In early 2016 the court ruled that Mrs Lejonvarn, who carried out professional services for Mr and Mrs Burgess on their garden landscaping project, without a contract or any fee, owed them a duty of care in tort. But did the Court of Appeal agree?

It did, confirming that whether there has been an assumption of responsibility is an appropriate test in cases such as this, involving a relationship similar to contract, rather than the three part test set out in Caparo Industries Plc v Dickman, requiring the necessary relationship (or “proximity”) between the parties, the foreseeability of economic loss and that it is fair, just and reasonable to impose liability. It was argued, on appeal, that the Caparo test should have been applied and that the “fair, just and reasonable” element of it had not been met. The Court said, however, that there was no need to make a further inquiry into this because such considerations would have been taken into account in determining whether there had been an assumption of responsibility.

The Court also noted the important distinction between undertaking positive obligations in contract and the imposition of a negative duty to avoid doing something, or to avoid doing it badly, in the tort of negligence. The Court stressed that Mrs Lejonvarn’s duty of care was not a duty to provide the professional services in question. It was a duty to exercise reasonable skill and care in providing those professional services. She did not have to provide any such services, but, to the extent that she did so, she owed a duty to exercise reasonable skill and care in their provision.

Lejonvarn v Burgess & Anor [2017] EWCA Civ 254