14 Cases On The Development of The Law

14 CASES ON THE DEVELOPMENT
OF THE LAW OF NEGLIGENCE

PRESENTED BY STEPHEN, J
MZUMBE UNIVERSITY
MBEYA CAMPUS COLLEGE
1 stephenjohn230@gmail.com Sunday, April 28, 2019

INTRODUCTION
 The second half of the 19th Century is generally
marked as the time when the law of negligence
was entering its second era of development.
 This time witnessed the great expansion of legal
protection to persons who got injured in different
places.
 The courts tried to use the so called antiquated
rules in order to break through the narrow
compass within which the law of negligence was
in its embryonic stage.

Introduction cont…
 The development of the law of negligence took a
kind of a process which was circular in nature
 There was a back and forth movement
manifested in three main steps which are:
1. Enunciation of the rule
2. The application of the rule to a future case
3. Establishment of the rule
The judges limited themselves to apply the
theories within the existing laws and not
otherwise.

 The judges during this time were not ready to
open up the courts to a floodgate of litigation.
 Even in those cases where courts were seen to
have opened up a new ground of liability, such a
ground was bound to face a number of
qualifications.
 Judges were not ready to open up a pandora box.
They considered themselves to be content with
pigeonholes of liability rather than broader rules
of liability.

 It is said that because the development of the law

of negligence was not in the straight motion to
the extent that slowly the court developed new
theories apart from the strict ones and invite
other theories within their decisions as it will be
supported by different cases decided by those
courts.

1. LANGRIDGE V. LEVY [1837]
FACTS
The father of the plaintiff brought from the
defendant a gun telling him that it was to be used
by himself and his sons. The defendant falsely
represented to him that the gun was safe, good
and secure. The gun turned out to be unsafe, ill
manufactured and dangerous and while being
used by the plaintiff, it exploded and injured the
plaintiff.
HOLDING; in favour of the plaintiff

Ratio decidendi
 Where the defendant knowingly sold a gun to the

father for the use of himself and his sons and had
knowingly made a false warrant that it is safe and
secure while it was not, and on the basis of such
warrant, the plaintiff used it to his detriment, the
defendant is liable.

NOTE
 This was the case decided on the ground or basis

of implied contract warrant and knowledge of the
user where the article is not dangerous in itself.

2.WINTERBOTTOM V. WRIGHT [1842]
FACTS
A contracted with the Post Master General to
provide a mail coach to convey mail bags along a
certain line of the road. At the same time, B
contracted to hire horses to coach along the
same line, at the same time. B and his other co
contractors hired C to drive the coach. In the
process of driving the coach C got injured and
brought an action against A for damages due to
injury sustained in the cause of driving the coach
while broke down due to latent defects in the
construction of the way.

 HOLDING: judgement for the defendant
 RATIO DECIDENDI: where there is no contract or

the injured party is no privy to the contract
entered, there is no action which can be taken or
maintained within the eyes of the law.
 This is the case in which the court decided that
the injured party can not be compensated if he/
she is too remote to be contemplated by the
defendant

3. LONGMEID V. HOLLIDAY [1851]
 FACTS
The defendant a retailer supplied a lamp to the
plaintiff’s wife for the purpose of being used by
him and his wife. The lamp was defectively
constructed but the defendant could not have not
known that as he was not the manufacturer. While
using the said lamp, the lamp exploded and
severely injured the plaintiff’s wife.
HOLDING: The defendant not liable

 RATIO DECIDENDI:
Where in the ordinary cause of doing business
between one individual and another, a machine
that is not dangerous in itself but which might
become so by latent defect entirely unknown, is
let or given by one person to another, the former is
not answerable to the latter for subsequent
damage accruing from the use of it

 The court distinguished Langridge v. Levy, this
time on the ground that that was a case of fraud.
The court thus held that there is no liability to third
parties when a person supplies under contract
and without fraud a thing not dangerous in itself
but which became so by a latent defect unknown
to the supplier, although discoverable by the
exercise of ordinary care.

4.GEORGE V. SKIVINGSTON [1869]
 FACTS
The plaintiff purchased a chemical compound from
the defendant as a hair wash for the use of his
wife. The defendant represented it to be fit and
proper to be used for washing the hair. The
compound was so negligently and improperly
made. When the plaintiff’s wife applied it she
sustained injuries.

