Sutradhar v. Natural Environment Research Council

The House of Lords dismissed the appellant's claim against the Natural Environment Research Council (NERC)/British Geological Survey (BGS), concluding that there was no real prospect of establishing a duty of care. The court applied the summary judgment test in CPR r 24.2 and accepted the claimant's pleaded facts for present purposes but held that BGS owed no positive obligation to test groundwater for arsenic and that any implied statement in the 1992 report that arsenic testing was unnecessary did not create the requisite proximity to the claimant. Key legal principles considered included the Caparo tripartite framework (foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty), the Hedley Byrne rule on negligent misstatement, and the proper scope of summary disposal under Part 24.

The claimant, a Bangladeshi villager, alleged that he suffered arsenical poisoning from drinking well water and that a 1992 hydrochemical report prepared by the British Geological Survey (a department of NERC) induced Bangladeshi authorities not to take protective steps. The report presented results from 150 groundwater samples but did not include tests for arsenic. The claimant sought to recover in negligence (and by reference to negligent misstatement), arguing either that BGS was under a positive duty to test for arsenic or that the report amounted to an implied representation that arsenic was not a hazard, which in turn caused public authorities to fail to act.

Procedural posture: The judge at first instance (Simon J) refused to strike out the claim. The Court of Appeal ([2004] EWCA Civ 175) by majority reversed and struck out the claim. The claimant appealed to the House of Lords.

Issues framed:

• whether BGS (NERC) owed a duty of care to the claimant in respect of testing for arsenic or in publishing the 1992 report;
• whether the report contained an actionable negligent misstatement or an implied representation about absence of arsenic;
• whether, applying the Caparo criteria, there was sufficient proximity and it would be fair, just and reasonable to impose a duty;
• causation: whether the report caused the authorities not to act and whether different action would have prevented the claimant's injury; and
• whether summary disposal under CPR r 24.2 was appropriate.

Court's reasoning and disposition: The House of Lords applied CPR r 24.2 and, accepting the claimant's factual allegations for present purposes, concluded there was no real prospect of establishing a duty of care. The court held that BGS had no positive duty to test for arsenic (its sampling choices resulted from project purpose, funding and incidental testing capability) and that the report plainly stated which elements had been tested; it did not assert that arsenic was absent. Any inference that BGS shared the contemporary belief that arsenic was unlikely could not give rise to liability because BGS had no control over the supply of drinking water and no proximate relationship with the broad class of potential claimants. Authorities dealing with negligent certification or situations of direct control (for example where the defendant had responsibility or exclusive control over the dangerous situation) were distinguishable. The court further observed the formidable causation and evidential difficulties and the public interest in avoiding an expensive and disproportionate trial. The appeal was dismissed.

Appeal dismissed. The House of Lords held that, applying CPR r 24.2, the claimant had no real prospect of establishing a duty of care: BGS owed no positive duty to test for arsenic; the 1992 report did not make an actionable statement that arsenic was absent; and the requisite proximity and control over the dangerous situation (the drinking water supply) were lacking, so it was not fair, just or reasonable to impose liability.