ between claimant and defendant and the importance of an
‘assumption of responsibility’
a. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL) (landmark
case/banker’s reference/credit worthiness/letter sent subject to disclaimer/implied
assumption of responsibility/liable but for disclaimer)…..explained in:
i. Credit reference for easy power, heller said they were good for the money but
sent a disclaimer, turns out easy power goes bust
ii. Goes to the house of lords, said heller when giving the claim they knew that
they were going to reply on it but because of the disclaimer they were not
successful
7. economic loss resulting from reliance on statements, or dependence on services: assumption
of responsibility (i)
a. what about the assumption of responsibility
i. a) Objective AoR is ‘the foundation’ for recognising duties of care in respect
of economic loss caused by negligent statements or services or omissions; but
there may be no AoR if:
1. statements or omission occurs in an informal context
2. or is there an effective disclaimer
3. (b) AoR is objectively deemed to have occurred (or not) on the facts; the
assessment is not subjective:
4. ‘The phrase [assumption of responsibility] means simply that the law
recognises that there is a duty of care. It is not so much that responsibility is
assumed as that it is recognised or imposed by the law.’
5. Phelps v Hillingdon LBC [2001] 2 AC 619 (HL) 654 (Lord Slynn, with
whom Lord Jauncey, Lord Lloyd, and Lord Hutton agreed, though Lord
Hutton added his own speech) (ed psych failed to diagnose/loss of
earnings/cost of tuition/duty)

9 January 2023
6. Court said there was a duty, they said the psychologist has a duty of
care
ii. AoR is not an assumption of legal liability – responsibility – to the claimant, but one
of responsibility for the careful completion of the task giving rise to the economic
loss, to which the duty of care attaches:
1. Assumer Resoponsability to do your work correctly
2. See White v Jones [1995] 2 AC 207 (HL) 273 (Lord Browne-Wilkinson,
with whom Lord Nolan agreed).
a. Did not do anything with the instuctions of change in will, and
you have takne responsablity for your job
iii. (d) Claimant to whom the defendant is said to assume responsibility must be
identifiable as a person or group:
1. Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018]
UKSC 43, [2018] 1 WLR 4041 [7] Lord Sumption (with whom Lady Hale,
Lord Mance, Lord Reed, and Lord Briggs agreed).
a. The fact that this was done that the gup providing refrence did
not hwo it was for
8. (1) The purpose of the statement or service: dealings between the parties, or the wider context, can
mean that the defendant should be taken to know what its statement or service is for:
a. ‘[I]n the ordinary course where a statement is relied upon by B to whom A has passed it on,
the representor owes no duty to B unless he knew that the statement was likely to be
communicated to B. That concession was plainly justified. I would go further and say that
the representor must not only know that the statement is likely to be communicated to and
relied upon by B. It must also be part of the statement’s known purpose that it should be
communicated and relied upon by B, if the representor is to be taken to assume
responsibility to B.’ Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018]
UKSC 43, [2018] 1 WLR 404 [11].
b. Compare this with: Caparo Industries Plc v Dickman [1990] 2 AC 605 (HL): purpose of
audit was not for the purpose of investment decisions
c. White v jones
i. Man disinherits daughters then decides to reinstate
ii. Solicitor fails to do anything about it - man sadly dies
iii. Daughters have no remedy in contract
iv. Solicitor sued in tort
v. Question: what is the purpose of a will?
vi. HL say entire purpose is to satisfy the testator’s intentions more generally - and not
difficult for solicitors!!
vii. Compare with the narrow approach in Caparo
viii. Deeming the purpose
1. Is the known perpuse the intentions of the person or just him writing
things down
d. West Bromwich Albion FC Ltd v El-Safty [2006] EWCA Civ 1299, [2007] PIQR P7 esp [59]
(Rix LJ, with whom Peter Smith J, and Mummery LJ agreed)
i. Mr. Appleton plays for West Brown - knee injury and referred to Mr El-Safty
ii. Advice for full reconstructive surgery - Mr. A never plays again
iii. West Brom sues for lost value of the player
iv. Held: assumption of responsibility was not about the well being of the club, it’s the
well being of the player
v. Sued separately for negligence - but no duty of care not negligently to cause
economic loss
1. Known perpuse was for wellbeing or player
9. 2) Defendant’s knowledge (actual or imputed) that a statement or service will be (i) put to
use by a third party or (ii) relied upon by a third party:
a. Smith v eric s bush
i. Lending building society contracts with surveying firm to value property
ii. Purchaser pays surveyor - but to building society - no contract with surveyor
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iii. Mis-valued so monetary loss
iv. Question: can purchaser sue the surveyor?
v. HL: surveyor must have known buyer was paying a fee, modest value of house and
residential is influential for HL - must have known buyer definitely going to rely on
the survey
b. Headly byrne
i. Must have known referencegoing to be used
c. Banca nazionale del lavoro spa v playboy club london
i. Playboy Club obtains reference for high stakes gambler - using an agent, not
disclosing they are the people behind the agent in the interests of discretion
ii. Agent (Burlington) asks for a reference from BNL - they give a widely inaccurate
reference
iii. Clue loses £800,000 - dues the bank and fails
iv. Club is the undisclosed principle of Burlington (agent) so no sense in which the
bank could be expected to know that there is the Playboy club relying on the
reference
v. A question of identifiability
vi. Reliance and identifiability bleed into each other!!!
1. If they did not know they existed how could they know they would
rely
10. (3) The claimant must (i) rely on the statement or the service, which reliance must (ii) be reasonable
and (iii) reasonably foreseeable:
a. Spring v guardian assurance plc
i. An employment refrence, HR spoke to someone who mr spring did not get
along with , gave refrence saying he is terrible based on one persons opinion
ii. Court says there is a duty, it is reasonlby that he relies
b. Steel v NRAM Ltd (formerly NRAM Plc) [2018] UKSC 13, [2018] 1 WLR 1190 esp [19],
[38] (Lord Wilson, with whom Lady Hale, Lord Reed, Lord Hodge and Lady Black agreed):
i. Borrower requests solicitor to release security over property that lender holds re loan
agreement
ii. Solicitor asks the bank - bank doesn’t check internal records - would have seen the
agreement was that less security would be released - too much released
iii. When borrower goes into liquidation - lender can’t rescue it’s position re. As much
property as security for the loan
iv. Bank sues solicitor
v. Lord Wilson - bank is the lender, has documents ‘at their fingertips’ - no reasonable
reliance on solicitor - no duty!
1. (iii) Negligent statements and provision of services causing economic loss in informal contexts are
sometimes actionable
a. Burgess v Lejonvarn [2017] EWCA Civ 254, [2017] PNLR 25 (informal
advice/design/architect)
b. She told us it would cost this it cost that, it was informal advicace, but it still got to the court
of appeal
2. (iv) Disclaimers and exclusion clauses: know the principle, not the detail
3.
Further reading. Civil Liability Act 1936 (South Australia), s 53; Civil Liability Act 2002 (New
South Wales), ss 27-33; E Descheemaeker, ‘Rationalising recovery for emotional harm in tort law’
(2018) 134 Law Quarterly Review 602 (available on Westlaw).
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Clerk & Lindsell on Torts, [7-69] (emphasis added and references modified).
‘A claimant can recover in respect of a recognised psychiatric illness suffered as a

