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Bermingham & Brennan: Tort Law Directions

Chapter 7

Page 111
Grieves v FT Everard & Sons [2007] UKHL 39

The claimant had been diagnosed with pleural plaques as a result of negligent exposure to asbestos while employed by the defendants. Although this condition could not be described as a constituting a disease in itself, the plaques indicated the possibility of contracting asbestos-related disease in the future. Consequently the claimant developed clinical depression as a result and sued his former employers for psychiatric injury. The House of Lords reiterated that neither anxiety about future disease nor the risk of future disease itself constituted actionable damage [Hicks v Chief Constable of S. Yorkshire (1992) and Gregg v Scott (2005)].

The House of Lords then had to consider possible liability for the claimant's medically recognised psychiatric condition and held that the pleural plaques themselves did not constitute physical injury capable of acting as a springboard for a derivative claim for psychological injury, nor was the mere chance of future disease enough to make the claimant a primary victim. Taking the claimant as a secondary victim, it was not reasonably foreseeable that a person of reasonable fortitude would suffer psychiatric damage as a result of the negligence in question. Page v Smith was distinguished because in that case, the outcome of the defendant's negligence, the collision, actually occurred.

Page 134, para 7.3.10
Assumption of responsibility for negligent misstatement
Patchett v Swimming Pool & Allied Trades Assn Ltd [2009] EWCA Civ 717

S, the respondent, operated a website in its capacity as a trade association for the installers of swimming pools. P, the appellants, obtained details of C, an installer, from the respondents’ website and gave it the contract for installing their swimming pool. C did not finish the job, but ceased trading due to insolvency. P claimed for their financial loss from S on the grounds of negligent misstatement. They alleged that in appointing C the appellants had relied on the website, which had been inaccurate and misleading.

The trial judge held that there had been no duty of care in negligent misstatement owed by S to P. The Court of Appeal agreed with the trial judge, by a majority of 2 to 1. Applying the Caparo three-part test, it was found that there was no relationship of proximity between the S and P, akin to adviser and advisee, which would create a Hedley Byrne special relationship. Furthermore it was not reasonably foreseeable that there would be reliance upon the fact that C’s name was included on the website. S would have reasonably expected an inquirer to have followed directions on the website to download an information pack, which would have indicated that C was not a full member of the organisation and not covered by its warranty scheme. Therefore it could not be said that S had assumed a legal responsibility to P for any statement on the website, without P having made further inquiry.