I: INTRODUCTION TO CASE LAW TECHNIQUE

Theories of Adjudication
 Modern legal theory is concerned with exploration of inner workings of the
judicial system.
 The Earlier attitude was to regard the judiciary as the priests of the law:
repositories of its ancient rules and traditions; that decisions were distilled in a
mysterious way; that judges never create law but declare fresh applications of
the ancient rules.
 In modern days the legal system has been gradually remolded (precedents co
exist with statutes).

The Nature of Legal Sources:

Legal sources are the raw materials of judicial process. The rule is that judicial
decisions have the same source of Law. The ultimate principles are the
Grundnorm or the basic rules of recognition of the legal system (Salmond, Hans
Kelsen and Hart). These are the ultimate principles: rules of Law.
According to Hart, Acts of Parliament and judicial decisions have the force of law
because judges, officials and private Citizens recognize that primary rules are to
be identified by reference to a certain Criteria- enactment by legislature makes
law; judicial pronouncements bind other courts in the hierarchy (Refer to Module
V). Rules of precedent are not rules of law but rules of practice, understanding
them requires a detailed study of the actual behaviour of the judiciary.

Common Law
The Common Law system is a customary system of law, consisting of a body of
practices observed and ideas received by a caste of lawyers (judges, advocates,
and solicitors).

Institutions of Adjudication
The role of the judges represents an entire Institutional nexus of conduct. The
role of a judge stands in relationship to other roles, the totality which comprises

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the institutions of law. An understanding of the judicial process requires
cognition of this Institutional nexus of conduct.
Every institution embodies some degree of consensus about how it is to operate.
There are a number of shared expectations, which define the role of the judge.
Judges are part of the legal order, part of a society in which human conduct is
governed by rules. Judges are instituted as one of the ways in which society
resolves conflict.
The paradigm (theoretical framework) of a rational decision is one reached
according to rules, principles or standards (Dworkin).
Adjudication according to rules means that an ad hoc decision-making process is
deprecated. It points that a judge must conform to established rules (formalism).
This does not mean that the judge has the largely mechanical job of mere
application of an existing rule to a new state of facts.
Behind the demand that adjudication according to rules is a rational process of
decision-making, lies in a belief in formal justice that is satisfied by giving like
cases like treatment.

But rules must not be taken as ends in themselves. Conceptualism (legalism) is a

vice to which lawyers all too readily succumb.
Rules are a means to an end, purposive instruments. They embody social
objectives and policy choices. Thus when a judge confronts a rule is not met by a
bloodless category but by a living organism which contains within itself value
choices.

The judge must choose and in doing so he makes law, but his choice is too
limited. To understand why adjudication according to rules is posited as an Ideal
to which judges should conform, one must understand the role that litigants and
their advisors perform in the judicial process (Ref. Module Three). The
adjudicative process is one of constant interaction between judges, the legal
profession, litigants and the wider public. It would collapse if the volume of
business were not kept within manageable proportions.

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Knowledge that judges adjudicate according to established rules enables the
volume of litigation to be contained:
 it facilitates the channeling of behaviors in order to keep it within the
perimeters of authoritative norm;

 it confers on the litigants’ advisers the ability to settle a case out of Court;
[ADR= Alternative Dispute Resolution: Reconciliation mediation and
Arbitration playing on important role]

 it enables litigants and their advisers to participate meaningfully in the

adjudicative process;

According to Lon Fuller adjudication is a social process of decision which ensures

for the affected party a particular form of participation, that of presenting proofs
and arguments for a decision in his/her favour. The essence of the rule of law is
that “men affected by the decision which emerge from the social process should
have some formerly guaranteed opportunity to effect those decisions.
Lawyers must experience vicariously the judges’ process of reasoning.
Adjudication enables them to do this.

