Judgments - Sutradhar (FC) (Appellant) v. Natural Environment Research Council (Respondents)

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    The allegations of negligence

    24.  The claimant says that BGS caused or materially contributed to his illness, either by failing to draw attention to the presence of arsenic or by issuing a report which represented that his water was safe to drink. He, of course, had never seen the report or, one would imagine, heard of BGS. But he says that if the report had said that the water contained arsenic or had not given the impression that the water was safe, the public health authorities in Bangladesh would have taken steps to ensure that it was. So the question is whether BGS owed the claimant and others like him a duty to take reasonable care to test whether the water contained arsenic or not to issue a report which gave the impression that testing for arsenic was unnecessary. The defendants say that there is no arguable case that they were in a relationship of proximity with the population of Bangladesh which could make them liable on either of these grounds. They do not submit that there are any other grounds upon which the claimant would be bound to fail, although they point out the very considerable difficulties he would have on other issues.

    25.  I have put the claimant's case in two different ways: BGS owed him a duty to test for arsenic or BGS should not have issued a report which gave the impression that there was no arsenic. It is important to distinguish between these two formulations. The first is that BGS owed him a positive duty to test for arsenic. That way of putting the matter makes it necessary to inquire what could have created such a duty. The second is essentially a claim of misrepresentation: the report is said to have given the impression, by its omission of any tests for arsenic, that the water was free of arsenic, or at any rate safe to drink, and this, as should have been foreseen, lulled the Bangladesh public health authorities into a false sense of security and inhibited them from testing the water themselves and discovering its toxic properties.

    26.  Lord Brennan QC, who appeared for the claimant, disavowed the allegation of a positive duty to test for arsenic and emphasised the misrepresentation aspect of the case. He realistically saw the considerable difficulties in the way of a claim that BGS, out of all the geological experts in the world, owed such a duty to the people of Bangladesh. Nevertheless, it is important to say why BGS were under no duty to test the water for arsenic because the reasons are relevant to whether any claim can be founded upon the terms of their report.

    27.  BGS had no connection with the drinking water project and no one asked them to test the water for potability. They owed no duty to the government or people of Bangladesh to test the water for anything. If Mr Davies had not found some spare money in the budget and never done his survey, BGS could not have incurred any liability. The fact that they tested for the elements specified in the report was an accident of the availability of funds, Mr Davies's idea of adding to useful knowledge and Stirling University's concerns about fish farming. The statement of claim places much emphasis upon the expertise, world renown and so forth of BGS, and contrasts this with the impoverished state of Bangladeshi geological facilities. This was a matter to which Mr Davies himself drew attention in the report: see paragraph 15, above. But the fact that one has expert knowledge does not in itself create a duty to the whole world to apply that knowledge in solving its problems. True, the BGS was working in Bangladesh and Mr Davies did test the water for a number of trace elements. But the fact that he or the BGS in Wallingford chose to run tests for some elements cannot create a duty upon them to test for other elements. BGS therefore owed no positive duties to the government or people of Bangladesh to do anything. They can be liable only for the things they did and the statements they made, not for what they did not do.

    28.  I turn therefore to whether any claim can be based upon the terms of the report. The essence of the claimant's allegation is that BGS knew or ought reasonably to have known that the report would be relied upon as a statement that the tubewell water of Bangladesh was fit to drink. More specifically, that it did not contain arsenic or any other toxic substances.

    29.  In my opinion it is quite impossible to find any such statement in the report. Ms Sara Bennett, who describes herself as an Environmental Consultant and has filed a witness statement for the claimant, says that she "accepted the statements made by the study as meaning what they said." If this means that the report contained statements that there was no arsenic in the water, it is simply untrue. The report states absolutely clearly that the samples had been tested at Wallingford for the presence of a number of named elements and draws attention to the fact that the presence or absence of some of these elements (presence of iron, absence of iodine) may be relevant to the toxicity of the water to animals and humans. It says nothing about arsenic. No one could suppose that the BGS had tested the water for arsenic. The report does not say why they did not include arsenic in the suite of elements for which they ran tests. But the highest that the matter can be put for the claimant is that the absence of a test for arsenic implies that BGS (like, it seems, everyone else at the time, including the government, UNICEF and those closely involved in the drinking water programme) thought that the presence of arsenic was so unlikely that it was not necessary to test for it. The report can therefore at best be regarded as an implied statement by BGS that they shared that belief.

