chapter  5
Does White v Jones in effect extend s 13 of the Supply of Goods and Services Act 1982 (above, p 391) to third parties? 6 When a person dies, most causes of action (defamation remains an exception) vest in a new legal persona called the ‘estate’ (s 1 of the Law Reform (Miscellaneous Provisions) Act 1934, above, p 32). Is this an example, as one tort specialist once suggested, of the law allowing a ghost to sue and be sued? If so, what ‘damage’ can ghosts suffer? Why should ghosts not be allowed to sue in defamation? In allowing Mrs Beswick and Mrs White and her sister to sue, is not the law transferring a loss from the spiritual to the real world? Is this kind of fiction any less rational than the fiction discussed in Tesco v Nattrass (above, p 33)? 7 Could not White v Jones have been decided in equity: for example, would it not have been possible to say that the solicitors, vis à vis the beneficiaries, were estopped by their negligence from denying the validity of the new will? 8 Does White v Jones put the decision of the majority in Spartan Steel (above, p 194) in doubt? If not, why not?
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Lord Steyn:… In this case, the question is whether a classification society owed a duty of care to a third party, the owners of cargo laden on a vessel, arising from the careless performance of a survey of a damaged vessel by the surveyor of the classification society which resulted in the vessel being allowed to sail and subsequently sinking. It is a novel question. In England, no classification society, engaged by owners to perform a survey, has ever been held liable to cargo-owners on the ground of a careless conduct of any survey. Your Lordships have also been informed that there is apparently no reported case in which such a duty has been recognised in any foreign court. Given the fact that surveyors of classification societies have regularly performed occasional surveys of laden vessels for over a century and a half the novel nature of the problem may not be entirely without significance. Ultimately, however, the problem must be considered in accordance with our tort law as it now stands without any a priori disposition for or against the legal sustainability of such a claim…

The requirements in physical damage cases

Counsel for the cargo-owners submitted that in cases of physical damage to property in which the plaintiff has a proprietary or possessory interest the only requirement is proof of reasonable foreseeability. For this proposition he relied on observations of Lord Oliver of Aylmerton in Caparo Industries plc v Dickman [1990] 2 AC 605, pp 632-33. Those observations, seen in context, do not support his argument. They merely underline the qualitative difference between cases of direct physical damage and indirect economic loss. The materiality of that distinction is plain. But since the decision in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice

and reasonableness are relevant to all cases whatever the nature of the harm sustained by the plaintiff. Saville LJ explained, p 1077:

whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the matter not only by inquiring about foreseeability but also by considering the nature of the relationship between the parties; and to be satisfied that in all the circumstances it is fair, just and reasonable to impose a duty of care. Of course…these three matters overlap with each other and are really facets of the same thing. For example, the relationship between the parties may be such that it is obvious that a lack of care will create a risk of harm and that as a matter of common sense and justice a duty should be imposed… Again, in most cases of the direct infliction of physical loss or injury through carelessness, it is self-evident that a civilised system of law should hold that a duty of care has been broken, whereas the infliction of financial harm may well pose a more difficult problem. Thus, the three so called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case. In the end whether the law does impose a duty in any particular circumstances depends upon those circumstances…

That seems to me a correct summary of the law as it now stands. It follows that I would reject the first argument of counsel for the cargo-owners.