Justiciability
A dispute may be justiciable when there are at least principles acceptable
to lawyers or a high degree of consensus among society as to the proper
goals to be pursued or standards against which a judge can reason.
In National Bank of Greece v Methiss [1958] AC 509, 525 Viscount
Simonds said:
---in the end and in the absence of authority binding this House,
the question is simply; What does justice demand in such a
case?--------if I have to base my opinion on any principle, I would
venture to say it was the principle of natural justice*

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Law, Justice and morality

The Concept of justice

 Justice is about fair application of legal rules where two parties are before
the court, it is anxiomatic to judicial proceedings that each must be given a
fair hearing.
It would be wrong for one of those parties (Where two individuals or the
state and an individual) to act as a judge of his own cause. Both principles
belong to what is known as Natural Justice.
 Courts have evolved their own rules of evidence to ensure that fair trial
takes place i.e. when a jury in a criminal case sits, the judge will inevitably
tell its members that it is the judge’s job to interpreter the law and that it is
the juror’s job to decide upon facts.

 Justice is concerned with content – Law should be fair and reasonable in

themselves per se.

 Natural justice and Judicial Review Lord Denning (as he then was) in RV
Secretary of State for Home Department expert Santillo (1981) said that;
The rules of natural justice or of fairness, were not cut and dried.
They varied infinitely. What should also be emphasized is that,
strictly speaking, natural justice is not so much a source of law as a
collection of procedural rules by which legal rules themselves may
be considered and applied. In that way, we may refer to rules
about rules. In practice, however, an important set of procedures
becomes almost a source of law itself, and in this respect it is
convenient to consider natural justice at this stage, side by side
with the ‘true’ source of law.

*No man can be a judge in his own cause. The right to be heard and defend
oneself A man cannot be punished twice for the same offence.

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Two principal rules of Natural Justice
 nemojudex in causa sua (nobody may be a judge in his own cause)

 Audi altem partem (hear the other side, each party to a dispute
must be given a fair hearing).

Justice must always be seen to be done.

Justifiability depends not only on the existence of amenable rules

and standards. A dispute is not appropriate for adjudication when
it involves a multiplicity of variable and interlocking factors,
decisions on each of which presupposes decisions on all the others.

Law and morality case study:

In 1971 a nine year-old three wheeled Reliant Car was purchased at an
auction sale in Manzese. The car was in dangerous condition, but the
successful bidder intended to cannibalise it for spares. After the auction a
disappointed bidder offered the purchaser another Shs. 100,000/= for the
vehicle; the purchaser accepted the offer. The second purchaser who
unlike the original seller at auction, the proprietor of a small garage, had
no special knowledge of cars, drove the Reliant Car away and was killed a
few days later in an accident. His passenger, who now brought the action
against the garage owner, Mr. Mikono, was permanently injured.
The trial judge, Mr. Maneno awarded the passenger, Shs. 1,146,000, but
the Full Bench of the High Court reversed the decision. The Court of
Appeal held, too that the seller was not legally obliged to warn the second
purchaser of cars dangerously defective state.
Were moral, ethical or religious considerations entirely separate issue?
How would you argue the case? [Hurley v Dyke (1979) RTR 265]
Note:
Religion tries to account for the reality of the world as we see it linked to a
spiritual world, that link may be symbolized by ritual and practices which

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go far beyond the mere wearing of robes and wigs by Barristers and
judges. Compliance may be more difficult to enforce in religion.
Morality is a close relation but can be a generalized behaviour. It is a
system for right living that is frequently shared by an entire community. It
sounds like a legal system, but it is much wider in application, particularly
if morality is seen not as much as a community based system of an
individual code in short a person’s conscience.
Morality and law clash most frequently in the area of customs. Crime,
sin and the law can appear to become hopelessly entangled. Society
requires certain moral principles to be observed, even if public opinion
was slowly changing, the breach of those principles, in the mean time was
still an offence against society as a whole and not merely against the
injured party.
There must be a clearer separation of law and private morality, morality in
the sense that it is a matte of private judgement.
See Paul Denham’s, Law: A Modern Intruduction , 4th Edn Hodder &
Stonghtoro, 1999 pp 6-37; Dr. Avter Singh, Introduction to
Jurisprudence, Repr. Ed. 2005 pp 104-111], see also The Sexual
Offences Special Provisions Act. The Penal Code Cap 16 offences of
Murder.

