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All ER Reprints/[1881-5] All ER Rep /Heaven v Pender - [1881-85] All ER Rep 35

Heaven v Pender
[1881-85] All ER Rep 35

Also reported 11 QBD 503; 52 LJQB 702; 49 LT 357; 47 JP 709; 27 Sol Jo 667

COURT OF APPEAL

SIR BALIOL BRETT MR, COTTON, BOWEN LJJ.

3, 5 MARCH, 30 JULY 1883

30 JULY 1883

Negligence - Duty of supplier of goods - Exercise of ordinary skill and care to avoid possible danger -
Opportunity for user to discover defect before use - Staging for painters of ship's hull.

Whenever one person is placed in such a position with regard to another, apart from any contract between
them, that anyone of ordinary sense would at once recognise that, if he did not use ordinary and reasonable
care and skill in his own conduct with regard to those 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 danger. Whenever
one person supplies goods, or machinery, or the like, for the purpose of their being used by another person
under such circumstances that anyone of ordinary sense would, if he thought, recognise 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 would be danger of injury to the person or property of him for whose use the thing was supplied, and
who was to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such
thing. Per a neglect of such ordinary care and skill, whereby injury happens, a legal liability arises, to be
enforced by an action for negligence. This includes the case of goods, etc, supplied to be used immediately
by a particular person or persons, or one of a class of persons, where it would be obvious to the person
supplying that the goods would in all probability be used at once by such persons before there could be a
reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be
of such a nature that a neglect of ordinary care and skill as to its condition, or the manner of supplying it,
would probably cause danger to the person or property of the person for whose use it was supplied, and who
was about to use it: per SIR BALIOL BRETT, MR, COTTON, LJ, and BOWEN, LJ, dubitante.

A master painter contracted with a shipowner to paint a ship, then lying in dock. The defendant, the dock
owner, contracted with the shipowner to erect a staging round the ship for the purpose of having the hull
painted. While the plaintiff, who was in the master painter's employment, was engaged in painting the hull,
the staging gave way, owing to the defective condition of a rope which supported it, in consequence of which
the plaintiff fell and was injured. In an action for damages for such injuries,

Held: the defendant was under an obligation to the plaintiff to use ordinary care and skill in supplying a safe
staging, and, therefore, the plaintiff was entitled to recover.

Notes
 Page 2

Considered: Elliott v Hall (1885) 15 QBD 315; Elliott v Nailstone Colliery Co (1885) 34 WR 16; Cann v
Willson (1888) 39 Ch D 39; Thrussell v Handyside [1886-90] All ER Rep 830 Distinguished: O'Neil v Everest
(1892) 61 LJQB 453 Considered: Le Lievre v Gould [1893] 1 QB 491; Hopkins v Great Eastern Rail Co
(1895) 60 JP 86; Hawkins v Smith (1896) 12 TLR 532 Distinguished: Caledonian Rail Co v Mulholland (or
Warwick) [1895-9] All ER Rep 352 Considered: Earl v Lubbock [1905] 1 KB 253; Bates v Batey [1913] 3 KB
351; Berg v Rotterdamsche Lloyd (1918) 34 TLR 272; Cunard v Antifyre Ltd [1932] All ER Rep 558;
Donoghue (or McAlister) v Stevenson [1932] All ER Rep 1; Parker v Oloxo Ltd and Senior [1937] 3 All ER
524; Buckner v Ashby and Homer Ltd [1941] KB 321; Travers v Gloucester Corpn [1946] 2 All ER 506
[1881-85] All ER Rep 35 at 36

