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Sutradhar v N.E.R.C, Court of Appeal, 20 February 2004

2 March 2004
The issues

Arsenic poisoning – strike out – Summary Judgment – Duty of Care.

The facts

The Claimant alleged that he had been poisoned by Arsenic when drinking ground waters near his home in Bangladesh. The NRC received funds from the Overseas Development Agency. One of its Departments, the British Geology Survey (BGS) provided a report surveying the main aquifers in Central and North Eastern Bangladesh, following the taking and analysing of samples of ground water. The report related to the possible toxicity of the ground water. The Claimant alleged that the report had been prepared negligently. The Defendant had argued in the High Court that the Claimant could not show that the NRC owed him a duty of care because there was insufficient proximity. The matter came before the High Court on 8th May 2003 on the Defendant’s Application to strike out the claim. That Application was dismissed. The Defendant applied to the Court of Appeal.

The decision

1. BGS did not create the hazard, namely Arsenic in the water.

2. BGS had no duty to provide the Claimant with potable water or any power to do so.

3. When BGS undertook the 1992 survey, they did so with money provided by the ODA and it was to the ODA that the report was submitted.

4. The primary purpose of the report was not to express a view about potability of water.

5. There was therefore no assumption of responsibility by BGS.

6. Although BGS had no control over subsequent publication of the report or how it was used.

7. There was a close link between foreseeability and proximity as tests for the existence of legal enforceable duty. Watson -v- British Boxing Board of Control provided a valuable guide against which to test incremental developments in the law of negligence. In this case, Master of the Roles had approved the incremental approach to the development of the law of negligence preferred by Brennan J in the High Court of Australia in Sutherland Shire Council -v- Heyman. The case had also been approved by the House of Lords in Capara. Applying Watson demonstrated that the relationship between the Claimant and the Defendant was too remote for a duty of care to be imposed. There were difficulties, both in respect of the issue of control and determinate class, both of which elements had been identified in Watson as necessary for the existence of a duty of care. Insofar as the imposition of a duty of care required it to be fair, just and reasonable for such duty to be imposed, it would not be fit to impose a duty in this case and it would be a mighty leap to make the Defendant liable to a substantial portion of the Bangladesh population for damages for personal injuries arising from drinking polluted water.

8. As striking out, the test remained as in Barrett -v- London Borough of Islington, namely whether or not it is possible to give an affirmative answer to the question whether they claim would be bound to fail.

Appeal allowed and claim dismissed (Lord Justice Clark dissented).

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