Introduction
The “Anns test”, derived from the case Anns v Merton London Borough Council, [1978] AC 728, served as a two-stage framework for determining the existence of a duty of care in negligence. This test considered, first, whether there existed a sufficient relationship of proximity based upon foreseeability and, second, whether there were any policy considerations that should negate, reduce or limit the scope of the duty. The decision in Junior Books v Veitchi [1983] 1 AC 520 applied the Anns test to a claim for pure economic loss resulting from a defective floor, a scenario which would later be reevaluated with a more restrictive approach to duty of care. The technical principle of proximity as used in Anns, suggested a broad duty of care could arise even where there was no direct contractual relationship. The central requirements of the Anns test included a demonstrable proximity and the absence of policy concerns that would prevent the imposition of a duty.
Application of the Anns Test in Junior Books v Veitchi
Junior Books v Veitchi involved a claimant (C), a factory owner, and a defendant (D), a flooring sub-contractor. Critically, no direct contractual relationship existed between C and D; C's contract was with the main contractor who subcontracted the floor laying to D. C claimed that D's negligence in laying the floor resulted in defects that required replacement, leading to consequential economic losses including the cost of replacement and lost profits. The House of Lords examined whether D owed a duty of care to C despite the absence of a contract. Lord Roskill found that a sufficiently proximate relationship existed between C and D; this relationship was viewed as being as close to a contractual one as possible without formal privity. Lord Roskill also stated that there were no compelling policy considerations which would negate this duty. This outcome was significant because it extended negligence liability to pure economic loss in the absence of contractual arrangements, relying heavily on the perceived closeness of the parties and the specialist nature of D's service as a flooring company, referencing Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
Lord Fraser’s Proximity Analysis
Lord Fraser further discussed the element of proximity, emphasizing a very close relationship between the claimant and defendant as central to the case. This proximity, he asserted, distinguished this scenario from cases involving producers of goods offered for general sale to the public. In cases involving consumer goods, he stated, reliance is less likely to be found between the ultimate purchaser and the manufacturer, as the purchaser primarily relies on the intermediate vendor, and not the manufacturer for the product quality. The commentary of Junior Books on the consumer good cases underlines that for a duty of care to arise, the relationship must be more direct than that found in a typical consumer transaction. This analysis highlights a distinction between relationships of direct engagement in the production process and those involving a supply chain that has multiple parties.
Commentary on Assumption of Responsibility
The case commentary discusses how Lord Keith in Murphy v Brentwood District Council [1991] 1 AC 398 suggested that Junior Books could be explained using the principle of assumption of responsibility as derived from Hedley Byrne. Assumption of responsibility can occur in cases where the defendant undertakes a task that another party relies upon to a degree that a duty of care can be imputed. However, the commentary acknowledges the difficulty in placing Junior Books firmly within the Hedley Byrne framework because it implies imposing a contract-like liability on parties who had structured their relationships so as to exclude a contract, a point of contention that later contributed to its criticism. This is especially relevant considering that the possibility of extending this responsibility to non-professional services was explicitly rejected in Robinson v PE Jones (Contractors) Ltd [2012] QB 44. The comments clarify the judicial struggles in the area of negligence to establish a solid theoretical base for liability in the absence of a contractual relationship.
The Rejection of the Anns Test and the Incremental Approach
The Anns test, central to Junior Books, was later rejected by the Supreme Court in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4. Lord Reed noted that the Anns test caused significant difficulties in containing liability, especially in cases involving pure economic loss. Robinson reasserted the importance of an incremental approach to establishing a duty of care. According to this approach, courts should proceed cautiously when imposing duties in novel situations, favoring a method that relies on established case law and avoids broad generalisations. The judgment in Robinson also clarified that public authorities, including the police, are not immune from negligence liability based on public policy, but ordinary principles of negligence should apply. The case law indicates a significant shift from the expansive reach of Anns to a more cautious, precedent-based approach, demonstrating a move away from a two-stage generalized test and towards a more specific one.
The Caparo Test and its Impact on Duty of Care
The House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605 introduced a tripartite test to determine duty of care. This test included reasonable foreseeability, proximity, and whether it was just and fair to impose a duty. The Caparo test marked a move away from the more generous approach advocated by Anns. Lord Bridge stated that this test was not intended to be a general principle that could be applied in every circumstance and he expressed a preference for an incremental approach. The Caparo judgment sought a balance between legal certainty and justice. This approach favors case-by-case analysis of analogous situations, emphasizing the importance of adherence to past precedent and a cautious approach to liability in novel situations, moving beyond broad tests of foreseeability and introducing the necessity for considering fairness and justice.
The Hedley Byrne Principle and its Application
The judgment in Junior Books made reference to Hedley Byrne, which established liability for negligent misstatement leading to pure economic loss under particular circumstances. This principle requires a special relationship, an assumption of responsibility by the defendant, and reasonable reliance by the claimant. The application of Hedley Byrne in Junior Books, as interpreted by the commentary, highlights an effort to create a pathway to liability in situations where there is no contract, but a strong relationship of dependence, and demonstrates the courts’ attempts to broaden the scope of responsibility. The later refinement of the Hedley Byrne test in Caparo, limited the duty of care to those cases where there was a known purpose for the advice and an identified recipient, further restricting the scope of liability for economic loss.
Conclusion
The decision in Junior Books v Veitchi represented a high point in the application of the Anns test, and suggested a potentially broad scope for negligence liability in cases of pure economic loss. The case focused on the close relationship between the claimant and the defendant, a specialist subcontractor, in the absence of direct contractual ties, and indicated a willingness to find a duty of care when the relationships seemed akin to contractual. However, subsequent decisions such as Murphy v Brentwood and Robinson v Chief Constable severely limited the impact of Junior Books. The incremental approach established in Caparo and reinforced in Robinson demonstrates a retreat from the expansive application of the Anns test, and indicates a move to more controlled, precedent-based judicial method, while demonstrating a more restrictive view of liability in cases of economic loss. These decisions underscore the complex history of the law's attempt to deal with economic loss, and a continuing evolution of the tests and rules applied when considering novel situations. The reference to Hedley Byrne demonstrates an effort to find an alternative approach which the courts have sought to refine over the years in an effort to manage liability claims.
