Federal court of australia

16.Assumption of Responsibility

232 In the United Kingdom, there is longstanding authority for “assumption of responsibility” being centrally important in determining whether a duty of care exists. As Lord Browne-Wilkinson observed in White v Jones [1995] 2 AC 207 at 270, the concept has its genesis in Nocton v Lord Ashburton [1914] AC 932. Another important case is Hedley Byrne and Co Ltd v Heller & Partners Ltd [1964] AC 465.

233 After consideration of cases including Nocton and Hedley Byrne, Lord Browne-Wilkinson in White said as follows (at 273–274):

Just as in the case of fiduciary duties, the assumption of responsibility referred to is the defendants, [sic] assumption of responsibility for the task not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking to answer the question posed 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.

234 “Assumption of responsibility” has also been relevant at the final appellate level in this country in justifying the imposition of exceptional duties. In particular, assumption of responsibility has several times arisen in the context of the imposition of damages for pure economic loss. For example, the exception to the general rule that damages are not recoverable for negligent misstatement resulting in pure economic loss depends upon proof of an assumption of responsibility by the defendant and known reliance on the defendant by the plaintiff: Brookfield at [128] citing Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [24], Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556, and L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225.

235 In Watson v British Boxing Board of Control Ltd [2001] 1 QB 1134, the plaintiff was a professional boxer who sustained head injuries in a bout. He brought an action against the defendant claiming damages on the basis that the board was under a duty to see that all reasonable steps were taken to ensure that he received immediate and effective medical treatment should he sustain injury during a fight. He was successful at first instance. In the Court of Appeal, as the headnote records:—

… since the board set out by its rules, directions and guidance to make comprehensive provision for the services to be provided to safeguard the health of professional boxers taking part in a sport the object of which was to inflict physical injury, and since all involved in a boxing contest were obliged to accept and comply with the board’s requirements, there was sufficient proximity between the claimant and the board to give rise to a duty of care; …

236 At [49], Lord Phillips of Worth Matravers MR said as follows:

It seems to me that the authorities support a principle that, where A places himself in a relationship to B in which B's physical safety becomes dependent upon the acts or omissions of A, A's conduct can suffice to impose on A a duty to exercise reasonable care for B's safety. In such circumstances A's conduct can accurately be described as the assumption of responsibility for B, whether "responsibility" is given its lay or legal meaning.

237 His Lordship noted the distinction between “general reliance” and “specific reliance.” Thus, in Alexandrou v Oxford [1993] 4 All ER 328, it was held that the police were under no duty to respond to an emergency call or to exercise reasonable care to prevent a burglary. Or, in Capital and Counties plc v Hampshire County Council [1997] QB 1004 it was held that a fire brigade was under no common law duty to answer a call for help or, having done so, to exercise reasonable care to extinguish a fire. Conversely, in Kent v Griffiths [2001] 1 QB 36 a doctor called for an ambulance. The request for an ambulance was accepted, but it was greatly delayed in its arrival, without reasonable explanation. Lord Woolf MR held that a duty existed. The following, from Watson at 1152–1153, is Lord Phillips’s discussion of the outcome in Kent (emphasis added):

[54] … In the subsequent action for personal injuries, this court held that the ambulance service had been in breach of a duty of care in failing to arrive promptly. Lord Woolf MR held that, on the facts, a duty of care had existed. He distinguished the fire and police "rescue" cases on the ground that, at p 44, para 14:

"This was not a case of general reliance, but specific reliance. It was foreseeable that the claimant could suffer personal injuries if there was delay. The nature of the damage was important. There was a contrast with a fire or a crime, where an unlimited number of members of the public could be affected and the damage could be to property or only economic. In its statutory context the ambulance service is more properly described as part of the National Health Service than as a rescue service. As part of the health service it should owe the same duty to members of the public as other parts of the health service. The [London Ambulance Service] had not been responsible for the claimant's asthma but it had caused the respiratory arrest and to this extent the [London Ambulance Service] was the author of additional damage."