Stare Decisis (Stand by what was Decided Before)

To follow past decisions is a natural and indeed a necessary procedure in
everyday affairs precedents have to be established as guides to future
conduct, and this applies not merely to legal systems but to all rule and
non-rule creating bodies, whether clubs, government departments,
schools, business firms or churches.
The Danger is the tendency to follow past precedents may lead to
stereotyped procedures and to stultify progress. Much of the working
success of any organization may depend on its ability to apply precedents
creatively. Precedents have always been a lifeblood of legal systems.

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 It is particularly prominent in the common law, but barely less so in
modern Civil law countries. The special features of the present day
common law system of precedents can be summarized as follows:
 a particular emphasis on judicial decisions as the core of the legal
system;
 A very subordinate role considered to juristic writings, as against
decisions of courts, in the exposition the laws;
 the treatment of certain judicial decisions as binding on other
judges; and
 The form of judicial judgements and the mode of reporting these.
Why Precedents? Three Models
The Natural Law Model
 Past decisions naturally generate reasons for deciding cases in the
same way as previous ones.
 Equality and reliance are the reasons (Alexander)
 Universal sense of justice: All men have to be properly treated in
like circumstances (Llewellyn). Reliance not upsetting
expectations a value that courts should take into account.

The Rule Model

The precedent court has authority not only to decide a case before
it but also to promulgate a general rule binding on courts
subordinate and equal rank. The rules upon which actors
justifiably rely.

The Result Model

The result is reached in the precedent case rather than any rule
explicitly or implicitly endorsed by the precedent court is what
binds. According to Dworkin the result model reflects “Law as
integrity” while the rule model is “Conventionalism”

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 Note: Our courts follow positivistic thinking about law and its sources,
and this may bear out our sense of judicial practice.

Judges and Discretion

Judges fill in the gaps left by rules by using their discretion.
According to Dworkin judicial discretion in the strong sense of the
word does not exist.
Judges do not act as deputy legislators because:
 It offends the democratic idea that a community should be
governed by elected officials answerable to the electorate.
 Judges, not being elected, must not substitute their own will
as against the legislator.
o Ndyanabos case (The judgment of Kimaro J & CA)
o Mbushuu’s case
o Bi Hawa Mohamed’s case

Simple Cases and Hard Cases

(a) Simple Case is a case in which the facts (material facts) exactly answer to
the requirements of a rule of law. The rule of law becomes the major
premise, the facts the minor premise and the conclusion is reached by
using a Syllogism. Cases decided on the above are said to have been
decided through formalism. [The Judgment of Kyando & Ihema JJ in
Ndyanabo’s Case]

Hard Cases
A ‘hard case’ is one where the rules of law are clear, but the result
they require is hard or harsh.
For example (a) in the Case of Hutchison (1988:23):
In 1987 a swimming meet took place at the University of
Toronto. Most of the races proceeded as planned. But, at
the end of the race, there was a challenge to the winner of
the race.

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 The appropriate group of officials convened. The
deliberations were lengthy and tense. After much argument
and posing over the rules, a decision was announced: the
Winner had been disqualified and the second winner
acclaimed as Victor.
The referee offered a brief justification of the Committee’s
decision- The rules were clear- The Winner is the first
Swimmer to touch the side of the pool with both hands; and
if this regrettable outcome is to be avoided in the future, it
will be necessary to change the rules: The Winning
Swimmer had only one arm. [Hard cases make bad Law.]

