Sutradhar v Natural Environment Research Council

On an application to strike out or obtain summary judgment, the court generally assumes that pleaded facts can be proved and asks whether the claim has a realistic, rather than fanciful, prospect of success. Caution is required in novel and developing areas of negligence, but a claim should be ended where the assumed facts cannot establish the necessary duty of care. Personal injury does not remove the requirements of proximity and fairness. A report supplied through an intermediary may be too remote where the defendant neither created nor controlled the hazard, water supply or distribution, and did not assume responsibility for the claimant’s safety. A very wide class of potential claimants and an indirect chain of reliance may therefore defeat proximity.

The claimant, a Bangladeshi resident, alleged that arsenic-contaminated groundwater caused serious illness after the defendant’s 1992 hydrochemical report failed to test for arsenic or warn that it had not done so. The report had been prepared for the Overseas Development Agency and was expected to reach Bangladeshi authorities responsible for water provision. The defendant applied under Civil Procedure Rules Part 3.4 and CPR Part 24 to strike out the claim or obtain summary judgment. Simon J dismissed the application. The appeal concerned whether the pleaded relationship was sufficiently proximate to support a duty of care and whether the report could reasonably be read as representing that the water was safe to drink.

By a majority, Kennedy and Wall LJJ allowed the appeal and struck out the action. Clarke LJ dissented and would have dismissed the appeal.

1. Summary disposal. The court generally assumes that the claimant can prove the pleaded facts and asks whether there is a realistic, rather than fanciful, prospect of success. The claimant need not show probable success. Although caution is appropriate in a developing area of law, it is not a reason for inaction where the assumed facts cannot establish a duty of care.
2. Construction of the report. The majority considered it premature to decide that the report could not reasonably be misunderstood. Its references to toxicity affecting humans, together with the evidence of possible reliance, left an arguable case that the defendant should have tested for arsenic or stated that it had not done so. That issue therefore did not justify striking out the claim.
3. Proximity. The court applied the approach in Caparo Industries plc v Dickman [1990] 2 AC 605, recognising that proximity is a practical label for circumstances in which the law identifies a duty. Personal injury claims remain subject to proximity and the requirement that a duty be fair, just and reasonable. The authorities concerning advice or certification, including Perrett v Collins [1998] 2 Lloyd’s Rep 255 and Watson v British Boxing Board of Control [2001] QB 1134, emphasised contemplation of the claimant class, control or responsibility for the dangerous situation, and, in appropriate cases, assumption of responsibility or reliance.
4. Application. The defendant did not create the arsenic hazard, supply or control the drinking water, control distribution or use of the report, or assume responsibility for the claimant’s safety. The proposed class was potentially extremely large, and the chain from report to governmental action and continued consumption was indirect. Treating the defendant as owing a duty to a substantial part of the Bangladeshi population would be a major, rather than incremental, development and would not be fair, just and reasonable on the assumed facts.
5. Dissent. Clarke LJ considered that proximity, foreseeability and fairness were too fact-sensitive for summary determination. The claimant’s evidence made the claim non-fanciful, and the judge’s decision was within the permissible range of interlocutory responses.

• Court of Appeal (Civil Division): By majority, allowed the defendant’s appeal and struck out the action. Clarke LJ dissented.
• High Court: Simon J dismissed the defendant’s application to strike out the claim or obtain summary judgment on 8 May 2003.