[55] As I read the judgment the duty of care turned upon the acceptance by the ambulance service of the request to provide an ambulance and thus the acceptance of responsibility for the care of the particular patient. Thus Lord Woolf MR observed, at p 43, para 9:

"once a call to an ambulance service has been accepted, the service is dealing with a named individual upon whom the duty becomes focused. Furthermore, if an ambulance service is called and agrees to attend the patient, those caring for the patient normally abandon any attempt to find an alternative means of transport to the hospital."

[56] He summarised his conclusion, at p 54, para 49:

"The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, when there was no reason why it should not be provided, is important in establishing the necessary proximity and thus duty of care in this case. In other words, as there were no circumstances which made it unfair or unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established the duty of care. On the findings of the judge it was delay which caused the further injuries. If wrong information had not been given about the arrival of the ambulance, other means of transport could have been used."

[57] This concludes my consideration of cases dealing with the assumption of responsibility to exercise reasonable care to safeguard a victim from the consequences of an existing personal injury or illness. They support the proposition that the act of undertaking to cater for the medical needs of a victim of illness or injury will generally carry with it the duty to exercise reasonable care in addressing those needs. While this may not be true of the volunteer who offers assistance at the scene of an accident, it will be true of a body whose purpose is or includes the provision of such assistance.

238 More recently still, Michael v Chief Constable of South Wales Police [2015] AC 1732, Lord Toulson JSC (with whom Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Reed, and Lord Hodge JJSC agreed) considered whether a duty of care was owed to the maker of an emergency call to police. The victim had called the police and said at some point during the call that her former partner had threatened to kill her. However, the call handler did not hear that and heard the victim say only that the former partner intended to hit her. The call was given a priority level requiring response within 60 minutes rather than a higher priority requiring response within 5 minutes. Around 15 minutes later, and before police attended, the victim called again and was heard to scream. Police responded immediately but the victim had already been stabbed to death.

239 The majority noted that the law generally did not impose liability for pure omissions. At [100], it noted that an exception to that principle was the following:

The second general exception applies where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance plc [1995] 2 AC 296 . It is not a new principle. It embraces the relationships in which a duty to take positive action typically arises: contract, fiduciary relationships, employer and employee, school and pupil, health professional and patient. The list is not exhaustive. … There has sometimes been a tendency for courts to use the expression “assumption of responsibility” when in truth the responsibility has been imposed by the court rather than assumed by D. It should not be expanded artificially.

240 A few other examples might be mentioned: In Perrett v Collins [1998] 2 Lloyd's Rep 255 there was negligence in issuing a fitness to fly certificate in relation to an aircraft, without which the doomed aircraft would not have been permitted to fly. In Vowles v Evans [2003] 1 WLR 1607 it was held that a referee of a game of rugby football owes a duty of care to the players, Lord Phillips MR saying as follows at [25]:

Rugby football is an inherently dangerous sport. Some of the rules are specifically designed to minimise the inherent dangers. Players are dependant for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely upon the referee to exercise reasonable care in so doing. Rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are manifestly capable of causing physical harm to others in a structured relationship into which they have entered. Mr Leighton Williams has failed to persuade us that there are good reasons for treating rugby football as an exceptional case.

241 In The Ministry of Defence v Radclyffe [2009] EWCA Civ 635 the Court of Appeal dismissed an appeal from a judgment in which it the Ministry had been held liable for a soldier's injuries caused by jumping from a high bridge, because a senior officer had earlier "assumed responsibility to prevent [the junior soldiers] from taking undue risks of which he was or ought to have been aware".

242 While there are many other cases concerning assumption of risk, it is not necessary to discuss them further. I set out the foregoing cases really by way of illustration. I recognise that in the UK the assumption of responsibility doctrine has taken on especial significance. However, the important point that I draw from them is quite simple: the voluntary assumption of responsibility by a defendant, which assumption is relied upon by the plaintiff, is a potent consideration in favour of the imposition of a duty of care. It provides a clear basis for distinguishing the superimposition onto statutory powers of a duty to persons in an indeterminate class of persons, from such a superimposition in the particular case of a plaintiff that has received and acted upon an assumption of responsibility.