    30.  It is important to be clear about the basis of the claim because the claimant, supported by the witness statements filed on his behalf, goes on to say that if the BGS had warned about the presence of arsenic, the government or some aid agency or NGO would have done something about it. Thus Mr Ravenscroft says that "if arsenic had been identified in 1992 an arsenic mitigation programme would have been quickly implemented". Ms Bennett, who worked on the Northeast Regional Water Management Plan ("NERP") in 1991-1994, says that if the report had identified arsenic "it would have been highlighted as an urgent issue in the NERP April 1993 report" and measures to mitigate exposure would have been set in train. (This allegation faces formidable difficulties in the light of the measures actually taken (or not taken) by the authorities after the problem was identified, but for the purposes of this application for summary judgment I think it must be accepted as true.) It is, however, a statement about what would have happened if the BGS had tested the water for arsenic and, as I have already said and I think Lord Brennan accepts, the BGS owed no duty to test the water for arsenic. In this respect both the witness statements and the statement of claim display some confusion about exactly what the nature of the claim is. In fact the claim depends upon the very different proposition that the BGS owed a duty not to make an implied statement that in their opinion it was unnecessary to test for arsenic and that it was this implied statement by BGS (rather than the similar implied statements being made at the time by all other experts involved in the drinking water programme) which caused the failure of the government to take protective measures.

    31.  Is it then arguable that the BGS owed a duty to the population of Bangladesh not to publish a report which, although containing useful information about many other matters, implied, by what it did not say, that the BGS shared the conventional wisdom about arsenic? My Lords, I think that this question has only to be stated in order to show how improbable it is.

    32.  The grounds upon which courts will decide whether or not a claimant is owed a duty of care have been examined by the House on numerous occasions. The standard framework within which this question is usually examined is to ask whether the damage was reasonably foreseeable, whether there was sufficient "proximity" between the claimant and the defendant and whether it is fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618. It has often been remarked that the boundaries between these three concepts are somewhat porous but they are probably none the worse for that. In particular, the requirement that the imposition of a duty should be fair, just and reasonable may sometimes inform the decision as to whether the parties should be considered to be in a relationship of proximity and may sometimes provide a special reason as to why no duty should exist, notwithstanding that the relationship would ordinarily qualify as proximate. In these proceedings the defendant does not allege any such special reason but the concept of fairness and justice obviously looms large in the question of whether the author of a geological survey should be treated as having a relationship of proximity to the population of Bangladesh.

    33.  The possibility of a duty of care in tort not to make negligent statements was first established by the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. Until then, the law had taken the view, exemplified by the statement of Bowen LJ in Le Lievre v Gould [1893] 1 QB 491, 502 that "the law…does not consider that what a man writes on paper is like a gun or other dangerous instrument", that in the absence of contract, fraud or a fiduciary relationship, there is no liability for negligent statements.

    34.  The old rule applied whatever the type of loss which might follow from the negligent statement: whether physical injury or financial loss. In Candler v Crane, Christmas & Co [1951] 2 KB 164, 194 Asquith LJ, in support of a majority judgment which upheld the previous law, gave an illustration:

    "Singular consequences would follow if the principle laid down in [Donoghue v Stevenson [1932] AC 562] were applied to negligent misrepresentation in every case in which the representee were proximate to the representor. The case has been instanced by Professor Winfield and referred to by my brother Denning of a marine hydrographer who carelessly omits to indicate on his map the existence of a reef. The captain of the Queen Mary, in reliance on the map and having no opportunity to check it by reference to any other map, steers her on the unsuspected rocks, and she becomes a total loss. Is the unfortunate cartographer to be liable to her owners in negligence for some millions of pounds damages? If so, people will, in future, think twice before making maps. Cartography would become an ultra-hazardous occupation."