Applied: Jarred v Roddam Dent & Son [1948] 2 All ER 404 Considered: London Graving Dock Co v Horton
[1951] 2 All ER 1; Booker v Wenborn [1962] 1 All ER 431 Referred to: Tolhausen v Davies (1888) 57 LJQB
392; Scholfield v Lord Londesborough (1894) 10 TLR 518; Lane v Cox [1895-9] All ER Rep 337; Marney v
Scott [1899] 1 QB 986; Milburn v Jamaica Fruit Importing and Trading Co of London [1900] 2 QB 540;
Shrimpton v Hertfordshire County Council (1910) 74 JP 305; Blacker v Lake and Elliot (1912) 106 LT 533;
Latham v Richard Johnson and Nephew Ltd [1911-13] All ER Rep 117; Oliver v Sadler & Co [1929] AC 584;
Bottomley v Bannister [1931] All ER Rep 99; Farr v Butters Bros & Co [1932] All ER Rep 339; Grant v
Australian Knitting Mills Ltd [1935] All ER Rep 209; Howard v Furness Houlder Argentine Lines Ltd and
Brown Ltd [1936] 2 All ER 781; Otto v Bolton and Norris [1936] 1 All ER 960; Barnes v Irwell Valley Water
Board [1938] 2 All ER 650; Herschtal v Stewart and Ardern Ltd [1939] 4 All ER 123; Haseldine v C A Daw &
Son Ltd [1941] 3 All ER 156; Hay or Bourhill v Young [1942] 2 All ER 396; Duncan v Cammell Laird & Co,
Craven v Cammell Laird & Co, Duncan v Wailes Dove Bitumastic Ltd, Craven v Wailes Dove Bitumastic Ltd,
[1943] 2 All ER 621; Glasgow Corpn v Muir [1943] 2 All ER 44; Deyong v Shenburn [1946] 1 All ER 226;
Buckland v Guilford Gas Light and Transport Co v Scruttons Ltd (1950) 66 (pt 1) TLR 1168; Candler v Crane,
Christmas & Co [1951] 1 All ER 426; Pratt v Richards [1951] 1 All ER 90; Hawkins v Coulsdon and Purley
UDC [1954] 1 All ER 97; Edwards v West Herts Group Hospital Management Committee [1957] 1 All ER
541; AC Billings & Sona v Riden [1957] 3 All ER 1; Hedley Byrne & Co Ltd v Heller and Partners Ltd [1961] 3
All ER 891; Scruttons Ltd v Midland Silicones Ltd [1962] 1 All ER 1.

As to the duty of a supplier of goods, see 28 HALSBURY'S LAWS (3rd Edn) 58-62; and for cases see 36
DIGEST (Repl) 80 et seq.

Cases referred to:

(1) Langridge v Levy (1837) 2 M & W 519; 6 LJ Ex 137; affirmed sub nom Levy v Langridge (1838) 4 M &
W 337; 1 Horn & H 325; 150 ER 1458; sub nom Levi v Langridge 7 LJ Ex 387, Ex Ch; 39 Digest 458,
852.

(2) George v Skivington (1869) LR 5 Exch 1; 39 LJ Ex 8; 21 LT 495; 18 WR 118; 39 Digest 441, 705.

(3) Corby v Hill (1858) 4 CBNS 556; 27 LJCP 318; 31 LTOS 181; 22 JP 386; 4 Jur NS 512; 6 WR 575;
140 ER 1209; 36 Digest (Repl) 67, 370.

(4) Smith v London and St Katharine Docks Co (1868) LR 3 CP 326; 37 LJCP 217; 18 LT 403; 16 WR
728; 3 Mar LC 66; 36 Digest (Repl) 48, 253.

(5) Indermaur v Dames (1866) LR 1 CP 274; Har & Ruth 243; 35 LJCP 184; 14 LT 484; 12 Jur NS 432;
14 WR 586; affirmed (1867) LR 2 CP 311; 36 LJCP 181; 16 LT 293; 31 JP 390; 15 WR 434, Ex Ch; 36
Digest (Repl) 46, 246.
 Page 3

(6) Winterbottom v Wright (1842) 10 M & W 109; 11 LJ Ex 415; 152 ER 402; 36 Digest (Repl) 107, 531.

(7) Francis v Cockrell (1870) LR 5 QB 501; 10 B & S 950; 39 LJQB 291; 23 LT 466; 18 WR 1205, Ex Ch;
34 Digest (Repl) 208, 1460.