result of his own physical injury or imperilment or as a result of the physical injury or
imperilment of another caused by the defendant. Any recognised psychiatric illness will
suffice. There has been recovery for […] post-traumatic stress disorder [see White v
Chief Constable of the South Yorkshire Police [1999] 2 AC 45 (HL)], pathological grief
disorder [see Vernon v Bosley (No 1) [1997] 1 All ER 577 (CA)] and chronic fatigue
syndrome [see Page v Smith [1996] AC 155 (HL)]. In the case of illness suffered as a
result of the trauma of being endangered or physically injured, the claimant is referred
to as a “primary victim” and will recover provided that physical injury was reasonably
foreseeable as a result the defendant’s negligence. It is [also] possible that a claimant
who was in some other way a direct participant in the incident may also be treated as a
primary victim and be able to recover if psychiatric illness was foreseeable, even if they
were not in danger of physical injury. In the case of illness suffered solely as a result of
the injury or endangerment of another, the claimant is referred to as a “secondary
victim” and recovery is subject to a number of policy restrictions. In addition, there are
a number of special cases where illness results from factors other than personal injury or
imperilment. The result is a “patchwork quilt of distinctions which are quite difficult to
justify”.[1]’
(F) Two types of harm receiving special treatment: psychiatric injury and
distress
(i) Primary victims: who are they, and when are they owed a duty to take care
not to cause them psychiatric injury?
(1) The normal run of cases
White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (HL) 496-497 (Lord Steyn,
with whom Lord Browne-Wilkinson and Lord Hoffmann agreed), 504-505 (Lord Hoffmann,
with whom Lord Browne-Wilkinson and Lord Steyn also agreed).2
- A primary victim is a person who, when she suffers psychiatric injury, either also suffers
physical injury, or is at least within the range of foreseeable physical injury during the
traumatic event in which she is caught up and which causes her psychiatric injury. This
suffices to give rise to a duty of care embracing guarding against psychiatric injury.3
Page v Smith [1996] AC 155 (HL) esp 184, 187, 189-190, 197 (Lord Lloyd, with whom Lord
Ackner, and Lord Browne-Wilkinson agreed), emphasis added.
- There was a minor road accident. The claimant suffered no physical injury. But he did suffer
a severe reoccurrence of chronic fatigue syndrome, brought on by the shock of the accident.
1 White v Chief Constable of the South Yorkshire Police [1999] 2 AC 455 (HL) 500 (Lord Steyn).
2 In this case, the House of Lords was approving the holding on this point of Lord Lloyd in his majority speech (with
which Lord Ackner and Lord Browne-Wilkinson agreed) in Page v Smith [1996] AC 155 (HL) 190, 197.
3 In a later case where no physical injury was suffered, it was further clarified that the psychiatric injury must come on
as an immediate result of the sudden, alarming event caused by the defendant’s negligence (probably an accident):
Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281 [55] (Lord Hope), [77] (Lord Scott), [95]
(Lord Rodger: ‘in Page v Smith the plaintiff suffered psychiatric harm as a result of being exposed to the risk of, but
escaping, instant physical harm’), [104] (Lord Mance: Page v Smith ‘concerned psychiatric injury arising as an
immediate consequence of an obvious accident, in which the claimant could foreseeably have been physically injured at
the time’).
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- Primary victims are directly involved in the accidents which spark off their psychiatric
injuries. Direct involvement means that a person is at least within the range of foreseeable
physical injury. But it does not matter whether the injury in fact sustained is physical or
psychiatric.
- This requirement is obviously satisfied in the case of a road accident. Recovery was allowed
on the facts.
- There is room for doubt about whether Lord Lloyd intended that the injury which must be
foreseeable has to be physical, or whether it can be either physical or psychiatric. In his
dissenting speech in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455
(HL), Lord Goff argued for the latter position.4 Controversy persists, but the detail is outwith
the scope of this course.5
Simmons v British Steel Plc [2004] UKHL 20, [2004] ICR 585 esp [56] (Lord Rodger, with
whom Lord Steyn, Lord Hope, Lord Scott, and Lady Hale agreed).
- The claimant was a steelworker. He tripped over tubing feeding gas to his blow torch whilst
stepping down from a platform. He sustained a bad head injury, a worsening of his pre-
existing skin condition (psoriasis), and severe depression from being off work for so long,
becoming ever more angry with his employer (he had warned the employer before that the
tubing method of feeding torches in this part of the steel works was more dangerous than the
method of feeding torches from above).
- Where a claimant has suffered psychiatric and physical injury as a result of the defendant’s
breach of her duty of care, she is a primary victim. In those circumstances, it is beyond
doubt that psychiatric injury need not be reasonably foreseeable to establish a relevant duty
to take care.
(2) Rescuers and unwilling participants as primary victims
Nota bene – rescuers who suffer physical injury were dealt with earlier: Baker v TE Hopkins & Son
Ltd [1959] 1 WLR 966 (CA).
Monk v PC Harrington Ltd [2008] EWHC 1879 (QB), [2009] PIQR P3.
- There was an accident during the construction of football stadium. One man died and
another broke his leg when a platform collapsed onto them. Monk, a site foreman, suffered
post-traumatic stress and depression when he tried to help at the scene.
- Rescuer? Yes, but no duty of care on the facts.6 Monk was a rescuer as he rendered help that
was neither trivial nor peripheral at the accident. But, in order to be regarded as a primary
victim, he had to have been objectively exposed to danger, or at least reasonably believe that
he had been so exposed. On the facts, he was owed no duty of care as a primary victim:
Monk was not so exposed; and, if he believed that he was, that belief was not reasonable.
4 Lord Goff thought that a restriction to foreseeable physical injury was undesirable in principle: [1999] 2 AC 455 (HL)
486-488. But his Lordship also opined that Lord Lloyd intended no such thing: [1999] 2 AC 455 (HL) 477-480.
5 See further S Bailey and D Nolan, ‘The Page v Smith saga: a tale of inauspicious origins and unintended
consequences’ [2010] Cambridge Law Journal 495.
6 Nota bene – the headnote in the Personal Injury and Quantum Reports is wrong to state that Monk was not regarded
as a rescuer at all. This is because Mr George Leggatt QC (as he then was) stated (at [27]): ‘Mr Monk was therefore by
no means the only person who went to try to assist the injured men. Nevertheless, it is apparent that when Mr Monk
arrived he took the lead role until the site medic reached the scene. It was also clear from Mr Carroll’s evidence that Mr
Monk provided significant help in comforting Mr Carroll until the emergency services arrived. In these circumstances I
find that Mr Monk gave assistance which was not “trivial or peripheral” and which entitles him to be regarded as a
rescuer.’
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- Unwilling participant? No. To establish himself as an unwilling participant, Monk had to
establish that the negligent act of the defendant (i) made him actually cause, or (ii) made
him think he was – or was about to be – the cause, of the accident and ensuing personal
injuries or deaths, and (iii) it was foreseeable that he might suffer psychiatric injury as a
result of this belief. It appears that unwilling participants are primary victims, and exempt
from the proximity principles governing the situation of secondary victims (see esp at [14]-
[15] on this point). Though Monk harboured such a genuine belief, this was not a reasonably
held one.
(ii) Secondary victims: who are they, and when are they owed a duty to take care
not to cause them psychiatric injury?
Many of the principles referred to here do not appear to a nicety in the judicial opinions in each of
the leading cases. Instead of asking you to dissect decisions of the House of Lords, in which
multiple speeches were given, all putting things slightly differently, more recent cases are often
cited instead, in which earlier pronouncements have been taken as representing the law.7
(1) Who is a secondary victim, and what are the general requirements of a
duty to take care not to cause them psychiatric injury?
Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, [2014] QB 150 [4]-[5] (Lord Dyson MR, with
whom Moore-Bick and Kitchen LJJ agreed).
- Secondary victims are the passive and unwilling witnesses of harm to others.
- To recover, their psychiatric illness must be reasonably foreseeable as a result of the
defendant’s negligence, and they must be in a relationship of sufficient proximity to the
defendant.
Page v Smith [1996] AC 155 (HL) 188-189 (Lord Lloyd, with whom Lord Ackner, and Lord
Browne-Wilkinson agreed).
- Reasonable foreseeability in this context is hindsight-based. It is not based on what was

foreseeable at the time of the event giving rise to the psychiatric injury.
- Psychiatric injury must be reasonably foreseeable in a person of ordinary fortitude.
‘[In this case,] Lord Keith of Kinkel, has drawn attention [in his speech] to an
observation of Lord Wright in Bourhill v Young [1943] AC 92, 110, that in nervous
shock cases the circumstances of the accident or event must be viewed ex post facto.
There are similar observations by Lord Wilberforce and Lord Bridge in McLoughlin v
O’Brian [1983] 1 AC 410, 420 and 432. This makes sense, as Lord Keith points out,
where the plaintiff is a secondary victim. For if you do not know the outcome of the
accident or event, it is impossible to say whether the defendant should have foreseen
injury by shock. It is necessary to take account of what happened in order to apply the
test of reasonable foreseeability at all.
7 The earlier leading cases are McLoughlin v O’Brian [1983] 1 AC 410 (HL); Alcock v Chief Constable of South
Yorkshire Police [1992] 1 AC 310 (HL); and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (HL).
9 January 2023
A further control mechanism is that the secondary victim will only recover damages for
nervous shock if the defendant should [reasonably] have foreseen injury by shock to a
person of normal fortitude or “ordinary phlegm”.’

9 January 2023
WEEK TWO
LECTURE TWO
(2) Now that we know who secondary victims are, and that the key
questions are foreseeability of psychiatric injury and proximity between
claimant and defendant, what does proximity actually mean?
Of proximity in the context of secondary victim cases, Lord Oliver said, in Alcock v Chief
Constable of South Yorkshire Police [1992] 1 AC 310 (HL) 411:
‘[I]n the end, it has to be accepted that the concept of “proximity” is an artificial one
which depends more upon the court’s perception of what is the reasonable area for the
imposition of liability than upon any logical process of analogical deduction.’
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, [2015]
PIQR P20 [10]-[11] (Tomlinson LJ, with whom Beatson and Sullivan LJJ agreed).
‘It is common ground that on the points in dispute on this appeal the judge directed
himself correctly in law, founding on Alcock v Chief Constable of South Yorkshire
Police [1992] 1 AC 310 and White [[1999] 2 AC 455 (HL)], above, by identifying the
four requirements for recovery established by those authorities, viz:–
(a) the Claimant must have a close tie of love and affection with the person killed,
injured or imperilled;
(b) the Claimant must have been close to the incident in time and space;
(c) the Claimant must have directly perceived the incident rather than, for example,
hearing about it from a third person; and
(d) the Claimant’s illness must have been induced by a sudden shocking event.
To this list the [trial] judge [in this case] added a fifth requirement to which I have
already adverted, that the Claimant must have suffered [recognised (see at [7])]
psychiatric illness or injury as opposed to what Lord Oliver described in Alcock at
[410E] as
“grief, sorrow, deprivation and the necessity for caring for loved ones who have
suffered injury or misfortune [which] must, I think, be considered as ordinary and
inevitable incidents of life which, regardless of individual susceptibilities, must be
sustained without compensation.”
It is unnecessary on this appeal to revisit the “control mechanisms” which regulate

