Sutradhar (FC) (Appellant) v. Natural Environment Research Council (Respondents)

A person with specialist knowledge does not, by that fact alone, owe a duty to apply it to solve the problems of others. A duty concerning negligent statements requires sufficient proximity. In a personal injury claim, this may depend upon the defendant having a measure of control over and responsibility for the source of danger.

An expert who publishes general information without undertaking responsibility for a particular transaction or dangerous situation does not ordinarily owe a duty to an indeterminate class of readers or persons affected by third-party reliance. A claim lacking any real prospect of establishing such proximity may be determined summarily.

A Bangladeshi villager alleged that arsenic-contaminated drinking water had injured him. He claimed that the Natural Environment Research Council, through the British Geological Survey, had negligently published a hydrochemical report which failed to mention arsenic. Although he had neither seen nor heard of the report, he alleged that it had deterred the Bangladeshi authorities from investigating the danger.

Simon J refused to strike out the claim. The Court of Appeal, by a majority, reversed that decision and entered summary judgment for the Council: [2004] EWCA Civ 175. The issue before the House was whether the claimant had a real prospect of establishing that the Council owed him a duty of care.

1. Appeal dismissed unanimously. Lord Hoffmann delivered the leading speech. Lord Brown of Eaton-under-Heywood gave concurring reasons. Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe and Lord Mance agreed that the appeal should be dismissed.

2. Per Lord Hoffmann, the British Geological Survey owed no positive duty to the government or people of Bangladesh to test drinking water for arsenic. It had no connection with the drinking-water project and had not undertaken to test water for potability. Expertise, work undertaken in Bangladesh and voluntary testing for certain elements did not create a duty to test for every other element. Liability could arise only from what the Survey did or stated, rather than from work it never undertook.

3. Per Lord Hoffmann, the report clearly identified the elements for which samples had been tested and said nothing about arsenic. At most, its silence implied that the Survey shared the contemporary belief that arsenic was so unlikely to occur that testing was unnecessary. The claim therefore depended on establishing a duty not to publish that implied opinion.

4. Applying the framework in Caparo Industries plc v Dickman [1990] 2 AC 605, Lord Hoffmann held that there was no arguable relationship of proximity. A duty concerning statements capable of causing physical injury still required a measure of control over and responsibility for the potentially dangerous situation. The Survey had no legal or practical control over Bangladesh's drinking-water supply and had assumed no responsibility for its safety. Control over authorship of the report was insufficient because everyone controls their own acts.

5. Lord Brown agreed that the essential touchstones of proximity were absent. Unlike the defendants in Clay v A J Crump & Sons Ltd [1964] 1 QB 533, Perrett v Collins [1998] 2 Lloyd's LR 255 and Watson v British Boxing Board of Control Ltd [2001] QB 1134, the Survey had neither responsibility for nor control over the source of danger. Its report concerned no particular transaction or narrow class of potential claimants. The alleged duty would instead extend to the population of Bangladesh, or at least the population of the surveyed regions.

6. Per Lord Hoffmann, summary judgment under rule 24.2 of the Civil Procedure Rules was appropriate. Even accepting the pleaded primary facts and allowing for facts that might emerge at trial, the duty-of-care claim was hopeless. Justice to the defendant, the burden of a lengthy trial and the overriding objectives supported ending the proceedings. The Court of Appeal was right to reverse Simon J and strike out the claim.

1. House of Lords: Dismissed the claimant's appeal unanimously and upheld the summary judgment entered for the respondent.

2. Court of Appeal: By a majority, Kennedy and Wall LJJ, Clarke LJ dissenting, allowed the respondent's appeal, reversed Simon J and struck out the claim: [2004] EWCA Civ 175.

3. High Court: Simon J refused to strike out the claim, considering that the developing law and the factual issues justified allowing it to proceed. No citation is stated in the judgment.