DEVELOPMENT OF THE LAW OF NEGLIGENCE

Development of the Law Dr. Ferdinand M. Temba PhD in of Negligence Law University of Dar es Salaam By Dr. Ferdinand Marcel Temba LL.B Mzumbe University LL.M (Labour Law) University of Cape Town (UCT) PhD in Law University of Dar es Salaam

Introduction Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • During the second part of the 19th Century according to Fleming the law of negligence was entering its second phase of its development. • It saw the expansion of legal protection to persons who got injured on country roads and city streets along rail roads and in factories. • Courts tried to use the so called antiquated rules in order to break through the narrow compass within which the law of negligence embryonic stage was gestating.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Professor Edward Levi in his study of the period and the cases which were decided by the courts concluded that such development took a kind of a process which was circular in nature. • There was a back and forth movement manifested in three main steps, namely, • Enunciation of the rule, • Application of the rule to a future case and • Establishment of the rule.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Judges (courts) of that period were cautious not to extend the application of any rule beyond what the then existing law allowed. • They 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

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • It has been contended that judges were not ready to open up the Pandoras Box. • The judges considered themselves to be content with pigeonholes of liability rather than broader rules of liability. • Courts/judges operated on the strict rule of contract but slowly moved away from it when- ever opportunity arose.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • This topic analyses the development of the common law of negligence by looking at the cases where those who were injured were third parties (people other than those who had entered into contracts). • The courts/judges were called upon to determine the basis and extent of liability for payment of damages in those cases where it was found possible and justifiable. • The importance of the Pandora's Box in the study of case law technique under the common law is that, judges will be seen to take precautions anytime they are about to lay down a principle for liability.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In one famous case which establishes the notion of negligence as we know it today i.e. in Donoghue v. Stevenson, [1932] AC. 562 Lord Atkin while borrowing the example of a neighbour from the New Testament, in order to establish the relationship between two person quickly paused the question as to who is one's neighbour in Law?: • The rule that you have to love your neighbour becomes, in law, you must not injure your neighbour: and the lawyer's question, who is my neighbour? receives a restricted reply.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. • Who 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 reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Cases summaries Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • This part examines the development of negligence on a case to case basis. • In each case the focus is on the following: • Parties • Citation of the case • Judges (judge) • Material facts • Issue(s)

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Arguments by parties and the basis of their argument • Actual decision of the court (holding) • Reasons for so holding (ratio decidendi), and • Other rules by the Court, orders and the use of precedents. • Besides, at the end, the need to determine the types of reasoning involved and the future value of the case will be addressed.

Langridge v. Levy [1837] 2M & W 519 Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Material facts • The father of the plaintiff went to the defendant who was the seller of guns to buy a gun for himself and his sons. • While at the shop of the defendant he made a representation to the seller that the gun was for himself and his sons and in inducing the sale the defendant warranted that the gun was safe and secure while it was not.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In the process of the son using the gun so purchased, sustained injuries and brought an action against the seller. • Issue: • Whether the seller was liable? • Argument by counsel for the Plaintiff: • Whether a duty is imposed upon a person by contract or otherwise, and that duty is violated, anyone who is injured by the violation of it may have a remedy against the wrong doer

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Argument by counsel for the defendant: • There was no privity of contract and therefore the plaintiff was not entitled in law to recover damages. • Since the father was the contracting party with the defendant he can alone sue upon that contract for the breach of it. • Holding: In favour of the plaintiff (Rule discharged)

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 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.

