HAWKINS v CLAYTON

164 CLR 539
78 ALR 69

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(Judgment by: MASON CJ, WILSON J)

Between: HAWKINS
And: CLAYTON

Court:

Judges:
Mason C.J.
Wilson J.Brennan J.
Deane J.
Gaudron J.

Subject References:
Negligence
Limitation of Actions

Judgment date: 8 April 1988

CANBERRA

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Judgment by:
MASON CJ
WILSON J

We have had the advantage of reading the reasons for judgment prepared by Deane J. Although we have reached a different ultimate conclusion, the extensive discussion by his Honour of many aspects of the case relieves us from traversing much of the ground. We agree with the substance of all that his Honour has written, save with respect to the matter to which we now refer.

This matter is fundamental to the resolution of the case. Deane J. concludes that, in failing to take any positive steps to locate the executor, Mr Hawkins, during the period of more than six years after the death of the testatrix in circumstances where a few phone calls would have sufficed to locate him, the respondents failed to discharge the duty of care which it owed to him as the executor of her estate. His Honour finds the source of that duty of care to rest in the relationship of proximity existing between the respondents and the testatrix (and Mr Hawkins, in his capacity as executor) combined with the foreseeability of a risk of damage arising from a failure to take reasonable care.

It is clear that any relationship of proximity that exists in this case would not have arisen but for the professional relationship between the respondents and the testatrix. In determining the precise nature of the relationship giving rise to the alleged duty of care, we find it helpful to start with the contract under which the will was drawn and retained in the custody of the respondents. It is that contract which "indicate(s) the nature of the relationship that gives rise to the common law duty of care" (Central Trust Co. v. Rafuse (1986) 31 DLR (4th) 481, at p 521). Cf. Bowen v. Paramount Builders (1977) 1 NZLR 394, per Richmond P., at p 407. It was said by Windeyer J. in Voli v. Inglewood Shire Council (1963) 110 CLR 74 , at p 85, in the context of ascertaining the duty of care which an architect owes to one who is a stranger to the contract between the architect and the building owner, that the contract "is not an irrelevant circumstance. It determines what was the task upon which (the architect) entered". So it is here. In the case of solicitors, the remarks of Oliver J. in Midland Bank v. Hett, Stubbs and Kemp (1979) Ch 384, at pp 402-403, are particularly pertinent:

"The extent of (a solicitor's duties to his client) depends upon the terms and limits of (the) retainer and any duty of care to be implied must be related to what he is instructed to do.

Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go beyond the scope of what they are requested and undertake to do."

The contractual terms upon which the will was left in the safe custody of the respondents were not expressed by the parties to the contract and remain to be inferred or imputed. As Deane J. observes, a number of terms can be readily inferred as a matter of actual intention. Either party could, during the life of the testatrix, bring the bailment of the will to an end by reasonable notice to the other party. If the will remained in the custody of the respondents when the testatrix died, they would maintain that custody until delivery to some person entitled to possession of it. Furthermore, the respondents were authorized, in the event of them having custody of the will after the death of the testatrix, to communicate its contents to any person having a legitimate interest in them. We agree with Deane J. that , so far as the actual intention of the parties is concerned, the contract goes no further than that.

If the respondents were under a contractual duty to take positive steps after the death of the testatrix to ensure that effect be given to her testamentary intentions, such an obligation must be implied as a matter of presumed or imputed intention. However, the implication of such a term is neither necessary for the reasonable or effective operation of the contract in the circumstances nor so obvious that it goes without saying. The problem which such an implied term would be seeking to redress - namely, the possibility that the existence of the will and the executor's appointment therein as executor would not be known to him at the time of the testatrix's death - could far more readily have been avoided by the testatrix taking the commonsense course of informing the executor of the existence of the will and where it was to be found. The instructions from the testatrix to the respondents did not encompass more than the preparation and execution of the will and the safe custody of it by the respondents. It is not suggested in the present case that the terms of the contract between the testatrix and the respondents were qualified or affected by any recognized professional practice.

