Assumption of Responsibility in Tort

Assumption of Responsibility in Tort

Assumption of responsibility is a regular concept when studying negligence. So this is just a general introduction to the idea of assumption of responsibility.

There are references in books and cases to assumption of responsibility as a general test for a duty of care. This approach is profoundly misguided. There are many examples of cases where a duty of care is owed, but where there have been no prior dealings or an assumption of responsibility between the parties.

The significance of assumption of responsibility is that a duty is imposed where it would otherwise not have been: pure economic loss cases, omissions cases, and deliberate intervening act cases. It is not limited to these types of cases, but these are the main ones you'll come across. For example, a doctor has no duty to not be negligent to someone lying injured in the street. Still, if the doctor stops to help, the doctor comes under a positive obligation to positively improve the person's position.

It is hard to pin down the concept of assumption of responsibility at a general level, but there are three general points. First, the basic idea of assumption of responsibility is that the defendant took on a task or job of some kind for the claimant. This could be investment advice or looking after the claimant's home while the claimant was on holiday. Second, where the defendant took on the task for the claimant in this way, the law also presumes that the defendant took on the legal duty to perform the task with due care. The law presumes this unless there is a good reason to rebut that presumption. A good reason might be that the defendant took on the task in an informal or social context, or had expressly excluded legal liability.

Third, although assumptions of responsibility are often accompanied by some form of reliance by the claimant, reliance is not a necessary factor. The claimant might be entirely oblivious that the defendant has assumed a responsibility towards them.

The above is broadly consistent with the approach taken to the concept of assumption of responsibility in CN v Poole BC.

[T]he principle [of assumption of responsibility] has been applied in a variety of situations in which the defendant provided information or advice to the claimant with an undertaking that reasonable care would be taken as to its reliability (either express or implied, usually from the reasonable foreseeability of the claimant's reliance upon the exercise of such care) … or undertook the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken.

          CN v Poole BC [2019] UKSC 25, [2019] 2 WLR 1478 [68] (Lord Reed DP)

Assumption of responsibility cases in tort have some parallels with contract law, but the two are nevertheless distinct. Similarities include the voluntary assumption of responsibility and that the obligation is owed to a particular person and not to the world in general. Differences include that breach of contract is actionable per se, without proof of damage; whereas, breach of an assumed duty of care is only actionable if damage or injury results. Moreover, contractual obligations are generally strict, while obligations of care are just that — obligations to take reasonable care. Thus, it could be argued that the assumption of responsibility cases fall somewhere between the Donoghue core negligence cases and contract, they are almost a hybrid of the two.

Some things to note about this post:

Assumption of responsibility is a very contested concept, so not everyone agrees with the above and the three general points. Not everyone believes that assumption of responsibility is a coherent and useful concept, particularly those opposed to a rights-based analysis of tort law. A prime example of that attack that the idea of assumption of responsibility has come under is the following:

          Robertson and Wang, Assumption of Responsibility in Barker et al (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (2015)

Nolan, on the other hand, is someone who finds the concept of assumption of responsibility useful:

          Nolan, Assumption of Responsibility: Four Questions (2019) 72 Current Legal Problems (10.1093/clp/cuz002)

Nolan's opinion is that a central weakness of those who criticise the concept is that they interpret the phrase voluntary assumption of responsibility as implying that the defendant voluntarily chose legal responsibility. Nolan believes that that is not what the idea means at all, it is responsibility in a non-legal everyday sense, and in these cases, that kind of everyday responsibility is being assumed.