Date: Thu, 10 May 2007 17:24
From: Robert Stevens
Subject: Good news/bad news
In reply to Adam:
(1) I'd certainly accept that the primary responsibility for our own well being lies with ourselves. So if someone stupidly runs a risk of which they ought to be aware they cannot look to shift the harm they suffer on to someone else (see McKew v Holland).
(2) I am very reluctant to accept that liability for a misstatement causing physical harm to someone else requires an assumption of responsibility towards that person. If I am a well known dimwit and borrow a blow torch from you, if you foolishly tell me that it is ok to use it as a hair drier, I think my children should have a claim against you for injuries they suffer as a result of my relying on your misstatement. You are certainly not assuming responsibility towards them.
Defective statements in architects plans where the building collapses on third parties is another obvious example. Clay v Crump  3 AER 687 has long been good authority on this.
(i) Perrett v Collins does not establish that the claim will fail where there is no assumption of responsibility. It establishes that an assumption of responsibility is a sufficient condition for owing a duty, not a necessary one. I'd accept that.
(ii) Philcox v CAA was not a misstatement case, as the court itself makes clear, but one where the CAA had negligently failed to prevent the claimant from suffering harm (ie it was what is usually called a non-feasance case).
(iii) Marc Rich is an odd case, determined, I think, by a concern not to upset the pattern of risks determined by the various conventions in international carriage.
(4) 'Assumption of responsibility' is nothing necessarily to do with the law of misstatements, as the House of Lords in Hedley Byrne make clear by the examples they rely upon. So, Wilkinson v Coverdale is not a misstatement case and the Good Samaritan was not making a misstatement to the man stripped of his raiment when he assumed responsibility towards him by picking him up and putting on the back of his donkey.
If the misstatement results in physical harm he doesn't have to rely upon any assumption of responsibility.
I think this is wrong. Whatever the harm caused by the misstatement, there must be an assumption of responsibility otherwise there can be no duty. This is because the loss resulting from misstatement is indirect, i.e. the victim's reliance upon the statement is ordinarily his or her own choice and responsibility and, without an assumption of responsibility or a contract, he has only himself to blame. This may be treated as causation if you like.
I think you can get this from Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H)  1 AC 211, Philcox v Civil Aviation Authority (The Times, 8 June 1995 and Perrett v Collins  2 Lloyd's Rep 255. Causing harm by careless driving does not, of course, involve a misstatement (or blameworthy reliance by the victim).
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