(b) In Regina (Quintavale) V Secretary of State of Health

[2002] 2 All ER 625
Under regulations made pursuant to the Health Fertilization
and Embrology
Act, 1990 the government (Britain) licensed research using
embryos created in Vitro.
Since the passing of the Act a new method of creating such
embryos was developed, embryos, which could only be
included in the statutory definition of embryos as the Court
acknowledged, by straining the statutory language. The
prospects of leaving the creation of embryos and research
of such embryos completely unregulated was so appealing
to the court that they regarded the purposive interpretation
of statutes to be legitimate even though it would involve a
gymnastic interpretation effort. See Appendix I

2. Inputs in the Judicial Decision Making Process:

By inputs we refer to the concepts or terms used in understanding how
Case Law Technique works. Such concepts as Common Law, equity,
facts, material facts, issues, holding, ratio delidendi, obiter dicta or dictum,

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stare decisis distinguishing of cases, precedents, hierarchy of courts,
analogy, induction, deduction, judicial hunch, positivism, bold spirits,
timorous souls, contract, fraud, fiduciary relationship, owner-invitee
relationship, duty of care, negligence (proximity) etc.

Before we define the above concepts in relation to the Judicial Decision-

Making Process, it is important to note that the above will be used in Case
Law technique. The anatomy of a given case is as follows:
 The Name of the Case and its citation i.e Heaven v Pender [1883]
IIQBD503

 Coram: Name(s) of the judge(s) who decided the case

 Case history (whether from Primary Court to Court of Appeal and

the like type of information)

 Material Facts (relevant facts related to law-and the relationship of

the litigants- the complaint or accusation before the Court)

 Issue(s) Question(s) which the court is called upon to decide

normally appearing in a statement(s) “whether------------“.
Questions must relate to accusations (material facts) presented by
litigants.

 Holding (refer to “in whose favour the court decides – whether the
plaintiff or the defendant, the accused or the prosecution. It is
found at the end of the judgement------“we dismiss the
appeal------“.

 Ratio Decidendi- reasons for the decision or reaching the above

holding-statement of law relating to facts and issues raised in the
case

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  Obiter dicta (dictum) statements of law by the way or which have
no bearing to legally stated facts issues and holding
if….then……………

 Order of the court (in relation to the claim i.e. property or person if
in custody etc).

For more details read Mukoyogo Legal Method I page 87-94; see also C.S.
Binamungu & M.C. Mukoyogo, Studying Law Skills, Mzumbe Book Project,
2005pp 107-128

Doctrine of Precedent
The doctrine of precedent operates within the requirements of the doctrine of Stare
Decisis. The doctrine of Precedent is the practical application of Stare decisis.

Stare decisis requires that courts or judges are bound by their previous decisions in cases
where material facts are the same. It is a doctrine which looks for certainty, uniformity
ascertain ability in the law, while allowing some flexibility. Flexibility is realized
through the doctrine of precedent which not only operates within the hierarchical manner
of courts but also gives ability to courts to develop new rules or discover them in the
course of making decisions in situations which may appear novel or different from those
previously considered.
For example in case (a) the court may find that facts ABC (reckless driving, defective
brakes, and a pedestrian who was drunk) relevant in apportioning the extent of liability in
a rundown case. It may find that the driver was liable to the extent of 65% and the
pedestrian (injured party) liable for 35% negligence. The amount of damages payable by
the driver (or whoever is liable to pay) will take into consideration the extent of liability
involved on his part. This might be a precedent case in future.

In Case (b) the Court may find that facts A, B and C (reckless driver, defective brakes
and slippery road) present but further find that C (pedestrian was driving on the right side

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of the road and not in a drunken state of mind). The latter fact situation may lead a court
to say that the facts in case (a) are distinguishable from those in case (b) and therefore
further that case (a) is not entirely precedent or authoritative case in deciding case (b) or
if the court chose to use the authority of case (a) then it must further say that the driver of
the lorry will have to bear an entire blame in the accident as opposed to what happened in
case (a).

Distinguishing- What is distinguishing in Case Law Technique?

According to Glanville Williams Learning the Law 1982 75 – 77) distinguishing is the
process of cutting down the express ration decidendi of a case. It can take the form of
“restrictive distinguishing” or “non-restrictive distinguishing”. Non-restrictive
distinguishing occurs where a court accepts the express ratio decidendi of the earlier case
and does not seek to curtail it, but finds that the case before it does not fall within the
ratio decidendi because of some material differences of fact (Langridge V Levy and
Winter Bottom and Wright).

