MZUMBE UNIVERSITY

FACULTY OF LAW

NAME: AMINA JUMA

REGISTRATION NUMBER: 113012537/T.19

PROGRAMME: LLB 1

SUBJECT NAME: LEGAL METHOD II

SUBJECT CODE: LAW 121

NAME OF THE LECTURE: DR. F.TEMBA

NATURE OF THE WORK: INDIVIDUAL ASSIGNMENT

STREAM: A

QUESTION
a) Read Appendix A1 i.e. the case of Winterbottom v. Wright [1842] 10 M & W 109 and
prepare the detailed material facts, issues, arguments, positions of Lord Abinger, C.B., B,
Aldreson B., and Rolfe B on the basis of development of law of negligence.

b) Guided by the positions of Lord Abinger, C.B., Aldreson B., and Rolfe B, discuss the turning
point towards the development of the law of negligence showing similarities and differences
evident in Winterbottom v. Wright and cases of Heaven v. Pender [1883] BABD 503,Le Lievre
& Dennes v. Gould, [1893] 1 QB 491,Nocton v. Lord Ashburton [1914] AC 932,Donoghue v.
Stevenson, [1932] AC 562,Farr v. Butters Bros & Company [1932] 2 K.B. 66, and Grant v.
Australian Knitting Mills (1936) AC 85.

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 WORK OUTLINE

(A) CASE NOTE OF WINTERBOTTOM VWRIGHT…………………………………………1

(B)DEVELOPMENT OF THE LAW OF NEGLIGENCE SHOWING SIMILARITIES AND
DIFFERENTS…………………………………………………………………………………….2

i
 (A) Material Facts
The plaintiff Winterbottom had been contracted by the post master General to drive a mail coach
supplied by the postmaster. The defendant Wright had been contracted by the post master to
maintain the couch in a safe state. The coach collapsed while Winterbottom was driving and he
was injured. He claimed that Wright had “negligent conducted himself and so utterly disregarded
his aforesaid contract and so wholly and negligent failed to perform his duty in this behalf”.
Issues

Whether there is a privity to contract between the parties to the case?

Arguments
Plaintiff Arguments that Winterbottom sought to extend the ratio decidendi of the court in
langgride V levy1 but the court reject this on the grounds that, that case involved a gun whose
safety had been misrepresented by the vendor
Defendant Arguments he objected that the declaration was bad in substance. According to him
the general rule state that when the wrong arise out of breach of contract, only the party to the
contract alone can sue.

Lord Abinger argues that there is no privity to contract between these parties. If the plaintiff can
sue every passenger or even any person passing along the road who was injured by upsetting of
the couch might bring a similar action.

Rolff, B Aron argue that there was no breach of duty of defendant since there was no contract
between parties and plaintiff cannot grant for remedy. If the plaintiff were able to sue “there
would be unlimited actions” and the public utility of the postmaster general was such that
allowing such actions would be undesirable for society.

Alderson argue that the judgment must therefore be for the defendant

Holding; Winterbottom could not maintain an action against Wright for an injury sustained by
him while driving the coach by its breaking down from latent defects in its construction.
Judgment for defendant

1
[1837] 2M &W 519

1
Ratio decidendi: where there is no contract or the injured party is not privy to it no action will
be lie.

(B)Legal reasoning is the reasoning from case to case, it is an attempt to describe generally the
process of legal reasoning in the field of the case law and in the interpretation of the statute and
the constitution2, it refers to all kind of reasoning that are appropriate to recommending or
justifying a conclusion on a question of law in a certain legal system. According to JULIUS
STONE, he once said that;

Legal reasoning refers to whole range of reasoning appropriate for the various kind of
the intellectual task typically undertaken by lawyers in their professional capacity, basing on this
definition it brings the need to understand the concept of logic

Historically, legal reasoning is originated from the development of law of negligence from 17 th
century during industrial revolution, until the year 1932 in the case of Donoghue V Stevenson 3,
where the law of negligence obtained momentum, where by the judges were in the position to
use different kinds of reasoning, in order to reach the just decision and for the same to avoid to
open the Pandora’s box4.

The development of law of negligence went hand in hand with the development of the types, of
forms of reasoning such as reasoning by examples, priori or deductive reasoning, posteriori or
inductive reasoning, and judicial hunching. The main object of legal reasoning is to assist judges
in planning, organizing, management, conflicting resolution, analyze statutes with the purpose of
essential fact accurately, it involve thinking in tactical way terms designing statutes and legal
institution {J. stone}5.

