DEVELOPMENT OF THE LAW OF NEGLIGENCE

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Viscount Haldanel C S statements are worthy noting: • (i) Derry v. Peek which establishes that proof of fraudulent intention is necessary to sustain an action of deceit, whether the claim is dealt with in a Court of law or by a Court of Equity ... does not narrow the scope of the remedy in actions within the exclusive jurisdiction of the Court of Equity ....

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (ii)Although liability for negligence in word has in material respects been developed in our law differently from liability for negligence in act, it is nonetheless true that a man may come under a special duty to exercise care in giving information or advice. • (iii)I should be sorry to be thought to lend countenance to the idea that recent decisions have been intended to stereo type the cases in which people can be held to have assumed a special duty (emphasis added). • Whether such a duty has been assumed depended on the relationship of the parties ....

Donoghue v. Stevenson, [1932] AC 562 Dr. Ferdinand M. Temba PhD in (House of Lords) Law University of Dar es Salaam • Note: This was an appeal from Scotland (England and Scotland have two different legal systems). • 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.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • A person alleging that another person was negligent must necessarily prove these three things if he is to succeed at all. • As it will be noted the notion is seemingly broad but cannot be extended to cases of remoteness i.e. where there is no reasonable foreseeability of the extent of damage which results in the alleged negligence.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Material facts: • The appellant, a shop assistant sought to recover from the respondent, an aerated water manufacturer, on the basis that he was negligent and out of such negligence she was injured by the presence of a snail in a bottle of ginger beer manufactured by the respondent and ordered for the appellant in a shop by a friend of the appellant.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • As the consequence of her having drunk part of the contaminated contents of the bottle it was alleged that she contracted a serious illness. • The bottle was dark opaque glass, the condition of its contents could not be ascertained by inspection, it was closed with a metal cap, and on the side was a label bearing the name of the respondent

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issue: • Whether a manufacturer of an article or drink sold by him to a distributor in circumstances which prevent the distributor or ultimate purchaser or consumer from discovering by inspection any defect is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from any defect likely to cause injury to health.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Holding: • Appeal allowed; decision in favour of the plaintiff against the defendant. • The arguments of the two sides are not apparent. • What we shall concentrate on is the reasoning of the House of Lords. • The case was decided by Lord Atkin, Lord Macmillan, Lord Bulkmaster, Lord Thankerton and Lord Tomlin. • Lords Buckmaster and Tomlin dissented. • We examine the extracts arising from the decisions of Lord Atkin, Lord MacMillan and Buckmaster:

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Atkin made the following important observations: • 1.For the purposes of determining this problem the law of Scotland and the law of England are the same ... in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 2. In the present case we are not concerned with breach of duty ... we are concerned with the question as a matter of law in the circumstances alleged by the defendant owed any duty to the pursuer to take care .... • 3. .... In English law there must be, and is, some general conception of relations giving rise to a duty of care, of which particular & cases found in the books are but instances.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The liability for negligence, whether you style it such or treat it as in other systems as a species of \"culpa\" is no doubt based upon a general public sentiment of moral wrong doing for which an offender must pay. • 4. 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 but my neighbour? (emphasis added) receives restricted reply.