recovery in this field, which can be said to be both arbitrary and pragmatic but which
are well-understood, binding on us, and which were considered only recently by this
court in Taylor v Novo [2014] QB 150.’
(3) Close ties of love and affection: sometimes presumed; otherwise may
be established by evidence
White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (HL) esp 502-503 (Lord
Hoffmann, with whom Lord Browne-Wilkinson and Lord Steyn agreed).
‘The plaintiff must have close ties of love and affection with the victim. Such ties may
be presumed in some cases (eg spouses, parent and child) but must otherwise be
9 January 2023
established by evidence. [In Alcock [1992] 1 AC 310,] Mr Harrison, who was present
elsewhere at the [football] ground and whose two brothers died, failed [to satisfy this]
condition […] because the House refused to presume that close ties of love and
affection exist between brothers and he had adduced no evidence to prove that they
existed in his case.’
As Lord Hoffmann makes clear, where close ties of love and affection are not presumed, evidence
can establish that a person has such ties with a victim. This is demonstrated by the following cases,
which you do not need to learn. In two, there were sufficient ties. In the third, there were not.
- Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB) [22] (Swift J):
two sisters had an almost mother and daughter like level of closeness on the facts.
- RE (A Minor) v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824
(QB) [48] (Gross J):8 grandmother witnessing traumatic birth of her grandchild was in a
close enough relationship.
- At the other end of the scale, take McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 (CA):
friends and colleagues insufficiently close.
(4) Physical proximity in time and space to the actual accident (or its
immediate aftermath) caused by the defendant’s negligence (and not in
time and space to the injuries to a loved one which spark off your
psychiatric illness)
Galli-Atkinson v Seghal [2003] EWCA Civ 697 esp [15]-[16], [25]-[26] (Latham LJ, with whom
Thorpe LJ agreed).
- The claimant’s daughter was struck and killed by a car. The claimant was informed at the
scene about an hour afterwards, but saw nothing of the accident itself or its consequences
beyond the police cordon: at [4]. Just over two hours afterwards, she saw her daughter’s
prepared but disfigured body in the mortuary. She suffered psychiatric injury as a result of
her experience.
- She did satisfy this condition of recovery as a secondary victim.
- The analysis of what happened here as a composite series of events prevented the claimant
from failing on the basis that she was merely informed of her daughter’s death. On the
nature of the event which must cause harm to the claimant, see heading (6) below.
Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, [2014] QB 150.
- There must be physical proximity with the actual original accident, and not the peril, injury,
or death suffered by one with whom one has close ties of love and affection, etc.
- The claimant’s mother was injured at work due to the defendant employer’s negligence.
- Three weeks later, she sadly died. Her daughter would have satisfied all of the criteria to
qualify as a secondary victim if proximity to this event were required. But it was not.
Rather, the question was whether the daughter was temporally and physically proximate to
the original accident or its immediate aftermath. If we allowed people to change the event to
which their injury had to be proximate, they could recover years after accidents happened to
their loved ones. That would make a mockery of the clear ‘immediate aftermath’ rule in
place since McLoughlin v O’Brian [1983] 1 AC 410 (HL).
8 The case is not available on Westlaw, but may be viewed on BAILII at this link.
9 January 2023
(5) Direct perception, of the event sparking your psychiatric illness with
your own senses, or other perception equivalent to this
A first point to note under this heading is that the claimant must perceive the event or its
aftermath itself, not just – ie, merely – be informed about it by a third party. 9 This rule is stated in
several of the cases under the secondary victims heading (eg Liverpool Women’s Hospital NHS
Foundation Trust v Ronayne [2015] EWCA Civ 588, [2015] PIQR P20 [10] (Tomlinson LJ, with
whom Beatson and Sullivan LJJ agreed)). The reason for this, as Clerk & Lindsell on Torts, [7-82],
states, is ‘not because shock to the claimant in such circumstances is not foreseeable. […] It is
because the defendant is regarded as responsible for the horrific events themselves and not for the
distribution of information about the events.’
A second point to note under this heading about direct perception appears from the passages cited
from Alcock: indirect perception will not usually make someone a secondary victim.
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (HL) 398 (Lord Keith of
Kinkel), 405 (Lord Ackner), 416-417 (Lord Oliver).
- Seeing events on television was not considered equivalent to seeing or hearing the event
itself in real time, though there may be cases in which it is, and the question was left open
by Lord Ackner and Lord Oliver.
- Nota bene – we might add that social media allow us to experience events much more
directly nowadays, as if we were there. This could spur further developments, which their
Lordships left open.
(6) The ‘sudden shock’ rule: a (i) single (ii) horrifying and (iii) sudden
event
Clerk & Lindsell on Torts, [7-83].
‘In Alcock [[1992] 1 AC 310 (HL) 401, 398, 411] Lord Ackner said that what was
required was “the sudden appreciation by sight or sound of a horrifying event, which
violently agitates the mind”. Lord Keith required “a sudden assault on the nervous
system” and Lord Oliver a “sudden and unexpected shock to the nervous system”.’
North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, [2003] PIQR P16 esp [35],
[37], [41]-[42] (Ward LJ, with whom Clarke LJ and Sir Anthony Evans agreed).
9 Being informed can be part of the event if it goes hand in hand with witnessing what is actually happening, too. North
Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, [2003] PIQR P16 [36] (Ward LJ, with whom Clarke LJ, and
Sir Anthony Evans agreed): ‘The distinction in the authorities is between the case where the claim is founded upon
“merely being informed of, or reading, or hearing about the accident” and directly perceiving by sight or sound the
relevant event [(see Alcock [1992] 1 AC 310 (HL) 400-401 (Lord Ackner)]. Information given as the events unfold
before one’s eyes is part of the circumstances of the case to which the court is entitled to have regard.’ Apart from
witnessing the event, an independent, direct liability for the negligent causation of psychiatric injury may arise where
distressing news is communicated in a careless manner, even if accurate: AB v Tameside and Glossop HA [1997] PNLR
140 (CA) (letter used to communicate that claimants had been treated by a person subsequently found to suffer from
serious infectious illness; liability in principle recognised but no negligence on the facts).
9 January 2023
- It was held that a 36 hour period could constitute a relevant ‘event’, which was horrifying
and sudden. Had baby Elliot been properly diagnosed two to three weeks earlier as suffering
from liver failure, and not hepatitis A, he would have had a liver transplant and stood a
much better chance of survival. This treatment by the hospital was negligent; but the point
of interest here lies in the very sad subsequent events.
- As things were, baby Elliot was brought back to hospital when his parents were concerned
about his condition. His mother was sleeping in his hospital room at 03:00. She was woken
by his having an epileptic fit and falling into a coma. She was reassured that brain damage
was unlikely; and reassured that there had been no brain damage the next day, after a scan
before a transfer to London for a liver transplant. On arrival at London, a further scan
showed that Elliot had in fact suffered severe brain damage. He was put on life support. His
mother was informed of this on her arrival two and a half hours after Elliot, and told that
Elliot could not have a liver transplant (50:50 survival). A yet further scan next day showed
such severe damage that Elliot would enjoy no quality of life. His parents were asked
whether they wanted to switch off his life support. Elliot died in his mother’s arms about 36
hours after his fit.
- The combination of what she witnessed and lived – the realisation that all was not well, the
varying updates, and so on – took Elliot’s mother from relief to complete devastation. She
suffered pathological grief disorder as a result.
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, [2015]
PIQR P20.
- In this case, another period of about 36 hours, was not a relevant ‘event’, which was
horrifying and sudden. The exceptional nature of Walters, addressed immediately above,
was emphasised.
- Ronayne was psychiatrically injured upon seeing his wife in hospital. Abnormalities were
found after testing. Shortly before her surgery he saw her connected to machines. Shortly
afterwards, he saw her unconscious, ventilated, and connected to a drip. Her body was very
swollen up. All this occurred because, on an earlier visit, the hospital had negligently
performed a hysterectomy, leaving a suture in her colon. She had become ill again, and
returned to hospital after several days of discomfort at home.
- An event? ‘The first instance judge was wrong to take the period from when the claimant
first saw his wife ‘at about 17.00 on 18 July prior to surgery connected to drips, monitors etc
through to the first moment when he saw her in her post-operative swollen condition,
connected to life support systems[, a] period of probably about 36 hours as, for present
purposes, one event.’ (At [34]-[35].) Unlike in Walters, which concerned a seamless
sequence with an obvious beginning and end, what happened here was that the claimant
knew before even first seeing his wife that she was going for immediate surgery and that
there was a serious problem. So the facts singled out by the judge were not distinct from
what went before. There was no sudden shock to the senses. The same was true of the
second time the claimant saw his wife, as he was told just before in a quiet room that the
next 24 hours were critical, and that his wife’s condition was so serious that she might not
survive (At [34]-[39].)
- Was the event horrifying? No. Whether an event is horrifying enough is assessed by
reference to a person of ordinary robustness or fortitude; so if normal people would not
foreseeably suffer psychiatric injury from what you see, there is no recovery. Specialist
knowledge (eg medical) is not relevant to whether an event would be more or less horrifying
(at [13]);10 and events within the normal human experience, such as the death of a loved one
10 Conversely, if a person of reasonable fortitude would not reasonably foreseeably have suffered psychiatric injury as
a result of perceiving the relevant events, then there will be no recovery. Page v Smith [1996] AC 155 (HL) 189 (Lord
9 January 2023
in hospital, are not sufficiently horrifying unless accompanied by wholly exceptional
additional circumstances (at [14]); ‘[i]n hospital one must expect to see patients connected
to machines and drips, and […] expect to see things that one may not like to see. A visitor to
a hospital is necessarily to a certain degree conditioned as to what to expect, and in the
ordinary way it is also likely that due warning will be given by medical staff of an
impending encounter likely to prove more than ordinarily distressing’ (at [17]); Walters,
addressed immediately above, was an ‘exceptional case […], which had the unusual feature
of a mother witnessing at first hand her infant child undergoing a fit in consequence of
negligence, and the circumstance that thereafter she was unprepared for the sequelae
because she had been reassured by further incorrect medical advice’ (at [18]). What was the
position here? ‘Both on the first occasion and on the second the appearance of the
Claimant’s wife was as would ordinarily be expected of a person in hospital in the
circumstances in which she found herself. What is required in order to found liability is
something which is exceptional in nature. On the first occasion she was connected to
monitors and drips. The reaction of most people of ordinary robustness to that sight, given
the circumstances in which she had been taken into the A and E Department, and the
knowledge that abnormalities had been found, including a shadow over the lung,
necessitating immediate exploratory surgery, would surely be one of relief that the matter
was in the hands of the medical professionals, with perhaps a grateful nod to the ready
availability of modern medical equipment. The same is more or less true of her swollen
appearance on the second occasion. There is I think a danger of the “Michelin Man” epithet
acquiring a significance greater than it deserves. The Claimant was conditioned to see
someone from whom a litre of abscess had been drained and whose life was in grave danger.
The pressure pads, routine medical equipment, no doubt contributed to the swollen
appearance. I can readily accept that the appearance of Mrs Ronayne on this occasion must
have been both alarming and distressing to the Claimant, but it was not in context
exceptional and it was not I think horrifying in the sense in which that word has been used in
the authorities. Certainly however it did not lead to a sudden violent agitation of the mind,
because the Claimant was prepared to witness a person in a desperate condition and was
moreover already extremely angry.’ (At [41].)
- Was the event sufficiently sudden? No. This was ‘a gradual realisation by the Claimant that
his wife’s life was in danger in consequence of a mistake made in carrying out the initial
operation. At each stage in this sequence of events the Claimant was conditioned for what he
was about to perceive. Before first seeing his wife connected to drips, monitors etc he knew,
of course, that she was in hospital, and that that was because she was not recovering as
expected from her operation and was running a high temperature. He knew that
abnormalities had been found and that she was to undergo immediate exploratory surgery.
There was in these circumstances nothing sudden or unexpected about being ushered in to
see her and finding her connected to medical equipment as she was. Similarly the next day.
One important purpose of the doctor wishing to have a word with Mr Ronayne before he
visited his wife for the first time after the operation was no doubt to prepare him for the
condition in which he would find her. There is no evidence that the doctor warned of her
swollen appearance, and I will assume that he did not, but he did warn that she was gravely
ill. The really bad news, that her life was in real danger, was imparted orally. Further, it was
the explanation of the mistake which had led to this state of affairs which induced in the
Claimant extreme anger before the second of the incidents said to be part of the shocking
event, the sight of his swollen wife on life support. Having been told of the severity of his
wife’s condition and that she was being administered a cocktail of antibiotics, it cannot in
Lloyd, with whom with whom Lord Ackner, and Lord Browne-Wilkinson agreed): ‘the secondary victim will only
recover damages for nervous shock if the defendant should [reasonably] have foreseen injury by shock to a person of
normal fortitude or “ordinary phlegm”.’
9 January 2023
my judgment be said that what thereafter occurred had the necessary element of
suddenness.’ (At [40].)
(7) Rescuers cannot sue as primary victims, unless they are in physical
danger or at least reasonably believe themselves to be so when they help
(see Monk, above); and secondary victims cannot sue immediate victims of
the incident which sparks off a psychiatric illness, whether they are
rescuers or not
Greatorex v Greatorex [2000] 1 WLR 1970 (QB).
- The claimant was a fireman who attended a car crash. The victim who was to blame for the
crash turned out to be his own son. The claimant suffered post-traumatic stress and sued his
son (effectively his son’s motor insurers).
- Following White, his claim as a primary victim failed. He was never in any danger, and
there is no special treatment for rescuers who are not in physical danger (or, following
Monk, above, those who do not at least reasonably believe themselves to be in physical
danger).
- And although he satisfied all the Alcock requirements for secondary victim recovery, he
failed. Imposing a duty on his son to avoid self-inflicted injury would unduly limit the son’s
right to self-determination.
(iii) Psychiatric illness resulting from factors other than personal injury or
imperilment, such as destruction of property
Attia v British Gas Plc [1988] QB 304 (CA).