SIMILARITIES
In the case of Winterbottom V Wright 6 and Leievre Diennes V Gould 7 , this case were both
show that a third party to a contract cannot sue as the party has no interest on contract and the
court can not granted him /her any remedies. Brett M state that the question of liability for

2
E.H Levi, An Introduction to Legal Reasoning, P1.
3
[1932] A.C 562
4
(Hanson, 2003)
5
Ibid
6
Ibid
7
[1983] 1 QB 491

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negligence offence cannot arose at all because the plaintiff do not own a duty of care from
defendant .Brett M.R observe that (What duty is there if there is no relationship between
parties?) As the same as the Lord Abinger, LordAlderson ,Rolfer B provided in the case of
Winterbottom that a plaintiff cannot granted for remedies if he was not privy to contract.

DIFFERENTS
Difference between in the case of Wintetbuttom V Wright8and the case of Heaven V Pender9,The
position held by Lord Abinger, Lord Alderson and Rolfer B in the case of Winterbuttom were in
agreement that some circumstances the plaintiff cannot granted to recover because he was not
privy to the contract While According to Brett M.R there were privity to contract between the
parties and every person owned a duty of care to another person /property as ordinary care and
skills to avoid one from the danger. It consist the general rule duty of care.

In the case of winterbuttom V Wright10 and Leievre&Diennes V Gould11 the position held by
Lord Abinger ,Lord Alderson and Rolfer B provide that a plaintiff cannot granted for remedies if
he /she not privity to contract while in another case Bowen Lj state that an action of decent must
be based on frauds that negligence is not itself fraud, although there is high probability in some
cases that there is a fraud.

In the case of Winterbuttom V Wright and 12 Nocton V Ashburton 13Show the different between
them whereby in the case of Nocton provide that when a person renders advice to another, the
Advisee fall within a fiduciary relationship with Adviser, if the advisee suffered the loss due to
advice then Adviser will be liable while in the Winterbuttom there was no duty of care for
anyone.

In the case of Winterbuttom V Wright 14 and Donoghue V Steveson15 whereby the position of
Lord Atik, Lord Macmillan, Lord Bukmaster as per case of Donoghue state that the complainant
to be granted with damages must show that there are breach of duty which caused injures to him
or her in circumstances that defendant to take a reasonable action to avoid such injures. Also
8
[1842]10M & W 109
9
[1883] BABD 503
10
Ibid
11
[1893] 1 QB 491
12
Ibid
13
[1914]AC.932
14
Ibid
15
[1932]AC 562 HL

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there is rule of loving your neighbor in the law that your action should not affect your neighbor
while in the case of Winterbuttom the Lords provide that a plaintiff cannot grant remedies if
there is no privity between the parties to the case.

In the case Winterbuttom V Wright16 and case of Farr V Butters Bros & Company17 Scrutton LJ
in a case of Farr state that a person should take care of himself if he reasonable foresees the
action or damages and the negligence caused by plaintiff himself do not amount to negligence in
tort while in the case of winterbuttom there was no negligence at all and it was concerning about
privity to contract.

In the case Winterbuttom V Wright18 Grant V Australian Knitting Mills19 WHEREBY Lord
Wright in a case of Grant state that decision of Donoghue V steveson 20 treats negligence where
there is a duty of care in a tort and not in some more complex relationship which have no
relationship in the contract. Also there must be a breach of duty for a plaintiff to institute the case
and if the tact involves lack of duty care then no cause of actionable negligence will arise while
in the case of winterbuttom Lord Abinger C.B stated that the plaintiff cannot granted to recover
because he was not privy to the contract.

Legal reasoning is very important in the whole process is reaching the just decision, simply
because the laws are not clear before, and if a rule had to be clear before it could be imposed,
society would be impossible. Hence, the judge before reaching the conclusion has to pass
through several reasoning, like reasoning by analogy, deductive reasoning, inductive reasoning
and judicial hunching in order to reach the just decision, and it is not advisable that a judge
should rely on a single pattern of reasoning, if possible he/she has to apply the all kinds of
reasoning to reach the just reasoning.

REFERENCES

16
[1842]10M & W 109
17
[1932]2K..B.66
18
Ibid
19
(1936) AC 85
20
[1932]AC 562

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BOOKS

E.H. Levi, (1949). An Introduction to Legal Reasoning: University of Chicago Press.

C.S. Binamungu & M.C. Mukoyogo, (2005). Studying Law Skills. Mzumbe book project
Hanson, S. (2003). Legal Method & Reasoning 2nd Edition . London: Cavendish Publishing
Limited.

CASES
Donoghue V Steveson[1932] AC 562
Farr V Butters Bros & Company [1932] 2 K.B. 66
Grant V Australian Knitting Mills (19360 AC 85
Heaven V Pender [1883] BABD 503
Le Lievre & Dennes V Gould [1893] 1QB 491
Nocton V Lord Ashburton[1914] AC 932
Winterbuttom V Wright [1842] 10M & W 109