DEVELOPMENT OF THE LAW OF NEGLIGENCE

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Methodology: • What method did Brett, MR, employ in arriving at such a proposition? • Brett, MR employed a case to case approach and in each case he found a rule and a combination of these rules leading to a general rule for liability called a duty of care, made him arrive at a conclusion, that, there was a general rule called Duty of Care which he then deductively applied to the facts situation of the case he was to decide.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • This is the process of Inductive Reasoning and after a general rule has been ascertained then it is applied by a process of deductive reasoning. In real terms he considered the following facts situations: • (a)Two drivers meeting have a contract with each other. • (b)Two ships navigating at sea.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (c)A railway company which has contracted with one person to carry another has not only a contract with the person carried but has also a duty towards that person. • (d)The owner or occupier of house or land who permits a person or persons to come to his house or land has no contracts with such a person or persons but has a duty towards him or them.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Thus Brett, MR maintained: • “the existence of a contract between persons does not prevent the existence of the suggested duty towards him or them, raised by law independently of the contract, but the facts with regard to which the contract is made and to which it applies in exactly similar but a contract of duty.”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Brett, MR. Ruled out certain considerations: • We have not in this case to consider the circumstances in which an implied contract may arise to use ordinary care and skill to avoid danger to the safety of person or property. • We have not in this case to consider the question of fraudulent misrepresentation express or implied which is a well recognized head of law. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • What is then to be solved? • What is the proper definition of the relation between two persons other than the relative established by contract, or fraud, which imposes on the one of them a duty towards the other to observe, with regard to the person or property of such other, such ordinary care and skill as may be necessary to prevent injury to this person or property. • Does the present case fall within such a definition?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The judge re-examined his examples as enumerated earlier and had the following to say: • When two drivers or two ships are approaching each other, such a relation arises between them when they are approaching each other in such a manner that, unless they use ordinary care and skill to avoid it, there will be danger of an injurious collision between them. • The relation is established in such circumstances between them, not only if it be proved that they actually know and think of this danger, but whether such proof be made or not.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • It is established, as it seems to me, because anyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill under such circumstances there would be such a danger. • And everyone ought by the Universally recognised rules of right and wrong, to think so much with regard to the safety of others who may be jeopardised by his conduct: ...

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The judge went on to enumerate what would happen in the case of railway company as follows: • In the case of a railway company carrying a passenger with whom it has not entered into contract of carriage the law implies the duty, because it must be obvious that unless ordinary care and skill be used the personal safety of a passenger must be endangered.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • He said the following in relation to an owner or occupier: • With regard to the condition in which an owner or occupier leaves his house or property other phraseology has been used, which it is necessary to consider.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • If a man opens his shop or warehouse to customers it is said that he invites them to enter, and that this invitation raises the relation between them which imposes on the invitor the duty of using reasonable care to keep his house or warehouse that it may not endanger the person or property of the person invited .... • If you permit a person to enter then you impose on yourself a duty not to lay a trap on him

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Having considered all these instances which impose a duty to take care and skill, Brett, MR concluded as follows: • It follows, as it seems to me, that there must be a more remote and larger proposition which involves and covers both sets of circumstances. • The logic of inductive reasoning requires that where two major propositions lead to exactly similar minor premises there must be a more remote and larger premises which embraces both of the major propositions.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The proposition which seem to be in line with decided cases on supply of goods or machinery or the like was stated as follows: • Whenever one person supplies goods or machinery, or the like for the purpose of their being used by another person under such circumstances that everyone of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • What follows is consideration of the judgement of the majority of the judges Cotton and Bowen LJJ. • (The ratio decidendi of this case is based on the notion of owner-invitee relationship 2 judges against 1]. • All the judges found the defendant liable. • Decision of Cotton, LJ and Bowen, L.J. restricted itself to the category of owner invitee relationship:

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Statement of the Material Facts by the Majority Judges: • The defendant owner of a dock for the repair of ships, provided for use in the dock the stages necessary to enable the outside of the ship to be painted while in the dock, and the stages which were to be used only in the dock were appliances provided by the dock owner as appurtenant to the dock and its use. • After the stage was handed over to the ship-owner it no longer remained under the control of the dock owner.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issue: • Whether the dock owner was under an obligation to take reasonable care that the appliances were in a fit state to be used? • Holding: In favour of the plaintiff. • Ration Decidendi: • The owner of the premises is under an obligation to take reasonable care that the things supplied by him for immediate use are in a good state of repair.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The majority judges were unable to concur with the judgement of the Master of the Rolls: • I am unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertains...