Restrictive Distinguishing cuts down the express ratio decidendi of the earlier case by
treating as material facts to the earlier decision some fact, present in the earlier case,
which the earlier Court regarded immaterial, or by introducing a qualification (exception)
into the rule stated by the earlier court.

This manner of distinguishing is said to play a very important role in legal argument.

Common Law: According to Glanville Williams, Teaching the Law, 11th Edn. London,
Stevens & sons 1982 Ch.2 Common Law originally meant the law of England that was
not local, that is the law that was common to the whole of England. The phrase may also
signify the law that is not a result of Parliament [legislature] but that which was created
by the customs of the people and the decisions of the courts (judges). It can also mean
that law which is not equity (the law developed by the Courts of Chancery). Common
law may also mean statutory modifications of the common law. Lastly it may mean that
law which is not foreign, in other words, the law of England when compared to the law of
America, Canada or any other Country.

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Equity: What is meant by the term equity?
According to Glaville Williams (Ibid) the term Equity in ordinary language means natural
justice, this is so because originally the system was inspired by ideas of natural justice
and therefore the origin of the name. Equity is law in the sense that it is part of the law of
England but not in the sense that Common Law carries.
Facts/Material Facts of a case: What is the difference between facts (as they exist
in life) and material facts (in the legal sense)? The term facts refers to normal facts of
life. For example in a normal happening like a car or vehicle accident which may cause
injury to another person, the following may be categorized as facts: the driver of the car
or lorry may be described to have been tall, with a long beared, dressed in a blue shirt,
brown jacket and white trousers. The same driver may be described to have been driving
fast a vehicle which had defective brakes, at the time of driving it was raining and the
road was slippery. The injured person may bear the description that he was riding on a
bicycle, on the right side of the road, dressed in a White Kanzu and was also drunk.

All what may constitute facts but for the purposes of the law of negligence the following
facts may be categorized as legally relevant or material facts: the fact that the driver of
the car or lorry was driving fast, that the car or lorry or vehicle had defective brakes, and
on the part of the injured person, the fact that he was riding on a bicycle while in a
drunken state.
It will be noted that the manner material facts are sorted out of a mass of facts to
constitute material facts has given rise so some controversy which will be dealt with later.
[Read: Dr Avtar Singh, Introduction to Jurisprudence Repr. Edn 2005 pp 88 – 91]

Issue(s) What is an issue or issue? The concept of issue(s) refers to the point(s) in
dispute and the question or questions which the court is called upon to answer in the
course of hearing the matter and making a decision in the course of the judgement. The
answer to the question(s) by the court (judge) leads towards the determination of the rule
of the case or ration decidendi and other statements of the law by the way (obiter dicta or
dictum) which may be of use to the future courts.

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Holding: What is a holding in a given case? A holding in a given case refers to the
actual decision of the court i.e. in whose favour the matter is actually decided. It may be
in favour of the defendant or the plaintiff. It is the holding which then helps the reader of
the case or future court looking at a precedent case in point, to determine the rule(s) of
the case ratio decidendi of rationes decidendi. It is always found at the end of a
judgement. It takes the expression of “Rule discharged,” “Order accordingly”, dismiss
the application with costs”, the appeal allowed”, the appeal must succeed”, “Appeal
dismissed” and the like, once one is able to find such a conclusion or holding, it should
be easy to extract the rule of the case (Ratio decidendi).

Ratio Decidendi: What is Ratio Decidendi?

