must be classified as physical harm to property or to the person, although, in some cases, particularly involving negligent mis-statements or negligent advice, claims for pure economic loss will be allowed. In the area of negligent advice, it is well established that a duty of care may be owed by the giver of the advice under the principles set out in Hedley Byrne Co Ltd v Heller & Partners Ltd, as qualified by a number of later decisions of the House of Lords. The basis of the tortious liability imposed in such cases is largely that the claimant has reasonably relied upon the advice given by the defendant. That defendant has knowledge that the advice will be relied upon and that there is a sufficiently close relationship of proximity between the parties, that it is just and reasonable to impose a duty of care and, in appropriate circumstances, there may be an additional requirement that the defendant should have voluntarily assumed responsibility for the accuracy of his statement by freely entering into the relationship with the claimant. Thus, in White v Jones, a solicitor undertook to advise his client on the preparation

doi:10.4324/9781843141518-304

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must be classified as physical harm to property or to the person, although, in some cases, particularly involving negligent mis-statements or negligent advice, claims for pure economic loss will be allowed. In the area of negligent advice, it is well established that a duty of care may be owed by the giver of the advice under the principles set out in Hedley Byrne Co Ltd v Heller & Partners Ltd, as qualified by a number of later decisions of the House of Lords. The basis of the tortious liability imposed in such cases is largely that the claimant has reasonably relied upon the advice given by the defendant. That defendant has knowledge that the advice will be relied upon and that there is a sufficiently close relationship of proximity between the parties, that it is just and reasonable to impose a duty of care and, in appropriate circumstances, there may be an additional requirement that the defendant should have voluntarily assumed responsibility for the accuracy of his statement by freely entering into the relationship with the claimant. Thus, in White v Jones, a solicitor undertook to advise his client on the preparation

ABSTRACT

In the area of negligent advice, it is well established that a duty of care may be owed by the giver of the advice under the principles set out in Hedley Byrne Co Ltd v Heller & Partners Ltd,43 as qualified by a number of later decisions of the House of Lords. The basis of the tortious liability imposed in such cases is largely that the claimant has reasonably relied upon the advice given by the defendant. That defendant has knowledge that the advice will be relied upon and that there is a sufficiently close relationship of proximity between the parties, that it is just and reasonable to impose a duty of care and, in appropriate circumstances, there may be an additional requirement that the defendant should have voluntarily assumed responsibility for the accuracy of his statement by freely entering into the relationship with the claimant. Thus, in White v Jones,44 a solicitor undertook to advise his client on the preparation of an effective will which was intended to confer a benefit on the plaintiff, with whom the solicitor had no contractual relationship. Because of this state of affairs, it was clear that there was no privity of contract between the solicitor and the intended beneficiaries. Because the solicitor had voluntarily entered into a relationship with the client, he had undertaken obligations to the intended beneficiaries which lay in the tort of negligence. The justification for this was that the plaintiffs had reasonably relied on the solicitor to advise properly and that the solicitor could be taken to be aware of that reliance, that they might foreseeably suffer loss if he were not to give advice as would be expected of a reasonable solicitor and that it was just and reasonable to impose liability in the circumstances. Earlier case law45 had raised the question whether voluntary assumption of responsibility was a proper issue to raise in the context of tortious duties of care, since the accepted view is that tortious duties are imposed by law rather than by virtue of any voluntary acceptance of responsibility towards the claimant. However, this was answered in White v Jones by holding that the defendant did not voluntarily assume the duty of care, since this was imposed by law, but he did voluntarily enter into a relationship with his client. This relationship led to the acceptance of a responsibility towards persons who might be foreseeably affected by his actions or omissions. What can be seen from this is that, in appropriate circumstances, a person who gives advice may owe a duty of care to a third party, despite the fact that there is no contractual connection with that person, but it is important to emphasise that the duty lies in tort rather than in contract. Moreover, even following the introduction of new means of sidestepping the doctrine of privity in the Contracts (Rights of Third Parties) Act