Winterbottom v. Wright [1842] 10 Dr. Ferdinand M. Temba PhD in M+W 109 Law University of Dar es Salaam • Material facts: • The plaintiff entered into a contract with the postmaster general to drive a mail coach. • The coach had been supplied by the defendant to the Postmaster General under a contract which provided that during the term of the contract the coach was to be kept in a fit, proper, safe and secure state.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The plaintiff alleged that the defendant ‘negligently conducted himself, and so utterly disregarded his aforesaid contract and so wholly neglected and failed to perform his duty in this behalf’ that the plaintiff was injured when the coach collapsed throwing him from his seat.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issue: • Whether defendant was liable? • Argument by counsel for the defendant; • He objected that the declaration was bad in substance. • According to him the general rule was that whenever a wrong arises out of a breach of contract, only the party to the contract can alone sue. (Cited Tollit v. Sherton 5M+W 283) and the purpose was to limit extension of liability to even those who were no privy to the contract.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Argument by the Counsel for the plaintiff: • The counsel for the plaintiff based his argument on the decision of Langridge v. Levy. • He tried to show that the defendant had entered into contract with a public officer to supply an article, which from its nature and use ... was necessarily to be used by the plaintiff. • On the basis of this it was sufficient to bring this case within the rule re-established by Langridge v. Levy which proceeded on the ground of knowledge and fraud: in that in this case the defendant made a representation that the coach was in a proper state for use.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Holding: • Judgement for the defendant. • Ratio decidendi: • Where there is no contract or the injured party is no privy to it no action will lie(or be maintained).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Abinger C.B. Stated inter alia: • We ought not to permit a doubt to rest upon this subject, for our doing so might be the means of letting in upon us an infinity of actions. • This is an action of first impression, and it has been brought in spite of the precautions which were taken in the judgement of this court in the case of Langridge v. Levy, to obviate any notion that such an action could be maintained.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • We ought not to attempt to extend the principle of that decision, which although it has been cited in support of this action, wholly fails as an authority in its favour; for there the gun was bought for the use of the son, the plaintiff in that action, who could not make the bargain himself but was really and substantially the party contracting.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Here the action is brought simply because the defendant was a contractor with a third person and it is contended that thereupon he became liable to everybody who might use the carriage. • If there had been any ground for such action, there certainly would have been name precedent of it; but with the exception of actions against inn keepers, and some few other persons, no cause of a similar nature has occurred in practice.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Alderson, B had the following to say: • I am of the same opinion… • If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. • The only safe rule is to confine to the right to recover to those who enter into the contract: • if we go one step beyond that, there is no reason why we should not go fifty. [Ps 68 of the report] [Emphasis supplied].

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Rolfer, B. had the following to say: • This is one of the unfortunate cases in which there certainly has been damnum, absque injuria; it is, no doubt, a hardship upon the plaintiff to be without a remedy, but by that consideration we ought not to be influenced. Hard cases, it had been frequently observed, are apt to introduce bad law. • damnum, absque injuria means some person causes damage to another but not injure them.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • All the judges in this case are in agreement that in the circumstances of the day the plaintiff could not recover because he was not a party to the contract. • He was a stranger in so far as the law and the defendants were concerned.

Frederick Longmeid and Eliza (his Dr. Ferdinand M. Temba PhD in wife) v. Holliday [1851] 6 Ex. 76 Law University of Dar es Salaam • A Case of a Misfeasance: • Material facts: • The defendant a seller of lamps sold a lamp to the plaintiff's husband. • The defendant was not a manufacturer of those lamps. • The lamps were called “Holliday Lamp.”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The said lamp was for the purpose of being used by him and his wife. • There was evidence that the lamp was defectively manufactured. • In using the lamp with naphtha the lamp exploded and the plaintiff's wife was injured.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The two plaintiffs brought an action (Frederick had previously recovered damages in an action for the defendant's breach of implied warranty of sale). • The jury found all facts for the plaintiffs except for the allegation of fraud because, in their view the defendant did not know the lamp was in fact defective. • Issue: • Whether the plaintiff can recover on the basis of fraud?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Arguments by counsel for the defendant: • As there was no proof of fraud, the action could not be maintained. • Argument by counsel for the plaintiff: • The defendant was guilty of fraudulent representation in that it was stated that the lamp was fit and proper for use, which he knew was not true, and that he knew who was going to use the lamp, who was in fact injured in the process of using the lamp.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • This case was in line with the decision in Langridge v. Levy. • Holding: • Defendant not liable (Rule absolute) • 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.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Obiter Dicta: • (a)If the defendant had been guilty of a fraudulent representation that the lamp was fit and proper to be used, knowing that it was not and intending it to be used ... then that individual would have had an action for deceit on the principle enunciated in Langridge v. Levy [1837] 2M + W 519. • (b)If anyone knowingly tells a falsehood, with intent to induce another to do an act which results in his loss, then he is liable to that person in an action for deceit

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Parke B enumerated instances besides contract & fraud in which an action might lie but which can be distinguished from the above case: • (a)If an apothecary administers improper medicines to his patients, or a surgeon unskilfully treated him, and thereby injure his health, he would be liable to the patient even where the father or friend of the patient may have been a contracting party with the apothecary or surgeon.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (b)A stage-coach proprietor, who may have contracted with a master to carry his servant, if he is guilty of neglect, and the servant sustains personal damage, he is liable to him .... • (c)If a mason contract to erect a bridge or another work of a public road, which he constructs, but not according to the contract, and the defects of which are a nuisance to the highway, he may be responsible for it to a third party, who is injured by the defective construction ....