    35.  Denning LJ, in a famous dissenting judgment, favoured the possibility of liability for negligent statements. But not on the basis of the kind of "proximity" which would satisfy the requirements of Donoghue v Stevenson [1932] AC 562 for conduct causing direct physical injury without any intermediate element of reliance, whether by the claimant or a third party. He proposed a much narrower test for a duty of care in respect of statements: the maker must be exercising a profession in which he can be expected to take care, he must know that the statement is going to be used by the person relying upon it and he must have known the particular transaction for which the information was required:

    "a scientist or expert (including a marine hydrographer) is not liable to his readers for careless statements in his published works. He publishes his work simply for the purpose of giving information, and not with any particular transaction in mind at all. But when a scientist or an expert makes an investigation and report for the very purpose of a particular transaction, then, in my opinion, he is under a duty of care in respect of that transaction".

    36.  This dissenting judgment was upheld by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (see Lord Hodson at p. 509, Lord Devlin at p. 530 and Lord Pearce at pp. 538-539). It seems to me that the alleged implied statement about arsenic in the BGS report is no different from a statement in an authoritative textbook on geology to the effect that the aquifers of Bangladesh are very unlikely to contain arsenic. It is clear that Lord Denning would not have regarded the author of such a book as in a relationship of proximity with the population of Bangladesh.

    37.  Lord Brennan said that the law had developed since the pioneering days of Candler's case and the Hedley Byrne case and, as an indication of current thinking, relied upon the judgment of Hobhouse LJ in Perrett v Collins [1998] 2 Lloyd's LR 255. This was an action by a passenger who was injured in an aircraft accident, allegedly caused by the unairworthy state of the aircraft, against an inspector who had certified that it was fit to fly. Under the terms of the Air Navigation Order 1989 the aircraft could not lawfully fly unless such a certificate had been issued. Hobhouse LJ said that the inspector owed a duty of care to potential passengers to use reasonable care in inspecting the aircraft and issuing the certificate. He said that in respect of claims for personal injury there was now no difference in principle between liability for negligent statements and liability for other forms of conduct. The question was the degree of control and responsibility which the defendant had over the situation which involved potential injury to the claimant:

    "Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury."

    38.  I do not propose to comment upon this statement, formulated with characteristic care and precision. It may or may not be possible now to subsume liability for negligent statements together with other conduct causing physical injury under a single principle. But that principle is not that a duty of care is owed in all cases in which it is foreseeable that in the absence of care someone may suffer physical injury. There must be proximity in the sense of a measure of control over and responsibility for the potentially dangerous situation. Such a principle does not help the claimant. In Perrett's case the inspector had complete control over whether the aircraft flew or not. If he refused a certificate it could not fly. The purpose of the system of certification established by the Air Navigation Order 1989 was equally clearly the protection of persons who might be injured by unairworthy aircraft and therefore placed responsibility for affording such protection upon the inspector. For my part, therefore, I have no difficulty with the proposition that the inspector owed a duty to potential passengers to exercise due care and this may be why Perrett v Collins [1998] 2 Lloyd's LR 255 has not been reported in the official series of law reports. (Compare also Clay v AJ Crump & Sons Ltd [1964] 1 QB 533 in which an architect had complete control over whether a dangerous wall was left standing and Watson v British Boxing Board of Control Ltd [2001] QB 1134 in which the Board had control over the medical services provided at boxing matches.) But the claimant does not come even remotely within the principle stated by Hobhouse LJ. The BGS had no control whatever, whether in law or in practice, over the supply of drinking water in Bangladesh, nor was there any statute, contract or other arrangement which imposed upon it responsibility for ensuring that it was safe to drink. Lord Brennan said that while it was true that the BGS had no control over or responsibility for the water supply, they had control over and responsibility for their report. But this emendation of Hobhouse LJ's principle would turn it into complete nonsense. Everyone has control over and responsibility for their own actions. The duty of care depends upon a proximate relationship with the source of danger, namely the supply of drinking water in Bangladesh.