Derry and Others v. Peek (1889) 14 Dr. Ferdinand M. Temba PhD in App. Case 337 Law University of Dar es Salaam • Material facts: • By a special Act 45 & 46 Vict., C. Clix the Plymouth Devonport and District Tramways Company was authorised to make certain tramways. • By S. 35 the carriages used on the tramways might be moved by animal power and with the consent of the Board of Trade, by steam or any mechanical power for fixed periods and subject to the regulations of the Board.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • By S. 34 of the Tramways Act, 1870 (33 & 34 Vict. C 78) which section in the special Act • “all carriages used on any tramway shall be moved by the power prescribed by special Act, and where no such power rise prescribed, by animal power only.”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The appellants as directors of the company issued a prospectus which encouraged people to invest in it because by the Special Act of Parliament the company had a right to use steam or mechanical motive power, instead of horses ... • As soon as the prospectus was issued, the respondent relying upon a paragraph in the prospectus applied and obtained shares in the company. • The company proceeded to tramways, but the Board of Trade refused to consent to the use of steam or mechanical power.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In the result the company was wound up and the respondents brought an action of deceit against the appellants claiming damages for fraudulent misrepresentation of the defendants whereby the plaintiff was induced to take shares in the company. • [In the High Court the action was dismissed by Stirling, J.] Appeal to the Court of Appeal.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issue: • Whether an action of fraudulent misrepresentation would lie? • The Court of Appeal held that (Cotton, L.J., Sir Hannen, J. and Lopes, L.J.) 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. • Holding: • Appeal allowed, order of Court of Appeal reversed.

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

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Other observations by the House of Lords: • A false statement, may be evidence of fraud, but does not necessarily amount to fraud. • Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person making it liable to an action of deceit.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Herschell said: • In my opinion making a false statement through want of care falls far short of, and is very different thing from fraud, and the same may be said of a false representation honesty believed though on insufficient grounds.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Note: • The Court was saying that there is a distinction in law between false representations and fraud or deceit and whoever wants to base an action on false representation must prove actual deceit.

Le Lievre & Dennes v. Gould, [1893] 1 Dr. Ferdinand M. Temba PhD in QB 491. Law University of Dar es Salaam • Material Facts: • H. owner of land, arranged with D for a loan to be paid to L, a builder, on the security of a mortgage of the land. • The money was to be paid by instalments 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 an architect and surveyor to issue these certificates.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In the process D transferred the mortgage to LL after four instalments had been paid on certificates furnished by G. • In due course the plaintiffs lost money on this transaction and sued for damages. • Issue: • Whether the defendant was liable?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Argument by the plaintiffs: • H. in employing G to issue certificates and in preparing the schedule of advances, was acting as the agent of the plaintiff D. • The certificates given were in fact to the knowledge of G and if there were no fraud on his part the defendant did not use due care, skill and diligence to ascertain whether the facts of the certificates were true.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In so giving the certificates the defendant acted with gross negligence, and in breach of the duty which he owed to the plaintiffs. • Argument by the defendant were that: • The defendant denied that he had been employed by D or on his behalf to issue certificates. • He never undertook any duty towards the plaintiffs or either of them.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • He was not fraudulent, the certificates were issued bonafide and in belief that the statements contained in them were true. • Holding: • Appeal was dismissed. Judgement in favour of the dependants.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • NOTE: • The Court of Appeal held that the surveyor owed no duty of care to the lender, since he did not know and had no reason to know that the certificates were to be used for this purpose. • So in the case the lender sued the architect/surveyor (Plaintiff: Lender; Defendant: the architect/surveyor