- Yes in principle (as a preliminary issue, ie, without finally deciding on the facts) to recovery
for psychiatric illness caused when claimant arrived home to see her house burning down
due to the negligence of the defendant gas company whose employees were working at the
property installing central heating.
- Bingham LJ gave a further example of a scholar’s life’s work being destroyed before her
eyes due to the defendant’s carelessness as a set of facts which might attract liability.
- Status of this decision is uncertain, as it pre-dates certain modern leading cases.
In Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1 esp [55], Lord Judge
CJ (with whom Sir Anthony Clarke MR, and Wilson LJ agreed) conveniently summarised this case.
‘In Attia v British Gas plc [1988] QB 304, D who was installing central heating in C’s
home, negligently set it on fire. For four hours C witnessed her home ablaze. This court
held that, subject to proof of causation and foreseeability, she could recover for
psychiatric injury sustained as a result of it. Bingham LJ, at p 320e, gave a different
example of where recovery would lie, namely if “a scholar’s life’s work of research or
composition were destroyed before his eyes as a result of a defendant’s careless
conduct, causing the scholar to suffer reasonably foreseeable psychiatric damage.” It
will be noted that the facts both of the Attia case and of Bingham LJ’s different example
are of injury sustained as a result of witnessing damage to property. It may be
controversial to distinguish between the person who witnesses damage to his property
and in consequence suffers psychiatric injury and the person who receives information
about damage to it and suffers similarly. On the other hand the distinction does no more
9 January 2023
than to replicate what, for policy reasons, has been drawn in relation to the so-called
secondary victim who foreseeably suffers psychiatric injury as a result of personal
injury which the primary victim suffers, or to which he is exposed, as a result of the
defendant’s negligence: Alcock v Chief Constable of South Yorkshire Police [1992] 1
AC 310. At all events, in the light of what follows, there is no need for us to consider
the distinction any further.’
(iv) Distress
We do not address this on the course. The heading has been left to show the kind of issues to which
one might progress after gaining an understanding of the basics.

9 January 2023
WEEK TWO
LECTURE 3
THE TORT OF NEGLIGENCE, CONTINUED

DUTY OF CARE: NEGLIGENTLY CAUSED ECONOMIC LOSS
To start this part of our lectures, we need to draw some preliminary distinctions, and outline some
common justifications for why the existence of duties of care not negligently to cause purely
economic loss is subject to special rules. Winfield & Jolowicz on Tort nicely introduces these
matters:
‘Much of the controversy about the role of the duty of care element of the tort of
negligence has arisen in cases that have involved “pure economic loss”. The expression
“pure economic loss” is liable to mislead: if a car is negligently destroyed, that is
“economic” in the sense that the owner’s assets are thereby diminished, but in legal
terms it is classified as damage to property and the owner is entitled to its value as
damages. Further, even if a loss is unquestionably only financial in nature, no difficulty
is felt about allowing its recovery if it is a consequence of physical injury to the
claimant or damage to his property. For example, if the claimant suffers physical
injuries due to the defendant’s negligence and incurs medical expenses as a result, the
claimant will be able to recover damages in respect of those expenses.’11
What is pure economic loss?
‘Pure economic loss is economic loss that is unconnected to a physical or mental injury to the
plaintiff’s person, or to physical damage to property […].’12 We can demonstrate this with the
classic case of Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd.13 Whilst digging up a
road, the defendant construction workers negligently cut through a cable supplying power to the
claimants’ factory. There was a power cut lasting over fourteen hours. The claimants’ furnace went
down. They had to stop work. The metal in their furnace at the time had to be thrown away because
it started to solidify. Three types of loss were discernible:
(1) damage to the melt at the time of the power cut – physical damage to property;
(2) loss of profit on the sale of the melt – economic loss consequent upon physical
damage to property; and
(3) loss of profits on the four melts that would have been processed during the hours for
which the factory had closed – purely economic loss due to lack of associated physical
damage.
The first two kinds of loss were recoverable. The third was not. Some of the law as set out in this
case about purely economic loss has been refined subsequently. But the conclusion is correct, and
11 E Peel and J Goudkamp (eds), Winfield & Jolowicz on Tort (20th edn, 2020) [5-048] (original emphasis).
12 1688782 Ontario Inc v Maple Leaf Foods Inc [2020] SCC 35 [17] (Brown and Martin JJ, with whom Moldaver,
Côté, and Rowe JJ agreed).
13 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 (CA). See also SCM (UK) Ltd v WJ
Whittall & Son Ltd [1971] 1 QB 337 (CA). In that case, contractors preparing to build a boundary wall negligently
pierced and damaged an 11,000-volt cable, running alongside the road, cutting power to the claimants’ factory so that
molten metal in their machines solidified due to lack of heat. The contractors were liable for the material damage and
the loss of profit truly consequent on it but not for further economic loss.
9 January 2023
the case demonstrates the key points here perfectly, including that (1) persons generally owe a duty
to others not carelessly to cause damage to each other’s property; (2) economic loss consequent on
physical damage to property (or, indeed, people) is ordinarily recoverable; but (3) purely economic
loss is a thing apart requiring special treatment.
What is consequential economic loss?
We have to understand economic loss consequent on physical damage – type (2) in the summary
just above. It falls to be distinguished from purely economic loss – type (3) in the summary just
above.14 And it is and it is generally recoverable on ordinary principles of tort law, without being
subject to special rules.
The courts leave themselves considerable leeway in deciding whether financial loss is consequential
or purely economic. The matter is essentially a question of foreseeability and remoteness: is the
economic loss sufficiently closely associated with physical damage to person, 15 or property of the
claimant’s,16 that it is actionable? Remoteness will be considered in more detail later in the course.
But the elements of the tort of negligence do not operate in watertight compartments. A detour is
necessary here.
To keep this short, but instructive, let us look at a couple of statements of principle, then a single
example. In Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC,17 a unanimous Supreme
Court noted:
‘If a claimant suffers damage to property, such as a vehicle or a ship, as a result of the
tortious actions of a defendant, it can claim as damages the diminution in value of the
damaged property, usually measured by the cost of repairing the property, and
consequential loss, such as the loss of use of the property while it was being repaired,
without having to show that that expenditure diminished its overall profitability. See,
for example, Coles v Hetherton [2013] EWCA Civ 1704; [2015] 1 WLR 160; The
London Corpn [1935] P 70; The World Beauty [1970] P 144.’
In this dictum, we see that the opportunity to use property which is out of action may be lost as a
result of tortiously caused damage to that property. This loss is as automatically recoverable as loss
tortiously caused to the property itself. Take, next, this observation from the Supreme Court of
Canada in 1688782 Ontario Inc v Maple Leaf Foods Inc:18
14 JSC BTA Bank v Ablyazov (No 14) [2018] UKSC 19, [2020] AC 727 [6], referring to ‘the general rule that there is
no duty in tort to avoid causing a purely economic loss unless it is parasitic upon some injury to person or property’.
15 Pritchard v JH Cobden Ltd [1988] Fam 22 (CA): claimant’s marriage broke down due to personality changes
brought on by brain damage suffered in a road traffic accident, caused by the defendant’s negligence; financial
consequences of the divorce too remote a consequence of the accident for them to be recoverable from the defendant.
16 The traditional position is that the claimant must have a legal or possessory title to the property which has been
damaged: Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1986] AC 785 (HL); MCC Proceeds Inc v
Lehman Brothers International (Europe) [1998] 4 All ER 675 (CA). However, joining a legal owner to proceedings
may suffice where all that the claimant has is a beneficial, ie, equitable interest in the damaged property: Shell UK Ltd v
Total UK Ltd [2010] EWCA Civ 180, [2011] QB 86.
17 Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24 [200] (emphasis added).
9 January 2023
‘Pure economic loss is economic loss that is unconnected to a physical or mental injury
to the plaintiff’s person, or to physical damage to property […]. It is distinct, therefore,
from consequential economic loss, being economic loss that results from damage to the
plaintiff’s rights, such as wage losses or costs of care incurred by someone physically or
mentally injured, or the value of lost production caused by damage to machinery, or lost
sales caused by damage to delivery vehicles.’
Why treat negligently caused economic loss differently from