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (d) And it may be the same when any one delivers to another without notice an instrument in its nature dangerous, or under particular circumstances, as a loaded gun which he himself loaded, and that other person to whom it is delivered is injured thereby, or if he places it in a situation easily accessible to a third person, who sustains damage from it. Avery strong case to that effect is Dixon v. Bell.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • But it would be going much too far to say that so much care is required in the ordinary intercourse of life between one individual and another, that, if a machine not in its nature dangerous, ...a carriage for instance,-but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it.

George & Wife v. Skivington [1869] LR Dr. Ferdinand M. Temba PhD in 5 EX 1 Law University of Dar es Salaam • Material facts: • The plaintiff (Joseph George husband of the second plaintiff) purchased a chemical compound of the defendant as a hair wash for the use of his wife. • The hair wash was made up of ingredients known only to the defendant and by him represented to be “fit and proper to be used for washing the hair.”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • There was also an express statement that the defendant knows the purpose for which the article was bought. • Due to the defendant's \"unskilful, negligent and improper\" make of the compound caused injury complained by the female plaintiff (she lost her hair or her hair fell off).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issue: • Whether an action at the suit of the plaintiff (wife) her husband being joined for conformity, will lie (or was there a cause of action against the defendant?). • Arguments by the defendant: • There was no warranty, express or implied towards the purchaser, therefore no liability.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Argument for the plaintiffs: • The defendant was a chemist who made the compound which he sold for a particular purpose, and knowing the purposes for which it was bought, is liable in an action on the case for unskilfulness and negligence in the manufacture of it whereby the person who used it was injured. • Holding: • Judgement for the plaintiffs.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Ratio Decidendi: • Apart from any question of warranty, express or implied there is a duty on the defendant, the vendor, to use ordinary care in compounding his wash for the hair. • There was such a duty towards the purchaser and it extends to the persons whose use the vendor knew the compound was purchased [Langridge v. Levy cited as authority for this proposition].

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Here a similar duty arose towards the person who was known to the defendant to be about to use this wash; namely a duty that the article sold should be reasonably fit for the purpose it was bought for and compounded with reasonable care. [Kelly C.B. on pp....].

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Obiter Dicta: • Kelly, C.B. distinguished the case of Longmeid v. Holliday from this case in that the former cases decision was not based on the negligence of the vendor. • Piggott B was of the same opinion and he added the following: • (a)... where the thing purchased is for the use not of the purchaser himself but, to the defendant’s knowledge, of his wife; does the defendant’s duty extend to her? I can see no reason why it should not.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • [The judge points the incapacity of women to sue on their own in those days which is a reason why a husband had to be joined with her]. • (b)Piggott, B advanced yet a contract situation; where a chemist sells to a customer a drug; without any knowledge of the purpose for which it is to be applied, which is fit for a grown up person, and that drug is afterwards given by the purchaser to a child and does injury, it could not be contended that the chemist is liable.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Cleasby, B. was also of the opinion that the action did lie against the defendant. • He stressed the principle of contract by saying: • “No person can sue on contract but the person with whom the contract is made; and this is undoubtedly the proposition attempted to be taken advantage of in Langridge v. Levy.” • Then proceeded to apply the principle to the facts of the case and found that there was ... good cause of action in the person injured similar to that which was held to be good in Langridge v. Levy.

Heaven v. Pender [1883] BABD 503 Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Note: • Material facts in this case will be seen through the eyes of the judges who decided this case. • Material facts according to the Minority Judge Brett MR were as follows: • The plaintiff was a workman in the employ of a ship painter. • The ship painter entered into a contract with a ship-owner whose ship was in the defendant's dock to paint the outside of his ship.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The defendant, the dock owner, supplied under a contract with the ship-owner, an ordinary stage to be slung in the ordinary way outside the ship for the purposes of painting her. • It must have been to the defendant if he considered that matter at all that, the stage would be used by such a person as the plaintiff (as ship painter). • The ropes, by which the stage was slung, were supplied, without reasonable careful attention to their condition.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • When the plaintiff began to use the stage the ropes broke, the stage fell and the plaintiff was injured. • Issue: • Whether the defendant owned a duty of care to the plaintiff?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Argument in favour of the defendant: • The stage was, through want of attention of the defendant's servants supplied for use by the plaintiffs but want of attention amounting to want of ordinary care is no good cause of action, although injury ensue from such want, unless the person charged with such want of ordinary care had a duty to the person complaining to use ordinary care in respect of the matter called in question.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Arguments by the plaintiffs: • The defendant did not use ordinary care and skill and because of that the plaintiff was injured, the type of injury was not caused by the plaintiff's contributory negligence; therefore the defendant owed a duty of care to the plaintiff. • Holding: • Judgement in favour of the plaintiff.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Ratio Decidendi: • Whenever a person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not exercise ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such a danger.