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

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Observations: • Lord Esher MR said: • ‘But can the plaintiffs rely upon negligence in the absence of fraud? • The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. • What duty is there when there is no relation between the parties by contract?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. • The case of Heaven v. Pender has no bearing upon the present question. • That case established that, under certain circumstances, one man may owe a duty to another even though there is no contract between them.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 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 may injure his property.’ • Further considerations: • The case of Heaven v. Pender has no bearing on this case.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Derry v. Peek (House of Lord's decision) established that in the absence of contract, an action for negligence cannot be maintained when there is no fraud. • Negligence, however great, does not of itself constitute fraud.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 2.(i)According to Bowen, L.J. in Derry v. Peek the House of Lords pointed out that, as common law lawyers had always held, an action of deceit must be based upon fraud, and that negligence is not itself fraud, although negligence in some cases may be of such a kind as to make it highly probable that there has been fraud.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (ii)Negligent misrepresentation does not amount to deceit and negligent misrepresentation can give rise to a cause of action only if a duty lies upon the defendant not to be negligent. • (iii)We however, have to consider not what the law might be, but what it is. (This is as positivistic utterance by the judge).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (iv)... a man is responsible for what he states in a certificate to any person to whom he may have reason to suppose that the certificate may be shown. • But the law of England does not go to that extent, it does not consider that what a man writes on a paper is like a gun or other dangerous instrument and unless it is intended to deceive, the law does not, in the absence of contract, hold him responsible for drawing his certificates carelessly.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 3.In the Opinion of A.L. Smith L.J. the decision of Heaven v. Pender was founded upon the principle, that a duty to take due care did arise when a person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. • Heaven v. Pender does not go further than this ... the case is totally different from the present and its principle cannot be applied to it.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Note on Precedent: Le Lievre v. Gould: • According to the strict rule of precedent, the English Court of Appeal must generally follow its own previous decisions i.e. it is bound by the ratios of its own previous cases. • So in this case, the court is bound by the ratio of H v. P. • We saw that strictly, the ratio of H v. P must be the rule of the majority of Judges: Cotton & Bowen.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Neither Brett's formulation of the larger proposition, nor his formulation of suppliers liability is therefore the ratio, nor part of the ratio. • But does the Court in Le Lievre v. Gould adhere to these strict rules? Esher (Brett) MR refers to what H v. P `established', meaning his own minority rule. • Smith, LJ also refers to Brett's Rule as the principle of H v. P. Only Bowen, LJ refers to the ratio of H v. P as the majority rule i.e. the rule as to Owner of premises.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • But before we conclude that the Court is not adhering to the strict doctrine, we should remember that they do not in fact prefer the minority rule of H v. P to the majority rule. • They reject both as applying to the facts before them. • If they had preferred the minority rule, they would be in breach of the strict principle, but they rejected the minority rule as too wide, and the majority rule, as having no application.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • But in so far as they accept Brett's rule as the `principle' of H v. P, to be followed in future cases where the facts come within that principle they do not adhere to the strict rule of precedent. • The House of Lords in Donoghue could have said this was `wrong'. But they do not - Lord Atkin approves of these statements and also refers to Brett's rule as the `doctrine' of H v. P.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Notice also that this is the case of a court dealing with one of its own previous decisions. • A Lower Court would not have so much freedom. • Look at how McCardie J. sitting in the High Court, dealt with H v. P in Farr v. Butters. • He has to day the rule of that case is the majority rule, and cannot follow Brett's rule in preference.

Nocton v. Lord Ashburton [1914] AC Dr. Ferdinand M. Temba PhD in 932 Law University of Dar es Salaam • A case of Lawyer - client Relationship: fiduciary relationship and the law of England: • Material facts: • Lord Ashburton claimed damages from Nocton, a solicitor on the basis that he had suffered loss as a result of improper advise given to him by Nocton which he acted upon. • The advise had been that Lord Ashburton should release a part of a mortgaged security.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • As a result of acting on that advise the security had become insufficient and Lord Ashburton claimed that the advise had been given by Nocton knowingly that the security would be rendered insufficient and that it had been given in Nocton's interest and not in his client's interest.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In the first instance the Court found that there had been no fraud, therefore dismissed the action. • The Court of Appeal reversed that finding and granted relief on the basis that Nocton had been guilty of actual fraud. • The House of Lords reversed the decision of the Court of Appeal. • Held the plaintiff was to succeed on the basis of a breach of duty which arises out of his fiduciary relationship with the plaintiff and of which the plaintiff suffered loss.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Holding: • Court of Appeal decision affirmed on different grounds. • Ratio Decidendi: • Where a person renders advise to another and the advisee falls within a fiduciary relationship with the adviser, in case the advisee sustains loss the adviser is liable.