    39.  Simon J refused to strike out the claim on the ground that the law was developing and that "part of the argument [for the defendant] proceeds on the basis that a leading judgment in the Court of Appeal is wrong." That was apparently a reference to Hobhouse LJ in Perrett v Collins [1998] 2 Lloyd's LR 255 and it may be that the defendant made such a submission to the judge. However, so far as the judge thought that the case could arguably come within the principle stated by Hobhouse LJ or any conceivable development of that principle, I respectfully think that he was wrong. He also appears to have proceeded on the basis that the BGS had arguably been under a duty to test for arsenic ("The failure to test for arsenic can, at least for the purposes of the present application, properly be viewed in the context of the overall activity of conducting a competent hydrogeological survey"). This is an argument which Lord Brennan now disavows and which, as I have said, has no prospect of success. While therefore it is true that the decision to give summary judgment involves the exercise of a discretion, the judge in my opinion exercised his discretion upon a misapprehension about the relevant principles of law and the Court of Appeal were right to reverse him.

    40.  In his dissenting judgment, Clarke LJ said (at paragraph 44) that it was arguable that "the defendant should have tested for all trace elements including arsenic or made it clear in the report that it had not tested for arsenic." But in my opinion there could not have been any duty upon the BGS to test for arsenic and the report made it perfectly clear that they had not done so.

    41.  My Lords, the claimant in my opinion fails at the first hurdle of showing an arguable case that he was owed a duty of care. It is however worth considering the other formidable difficulties which, even if his case on this point had not been as hopeless as I think it is, he would have had to overcome in order to establish liability. He would have to show that it was negligent of the BGS, in the context of a report which did not purport to be a certificate of the potability of drinking water, not to have questioned the current orthodoxy that it was not necessary to test for arsenic. He would have to establish the causative effect of the report in the sense of showing that but for the publication of the report containing its implied endorsement by the BGS of the unlikelihood of arsenic being present in the water, that orthodoxy would have been questioned by the Bangladesh government or someone else who would have alerted the government to the dangers. He would have to show that the government would have done something to provide alterative water supply for the claimant's village. All of these points are conceded to be arguable, but the claimant must succeed on all of them and, as any punter will know, if your chances on each of four issues are 20%, your chances of succeeding on all four are less than 0.2%.

    42.  The overriding objectives of the Civil Procedure Rules include achieving justice for both claimants and defendants and saving time and expense. These objectives sometimes conflict and compromises are required. It is not the case that the administration of justice, alone among the services provided by the state, is exempt from any considerations of cost. It is obvious that a trial of this action, involving an examination of the water resources programme in Bangladesh over a number of years, would be an enormous and expensive undertaking. Your Lordships were told that the costs incurred in these proceedings by the claimant and other residents of Bangladesh who wish to bring similar actions, at the expense of United Kingdom public funds, already exceed £380,000. That takes no account of the costs incurred, also at the public expense, by NERC. That is a factor which, however unpalatable it may be to those who think that justice is priceless, must be taken into account. And justice to the defendant requires one to have regard to the burden which a long and complicated trial would impose upon NERC. Speaking for myself, I think that even if the resources of the state and NERC were infinite, it would still be wrong for this case to proceed to trial. But when one considers the scale and cost of a trial, the case for stopping the proceedings now appears to me to be overwhelming. I am also in complete agreement with the speech to be delivered by my noble and learned friend Lord Brown of Eaton-under Heywood, which I have had the privilege of reading in draft. I would dismiss the appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    43.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann. For the reasons set out in his opinion, with which I agree, I would dismiss this appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    44.  I too would dismiss this appeal and in doing so agree with everything said by my noble and learned friend Lord Hoffmann. I nevertheless want to add a short judgment of my own simply to highlight what seem to me the critical features of the case.

    45.  I agree with Lord Hoffmann (para 41) that there could be no duty on BGS to test for arsenic and I agree too that their report made it perfectly clear that they had not done so. I agree therefore that the relevant question is that earlier posed by Lord Hoffmann at paragraph 32: is it arguable that BGS owed a duty to the population of Bangladesh not to publish a report which implied, by what it did not say, that BGS shared the conventional wisdom about arsenic (namely—see para 30—that its presence was so unlikely that it was not necessary to test for it)?