Returning to the question of liability in tort, the relevant inquiry is whether the professional relationship of solicitor and client gave rise to a relationship of sufficient proximity founded upon an assumption of responsibility by the respondents and reliance thereon by the testatrix. The context within which that inquiry is made is a claim arising from a failure on the part of the respondents to act. In our opinion, the question must be answered in the negative.

The linchpin of the finding of Deane J. of liability is the conclusion that in accepting responsibility for custody of the testatrix's will after her death, the respondents effectively assumed the custodianship of the testatrix's testamentary intentions. As we have said, we do not think that the contractual relationship alone is sufficient to support such a conclusion. The absence of any contractual obligation to take positive steps after the death of the testatrix to facilitate the implementation of her testamentary intentions makes it difficult to find that the respondents assumed such a responsibility. We are unable to discern any other circumstance dehors the contractual relationship between the testatrix and the respondents which could be said to have so strengthened the professional relationship between them (and involving her executor) such as would import a common law duty of care on the part of the respondents to take positive steps to ensure that the existence and contents of the will were made known to the executor. We can see no basis for finding any assumption of responsibility such as is alleged. There may be circumstances in which the law may imply a voluntary undertaking to assume responsibility (see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465 , per Lord Devlin, at p 529) but in our opinion this is not such a case.

Nor is there any basis upon which it could be concluded that, if there were such an assumption of responsibility, either the testatrix or her executor relied on it. The testatrix did not give any instructions for the respondents to take positive steps. In 1973 she communicated with the respondents to mention the fact that she had severed her relationship with the executor and principal beneficiary named in the will, and to say that she intended to make a new will. A short time later the respondents reminded her that they were waiting for instructions. The testatrix replied that she was still thinking about the terms of a new will and would get in touch with the respondents in due course. That was the last occasion of any communication between them. She died on 18 January 1975. There is nothing in the evidence to explain why she did not carry out her expressed intenton to make a new will and there is simply no evidence to suggest that she was relying upon positive action by the respondents to communicate with her executor after her death.

The consequences for other cases that may flow from a different conclusion could be far-reaching. There is nothing particularly special about the circumstances of this case that would not be capable of application to every solicitor having the custody of a will. If the fact of the custody is to make the practitioner the custodian of the testator's testamentary intentions, it would seem to follow that he must take reasonable care to learn not only of the whereabouts of the executor but also of the death of the testator. The obligation that thus arises could extend over many years and prove onerous indeed. Further, is a solicitor to be held liable for inaction when the executor knows of both the whereabouts of the will and his appointment as executor, but is not aware of the testator's death? Where the named executor has predeceased the testator and there are no family members or beneficiaries of the testator within the jurisdiction, what must a solicitor do? How far and wide must he search? In our view, these matters are neither irrelevant nor fanciful. On the contrary, they accurately test the correctness of determining liability in the present case on a finding that the respondents assumed custody of the testatrix's testamentary intentions.

It was submitted for the appellant that the respondents came under a duty of care by reason of the actions undertaken by them following the death of the testatrix. Those actions included advising a nephew of the testatrix, Mr Ronald Lamb, in response to his request, of the contents of the will and taking steps, at his request, to secure payment out of the estate for funeral expenses. The respondents also answered inquiries made by relatives of the testatrix as to the contents of the will and, in the search for a later will, inspected documents and made inquiries. These actions were taken in the context of a belief by the respondents, later shown to be unfounded, that the executor had disappeared. They were taken on the instructions of Mr Lamb. Years later, after Mr Hardwick, the solicitor dealing with Mr Lamb and the matter generally, had retired and after the executor had been located by the respondents and had engaged new solicitors, the respondents rendered an account on the estate for the services rendered after the death of the testatrix.

The difficulty which the appellant faces in mounting this submission is to establish a link between this conduct of the respondents and a duty to take reasonable care by way of positive steps to locate the executor. The only action initiated by the respondents was taken in response to Mr Lamb's representations to them. In our opinion, their so-called intermeddling in the estate has no bearing on the existence or otherwise of the requisite relationship of proximity between the testatrix or her executor and the respondents sufficient to found the alleged duty.

Our conclusion then is that the respondents were not under any duty of care to Mr Hawkins, either in his capacity as executor of the will of the testatrix or as a beneficiary. The appeal should therefore be dismissed.