English courts make a habit of following their previous decisions within more or less
defined limits. This is called the doctrine of precedent. That part of the case that is said
to possess authority is the ration decidendi, that is to say, the rule upon which the
decision is founded. Finding the ratio decidendi of a case is an important part of the
training of a lawyer. There is a relationship between material facts, issues, holding and
the ration decidendi. Determining the ratio decidendi of a case is not a mechanical
process but an art that one gradually acquires through study and practice [Glanville
Williams, Learning the Law, London Steven and sons 1992 ch.6]

As you might have noted in the above passage the concept of ratio decidendi refers to that
part of the case that is said to possess authority. It constitutes the reason for the decision
as well as the rule of the case.
It must be emphasized that for you to appreciate how to extract the ratio decidendi of the
case, you will have to constantly keep reading the whole case by yourself and not to
depend on the notes prepared either by your teacher or fellow student or the head note of
a case (if that case has been reported in a Law Report).

Obiter Dicta: Obiter dicta or dictum is a mere saying by the way, a chance remark in the
course of the judgement or decision by the court (judge(s) which is not binding upon
future courts. Such a statement, chance remark or proposition may be respected by a

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future court or judge depending on the reputation of the judge or the eminence of the
court and the circumstances under which it was announced.

Obiter dicta is a rule of law stated merely by the way, of analogy or illustration or
suggestion of a rule upon which the decision is not finally rested. It is not regarded as
binding because it may have been made without full consideration of the cases in point, it
may have been made without full consideration of all the consequences that may follow
from it.
It is a rule of law based on hypothetical facts. A judge in the course judgement may say:
“I decide for the defendant, but if the facts had been properly pleaded, then should I have
decided in favour of the plaintiff”.
Other examples of Obiter Dicta can be found in the following cases:
 Per Brett MR. in Heaven V Pender [1883] 11QBD508
 Per Lord Esher (Former Brett, MR) in Lelievre V Gould [1893] 1QB491
 Kiriri Cotton V Dewani, [1960] EA 188
 R.F. Mboya V Mewa Singh Mangaat [1969] HCD no 1
 Lord Atkin in Donoghne V Stevenson [1932] AC562 at 580 where he attempted
to lay down a general test for determining when a notional duty of care arises in
the tort of negligence. His dictum has become known as the neighbour test’ and
was expressed in these words:
You must take reasonable 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 emphasizing 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 acts or
omissions which are called in question.

This dictum, though clearly obiter, has been quoted in subsequent cases Home Offices
Dorset Yatch Co Ltd [1970] AC 1004 (HL) Lord Reid.
[See T. Ingman, The English Legal Process 8th Edn. Blackstone Publishers 2000 p 327;
Dr. Avter Sing, Introduction to Jurisprudence, Repr.Edn.2005 pp179-180] Hierarchy of
Courts (see Module V)

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  Julius Ishengoma V AG, Misc.
Civil Appeal No. 2 of 2001 (HC) Kimaro J (dissenting Judgement) is Obiter
Dicta.
Analogy What is meant by analogy? According to Professor Edward Levi in his book
Introduction to Legal Reasoning, The University of Chicago Press, Chicago/London 1948
means reasoning by example. The same argument appears in Farrar, J; Introduction to
Legal Method. London 1977 Appendix 3 and in Twining, W & Miers, D: How To Do
Things With Rules London 1992 (3rd Edn) [[260-63 & 304 – 309.]
Reasoning by analogy (sometimes reasoning by example) is typically reasoning from
particular to particular. According to Hospers: An analogy is simply a comparison, and
an argument from analogy is an argument from comparison. An argument by analogy
begins with a comparison between two things X and Y. It then proceeds to argue that
those two things are alike in certain respects A, B, C and concludes that therefore they are
also alike in another respect, D, in which they have not been observed to resemble one
another…..
It will be apparent at once that an argument by analogy is never conclusive.
A classical statement made by Professor Edward Levi:
The basic pattern of legal reasoning is reasoning by example. It is
reasoning from case to case. It is a three-step process described by the
doctrine of precedent in which a proposition descriptive of the first case is
made applicable to the second case…The finding of similarly or difference
is the key step in the legal process”.
Twining & Miers 1992 pp260-261 suggest that such a description is an over
simplification of the part played by reasoning by analogy or example in legal reasoning.
But they encourage readers to read Professor Levi’s proposition because it is important in
interpretation especially for its explicit account of the manner in which common law
concepts and doctrines quietly adapt to new situations and changing needs in the process
of application in that “the rules change as the rules are applied.