(8) Collis v Selden (1868) LR 3 CP 495; 37 LJCP 233; 16 WR 1170; 29 Digest (Repl) 12, 134

(9) Thomas v Winchester, 6 NYRep 397.

(10) Longmeid v Holliday (1851) 6 Exch 761; 20 LJ Ex 430; 17 243; 155 ER 752; 39 Digest 458, 854.
[1881-85] All ER Rep 35 at 37

(11) Gautret v Egerton, Jones v Egerton (1867) LR 2 CP 371; 36 LJCP 191; 15 WR 638; sub nom
Gautret v Egerton, Jones v Egerton 16 LT 17; 36 Digest (Repl) 47, 247.

(12) Blakemore v Bristol and Exeter Rail Co (1858) 8 E & B 1035; 31 LTOS 12; 120 ER 385; sub nom
Blackmore v Bristol and Exeter Rail Co, 27 LJQB 167; 4 Jur NS 657; 6 WR 336; 3 Digest (Repl) 73, 126.

Also referred to in argument:

Sullivan v Waters (1864) 14 ICLR 460; 36 Digest (Repl) 69, *366.

Todd v Flight (1860) 9 CBNS 377; 30 LJCP 21; 3 LT 325; 7 Jur NS 291; 9 WR 145; 142 ER 148; 31
Digest (Repl) 381, 5094.

Gandy v Jubber (1864) 5 B & S 78; 3 New Rep 569; 33 LJQB 151; 9 LT 800; 28 JP 517; 10 Jur NS 652;
12 WR 526; 122 ER 762; on appeal (1865) 5 B & S 485; 9 B & S 15; 29 JP 645; 13 WR 1022; 122 ER
911, Ex Ch; 31 Digest (Repl) 382, 5102.

Farrant v Barnes (1862) 11 CBNS 553; 31 LJCP 137; 8 Jur NS 868; 142 ER 912; 8 Digest (Repl) 148,
937.

Brass v Maitland (1856) 6 E & B 470; 26 LJQB 49; 27 LTOS 249; 2 Jur NS 710; 4 WR 647; 119 ER 940;
8 Digest (Repl) 148, 938.

MacCarthy v Young (1861) 6 H & N 329; 30 LJ Ex 227; 3 LT 785; 9 WR 439; 158 ER 136; 34 Digest
(Repl) 239, 1755.

Dixon v Bell (1816) 5 M & S 198; 1 Stark 287; 105 ER 1023; 36 Digest (Repl) 80, 431.

Alton v Midland Rail Co (1865) 19 CBNS 213; 34 LJCP 292; 12 LT 703; 11 Jur NS 672; 13 WR 918; 144
ER 768; 34 Digest (Repl) 225, 1633.

Barker v Midland Rail Co (1856) 18 CB 46; 25 LJCP 184; 20 JP 582; 139 ER 1281; sub nom Parker v
 Page 4

Midland Rail Co, 27 LTOS 107; 8 Digest (Repl) 206, 1301.

Dickson v Reuter's Telegram Co (1877) 3 CPD 1; 37 LT 370; 42 JP 308; 26 WR 23; sub nom. Dixon v
Reuter's Telegraph Co, Ltd, 47 LJQB 1, CA; 36 Digest (Repl) 13, 41.

Southcote v Stanley (1856) 1 H & N 247; 25 LJ Ex 339; 27 LTOS 173; 156 ER 1195; 34 Digest (Repl)
275, 1948.

Gerhard v Bates (1853) 2 E & B 476; 22 LJQB 364; 22 LTOS 64; 17 Jur 1097; 1 WR 383; 1 CLR 868;
118 ER 845; 12 Digest (Repl) 199, 1379.

Appeal from a decision of the Divisional Court (FIELD and CAVE JJ) making a rule absolute to set
aside a judgment which had been entered for the plaintiff at Bow County Court.