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

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • According to Lord Atkin this is the principle enunciated in Heaven v. Pender by Lord Esher MR (then Brett MR) when it is limited by the notion of proximity introduced by Lord Justice AL Smith in Le Lievre & Dennes v. Gould where Lord Esher MR stated inter alia that: • That case establishes that under certain circumstances, one may owe a duty to another, even though there is no contract between them. • If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other or injure his property.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Justice A.L. Smith maintained: • The decision of Heaven v. Pender was founded upon the principle that a duty to take due care did arise when the person or the property of another that, if due care is not taken, damage might be done by one to the other.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam In the view of Lord Atkin these principles sufficiently state the rule of proximity. This proximity is not confined “to mere physical proximity, but is used ... to extend to such close and direct relations that the act complained of directly affects the person alleged to be bound to take care would know could be directly affected by his careless act ....”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam Lord Atkin further amplifies on the point by saying: • A manufacturer who puts up an article of food in a container which he knows will be opened by the actual consumer, without any chance of intermediate inspection by any purchaser or reasonable inspection by the consumer and it is found that due to negligent manufacture the contents were mixed with poison then the law of England and Scotland says that a poisoned consumer has no remedy against a negligent manufacturer, the results would be grave and the law would be defective.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Then he went on to expound the principle that: • ... by Scots and English law alike 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 chance of intermediate examination and without 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 of care to the consumer to take that reasonable care.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord MacMillan's decision had the following characteristics: • (1)The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness where there is a duty to take care and where failure in that duty has caused damage.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (2)In the daily contacts of social and business alike human beings are thrown into or place themselves in an infinitive variety of relationships with their fellows, and the law can refer only to the standard of the reasonable man (emphasis supplied) in order to determine whether any particular relationship gives rise to a duty to take care between those who stand in that relation to each other.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 3)What then are the circumstances which give rise to this duty to take care? • “A person who for gain engages in business of manufacturing articles of food or drink intended for consumption by members of the public in the form in which he issues them is under a duty to take care in the manufacture of these articles. The duty in my opinion, he owes to those who he intends to consume his product.”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (4)The categories of negligence are never closed. • The cardinal principle of liability is that the party complained of should owe a party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage as a consequence of a breach of that duty. • Negligence consist in the duty of care, breach of duty and damage resulting from the breach of duty to take care [Emphasis supplied]. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (5) I can readily conceive that where a manufacturer has parted with his product and it has passed into other hands it may well be exposed to vicissitudes which may render it defective which the manufacturer could not in any way be held to blame. • Where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer's product before he reissues it to the actual user the manufacturer ceases to be in control.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Where the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him [Emphasis supplied].

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The Dissenting opinion of Lord Buckmaster has the following points to be noted: • 1.The appeal should be dismissed, because (in his view) existing authorities are against the appellants contention. • 2.There can be no special duty attaching to the manufacturer of food apart from that implied by contract or imposed by statue.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • If such a duty exists, it seems to me it must cover the construction of every articles and I cannot see any reason why it should not apply to the construction of a house. If one step why not fifty? • With the exception of George v. Skivington no case directly involving the principle has ever succeeded in the courts .... • (This case was decided by a majority of 3-2).

Farr v. Butters Bros & Company Dr. Ferdinand M. Temba PhD in [1932] 2 K.B. 66. Law University of Dar es Salaam • A case in which the principle of proximity enunciated in Donoghue V. Stevenson could not be applied because the husband of the plaintiff had a chance of intermediate inspection of the machines which caused his death. • Scrutton LJ in this case makes it explicit that English judges in making decisions are controlled by the facts before them.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Note: • Between the date of the judgement given by McCardie J and the hearing of the appeal, the House of Lords had delivered a very important judgement in Mc Alister v. Stevenson. • How far was this case affecting the decision in the present case?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Material Facts: • The action of the appeal arose under the Fatal Accidents Act, 1846, by a widow of a foreman erector of cranes who was killed by the falling of the jib of a crane which he had been responsible for erecting. • The action was brought against the manufacturer of the crane, who sold it in part to a firm of builders who were themselves to assemble the parts, and who in fact did this under the supervision of the man who was killed.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • It was clear that two of the cog-wheels used in the working of the crane did not fit accurately. • All agreed that the deceased while the crane was being assembled, ascertained that the cog-wheels did not fit properly, their inaccuracy was such that the crane was working with unusual fitness, that he examined the cog-wheels and found where the inaccuracy was that required to be corrected, that he marked those inaccuracies with chalk in order that it might be corrected, and that he said, that he would report the matter to his principals. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In spite of this discovery, marking, and statement of his intention to report, he began working the crane before the inaccuracies had been corrected. • In working it in that condition he was, while standing by the jib, killed by its fall, the falling being due to the effect of the inaccuracies which he had discovered.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issue: • Whether there was liability on the part of the manufacturers to the employee of the purchaser • Was there liability in Tort?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Argument by the defendant: • Having manufactured and supplied the part of the crane to the purchasers there was an opportunity for examination in that the purchasers were to assemble the parts, that opportunity was used by their skilled erector who examined the wheels and found their condition and did not rectify it. • Therefore, the manufacturers were not liable.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Argument by the Plaintiffs: • The defendants had been negligent in manufacturing the cranes whose parts killed the husband of the plaintiff and therefore they were liable to her in tort. • Holding: • Appeal was dismissed, Judgement in favour of the defendants.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Ratio Decidendi: • Important Observations made by Scrutton LJ in this case: • 1.There was an opportunity for examination • “We have repeatedly held that when a plaintiff gives evidence which is only consistent with the accident being caused by his own negligence the judge ought to withdraw the case from the jury instead of leaving it to them to say whether the admitted facts constituted negligence.”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 2. Scruton LJ agreed with Lord Atkin that: • I venture to say that in the branch of law which deals with civil wrongs, dependent in England, at any rate, entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of English law be unduly restricted.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • For this reason it is very necessary, in considering reported cases in the law of torts, that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Thus he further states his own famous proposition on the way English judges operate: • The English judges have been going far beyond the facts they are considering. • They find themselves in a difficulty if they state too wide propositions and find that they do not suit the actual facts. • (NB: Pandora’s box closed)