negligently caused physical loss?
Further reading. The issue is discussed in most textbooks, such as P Giliker, Tort (7th edn, 2020)
[3-006]-[3-009].
The careless causation of physical damage, whether to person or property, is necessarily constrained
by the laws of nature. The relationships within which we may expect it are limited by time, space,
place, our senses, and other physical capabilities. This is untrue of the careless infliction of
economic damage. This arises in many different relationships, often of human creation. In turn,
these are commonly linked to other relationships. Through these, a given loss can resonate, resound,
and rebound, causing incalculable damage. The potentially indeterminate nature of carelessly
inflicted economic loss is one reason to treat it differently from physical loss. 19 Supreme injustice
could result from holding individual defendants liable for any and every consequence of their
careless acts. More generally, if the law adopted so extreme a position, it could become impossible
for people to settle and conduct their affairs, or insure against liability.
At least two other reasons why we may wish to limit compensation for economic loss are
commonly mentioned.
First: keeping tort law from interfering with contract law and statutory regimes. Statute and contract
often provide the backdrop or context for relationships in which economic loss may be negligently
caused: general tort law should not normally upset the detailed regimes instituted by the democratic
process, or the parties to an agreement or network of agreements. The judges shy from expanding
tort law so as to interfere with statutory regimes enjoying parliamentary approval: it is
democratically distasteful.20 An expansive tort law might also interfere with contractual
relationships – most obviously by imposing duties which conflict with the letter or spirit of lawful,
morally unobjectionable agreements.21 This might impinge unwarrantably upon persons’ generally
accepted freedom (absent special considerations) to make the contracts they choose, and to allocate
19 See Ultramares Corporation v Touche (1931) 255 NY 170 (CA (NY)).
20 For the refusal to recognise that acts subject to a statutory permission amounted to a nuisance at common law, see
The Manchester Ship Canal Company Ltd v United Utilities Water Plc [2014] UKSC 40, [2014] 1 WLR 2576. See also
Binsaris v Northern Territory [2020] HCA 22 [44] (Gordon and Edelman JJ): ‘The legislative development, and the
underlying legislative acceptance of public responsibility for torts committed by police officers, are appropriate to be
factored into the contemporary expression of the common law of Australia’.
21 See Design Services Ltd v Canada [2008] SCC 22, [2008] 1 SCR 737 [57]. For judicial efforts to ensure that the law
of tort does not do this, see, eg, Wellesley Partners LLP v Withers LLP [2015] EWCA Civ 1146, [2016] Ch 259,
discussing case law recognising that tortious duties inconsistent with more restrictive contractual terms will not arise,
and aligning rules as to remoteness of loss in tort with those in contract where concurrent duties arise. See further A
Taylor, ‘Concurrent Duties’ (2019) 82 Modern Law Review 17; Jodi Gardner and J Murphy, ‘Concurrent liability in
contract and tort: a separation thesis’ (2021) 137 Law Quarterly Review 77, available on Westlaw.
9 January 2023
risk thereby.22 These arguments are generally persuasive: we are not saying that the law should not
protect people at all. Instead, we are saying that there are better ways to offer and ensure any
protection considered necessary.
Secondly: in general, one person’s loss is another person’s gain. Society places value on autonomy
and wealth. (Plainly, the extent to which society should do this is debateable. But the judge-made
law of torts is not the context in which to dispute whether this is true, legitimate, or changeable.)
We do not easily accept that we should take care to guard against the careless causation of
economic loss to another.
‘[T]he general rule [is] that there is no duty in tort to avoid causing a purely economic
loss unless it is parasitic upon some injury to person or property. The reason for the
general rule is that, contract apart, common law duties to avoid causing pure economic
loss tend to cut across the ordinary incidents of competitive business, one of which is
that one man’s gain may be another man’s loss. The successful pursuit of commercial
self-interest necessarily entails the risk of damaging the commercial interests of others.
Identifying the point at which it transgresses legitimate bounds is therefore a task of
exceptional delicacy.’23
And as a majority of the Supreme Court of Canada observed in 2020:
‘While […] pure economic loss may be recoverable in certain circumstances, there is no
general right, in tort, protecting against the negligent or intentional infliction of pure
economic loss. For example, economic loss caused by ordinary marketplace competition
is not, without something more, actionable in negligence […]. Such loss falls outside
the scope of a plaintiff’s legal rights – the loss is damnum absque injuria and
unrecoverable ([…] D Nolan, “Rights, Damage and Loss” (2017) 37 Oxf J Leg Stud
255, at pp 262-68). Indeed, the essential goal of competition is to attract more business,
which may mean taking business away from others. Absent a contractual or statutory
entitlement, there is no right to a customer or to the quality of a bargain, let alone to a
market share.’24
Certainly, most would not so readily take this sort of view where damage to people is concerned!
We are less prepared to accept that ‘accidents just happen’ in that context. But it is also debateable
whether we should always treat negligently caused purely economic loss differently from economic
loss which happens, by chance, to be consequent on negligently caused physical damage to
property:25 should the former kind of loss really receive no protection at all? A slightly more
nuanced approach to the merits of different situations in which purely economic loss is negligently
caused is obviously preferable. Though we can only scratch the surface here, it is possible to discern
such an approach in the cases.26
22 Bhasin v Hrynew [2014] SCC 71, [2014] 3 SCR 494 [70]; Prime Sight Ltd v Lavarello [2013] UKPC 22 (Gib),
[2014] AC 436 [47].
23 JSC BTA Bank v Ablyazov (No 14) [2018] UKSC 19, [2020] AC 727 [6].
25 Recall though, as we saw under the immediately preceding heading, that the courts leave themselves considerable
leeway in deciding whether financial loss is consequential on physical damage, or is purely economic: Network Rail
Infrastructure Ltd v Conarken Group Ltd [2011] EWCA Civ 644, [2012] 1 All ER (Comm) 692.
26 See suggestion and structure in R Merkin and Z Adams (eds), Markesinis and Deakin’s Tort Law (8th edn, 2019)
127.
9 January 2023
(G) Another type of harm receiving special treatment; financial / economic loss,
1: resulting from reliance on statements, or dependence on services
References. The entry points to the law under this heading are, first, Banca Nazionale del Lavoro
SPA v Playboy Club London Ltd [2018] UKSC 43, [2018] 1 WLR 4041. It cuts through key leading
authority which is hard to read first hand. Next, you might read the slightly earlier case of Steel v
NRAM Ltd (formerly NRAM Plc) [2018] UKSC 13, [2018] 1 WLR 1190. It reviews the authorities a
little more extensively, and addresses the significance of assumption of responsibility, and
reasonable, reasonably foreseeable reliance, in cases of negligently caused economic loss. Further
reading. Deloitte & Touche v Livent Inc (Receiver of) [2017] SCC 63, [2017] 2 SCR 855; 1688782
Ontario Inc v Maple Leaf Foods Inc [2020] SCC 35; D Nolan, ‘Assumption of Responsibility: Four
Questions’ [2019] Current Legal Problems 123.
The above two English decisions are the most recent detailed offerings from the Supreme Court on
point. But there is, unfortunately, no definitive account of the cases. Many pronouncements from
case to case are hard to reconcile.27
Summary of conditions for a duty of care in relation to pure economic loss
Following the two Supreme Court decisions cited above, the following are essential to a duty of
care to avoid negligently caused economic loss.
(i) The defendant must, objectively, voluntarily assume responsibility to the claimant
for the careful execution a particular task (be it the rendering of a statement or service).
(ii) The claimant must be identifiable, whether as an individual or a type of person.
(iii) The claimant must rely on the defendant’s care and skill in the latter’s execution of
the task.
(iv) The defendant must foresee, or be taken reasonably to foresee, that the claimant
would so rely.
(v) the claimant’s reliance must be reasonable.
First, it should be noted that these points are pitched at a high level of generality to guide your
thinking as we proceed. Secondly, the ideas in them tend to bleed into one another: nothing is
watertight here. Thirdly, the careless execution of the defendant’s task must actually cause some
economic loss to the claimant. Otherwise, there is nothing to get damages for!
For two reasons, we will consider the law under several more headings than the above five. First,
some points are clearly supported by authority, but do not easily fit into that framework. Secondly,
more headings will show clearly where the leading cases support more than one proposition of law:
it would be unfair to talk about every point that falls from each decision in chronological order, and
27 As Lord Bingham remarked in Customs and Excise v Barclays Bank Plc [2006] UKHL 28, [2007] 1 AC 181 [4].
After listing the leading cases up to 2006, his Lordship said: ‘[t]hese authorities yield many valuable insights, but they
contain statements which cannot readily be reconciled. I intend no discourtesy to counsel in declining to embark on yet
another exegesis of these well-known texts.’
9 January 2023
then expect you to organise them. One further point: rather than citing, and expecting you to learn,
tens and tens of cases, I have referred to some authorities repeatedly under different headings where
possible. This minimises the number of cases that you have to know.
(i) The need, and judicial tests for, a ‘special relationship’ between claimant and
defendant
(1) The need for a ‘special relationship’ between claimant and defendant
and the importance of an ‘assumption of responsibility’
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL).
In Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018] UKSC 43, [2018] 1 WLR
4041 [6] Lord Sumption (with whom Lady Hale, Lord Mance, Lord Reed, and Lord Briggs agreed)
conveniently explained certain aspects of Hedley Byrne.
‘The decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd
was a landmark in the development of the law of tort. Contrary to the ordinary rule as it
had previously been understood, it allowed the recovery of a purely economic loss in
negligence where the existence of a special relationship between claimant and defendant
made this appropriate. The facts were that Hedley Byrne asked its bank, National
Provincial Bank, to obtain a credit reference for a company [called Easipower] wishing
to place advertising contracts through it. The company’s bank, Heller & Partners,
supplied the reference to National Provincial. The Appellate Committee inferred as a
matter of fact that Heller & Partners must have appreciated that National Provincial was
not acting for its own account but wanted the reference for a client intending to do
business with Heller’s client, even though they did not know who that client was: see, in
particular, pp 482 (Lord Reid), 493-494 (Lord Morris of Borth-y-Gest), 530 (Lord
Devlin). The ratio of the decision was that the reasonable reliance of Hedley Byrne on
the reference, combined with Heller & Partners’ appreciation of the fact that they would
reasonably rely on it, gave rise to a direct relationship between them involving a duty of
care. All five members of the Appellate Committee gave reasoned judgments, but Lord
Devlin’s analysis has generally been treated in the subsequent case law as most clearly
expressing the reasoning. At pp 529-530, Lord Devlin, said this:
“I have had the advantage of reading all the opinions prepared by your Lordships
and of studying the terms which your Lordships have framed by way of definition
of the sort of relationship which gives rise to a responsibility towards those who
act upon information or advice and so creates a duty of care towards them … It is
a responsibility that is voluntarily accepted or undertaken, either generally where
a general relationship, such as that of solicitor and client or banker and customer,
is created, or specifically in relation to a particular transaction. … Responsibility
can attach only to the single act, that is, [in this case,] the giving of the reference,
and only if the doing of that act implied a voluntary undertaking to assume
responsibility. This is a point of great importance because it is, as I understand it,
the foundation for the ground on which in the end the House dismisses the appeal
…
[…] I shall therefore content myself with the proposition that wherever there is a
relationship equivalent to contract, [lacking only in that no consideration was
provided,] there is a duty of care. Such a relationship may be either general or
9 January 2023
particular. Examples of a general relationship are those of solicitor and client and
of banker and customer … There may well be others yet to be established. Where
there is a general relationship of this sort, it is unnecessary to do more than prove
its existence and the duty follows. Where, as in the present case, what is relied on
is a particular relationship created ad hoc, it will be necessary to examine the
particular facts to see whether there is an express or implied undertaking of
responsibility.”’
In Steel v NRAM Ltd (formerly NRAM Plc) [2018] UKSC 13, [2018] 1 WLR 1190 [18]-[19]
(emphasis added), Lord Wilson (with whom Lady Hale, Lord Reed, Lord Hodge, and Lady Black
agreed) conveniently explained certain aspects of Hedley Byrne with slightly different emphasis.
‘In Customs and Excise Comrs v Barclays Bank Plc [2006] UKHL 28, [2007] 1 AC
181, Lord Mance at para 85 described the case of Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465 as “the fountain of most modern economic claims”. In the
Hedley Byrne case the appellant asked its bankers [National Provincial Bank] to inquire
into the stability of a company [called Easipower] and, in response to the inquiry, the
company’s bankers [Heller & Partners], acting (so it was assumed) carelessly, gave
false information about the company, which it expressed as “without responsibility” but
on which the appellant relied to its detriment. Because of the disclaimer the appellant’s
claim against the company’s bankers failed. The House of Lords held, however, that in
the absence of the disclaimer the bankers would have owed a duty of care to the
appellant. At p 529 Lord Devlin held that, in the absence of a contract between a
representor and a representee, a duty of care in making the representation arose only if
the representor had assumed responsibility for it towards the representee; and he
proceeded to interpret all five of the speeches delivered in that case as requiring that the
responsibility should have been voluntarily accepted or undertaken. The assumption of
responsibility could, he explained at pp 529 and 530, be express or implied from all the
circumstances. Lord Pearce added at p 539 that liability in such circumstances could
arise only from “a special relationship”.
What is noteworthy for present purposes is the emphasis given in the decision in the
Hedley Byrne case to the need for the representee reasonably to have relied on the
representation and for the representor reasonably to have foreseen that he would do so.
This is expressly stressed in the speech of Lord Hodson at p 514. In fact it lies at the
heart of the whole decision: in the light of the disclaimer, how could it have been
reasonable for the appellant to rely on the representation? If it is not reasonable for a
representee to have relied on a representation and for the representor to have foreseen
that he would do so, it is difficult to imagine that the latter will have assumed
responsibility for it. If it is not reasonable for a representee to have relied on a
representation, it may often follow that it is not reasonable for the representor to have
foreseen that he would do so. But the two inquiries remain distinct.’
(2) Putting the various approaches to recognizing a ‘special relationship’