The action was brought in the Bow County Court to recover damages for injuries sustained by the plaintiff
while working in the defendant's dock, through the negligence of the defendant. The plaintiff, a ship painter,
was employed by one Gray to paint a ship then lying in the defendant's dock. The shipowner had contracted
with Gray for the painting of the ship, and the defendant, the dock owner, had agreed to supply and erect a
staging round the ship for that purpose. Owing to a defect in one of the ropes supplied by the defendant to
support the staging, the staging gave way while the plaintiff was at work upon it, whereby he was thrown
down end severely injured. The rope, when examined after the accident, appeared to have been burnt at the
place where it broke, but there was no evidence to show its condition when the staging was put up, or that
the defendant or his servants had any knowledge that the rope was defective. The defendant had no control
over the plaintiff during the progress of the work. At the trial the defendant contended that the plaintiff was
not in his employment, that there was no privity of contract between them, and that the plaintiff, therefore,
could not recover. The learned county court judge, however, gave judgment for the plaintiff for damages, of
which the amount was agreed upon between the parties. The defendant obtained a rule nisi to set aside the
judgment on the ground that there was no evidence of the defendant's liability to the plaintiff, or that, upon
the facts proved at the trial,
[1881-85] All ER Rep 35 at 38

judgment should have been entered for the defendant. The Divisional Court (FIELD and CAVE JJ) made the
rule absolute to enter judgment for the defendant, and from this decision the plaintiff appealed.

Charles QC and C C Scott for the Plaintiff

Bompas QC and H F Dickens for the Defendant.

Cur adv vult

30,July 1883. The following judgments were read.

SIR BALIOL BRETT MR:

In this case the plaintiff was a workman in the employ of Gray, a ship painter. Gray entered into a contract
with a shipowner, whose ship was in the defendant's dock, to paint the outside of his ship. The defendant,
the dock owner, supplied, under a contract with the shipowner, an ordinary stage, to be slung in the ordinary
way outside the ship for the purpose of painting her. It must have been known to the defendant's servants, if
 Page 5

they had considered the matter at all, that the stage would be put to immediate use; that it would not be used
by the shipowner, but that it would be used by such a person as the plaintiff, a working ship painter. The
ropes by which the stage was slung, which were supplied as a part of the instrument by the defendant, had
been scorched and were unfit for use, and were supplied without a reasonably careful attention to their
condition. When the plaintiff began to use the stage the ropes broke, the stage fell, and the plaintiff was
injured. The Divisional Court held that the plaintiff could not recover against the defendant. The plaintiff
appealed.

The action is, in form and substance, an action for negligence. That the stage was, through want of attention
of the defendant's servants, supplied in a state unsafe for use is not denied. But want of attention, amounting
to a want of ordinary care, is not a 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. Actionable negligence consists in the neglect of the use of ordinary
care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by
which neglect the plaintiff has suffered injury to his person or property.

The question in this case is whether the defendant owed such a duty to the plaintiff. If a person contracts
with another to use ordinary care or skill towards him or his property, the obligation need not be considered
in the light of a duty; it is an obligation of contract. It is undoubted, however, that there may be the obligation
of such a duty from one person to another, although there is no contract between them with regard to such
duty. Two drivers meeting have no contract with each other, but under certain circumstances they have a
reciprocal duty towards each other. So two ships navigating the sea. So a railway company, which has
contracted with one person to carry another, has no contract with the person carried, but has a duty towards
that person. So the owner or occupier of house or land who permits a person or persons to come to his
house or land has no contract with such person or persons, but has a duty towards him or them. It should be
observed that the existence of a contract between two persons does not prevent the existence of the
suggested duty between them also being raised by law, independently of the contract, by the facts with
regard to which the contract is made, and to which it applies an exactly similar but a contract duty.

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 a fraudulent misrepresentation, express or implied, which is a well- recognised head
of law. The questions which we have to solve in this case are: What is the proper definition of the relation
between two persons, other than the relation 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
[1881-85] All ER Rep 35 at 39

or skill as may be necessary to prevent injury to his person or property? and Whether the present case falls
within such definition?