    46.  Lord Hoffmann at paragraph 42 of his speech rightly points out that, the existence of a relevant duty of care aside, one of the other formidable difficulties in the claimant's path would be to show that it was negligent of BGS, in the context of a report which did not purport to be a certificate of the potability of drinking water, not to have questioned the current orthodoxy that it was unnecessary to test for arsenic. For the purpose of deciding whether BGS were under a duty of care, however, we must assume that their report, in impliedly stating that arsenic was not a hazard, constituted a negligent misstatement. If the claimant could prove that, but for such negligent misstatement, the government of Bangladesh or other relevant Bangladeshi authorities would have discovered the hazard and eliminated it from the water supply thereby safeguarding the claimant from the injury he sustained (each of these representing further formidable difficulties in the claimant's path as Lord Hoffmann also points out in paragraph 42) would he be entitled to succeed in this claim? That critically seems to me the true issue.

    47.  Beguilingly though the argument was put by Lord Brennan QC, there seems to me to be only one answer to that question, the answer no. Clay v A J Crump & Sons Ltd [1964] 1 QB 533, Perrett v Collins [1998] 2 LLR 255 and Watson v British Boxing Board of Control Ltd [2001] QB 1134 are the authorities principally relied upon by the appellant in this appeal. But in the present case there is nothing like the directness and immediacy between the defendant's role in events and the claimant's injuries which characterise each of those cases: an architect who was responsible for the safety of the site buildings negligently left standing a wall which then collapsed on the plaintiff workman; an inspector responsible for certifying airworthiness negligently certified an aircraft as fit to fly; and the British Boxing Board of Control, with the responsibility for determining the medical care and facilities to be immediately available for those injured in the boxing ring, negligently failed to specify a sufficient level of care. It is the contrasts rather than the similarities between those cases and this which are so striking.

    48.  Here the essential touchstones of proximity are missing. BGS had no "control over" or "responsibility for" (see p 262 of Hobhouse LJ's judgment in Perrett v Collins quoted by Lord Hoffmann at paragraph 38 above) the provision of safe drinking water to the citizens of Bangladesh in the same way as the architect, the air safety inspector and the British Boxing Board of Control had control over and responsibility for ensuring respectively a safe wall, a safe aircraft and a safe system for treating injured boxers. There was here no "particular transaction" (Denning LJ's phrase in his dissenting judgment, later to be vindicated, in Candler v Crane, Christmas & Co [1951] 2 KB 164, 183) such as the preparation of accounts to be shown to a known potential investor—or, indeed, such as triggered the implied statements attesting to the safety respectively of the wall, the aircraft and the boxing ring in the later three cases. BGS's position is akin rather to that of the notionally negligent marine hydrographer referred to by both Denning LJ and Asquith LJ in Candler's case. Moreover (and this perhaps is just a mirror image of the last point), unlike the comparatively narrow classes of potential claimants in the other cases—those likely to be injured respectively by the collapsing wall, the crashing aeroplane or the inadequate provision of immediate care for injured boxers—the class of potential claimants here (assuming BGS were indeed to owe the duty of care contended for) is the entire population of Bangladesh or at the very least that of the areas tested during the 1992 survey.

    49.  I recognise, of course, that the three pre-conditions to the imposition of a duty of care classically formulated in Caparo Industries Plc v Dickman [1990] 2 AC 605—the foreseeability of harm, a sufficient proximity between the parties, and that it is fair, just and reasonable to impose a duty of care in all the circumstances—to a substantial degree overlap. There are copious statements throughout the case law and the academic commentaries to that effect. And I recognise too that we are to assume for present purposes that the appellant can establish both the foreseeability of harm and that it would be fair, just and reasonable to impose a duty of care here, in the sense that there are no sufficient policy reasons for denying a duty which would otherwise exist, as, for example, in cases of psychiatric injury (see Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455), "wrongful birth" (see Parkinson v St James's and Seacroft University Hospital NHS Trust [2002] QB 266), or actions brought in respect of police investigations (see, most recently, Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495). But all that said, if ever there were a case which is bound to fall at the proximity hurdle this surely is it. Whatever is required to constitute a sufficient proximity to support a duty of care—and I acknowledge the imprecision of the concept and the many criticisms it has attracted down the years—it is not to be found on any possible view of the facts here. That is the long and the short of it. The appellant's claim must inevitably fail and so too, therefore, must his appeal.

LORD MANCE

My Lords,

 
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