in order
Until recently, there were several approaches in the cases to recognising duties of care to avoid pure
economic loss.28
28 See the summary in BCCI (Overseas) Ltd (In Liquidation) v Price Waterhouse (No 2) [1998] PNLR 564 (CA) 583-
586.
9 January 2023
But following more recent Supreme Court decisions, the law looks simpler. The upshot of Robinson
v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736, confirming the proper
approach to the recognition of duties of care in negligence generally; and leading pure-economic-
loss-specific cases like Steel v NRAM Ltd (formerly NRAM Plc) [2018] UKSC 13, [2018] 1 WLR
1190, esp [1], [24]-[25], is that we decide whether a duty to avoid pure economic loss exists in two
steps.
First, we ask: do our claimant’s facts fit into an established category of case in which a duty of care
not negligently to cause pure economic loss is imposed? At this stage, we are asking whether (i) it
has already been decided that, in principle, A and B’s relationship is one in which A owes B a duty
to take care not negligently to cause B economic loss; and (ii) on the specific facts before us, B can
bring itself within the scope of that existing category of duty.
Secondly, if the facts of a given case are not already covered by authority, we ask: should the judges
recognise a new instance or category of duty to take care not to cause pure economic loss (which
covers our claimant’s facts)? The question is whether it is a good idea to develop the law – but by
reference to the established principles governing duties of care not negligently to cause pure
economic loss – to recognise a new set of facts in which a duty of care arises. This is a policy issue,
encapsulated in the by-now familiar formula: is it fair, just, and reasonable to recognise a novel
category of duty not negligently to cause pure economic loss? If this question is answered
positively, then to decide an actual case, we would obviously still need to establish whether, on the
specific facts, the claimant can bring herself within the scope of the novel category of duty of care.
(3) Unpacking assumption of responsibility (AoR)
(a) Objective AoR is ‘the foundation’29 for recognising duties of care

in respect of economic loss caused by negligent statements or
services or omissions; but there may be no AoR if (i) a statement
or service or omission occurs in an informal context, or (ii) there
is an effective disclaimer or exclusion of liability
Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018] UKSC 43, [2018] 1 WLR
4041 [7] (Lord Sumption, with whom Lady Hale, Lord Mance, Lord Reed, and Lord Briggs
agreed).
‘The defendant’s voluntary assumption of responsibility remains the foundation of this

area of law, as this court recently confirmed after a full review of the later authorities in
NRAM Ltd (formerly NRAM plc) v Steel [2018] 1 WLR 1190, paras 18-24 (Lord Wilson
JSC).’
29 Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018] UKSC 43, [2018] 1 WLR 4041 [7] (Lord
Sumption, with whom Lady Hale, Lord Mance, Lord Reed, and Lord Briggs agreed). See also Williams v Natural Life
Health Foods Ltd [1998] 1 WLR 830 (HL) 834, 837 (Lord Steyn, with whom Lord Goff, Lord Hoffmann, Lord Clyde,
and Lord Hutton agreed), confirming the use of assumption of responsibility and defending it from criticism as fictional.
9 January 2023
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 (HL) 180-181 (Lord Goff, with whom
Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Mustill and Lord Nolan agreed),
emphasis added.
‘From […] statements [in Hedley Byrne, which his Lordship had already set out], and
from their application in Hedley Byrne, we can derive some understanding of the
breadth of the principle [of assumption of responsibility] underlying the case. We can
see that it rests upon a relationship between the parties, which may be general or
specific to the particular transaction, and which may or may not be contractual in
nature. All of their Lordships [in Hedley Byrne] spoke in terms of one party having
assumed or undertaken a responsibility towards the other. […]
Furthermore, […] an objective test will be applied when asking the question whether, in
a particular case, responsibility should be held to have been assumed by the defendant
to the plaintiff […]. In addition, the concept provides its own explanation why there is
no problem in cases of this kind about liability for pure economic loss; for if a person
assumes responsibility to another in respect of certain services, there is no reason why
he should not be liable in damages for that other in respect of economic loss which
flows from the negligent performance of those services. It follows that, once the case is
identified as falling within the Hedley Byrne [assumption of responsibility] principle,
there should be no need to embark upon any further enquiry whether it is “fair, just and
reasonable” to impose liability for economic loss […]. The concept indicates too that in
some circumstances, for example where the undertaking to furnish the relevant service
is given on an informal occasion, there may be no assumption of responsibility; and
likewise that an assumption of responsibility may be negatived by an appropriate
disclaimer. I wish to add in parenthesis that, as Oliver J recognised in Midland Bank
Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384, 416F-G (a case concerned with
concurrent liability of solicitors in tort and contract, to which I will have to refer in a
moment), an assumption of responsibility by, for example, a professional man may give
rise to liability in respect of negligent omissions as much as negligent acts of
commission, as for example when a solicitor assumes responsibility for business on
behalf of his client and omits to take a certain step, such as the service of a document,
which falls within the responsibility so assumed by him.’
(b) AoR is objectively deemed to have occurred (or not) on the facts;
the assessment is not subjective
Phelps v Hillingdon LBC [2001] 2 AC 619 (HL) 654 (Lord Slynn, with whom Lord Jauncey,
Lord Lloyd, and Lord Hutton agreed, though Lord Hutton added his own speech).
‘The phrase [assumption of responsibility] means simply that the law recognises that
there is a duty of care. It is not so much that responsibility is assumed as that it is
recognised or imposed by the law.’
White v Jones [1995] 2 AC 207 (HL) esp 268-269 (Lord Goff with whom Lord Browne-
Wilkinson and Lord Nolan agreed), emphasis added.

9 January 2023
- Deemed that assumption of responsibility extended to the disappointed beneficiaries, subject
to disclaimers.
- This case is more fully explained on the long handout where it appears again, a few
headings down.
‘[T]he nature of the transaction was such that, if the solicitors were negligent and their
negligence did not come to light until after the death of the testator, there would be no
remedy for the ensuing loss unless the intended beneficiary could claim. In my opinion,
therefore, your Lordships’ House should in cases such as these extend to the intended
beneficiary a remedy under the Hedley Byrne principle by holding that the assumption
of responsibility by the solicitor towards his client should be held in law [ie, deemed,]
to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may,
as a result of the solicitor’s negligence, be deprived of his intended legacy in
circumstances in which neither the testator nor his estate will have a remedy against the
solicitor. Such liability will not of course arise in cases in which the defect in the will
comes to light before the death of the testator, and the testator either leaves the will as it
is or otherwise continues to exclude the previously intended beneficiary from the
relevant benefit. […]
Such assumption of responsibility will of course be subject to any term of the contract
between the solicitor and the testator which may exclude or restrict the solicitor’s
liability to the testator under the principle in Hedley Byrne.’
(c) AoR is not an assumption of legal liability – responsibility – to the

claimant, but one of responsibility for the careful completion of the
task giving rise to the economic loss, to which the duty of care
attaches
White v Jones [1995] 2 AC 207 (HL) 273 (Lord Browne-Wilkinson, with whom Lord Nolan
agreed).30
‘[T]he assumption of responsibility referred to is the defendant’s assumption of

responsibility for the task [ie, the provision of the statement or performance of a
service,] not the assumption of legal liability. […] [I]t is the undertaking to answer the
question posed [or provide the service required] which creates the relationship. If the
responsibility for the task is assumed by the defendant he thereby creates a special
relationship between himself and the plaintiff in relation to which the law (not the
defendant) attaches a duty to carry out carefully the task so assumed.’
(d) Claimant to whom the defendant is said to assume responsibility

must be identifiable as a person or group
4041 [7] Lord Sumption (with whom Lady Hale, Lord Mance, Lord Reed, and Lord Briggs
agreed).
30 The passage referred to has been accepted as good law, even though it was not agreed with by a majority of the
judges in White. See, eg, BCCI (Overseas) Ltd (In Liquidation) v Price Waterhouse (No 2) [1998] PNLR 564 (CA) 585
(Sir Brian Neill, with whom Nourse and Brooke LJJ agreed).
9 January 2023
‘The defendant’s voluntary assumption of responsibility remains the foundation of this
area of law, as this court recently confirmed after a full review of the later authorities in
NRAM Ltd (formerly NRAM plc) v Steel [2018] 1 WLR 1190, paras 18-24 (Lord Wilson
JSC). It is fundamental to this way of analysing the duty that the defendant is assuming
a responsibility to an identifiable (although not necessarily identified) person or group
of persons, and not to the world at large or to a wholly indeterminate group.’
(ii) Factors relevant to whether responsibility for the careful undertaking of a

task has been assumed
(1) The purpose of the statement or service: dealings between the parties,
or the wider context, can mean that the defendant should be taken to
know what its statement or service is for
404 [11].
‘[I]n the ordinary course where a statement is relied upon by B to whom A has passed it
on, the representor owes no duty to B unless he knew that the statement was likely to be
communicated to B. That concession was plainly justified. I would go further and say
that the representor must not only know that the statement is likely to be communicated
to and relied upon by B. It must also be part of the statement’s known purpose that it
should be communicated and relied upon by B, if the representor is to be taken to
assume responsibility to B.’
- This case revolved around a reference as to creditworthiness. The request was made by
Hedley Byrne’s bankers, National Provincial Bank, to Easipower’s Bankers, Heller. Heller
was required to inform as to creditworthiness of Heller’s client, Easipower. Under a
disclaimer – ‘without responsibility on the part of this bank’ – Heller provided a free letter
stating that Easipower was ‘good for its ordinary business engagements’. But Easipower
went bust and Hedley Byrne lost money. It sued Heller in negligence.
- From the request, one could expect Heller to know what the statement was for. And without
the disclaimer in its statement (‘without responsibility’), Heller would have been liable to
Hedley Byrne.
- ‘The [House of Lords] inferred as a matter of fact that Heller & Partners must have
appreciated that National Provincial was not acting for its own account but wanted the
reference for a client[, Hedley Byrne] intending to do business with Heller’s client,
[Easipower,] even though they did not know who that client was: see, in particular, pp 482
(Lord Reid), 493-494 (Lord Morris of Borth-y-Gest), 530 (Lord Devlin). The ratio of the
decision was that the reasonable reliance of Hedley Byrne on the reference, combined with
Heller & Partners’ appreciation of the fact that they would reasonably rely on it, gave rise to
a direct relationship between them involving a duty of care.’31
Caparo Industries Plc v Dickman [1990] 2 AC 605 (HL).