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. This relation is established in such circumstances
between them, not only if it can be proved that they actually know and think of this danger, but whether such
proof be made or not. 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 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; and if, being in such
circumstances, he does not think, and in consequence neglects, or if he neglects to use ordinary care or skill,
and injury ensue, the law, which takes cognisance of and enforces the rules of right and wrong, will force him
to give an indemnity for the injury.
 Page 6

In the case of a railway company carrying a passenger with whom it has not entered into the 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 the passenger must be endangered. 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. If
a man opens his shop or warehouse to customers it is said that be invites them to enter, and that this
invitation raises the relation between them which imposes on the inviter the duty of using reasonable care so
to keep his house or warehouse that it may not endanger the person or property of the person invited [see
now Occupiers' Liability Act, 1957, 37 HALSBURY'S STATUTES (2nd Edn) 832]. This is in a sense an
accurate phrase, and, as applied to the circumstances, a sufficiently accurate phrase. Yet it is not accurate if
the word "invitation" be used in its ordinary sense. By opening a shop you do not really invite - you do not ask
AB to come in to buy, you intimate to him that if it pleases him to come in he will find things which you are
willing to sell. So in the case of a shop, warehouse, road, or premises, the phrase has been used that if you
permit a person to enter them, you impose on yourself a duty not to lay a trap for him. This, again, is a sense
a true statement of the duty arising from the relation constituted by the permission to enter. It is not a
statement of what causes the relation which raises the duty. What causes the relation is the permission to
enter and the entry. But it is not a strictly accurate statement of the duty. To lay a trap means, in ordinary
language, to do something with an intention. Yet it is clear that the duty extends to a danger, the result of
negligence without intention. And with regard to both these phrases, though each covers the circumstances
to which it is particularly applied, yet it does not cover the other set of circumstances from which an exactly
similar legal liability is inferred.

It follows, as it seems to me, that there must be some 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 premise which embraces both of the major
propositions. That, in the present consideration, is, as it seems to me, the same proposition which will cover
the similar legal liability inferred in the cases of collision and carriage. The proposition which these
recognised cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is
by circumstances placed in such a position with regard to another that anyone of ordinary sense who did
think would at once recognise that, if he did not use 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 the other, a duty arises to
use ordinary care and skill to avoid such danger. Without displacing the other propositions, to which allusion
has been made as applicable to the particular circumstances in respect of which they have been enunciated,
this proposition includes, I
[1881-85] All ER Rep 35 at 40

think, all the recognised cases of liability. It is the only proposition which covers them all. It may, therefore,
safely be affirmed to be a true proposition, unless some obvious case can be stated in which the liability
must be admitted to exist, and which yet is not within this proposition. There is no such case.

Let us apply this proposition to the case of one person supplying goods, or machinery, or instruments, or
utensils, for the purpose of their being used by another person, but with whom there is no contract as to the
supply. The proposition will stand thus. Whenever one person supplies goods, or machinery, or the like, for
the purpose of their being used by another person under such circumstances that anyone of ordinary sense
would, if he thought, recognise 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 would be danger of injury to the person or
property of him for whose use the thing was supplied, and who was to use it, a duty arises to use ordinary
care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care
or skill, whereby injury happens, a legal liability arises, to be enforced by an action for negligence. This
includes the case of goods, etc., supplied to be used immediately by a particular person or persons, or one
of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would
in all probability be used at once by such persons before there could be a reasonable opportunity for
discovering any defect which might exist, and where the thing supplied would be of such a nature that a
neglect of ordinary care or skill as to its condition, or the manner of supplying it, would probably cause
danger to the person or property of the person for whose, use it was supplied, and who was about to use it. It
 Page 7

would exclude a case in which the goods are supplied under circumstances in which it would be a chance by
whom they would be used, or whether they would be used or not, or whether they would be used before
there would probably be means of observing any defect, or where the goods would be of such a nature that a
want of care or skill as to their condition, or the manner of supplying them, would not probably produce
danger of injury to person or property. The cases of vendor and purchaser, and lender and hirer under
contract, need not be considered, as the liability arises under the contract, and not merely as a duty imposed
by law, though it may not be useless to observe that it seems difficult to import the implied obligation into the
contract, except in cases in which, if there were no contract between the parties, the law would, according to
the rule above stated, imply the duty.