 HOLDING: judgement for the plaintiff.
 RATIO DECIDENDI: As between the defendant and the

wife, there was no contract. The case of Langridge V.
Levy was cited with approval where the court said
that if negligence is substituted for fraud, the analogy
between Langridge V. Levy and the case at hand
becomes complete
 The case of Longmeid v. Holliday is distinguished on

the ground that in that case, there was no negligence
on the facts

NOTE
This is a case where the seller of the article that
caused injury was also a manufacturer of the
article and knew who the consumers were

5. HEAVEN V. PENDER [1883]
 FACTS
The plaintiff was a workman employed by a ship painter.
The ship painter entered into the contract with the
ship owner whose ship was in the defendant’s dock
for the purpose of being painted. The defendant, the
dock owner supplied under a contract with the ship
owner, an ordinary stage to be slung outside the ship
to facilitate in painting the ship. The ropes by which
the stage was slung had been scorched and were
unfit for use. When the plaintiff began to use the stage,
the ropes broke, the stage fell and the plaintiff was
injured.

 HOLDING: Judgement in favour of the plaintiff.
 RATIO DECIDENDI: Whenever one person is by

circumstances placed in such a position with
regard to another that every one of ordinary care
and skill in his own conduct with regard to these
circumstances, he would cause danger of injury to
the person or property of the other, a duty arises
to use ordinary care and skill to avoid such a
danger.

 NOTE
This is a case in which judges reached the same
decision but used not only different principles but
also different patters of reasoning. Important for
the future development of the law of negligence
was the decision of the minority judge (Brett MR)
“Whether the defendant owed a duty of care to the

plaintiff”

6. DERRY V. PEEK [1889]
 FACTS
The defendants represented in their prospectus
that their company had been given special
permission by an Act of parliament to use steam
power in propelling trainways. The plaintiff relying
on this representation bought shares in the
defendants’ company. The board of trade,
however, refused to consent to the use of steam
power. Consequently, the defendants company
suffered heavy loss and had to be wound up. The
plaintiff brought an action of deceit against the
defendants

 HOLDING:
The Court of Appeal held that, the defendants were
liable to make good to the plaintiffs the loss
sustained by taking the shares. The defendants
appealed to the House of Lords. The Appeal was
allowed and the order of the court of appeal was
reversed.

 RATIO DECIDENDI
In an action of deceit, the plaintiff must prove actual
fraud that is a false representation made
knowingly or without belief in its truth, or
recklessly, without caring whether it be true or
false and intending the plaintiff to act upon it

 NOTE
This was/is the first case of negligent statements
causing financial loss.

7. LE LIEVRE & DENNES V.
GOULD [1893]
 FACTS
H. The owner of the land arranged wit D for loan to
be paid to L, a builder, on the security of a
mortgage of the land. The money was to be paid
by installments at certain stages in the progress
of buildings to be erected on the land by L, and
the stages were to be certified by an architect. H.
asked the defendant G who was the an archtect
and surveyor to issue these certificates.

Facts cont…
In the process D transferred the mortgage to LL
after four installments had been paid on
certificates furnished by G. in due course, the
plaintiffs lost money on this transaction and sued
for damages.
The plaintiff filed their plaint alleged that H in
employing G to give the certificate, was acting as
the agent of the plaintiffs and that in giving the
certificate the defendant acted fraudulently or
negligently. The defendant denied that he had
been employed by D or on his behalf to give the
certificates. He also denied the charge of fraud
and negligence.
 In dealing with the previous authorities, the court
said the ratio decidendi in D v. P was a wide one.
Lord Esher cited his own opinion in H v. P but
distinguished it saying that it had to be narrowed
down in order to apply only to situations where
there is physical proximity between the parties.
He was of the view that a person would only be
liable if he was near the person injured by which
he meant physically near the person. The court
faced by its own decision in H v. P circumvented it
by saying that the minority rule in H v. P was too
wide and the majority rule had no application in
the facts of the case at hand. The defendant was
held not liable.

 In appeal also the appeal was dismissed and the
judgement was given in favour of the defendants.
 RATIO DECIDENDI: the question of liability for
negligence cannot arise at all until it is established
that a man who has been negligent owed some
duty to the person who seeks to make him liable
for negligence.
 OBITER DICTA: decision in the case of Heaven V.
Pender

8. NOCTON V. LORD
ASHBURTON [1914]
 FACTS
The plaintiff Lord Ashburton claimed damages
from Nocton, the defendant who was a lawyer on
the ground that he had suffered loss as the result
of improper advice which he had been given by
Nocton and had been induced to act upon him.
(he had been advised to release part of a
mortgaged security). As a result of acting upon
that advice, he suffered loss ( the security
released became insufficient).