- Caparo audited a company, Fidelity, following which Dickman continued to purchase shares
in Fidelity in order to take it over. Dickman relied on the accounts drawn up by Caparo,
31 Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018] UKSC 43, [2018] 1 WLR 4041 [6].
9 January 2023
which Caparo was obliged to do under the companies legislation (which essentially said that
Fidelity was a public company that had to be audited).
- From the statutory context, it was clear that the purpose of Caparo’s audit was to allow
shareholders to evaluate their existing investment and exercise their rights at the general
meeting of the company. It was not to give an existing shareholder advice about whether
further to invest in the company: in carrying out this activity, you become just like any other
investing member of the public. And to say that anyone could rely on the report of a
statutory auditor in judging whether to invest in the company would be absurd. No duty of
care arose. See especially Lord Bridge’s speech, at 623, 625-627.32
When Caparo was addressed in Banca Nazionale del Lavoro SPA v Playboy Club London Ltd
[2018] UKSC 43, [2018] 1 WLR 404 [7]-[8], Lord Sumption explained the decision, and approved
a passage from the speech of Lord Bridge, which is relevant to the subheading of the handout under
which we find ourselves.
White v Jones [1995] 2 AC 207 (HL) 260 (Lord Goff, with whom Lord Browne-Wilkinson and
Lord Nolan agreed), 275 (Lord Browne-Wilkinson, with whom Lord Nolan also agreed).
- A man who had disinherited his daughters and cut them out of his will instructed his
solicitors to reinstate them. But after accepting instructions, the solicitors did nothing of
substance for nearly two months, whereupon the man died: the old will remained unrevoked.
- The daughters had no other remedy (eg, in contract law). The estate and the testator had
suffered no loss so had no remedy either: the former suffered no loss as the valid but
unintended will justified the unintended distributions; the latter was, of course, dead.
- It was deemed that the solicitor’s assumption of responsibility extended to the disappointed
beneficiaries, subject to disclaimers – see the use of this case a little while ago.
- BUT it also appears from the speeches that their Lordships thought that the entire purpose
of the solicitor’s task in drawing up the will – providing the service – was to satisfy the
testator’s intentions that the otherwise ‘remedy-less’ beneficiary should inherit.
‘[Lord Goff wrote as follows.] There is a sense in which the solicitors’ profession
cannot complain if such a liability may be imposed upon their members. If one of them
has been negligent in such a way as to defeat his client’s testamentary intentions, he
must regard himself as very lucky indeed if the effect of the law is that he is not liable to
pay damages in the ordinary way. It can involve no injustice to render him subject to
such a liability, even if the damages are payable not to his client’s estate for distribution
to the disappointed beneficiary (which might have been the preferred solution) but
direct to the disappointed beneficiary.
[Lord Browne-Wilkinson wrote as follows.] [T]he solicitor by accepting the

instructions has entered upon, and therefore assumed responsibility for, the task of
procuring the execution of a skilfully drawn will knowing that the beneficiary is wholly
dependent upon his carefully carrying out his function.’
West Bromwich Albion FC Ltd v El-Safty [2006] EWCA Civ 1299, [2007] PIQR P7 esp [59]
(Rix LJ, with whom Peter Smith J, and Mummery LJ agreed).33
32 In a short passage at 623, before going into the authorities and statutory provisions on company audits, his Lordship
summarised his view that ‘that auditors of a public company’s accounts owe no duty of care to members of the public at
large who rely upon the accounts in deciding to buy shares in the company. If a duty of care were owed so widely, it is
difficult to see any reason why it should not equally extend to all who rely on the accounts in relation to other dealings
with a company as lenders or merchants extending credit to the company.’
33 This case was applied in Bot v Barnick [2018] EWHC 3132 (QB).
9 January 2023
- Appleton played football for WBA. He suffered a knee injury. WBA referred him to El-
Safty, a consultant surgeon. Reconstructive surgery was negligently advised, with the result
that Appleton never played again.34 Had conservative treatment been advised, Appleton
would have played again in a few months. So the club claimed from the surgeon the value of
the contract, the cost of replacing their player, and lost wage payouts.
- Held: there had been no assumption of responsibility by the surgeon in respect of economic
loss to the club. This would have been inimical to the surgeon’s primary concern in
undertaking to provide his services: the player’s medical well-being.
34 In later proceedings, the player, acting in his own name, sued the surgeon, and got damages because the surgery was
actually negligently executed, too (and not just negligently recommended, as accepted in the proceedings referred to in
the main text): Appleton v El Safty [2007] EWHC 631 (QB).
9 January 2023
(2) Defendant’s knowledge (actual or imputed) that a statement or service
will be (i) put to use by a third party or (ii) relied upon by a third party
Smith v Eric S Bush [1990] 1 AC 831 (HL) 847-848 (Lord Templeman, with whom Lord Keith
of Kinkel, and Lord Brandon agreed), 871-872 (Lord Jauncey, with whom Lord Keith of
Kinkel, and Lord Brandon also agreed).
- A mortgagee (a lending building society) contracted with a valuing and surveying firm to
value a property and report on anything that might affect its value. The society was obliged
by statute to check that the property was worth the price, and constituted adequate security
for its loan to the purchaser: see at 866, 870. The mortgagor (the purchaser of the property)
paid the building society a fee for the valuation, and the report was copied to the mortgagor,
who went through with the transaction. It turned out that structural defects in the property
had negligently been missed in the report and, the property was overvalued.
- The modesty of the asset and residential nature of the property were influential in the
holding that responsibility was assumed by the valuer, which must have known that the
Smiths would see and rely upon the report.35
- Nota bene – ignore the aspect of this case relating to the disclaimers and the Unfair Contract
Terms Act 1977 (the disclaimers were unenforceable under the statute).
- ‘The reasonable reliance of Hedley Byrne on the reference, combined with Heller &
Partners’ appreciation of the fact that they would reasonably rely on it, gave rise to a direct
relationship between them involving a duty of care.’36
- In essence, the reference must have been for something, and HB’s bank, NPB, was not just
asking Easipower’s bank, H, about Easipower’s creditworthiness for fun. H must have
appreciated that the reference would be passed to someone else and would be used for a
business purpose. It did not matter that HB’s precise identity was not known, because HB
was still identifiable, whoever NPB’s client was.
4041.
- For case notes, see LAW Grower and OF Sherman, ‘Equivalent to contract? Confronting the
nature of the duty arising under Hedley Byrne v Heller’ (2019) 135 Law Quarterly Review
177; T Foxton, ‘Second degree Byrne’ [2019] Cambridge Law Journal 18.
- There must be an identified, or identifiable, person or class of persons to whom
responsibility can be assumed; and responsibility cannot be assumed to the world at large, or
to a wholly indeterminate group (see at [7]).
- ‘[I]n the ordinary course where a statement is relied upon by B to whom A has passed it on,
the representor owes no duty to B unless he knew that the statement was likely to be
communicated to B. […] I would go further and say that the representor must not only know
that the statement is likely to be communicated to and relied upon by B. It must also be part
35 After dealing with both the duty and Unfair Contract Terms Act 1977 issues, Lord Griffiths said (with the
agreement of Lord Keith of Kinkel and Lord Brandon), at 859-860: ‘It must, however, be remembered that this is a
decision in respect of a dwelling house of modest value in which it is widely recognised by surveyors that purchasers
are in fact relying on their care and skill. It will obviously be of general application in broadly similar circumstances.
But I expressly reserve my position in respect of valuations of quite different types of property for mortgage purposes,
such as industrial property, large blocks of flats or very expensive houses. In such cases it may well be that the general
expectation of the behaviour of the purchaser is quite different. With very large sums of money at stake prudence would
seem to demand that the purchaser obtain his own *860 structural survey to guide him in his purchase and, in such
circumstances with very much larger sums of money at stake, it may be reasonable for the surveyors valuing on behalf
of those who are providing the finance either to exclude or limit their liability to the purchaser.’
36 Banca Nazionale del Lavoro SPA v Playboy Club London Ltd [2018] UKSC 43, [2018] 1 WLR 4041 [6] (emphasis
added).
9 January 2023
of the statement’s known purpose that it should be communicated and relied upon by B, if
the representor is to be taken to assume responsibility to B.’ See at [11].
- Similarly, there can be no assumption of responsibility, and no duty of care, when the person
relying on the statement or service is entirely unknown to the statement maker or service
provider.
- The Playboy Club obtained a credit reference for one of its high stakes gamblers through an
agent, Burlington Ltd. Burlington requested it from the gambler’s bank, BNL. When it
turned out to be wildly inaccurate and made without reasonable basis, the club lost about
£800k. The club sued the bank, but failed: it was the undisclosed principal of the person
which had actually obtained the reference, Burlington.
(3) The claimant must (i) rely on the statement or the service, which
reliance must (ii) be reasonable and (iii) reasonably foreseeable
Spring v Guardian Assurance Plc [1995] 2 AC 296 (HL) 316, 319 (Lord Goff, with whom Lord
Lowry agreed; Lord Woolf also agreed that Hedley Byrne applied, at 351).
- Spring was dismissed by Corinium (without explanation). He went to try to get another job.
The next employer had to ask for a reference under industry rules. His reference was
negligently written by Corinium’s compliance officer. It was to the effect that, inter alia,
Spring’s superior (with whom Spring had not got on) considered that he was ‘a man of little
or no integrity and could not be regarded as honest’. It was found at first instance that,
though there was no malice, reasonable care was not taken in effectively investigating the
matters said to support the tenor of the reference.
- Question on appeal: can a duty of care be owed in the first place to a former employee in
respect of economic loss suffered due to a negligent reference. Answer: yes, says the House
of Lords.
White v Jones [1995] 2 AC 207 (HL) 260 (Lord Goff, with whom Lord Browne-Wilkinson and
Lord Nolan agreed).
Steel v NRAM Ltd (formerly NRAM Plc) [2018] UKSC 13, [2018] 1 WLR 1190 esp [19], [38]
(Lord Wilson, with whom Lady Hale, Lord Reed, Lord Hodge and Lady Black agreed).
- A lender granted a loan in return for security over the properties that the borrower bought
with the loan. The borrower wanted to sell one of the properties. The lender agreed with the
borrower that it would release its security over that property, in return for a partial lump
sum repayment. The idea was that the outstanding balance on the loan would be reduced,
and still well-secured by the security, which would persist over the three remaining
properties. But borrower’s solicitor wrote to the lender, stating that the whole loan was
being paid, and requested discharges for the entire security. The lender’s employees did not
check the email against their internal information about the lender’s dealings with the
borrower. Instead, they simply did as the email asked. The borrower went into liquidation.
The lender claimed against the solicitor.
- Lord Wilson’s judgment contains a useful review of the authorities. The key points here are
that assumption of responsibility is essential for liability for negligently caused economic
loss in this context, but it will not be constituted without reasonable reliance which was
reasonably foreseeable.
- On the facts, the lender’s reliance on the borrower’s email was entirely unreasonable.