Examining the rule which has been above enunciated with the cases which have been decided with regard to
goods supplied for the purpose of being used by persons with whom there is no contract, the first case to be
considered is inevitably Langridge v Levy (1). It is not an easy case to act upon. It is not, it cannot be,
accurately reported; the declaration is set out; the evidence is assumed to be reported; the questions left to
the jury are stated; and then it is said that a motion was made to enter a nonsuit in pursuance of leave
reserved on particular grounds. Those grounds do not raise the question of fraud at all, but only the question
of remoteness. And although the question of fraud seems, in a sense, to have been left to the jury, yet no
question was, according to the report, left to them whether the plaintiff acted on the faith of the fraudulent
misrepresentation, which is, nevertheless, a necessary question in a case of fraudulent misrepresentation.
The report of the argument makes the object of the argument depend entirely upon an assumed motion to
arrest the judgment, which raises always a discussion depending entirely on the form of the declaration, and
the effect on it of a verdict, in respect of which it is assumed that all questions were left to the jury. If this was
the point taken, the report of the evidence and of the questions left to the jury is idle. The case was decided
on the ground of a fraudulent misrepresentation as stated in the declaration. It is inferred that the defendant
intended the representation to be communicated to the son. Why he should have such an intention, in fact, it
seems difficult to understand. His immediate object must have been to induce the father
[1881-85] All ER Rep 35 at 41

to buy and pay for the gun. It must have been wholly indifferent to him whether, after the sale and payment,
the gun would be used or not by the son.

I cannot hesitate to say that, in my opinion, the case is a wholly unsatisfactory case to act on as an authority.
But, taking the one to be decided on the ground of a fraudulent misrepresentation made hypothetically to the
son, and acted upon by him, such a decision upon such a ground in no way negatives the proposition that
the action might have been supported on the ground of negligence without fraud. It seems to be a case
which is within the proposition enunciated in this judgment, and in which the action might have been
supported without proof of actual fraud. And this seems to be the meaning of CLEASBY B., in the
observations he made on Langridge v Levy (1) in George v Skivington (2). In that case the proposition laid
down in this judgment is clearly adopted. The ground of the decision is that the article was, to the knowledge
of the defendant, supplied for the use of the wife, and for her immediate use. And certainly if be, or anyone in
his position, had thought at all, it must have been obvious that a want of ordinary care or skill in preparing the
prescription sold would endanger the personal safety of the wife. In Corby v Hill (3) it is stated by the Lord
Chief Justice that an allurement was held out to the plaintiff; and WILLES J, stated that the defendant had no
right to set a trap for the plaintiff. But in the form of declaration suggested by WILLES J (4 CBNS at p 567)
there is no mention of allurement, or invitation, or trap. The facts suggested in that form are "that the plaintiff
had licence to go on the road; that he was in consequence accustomed and likely to pass along it; that the
defendant knew of that custom and probability; that the defendant negligently placed slates in such a manner
as to be likely to prove dangerous to persons driving along the road; that the plaintiff drove along the road,
being by reason of the licence lawfully on the road, and that he was injured by the obstruction." It is
impossible to state a case more exactly within the proposition laid down in this judgment. In Smith v London
and St Katharine Docks Co (4) the phrase is again used of invitation to the plaintiff by the defendants. Again,
let it be observed that there is no objection to the phrase as applied to the case. But the real value of the
phrase may not improperly be said to be that invitation imports knowledge by the defendant of the probable
use by the plaintiff of the article supplied, and, therefore, carries with it the relation between the parties which
 Page 8

establishes the duty. In Indermaur v Dames (5) reliance is again placed on a supposed invitation of the
plaintiff by the defendant. But, again, it is hardly possible to state facts which bring a case more completely
within the definition of the present judgment.