The court of first instance held that there has been
no fraud and dismissed the action. The court of
appeal reversed that finding and granted relief on
the ground that Nocton had been guilty of actual
fraud. The House of Lords held that the Court of
Appeal had been wrong in reversing the finding of
fact of the trial judge.

 Their Lordship went on, however, to hold that the
plaintiff had been entitled to succeed even in the
absence of actual fraud on the basis that duty
arising out of his fiduciary relationship with the
plaintiff and as the result of that breach the
plaintiff had suffered loss. The decision of the
Court of Appeal was therefore affirmed but on
different grounds
 Whether such a duty has been assumed must

depend on the relationship of the parties

NOTE: this is the case of a Lawyer-client
relationship: Fiduciary relationship and the law of
England.

9. DONOGHUE V. STEVENSON
[1932]
 FACTS
A friend bought a bottle of ginger beer made of
dark opaque glass and manufactured by the
defendant and gave it to his girl friend, the plaintiff.
The plaintiff drank some, then discovered that
there were some reminants of a dead snail in the
bottle. As a result, the plaintiff became seriously ill.
The plaintiff sued the defendant to recover
damages for negligence by the defendant in
manufacturing the beer.

 Lord Atkin approved of Brett’s proposition in
Heaven V. Pender but discarded the limitation of
nearness or physical proximity put on it by court
of Appeal in L V. G
 He went on to state his famous neighbourhood
principle:
Acts or omission which any moral code could
censure cannot in a practical world be treated so
as to give a right to every person injured by them
to demand a relief. In this way rules of law arise
which limit the range of complainants and the
extent of their remedy.

 The rule that you are to love your neighbour
becomes in law, you must not injure your
neighbour and the lawyer’s question “who is your
neighbour?” received a restricted reply you must
take reasonable care to avoid acts which you can
reasonably foresee would be likely to injure your
neighbour. Who then in law is my neighbour?

 The answer seems to be persons who are so
closely and directly affected by my act that I
ought to have them in contemplation as being so
affected when I am directing my min d to the acts
or omissions which are called in question.
 Lord Atkin further said that the test of proximity
introduced by Lord Esher in L v. G should not be
confined to physical proximity.

After propounding the neighbourhood principle, he
went on to hold that a manufacturer of products
which he sells in such a form as to show that he
intends them to reach the ultimate consumer in
the form in which they left him, with no reasonable
possibility of intermediate examination and with
the knowledge that the absence of reasonable
care in the preparation or putting up of the
products will result in injury to the consumer’s life
or property owes a duty to the consumer to take
that reasonable care.
 The defendant was thus held liable. The case was
decided by a majority of 3-2

IMPORTANCE OF THAT CASE
 This is a case which finally establishes the

concept of negligence known in the law of torts
today. This notion introduces three aspects for it
to be completed. Negligence consist in the duty
of care, breach of the duty and damage. A person
alleging that another person was negligent must
necessarily prove these three things if he is to
succeed at all

10. FARR V. BUTTERS BROS & CO
[1932]
 FACTS
The defendants who were the manufacturers
supplied a crane, in parts to the builders. The
deceased an employee of the builders supervised
the assembly of the crane. While assembling the
crane, he discovered a latent defect in one of the
parts but he started operating the crane before
rectifying the defect. He was killed when a jib fell,
the death being caused by the defects. The
widow sued the manufacturer of the crane in
negligence.

 At the time this case was being heard in the High
Court, the case of D V. S had not yet been decided.
The court said that it would have preferred to
follow Brett’s decision in H v. P as to suppliers of
goods but as that was minority rule, it was bound
by the majority rule in H V. P thus the trial court
held that the defendant was liable.

 The defendant then appealed to the court of
appeal. At that time the High Court had already
given the decision in D V. S, the Court of Appeal
thus considered the rule in D V. S but found that it
could not apply in that case because whereas in D
V. S the defendants were held liable because the
goods were manufactured in such a condition
that there was no reasonable possibility of
intermediate inspection of the goods, in F V. B
there was a reasonable possibility of intermediate
inspection.

 Relying heavily on the material facts that the
defendant actually knew of the defect having
discovered it but continued to work with the crane
they allowed the appeal by the defendants i.e.
held that the defendants were not liable.

NOTE
 This is a case where the principle of proximity

enunciated in D V. S could not be applied because
the husband of the plaintiff had had a chance of
intermediate inspection of the machines which
caused his death. Scrutton L J in this case makes
it explicit that English judges in making decisions
are controlled by the facts before them.