9 January 2023
9 January 2023
(4) A useful summary of some relevant principles, all in one place
The statements in the reference below cover much of relevance briefly and in just one authority.
James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 QB 113 (CA) 125-127
(Neill LJ, with whom Nourse and Balcombe LJJ agreed).
- Nota bene – the passage referred to was written in the context of a one-off negligent
statement, but that vocabulary could be replaced with the vocabulary of the provision of
services, and apply equally to this slightly different kind of scenario involving the claimant
and defendant. In the extract on the long handout, I have made relevant additions to the text
and placed these in square brackets.
‘[I]t is possible to identify certain matters which are likely to be of importance in most
cases in reaching a decision as to whether or not a duty exists. I propose to examine
these matters under a series of headings, though the headings involve a substantial
measure of overlap.
(1) The purpose for which the statement [or service] was made [or provided]
In some cases the statement will have been prepared or made by the “adviser” for the
express purpose of being communicated to the “advisee”, to adopt the labels used by
Lord Oliver [in Caparo]. In such a case it may often be right to conclude that the
advisee was within the scope of the duty of care. In many cases, however, the statement
will have been prepared or made, or primarily prepared or made, for a different purpose
and for the benefit of someone other than the advisee. In such cases it will be necessary
to look carefully at the precise purpose for which the statement was communicated to
the advisee.
(2) The purpose for which the statement was communicated [or service was rendered]
Under this heading it will be necessary to consider the purpose of, and the
circumstances surrounding, the communication. Was the communication made for
information only? Was it made for some action to be taken and, if so, what action and
by whom? Who requested the communication to be made? These are some of the
questions which may have to be addressed.
(3) The relationship between the adviser [or service provider], the advisee [or recipient
of a service] and any relevant third party
Where the statement was made or prepared in the first instance to or for the benefit of
someone other than the advisee it will be necessary to consider the relationship between
the parties. Thus it may be that the advisee is likely to look to the third party and
through him to the adviser for advice or guidance. Or the advisee may be wholly
independent and in a position to make any necessary judgments himself.
(4) The size of any class to which the advisee [or recipient of a service] belongs
Where there is a single advisee or he is a member of only a small class it may

sometimes be simple to infer that a duty of care was owed to him. Membership of a
large class, however, may make such an inference more difficult, particularly where the
statement was made in the first instance for someone outside the class.
(5) The state of knowledge of the adviser [or service provider]
9 January 2023
The precise state of knowledge of the adviser is one of the most important matters to
examine. Thus it will be necessary to consider his knowledge of the purpose for which
the statement was made or required in the first place and also his knowledge of the
purpose for which the statement was communicated to the advisee. In this context
knowledge includes not only actual knowledge but also such knowledge as would be
attributed to a reasonable person in the circumstances in which the adviser was placed.
On the other hand any duty of care will be limited to transactions or types of
transactions of which the adviser had knowledge and will only arise where
“the adviser knows or ought to know that [the statement or advice] will be relied
upon by a particular person or class of persons in connection with that
transaction”: per Lord Oliver in the Caparo case [1990] 2 AC 605, 641.
It is also necessary to consider whether the adviser knew that the advisee would rely on
the statement without obtaining independent advice.
(6) Reliance by the advisee [or recipient of a service]
In cases where the existence of a duty of care is in issue it is always useful to examine
the matter from the point of view of the plaintiff. [T]he question “Who is my
neighbour?” prompts the response “Consider first those who would consider you to be
their neighbour.” One should therefore consider whether and to what extent the advisee
was entitled to rely on the statement to take the action that he did take [ie, whether
reliance was reasonable]. It is also necessary to consider whether he did in fact rely on
the statement, whether he did use or should have used his own judgment and whether he
did seek or should have sought independent advice. In business transactions conducted
at arms’ length it may sometimes be difficult for an advisee to prove that he was entitled
to act on a statement without taking any independent advice or to prove that the adviser
knew, actually or inferentially, that he would act without taking such advice.’
(iii) Negligent statements and provision of services causing economic loss in

informal contexts are sometimes actionable
Burgess v Lejonvarn [2017] EWCA Civ 254, [2017] PNLR 25 esp [57], [59], [61], [66], [83],
[85], [86]-[89], [128] (Hamblen LJ, with whom Gloster and Irwin LJJ agreed).37
- Over nearly four months, L provided professional architectural and project management
services to friends free of charge on a project to re-landscape their garden. There was an
initial exchange of emails, but no contract between the parties.
- The costs of the project spiralled. Much of the work carried out under L’s supervision was
defective. The Bs sued L in negligence for about £265,000. They said that this was the loss
that her poor management had caused – failure properly to supervise the works, and control
costs. As a preliminary issue, the Court of Appeal accepted that L could owe the Bs a duty
of care in respect of the work she undertook to do.
(iv) Disclaimers and exclusion clauses: know the principle, not the detail
37 This appeal concerned a preliminary issue about Lejonvarn’s duty of care. For judgment on the substantive issues,
dismissing the Burgess’ claim, see [2018] EWHC 3166 (TCC). For a later costs appeal, see [2020] EWCA Civ 114.
9 January 2023
As Lord Goff said, giving the well-known unanimous decision of the House of Lords in Henderson
v Merrett Syndicates Ltd,38 ‘an assumption of responsibility may be negatived by an appropriate
disclaimer’. Indeed, in the Hedley Byrne case,39 the reference was given ‘without responsibility’.
But for that, there would have been liability: Heller escaped scot free. In questions relevant to this
part of the course, you do not need to analyse any disclaimers in detail. In particular, you are not
expected to deal with the potential effect upon them of, in particular, the Unfair Contract Terms Act
1977. However, you are expected to remember that (i) disclaimers which limit or entirely exclude
responsibility can be fatal to a claim in tort for pure economic loss based on negligent statements or
services, as in Hedley Byrne; but (ii) the unfair contract terms legislation may operate to render a
disclaimer or exclusion of liability unenforceable. This is what occurred in Smith v Eric S Bush,40
which was discussed above.
(H) Another type of harm receiving special treatment; financial / economic loss,
2: resulting from the acquisition of defective property
We do not address this on the course. The heading has been left to show the kind of issues to which
one might progress after gaining an understanding of the basics.
38 [1995] 2 AC 145 (HL) 181.

39 [1964] AC 465 (HL).
40 [1990] 1 AC 831 (HL).
9 January 2023

Week Two Lectures 1-3 Law of Tort 2023

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Week Two Lectures 1-3 Law of Tort 2023

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WEEK TWO

DUTY OF CARE: NEGLIGENTLY CAUSED PSYCHIATRIC INJURY AND

1 Ally Farnhill amending handout by M. Campbell, with permission

1. what constitutes ‘physical proximinty in time and space’ or ‘immediate aftermath

iii. Immediate aftermath is ok but it should not be spread to far

b. Taylor v A Novo (uk) ltd

4 Ally Farnhill amending handout by M. Campbell, with permission

Lecture 3- economic loss

1. Pure economic loss

6 Ally Farnhill amending handout by M. Campbell, with permission

‘A claimant can recover in respect of a recognised psychiatric illness suffered as a

(1) The normal run of cases

(2) Rescuers and unwilling participants as primary victims

- Reasonable foreseeability in this context is hindsight-based. It is not based on what was

12 Ally Farnhill amending handout by M. Campbell, with permission

It is unnecessary on this appeal to revisit the “control mechanisms” which regulate

Clerk & Lindsell on Torts, [7-83].

Greatorex v Greatorex [2000] 1 WLR 1970 (QB).

Attia v British Gas Plc [1988] QB 304 (CA).

19 Ally Farnhill amending handout by M. Campbell, with permission

THE TORT OF NEGLIGENCE, CONTINUED

What is pure economic loss?

What is consequential economic loss?

Why treat negligently caused economic loss differently from

And as a majority of the Supreme Court of Canada observed in 2020:

Summary of conditions for a duty of care in relation to pure economic loss

(ii) The claimant must be identifiable, whether as an individual or a type of person.

(v) the claimant’s reliance must be reasonable.

(2) Putting the various approaches to recognizing a ‘special relationship’

(3) Unpacking assumption of responsibility (AoR)

(a) Objective AoR is ‘the foundation’29 for recognising duties of care

‘The defendant’s voluntary assumption of responsibility remains the foundation of this

28 Ally Farnhill amending handout by M. Campbell, with permission

(c) AoR is not an assumption of legal liability – responsibility – to the

‘[T]he assumption of responsibility referred to is the defendant’s assumption of

(d) Claimant to whom the defendant is said to assume responsibility

(ii) Factors relevant to whether responsibility for the careful undertaking of a

Caparo Industries Plc v Dickman [1990] 2 AC 605 (HL).

[Lord Browne-Wilkinson wrote as follows.] [T]he solicitor by accepting the

34 Ally Farnhill amending handout by M. Campbell, with permission

Where there is a single advisee or he is a member of only a small class it may

(6) Reliance by the advisee [or recipient of a service]

(iii) Negligent statements and provision of services causing economic loss in

38 [1995] 2 AC 145 (HL) 181.

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