In Winterbottom v Wright (6) it was held that there was no duty cast upon the defendant with regard to the
plaintiff. The case was decided on what was equivalent to a general demurrer to the declaration. And the
declaration does not seem to show that the defendant, if he had thought about it, must have known, or ought
to have known, that the coach would be necessarily or probably driven by the plaintiff, or by any class of
which he could be said to be one, or that it would be so driven within any time which would make it probable
that the defect would not be observed. The declaration relied too much on contracts entered into with other
persons than the plaintiff. The facts alleged did not bring the case within the proposition herein enunciated. It
was an attempt to establish a duty towards all the world. The case was decided on the ground of
remoteness. And it is at too great a remoteness that the observation of LORD ABINGER is pointed, when he
says that the doctrine of Langridge v Levy (1) is not to be extended.

In Francis v Cockrell (7) the decision is put by some of the judges on an implied contract between the plaintiff
and the defendant. But CLEASBY B (LR 5 QB at p 515) puts it on the duty raised by the knowledge of the
defendant that the stand was to be used immediately by persons, of whom the plaintiff was one. In other
words, he acts upon the rule above laid down. In Collis v Selden (8) it was held that the declaration disclosed
no duty, and obviously the declaration was too uncertain. There is nothing to show that the defendant knew
more of the
[1881-85] All ER Rep 35 at 42

probability of the plaintiff, rather than any other of the public, being near the chandelier. There is nothing to
show that the plaintiff was more likely to be in the public-house than any other member of the public. There is
nothing to show how soon after the hanging of the chandelier anyone might be expected or permitted to
enter the room in which it was. The facts stated do not bring it within the rule. There is an American case
(Thomas v Winchester (9) cited in MR HORACE SMITH'S treatise on the LAW OF NEGLIGENCE, p 88, note
t) which goes a very long way - I doubt whether it does not go too far. In Longmeid v Holliday (10) a lamp
was sold to the plaintiff to be used by the wife. The jury were not satisfied that the defendant knew of the
defect in the lamp; if he did, there was fraud; if he did not, there seems to have been no evidence of
negligence. If there was fraud, the case was more than within the rule; if there was no fraud, the case was
not brought by other circumstances within the rule. In Gautret v Egerton (11) the declaration was held by
WILLES J, to be bad on demurrer, because it did not show that the defendant had any reason to suppose
that persons going to the docks would not have ample means of seeing the holes and cuttings relied on. He
does not say there must be fraud in order to support the action. He says there must be something like fraud.
He says: "Every man is bound not wilfully to deceive others." And then, in the alternative, he says, "or to do
any act which may place them in danger."

There seems to be no case in conflict with the rule above deduced from well-admitted cases. I am, therefore,
of opinion that it is a good, safe, and just rule. I cannot conceive that, if the facts were proved which would
make out the proposition I have mentioned, the law can be that there would be no liability. Unless that be
true the proposition must be true. If it be the rule, the present case is clearly. within it. The case is also, I
agree, within that which seems to me to be a minor proposition - namely, the proposition which has been
often acted upon, that there was, in a sense, an invitation of the plaintiff by the defendant to use the stage.
The appeal must, in my opinion, be allowed, and judgment must be entered for the plaintiff.

COTTON LJ:

The judgment I am about to read is concurred in by BOWEN LJ. In this case the defendant was the owner of
a dock for the repair of ships, and provided for use in the dock the stages necessary to enable the outside of
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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 shipowner it no longer remained under the control of the dock owner. But when ships were
received into the dock for repair, and provided with stages for the work on the ships which was to be
executed there, all those who came to the vessels for the purpose of painting and otherwise repairing them
were there for business in which the dock owner was interested, and they, in my opinion, must be considered
as invited by the dock owner to use the dock and all appliances provided by the dock owner as incident to
the use of the dock. To these persons, in my opinion, the dock owner was under an obligation to take
reasonable care that, at the time the appliances provided for immediate use in the dock were provided by
him, they were in a fit state to be used - that is, in such a state as not to expose those who might use them
for the repair of the ship to any danger or risk not necessarily incident to the service in which they are
employed [see now Occupiers' Liability Act 1957, supra].

