Developments in the Law of Assumption of Responsibility in Negligence Claims

Morton Fraser Partner & Solicitor Advocate Richard McMeeken
Richard McMeeken
Partner & Solicitor Advocate
05 January 2024

The concept of assumption of responsibility is one of the most important in negligence claims. It first came to prominence in the well-known case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 which was a case concerned with liability for negligent misstatements causing pure economic loss. However, as Lord Reed explained in the case of Poole Borough Council v GN and others [2019] UKSC 25 the principle is of older and wider significance. In Hedley Byrne the court stated the principle as being that "…it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise….Furthermore, if in a sphere in which a person is so placed that others could reasonably rely on his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise".

In the cases of HXA v Surrey County Council; YXA v Wolverhampton City Council [2023] UKSC 52, in a judgment given on 20th December 2023, the Supreme Court had to consider whether local authorities had assumed responsibility to children to protect them from harm which they had suffered at the hands of a parent or parent's partner, similar to the questions raised previously before the Supreme Court in Poole. The Supreme Court relied heavily on the judgment in Poole in reaching its decision and did not see any real distinction between that case and the present ones.

The legislative context involved the Children Act 1989 which imposed various duties on the local authorites, together with the Children Act 2004 which imposed an additional duty on local authorities to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children. These provisions, however, do not create a statutory cause of action actionable in tort (X (Minors) v Bedfordshire County Council [1995] 2 AC 633). The respondent's case was not advanced on that basis but rather that the local authorites owed the children a common law duty of care based on an assumption of responsibility by the defendants. The imposition of an assumption of responsibility at common law in these circumstances is of much wider significance than in relation to the present cases alone.

Given the statutory framework, the interaction between the common law and statute was an important consideration for the Supreme Court. The Supreme Court started by explaining that the fact that an action in tort was excluded by statute did not mean that it had been excluded by the common law. The statute was, in that respect, neutral. However, it did mean (as Lord Reed explained in Poole) that, in deciding whether there was a duty of care at common law, the court had to apply the same principles to the local authority as it would to a private individual. Further, as the court pointed out, the close interaction between statute and common law mean that "one has to be very careful not to slide back to resting the duty of care, and breach, at common law on the mere fact that the public authority had statutory duties towards, and powers in respect of, the claimant". The Court considered that the claimant in the present cases had occasionally fallen into that trap because their counsel sometimes relied on the statutory duty as the very reason that a duty of care had to be owed to the children.

Turning to the assumption of responsibility, the Court explained that the issue in this case was "a failure to benefit the claimants by protecting them from harm by a third party" which was very well summarised by Stelios Tofaris and Sandy Steel in Negligence Liability for Omissions and the Police (2016) 75 CLJ 128 in a summary which had been approved by the Supreme Court in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 and in Poole. They explained the principle as follows "In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger; (ii) A has done something which prevents another from protecting B from that danger; (iii) A has a special level of control over that source of danger; or (iv) A's status creates an obligation to protect B from that danger". In the present case only the "assumption of responsibility" aspect was in play.

The Court observed that commentators have tended to view the law on assumption of responsibility as uncertain and certainly the precise ingredients of the law vary according to the context in which it is being used. For example, in Hedley Byrne type cases, the notion of reliance is crucial but it was not a necessary feature of the assumption of responsibility in the present cases. In a case like YXA where the individual was a vulnerable child with learning difficulties it would be wrong to insist on reliance by the child in order to find an assumption of responsibility triggering a duty of care.  Accordingly, the context is important when analysing the relevant principles.

The Court disagreed strongly with the notion that, following Poole, this was a developing or uncertain area of law. The present cases were "virtually indistinguishable" from Poole. By contrast, the approach of the Court of Appeal (which was to say that proof was required in relation to the various allegations) would "throw the area into doubt - and would make it very difficult to strike out - by incorrectly stressing that this is an unclear developing area of law so as to require the evidence to be heard at full trials in order to establish a body of case law". Accordingly, the Supreme Court held, following Poole, that there was no arguable duty of care owed to the claimants in these cases.

The Court did not end its judgment there, preferring instead to emphasise that there are cases where a local authority may have assumed responsibility to protect a child from harm. The Court explained that the obvious example was where the local authority had actually obtained a care order and therefore taken on parental responsibility for the child. There was also, in the YXA case an assumption of responsibility in relation to the period of time when the child was in respite care which flowed from the fact that the child's safety had been entrusted to the local authority by the parents and the local authority had accepted that responsibility.

In the present cases, however, there was no basis in the particulars of claim for the claimant to lead evidence at trial from which a relevant assumption of responsibility can be made out and, therefore, no arguable duty of care arose as alleged. 


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