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Scope of duty revisited


The Supreme Court has handed down an important judgment concerning the scope of duty principle in Manchester Building Society v Grant Thornton [2021] UKSC 20. The appeal was heard by a panel of seven Justices, and the same panel heard another appeal concerning the scope of duty principle in the medical negligence field: Khan v Meadows [2021] UKSC 21.

Despite criticism from Lord Leggatt and Lord Burrows, the majority of the Court has set out a new conceptual framework for all negligence claims, identifying six questions or stages of analysis:

  1. Is the harm which is the subject matter of the claim actionable in negligence? (the actionability question)
  2. What are the risks of harm to the claimant against which the law imposes upon the defendant a duty to take care? (the scope of duty question)
  3. Did the defendant breach his or her duty by his or her act or omission? (the breach question)
  4. Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)
  5. Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the duty of care as analysed at stage 2 above? (the duty nexus question)
  6. Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question)

In summary, the majority held that:

  1. The scope of duty question is thus located within a general conceptual framework in the law of the tort of negligence and is a distinct step from issues of factual and legal causation and remoteness. It is the second of the six steps in the analysis of a negligence claim, but it will generally be more appropriate to consider the scope of duty issue after first ascertaining on the “but for” basis what the extent of the loss is which has flowed from the alleged breach of duty.
  2. The scope of the duty of care assumed by a professional adviser is governed by the purpose of the duty, judged on an objective basis by reference to the purpose for which the advice is being given. In more practical terms, “in the case of negligence advice given by a professional adviser one looks to see what risk the duty was supposed to guard against and then looks to see whether the loss represented the fruition of that risk.”
  3. The starting point in assessing scope of duty is no longer the distinction between “advice” and “information” cases as referred to in the SAAMCO decision [1997] AC 191, and these labels should be dispensed with as terms of art in this area. Instead, the focus is on the purpose to be served by the duty of care assumed.
  4. The counterfactual analysis proposed by Lord Hoffmann in SAAMCO should be regarded only as a tool to cross-check the result given by the analysis of the purpose of the duty, but which is “subordinate to that analysis and which should not supplant or subsume it”. In particular, the majority identified difficulties properly identifying the counterfactual scenario, particularly in cases more complicated than the relatively straightforward valuer cases in which the scope of duty principle was developed.

Lord Leggatt and Lord Burrows agreed with the outcome of the appeal but gave separate reasoned judgments reflecting different opinions on the proper approach to the scope of duty principle and the proper location of the scope of duty principle within the law of tort.  

The judgment is here.

Simon Salzedo QC and Sophie Shaw (instructed by Taylor Wessing LLP) acted for Grant Thornton at all stages of the case.