That this obligation exists, as regards articles of which the control remains with the dock owner, was decided
in Indermaur v Dames (5); and in Smith v London and St Katharine Docks Co (4) the same principle was
acted on. I think that the same duty must exist as to things supplied by the dock owner for immediate use in
the dock, of which the control is not retained by the dock owner, to the extent of using reasonable care as to
the state of the articles when delivered by him to the ship under repair for immediate use in relation to the
repairs. For any neglect of those having control of the ship and the appliances he would not be liable, and
[1881-85] All ER Rep 35 at 43

to establish his liability it must be proved that the defect which caused the accident existed at the time when
the article was supplied by the dock owner.

Blakemore v Bristol and Exeter Rail Co (12) may be relied on as at variance with the opinion thus expressed
by me, but I think that the objection is not well founded. If the plaintiff is to be considered as a volunteer,
there would be no implied request or invitation to him by the defendant to use the dock and the appliances
provided. But he was there for the purpose of work, for the due execution of which the defendant received
the ship into his dock, and the defendant received payment as remuneration for allowing the work to be done
in his dock, and for providing the necessary appliances for enabling it to be done. The plaintiff was, therefore,
engaged in work, in the performance of which the defendant was interested, and he cannot be looked upon
in the light of a volunteer. Whether the court was right in Blakemore Case (12) in treating the plaintiff as a
volunteer may be a question. But, as the ground of the decision is that he was so, that circumstance
prevents the case being an authority inconsistent in principle with the conclusion at which I have arrived.

This decides this appeal in favour of the plaintiff, and I am unwilling to concur with the Master of the Rolls in
laying down unnecessarily the larger principle which he entertains, inasmuch as there are many cases in
which the principle was impliedly negatived. Take, for instance, Langridge v. Levy (1) to which the principle, if
it existed, would have applied. But the judges who decided that case based their judgment on the fraudulent
representation made to the father of the plaintiff by the defendant. In other cases, where that decision has
been referred to, judges have treated fraud as the ground of the decision, Re was done by COLERIDGE J, in
Blakemore v Bristol and Exeter Rail Co (12); and in Collis v Selden (8) WILLER J, says that the judgment in
Langridge v Levy (1) was based on the fraud of the defendant. This impliedly negatives the existence of the
larger general principle which is relied on, and the decisions in Collie v Selden (8) and in Longmeid v
Holliday (10) in each of which the plaintiff failed, are, in my opinion, at variance with the principle contended
for. George v Skivington (2) and especially what is said by CLEASBY B, in giving judgment in that case,
seems to support the existence of the general principle, but it is not in terms laid down that any such principle
exists, and that case was decided by CLEASBY B, on the ground that the negligence of the defendant, which
was his own personal negligence, was equivalent, for the purposes of the action, to fraud, on which, as he
said, the decision in Langridge v Levy (1) was based.

In declining to concur in laying down the principle enunciated by the Master of the Rolls, I in no way intimate
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any doubt as to the principle that anyone who leaves a dangerous instrument, such as a gun, in such a way
as to cause danger, or who, without due warning, supplies to others for use an instrument or thing which to
his knowledge, from its construction or otherwise, is in such a condition as to cause danger not necessarily
incident to the use of such instrument or thing, is liable for injury caused to others by reason of his negligent
act. For the reasons stated I agree that the plaintiff is entitled to judgment, though I do not entirely concur
with the reasoning of the Master of the Rolls.

Judgment reversed.

Solicitors: E J Anning; Watson, Sons & Room.

Reported by PB HUTCHINS, ESQ, Barrister-at-Law.