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Then he considered the Decision of the House of Lords in Donoghue's Case and how the Court limited the proposition: • 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 my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 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 reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In the case in point the judge goes with the opinion of Lord MacMillan that responsibility ceases when control ceases (no proximity): • It may be a good general rule to regard responsibility as ceasing when control ceases. So also where as between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer's product before he reissues it to the actual user.

Grant v. Australian Knitting Mills Dr. Ferdinand M. Temba PhD in (1936) AC 85 Law University of Dar es Salaam • A case in which counsel for the defendant sought to draw a distinction between an article which is consumed internally causing injury and an article which is used externally causing injury. • He in fact was saying that Donoghue v. Stenvenson's decision was no authority on this case.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Material facts: • The appellant contracted dermatitis of an external origin as a result of wearing a woollen underpants which, when purchased from the retailers, was in defective condition owing to the presence of excess sulphites, which, it was found, had been negligently left in it in the process of manufacture. • The appellants claimed damages both against retailers and manufacturers.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issues: • Whether the manufacturers were liable tort and the retailers in contract • Whether the principle of Donoghue v. Stevenson is applicable to this case • Argument advanced by the plaintiff was that the decision of the House of Lords in Donoghue v. Stevenson was binding on the Court to follow. • Argument by the Defendant was that Donoghue v. Stevenson's case was a case of food or drink to be consumed internally, whereas the pants were worn externally.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • That while in Donoghue's Case the makers of the ginger-beer had retained “control” over it in the sense that they had placed it in stoppered sealed bottles, so that it would not be tampered with until it was opened to be drunk, the garments in question were merely put in paper packets each containing six sets which in ordinary course would be taken down by the shopkeeper and opened, and the contents handled and disposed of separately, so that they would be exposed to the air.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • It was further argued that though there was no reason to think that the garments when sold to the appellant were in any other condition, least of all as regards sulphur contents, than when sold to the retailers by the manufacturer still the mere possibility and not the fact of their condition having changed was sufficient to distinguish Donoghue's Case.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • There was no “control” because nothing was done by the manufacturers to exclude the possibility of any tampering while the goods were on their way to the user. • Lastly it was argued that if the decision of Donoghue's Case were extended even a hair's breadth, no line could be drawn, and manufacturer's liability would be extended indefinitely.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Holding: • The case came within the principle of Donoghue's case, decision against the respondents appeal allowed with costs. • Ratio Decidendi: • A person who for gain engages in the business of manufacturing articles for consumption by members of the public in the form in which he issues them is under a duty to take care in the manufacture of these articles.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Wright in this case considered a number of things: • 1.Negligence is found as a matter of inference from the existence of the defects taken in connection with all the known circumstances even if the manufacturer could by apt evidence have rebutted that inference they have not done so.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 2.It is clear that the decision of Donoghue v. Stevenson treats negligence, where there is a duty of care, as a specific tort in itself and not simply as an element in some more complex relationship or in some specialised breach of duty, and still less as having any dependence on contract. • All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is deduced.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 3.It is, however, essential in English Law that the duty should be established: the mere fact that a man is injured by another's act gives in itself no cause of action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right: if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists. •