11. GRANT V. AUSTRALIAN
KNITTING MILLS [1936]
 FACTS
The plaintiff contracted a skin disease from wearing
a pair of woolen pants manufactured by the
defendant which were defective in that they
contained excessive quantities of a chemical
which, it was found, had been negligently left in
the process of manufacture. When the plaintiff
wore the pants after buying them, he contracted
dermatitis (a skin disease). The plaintiff sued the
defendant in negligence and the retailers in
contract.
 The retailers were clearly liable in contract. The
judgement of the court was concerned with the
liability of the manufacturers who had no contract
with the plaintiff.
 This was the decision of a judicial committee of
the Privy council which was not bound by English
decisions as it was not part of the English legal
system.
 The case came within the principle of Donoghue’s
case, decision against the respondents, appeal
allowed with costs

12. CANDLER V. CRANE
CHRISTMAS [1951]
 FACTS
the plaintiff invested money in a company relying on
accounts put before him accounts put before him
by accountants. The accounts were wrong and
negligently prepared. The plaintiff lost money and
sued the accountants.
HOLDING
The court of appeal held in favour of the defendant
in that they were not liable (majority of 2 to 1).

 RATIO DECIDENDI; there is no duty in negligence
as for negligent misstatement.
 OBITER DICTA; importance in this case is the

dissenting judgement of Lord Denning L . J which
sought to make it clear that since the House of
Lords’ decision in Donoghue V. Stevenson’s case,
no distinction existed between negligent
manufacture causing physical injury and negligent
statements causing economic loss.

 NOTE;
This was the case of negligent statements causing
financial loss. It was the first case of negligent
statement after the decision of the House of
Lords in the case of Donoghue V. Stevenson.

13. CLAYTON V. WOODMAN
[1962]
 FACTS
The plaintiff who was the bricklayer who was
employed by the first defendant a firm of builders
who had contracted with the second defendant a
regional hospital board to install a lift and motor
room in one of their hospitals. The contract
required that the work should be done with
directions of an architect third defendant. To
install a lift was necessary to demolish part of the
building.

 On the instruction of the architect the plaintiff
embarked in the installation in the process of
which he was injured and brought this action
against the defendants.
 The High Court held that the firs Defendant and

third defendants are liable. This was reversed
later by the Court of Appeal on grounds other than
those of Salmond J.

 NOTE
This was the case of negligent statement leading to
physical injury and not economic loss. The
problem before the court was to determine which
of the existing authorities on negligent
statements was to guide. Also the court had to
consider whether Donoghue V. Stevenson was an
appropriate authority.

14. HEDLEY BYRNE & CO LTD V. HELLER &
PARTNERS LTD [1963]
 FACTS
The appellants were a firm of advertising agents.
The respondents were merchant bankers. The
appellants case against the respondents was that
having placed on behalf of a client X on credit
terms substantial orders for advertising time on
the television programmes and for advertising
space in certain newspapers on terms under
which the appellants became personally liable to
the TV and newspaper companies.

 They inquired through their own banker as to the
credit worthiness of X who were the customers of
the respondent.
 The appeal was dismissed and the case was
decided in favour of the respondents.
 When a mere inquiry is made by one banker of
another who stands in no special relationship to
him then in the absence of special circumstances
from which a contract to be careful can be
inferred,… there is no duty excepting the duty of
common honesty


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14 CASES ON THE DEVELOPMENT

OF THE LAW OF NEGLIGENCE

1 stephenjohn230@gmail.com Sunday, April 28, 2019

2 stephenjohn230@gmail.com Sunday, April 28, 2019

3 stephenjohn230@gmail.com Sunday, April 28, 2019

4 stephenjohn230@gmail.com Sunday, April 28, 2019

 It is said that because the development of the law

5 stephenjohn230@gmail.com Sunday, April 28, 2019

6 stephenjohn230@gmail.com Sunday, April 28, 2019

 Where the defendant knowingly sold a gun to the

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 This was the case decided on the ground or basis

8 stephenjohn230@gmail.com Sunday, April 28, 2019

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 RATIO DECIDENDI: where there is no contract or

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 RATIO DECIDENDI: As between the defendant and the

 The case of Longmeid v. Holliday is distinguished on

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 RATIO DECIDENDI: Whenever one person is by

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“Whether the defendant owed a duty of care to the

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 Whether such a duty has been assumed must

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 This is a case which ﬁnally establishes the

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 This is a case where the principle of proximity

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 OBITER DICTA; importance in this case is the

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 The High Court held that the ﬁrs Defendant and

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