Taylor Vinters - Solicitors

The case of Patchett v Swimming Pool & Allied Trades Association Ltd [2009] acts as a warning to organisations that market their business online. The case made it clear that a website owner who has not taken sufficient protective measures may owe a duty of care to its visitors who rely upon information provided on the site.

In Patchett, the Court of Appeal held that the defendant trade association did not owe a duty of care to the claimants who alleged that they had employed a contractor in reliance upon information found on the defendant’s website. The essential reason given was that the website encouraged readers to make additional enquiry. The website clearly stated that potential customers should obtain an information pack prior to appointing a swimming pool installer; had the claimants done this, they would have been aware of the risks which they were exposed to. Perhaps significantly, there was no mention of there being any disclaimers on the website. The parties were not in a relationship of adviser and advisee and thus there was insufficient proximity to justify the imposition of a duty of care. Further, it would not be fair, just and reasonable for the defendant’s to assume a legal responsibility for the accuracy of statements made on the website.

The courts have experienced difficulty in establishing the circumstances in which a defendant owes a duty of care to a party who relies upon information provided by the defendant. The courts aim to prevent opening the floodgates of liability whilst simultaneously ensuring that they do not deprive worthy claimants of a lawful claim. When ascertaining whether a duty is owed, the court has regard to several factors, including i) the foreseeability of the harm; ii) whether the defendant assumed a responsibility towards the claimant; iii) the reasonableness of the reliance by the claimant on the statement; iv) whether the relationship between the parties was one of sufficient proximity; and v) whether it is fair, just and reasonable to impose a duty.

The case is an important reminder that a company could owe a duty of care to visitors of its website. Companies should take great care when constructing their websites to ensure that the content is accurate and not misleading, especially where the material includes advice. Website owners can minimise or avoid the potential liability by clearly disclaiming liability to visitors in relation to statements made on the site.