Inductive Reasoning What is meant by Inductive reasoning? According to Twining &

Mers Ibid 259-260:

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 Typically, inductive reasoning is reasoning from particular to general, but the
term may be used in a broader sense to encompass all kinds of reasoning in which
the premises, support but do not compel, the conclusion. The following are
examples of inductive reasoning:
In case (a) elements a, b, c, d and e were present and the plaintiff succeeds. In
case (c) elements a, b, c, d, and e were present and the plaintiff succeeds.
Conclusion: in all cases in which element a, b, c, d, and e are present the plaintiff
should succeed.
Such type of reasoning will be noted when reading the case of Heaven V Penda, [1883]
llQBD 503 especially the decision of Brett, MR.
According to Twining & Miers inductive reasoning is concerned with probabilities, and
in normative contexts it is more accurate to talk of the relative strength or cogency of
(inconclusive) reasons (lbid: 260). It is possible to develop new rules through inductive
reasoning.

Read also Irvin C Rutter “A Jurisprudence of Lawyers’ Operation” in Vol.13 Journal of

Legal Education (1960-61) pp 301-306.

Deductive Reasoning What is deductive Reasoning? Again according to Twining &

Miers lbid deductive reasoning moves from general to particular. It involves the use of
Syllogisms;
1. Major Premise Whosoever being married and who shall go through a form
and ceremony of marriage recognized by law, ought to be convicted of the
offence of bigamy.
Minor Premise Allen being married, went through a form and ceremony of
marriage recognized by law.
Conclusion: Allen ought to be convicted of the offence of bigamy.

2. In Deduction the conclusion must follow from the premises as a matter of

logical necessity; if you accept the premises you must accept the conclusion,
as it is logically compelling or conclusive.
Deduction plays an important part in interpretation of statutes.

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 It must be remembered that deductive reasoning is a closed system of
reasoning. It operates where you have already known rules either those laid in
case law or in statutes and the facts of the case are said to subsume into the
rule of law out of which a conclusion is reached.

Also Read: Binamungu & Mukoyogo, Studying Law Skills, Mzumbe Book
Project 2005 pp 119- 128.

Cf. Irvin C Rutter, “A Jurisprudence of Lawyers’ Operations” Vol –13 Journal of Legal
Education (1960 – 61) pp 301 – 306

Judicial Hunch or Judges Predisposition.

The terms judicial hunch or judges predisposition refer to the motivations behind a
judicial decision. The attitude of the judges, their thought traditions, judge’s
preoccupations, intuitions or the basis of the judges’ values which prevail in the
community. The judicial hunch can be determined by examining the language which is
employed by a judge in trying to justify a decision reached or to be reached.
For example Parke, B in Langridge V. Levy made the following remarks:
We should pause before we made a precedent by our decision which would be
authority for an action against the vendors, even of such instruments and articles
as are dangerous in themselves, at the suit of any person whomsoever into whose
hands they might happen to pass, and who should be injured thereby.

Bowen LJ in Lehievre V Gould categorically stated:

The question of liability for negligence cannot arise at all until it is established
that the man who has been negligent owed some duty of care to the person who
seeks to make him liable for negligence. What duty is there when there is no
relationship between the parties by contract? A man is entitled to be as negligent
as he pleases toward the whole World if he owes no duty to them.

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Lord Atkin in Donoghue V Stevenson [1932] AC562 at 599
My Lords, if your Lordships accepts the view that this pleading discloses a
relevant cause of action you will be affirming the proposition that by Scots and
English law alike a manufacturer of products who 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 possibility of intermediate examination, and with the
knowledge that in the absence of reasonable care in the preparation or putting up
of the products will result into an injury to the consumer to take that reasonable
care.
It is a proposition which I venture to say no one in Scotland or England who is not
a lawyer would for a moment doubt. It will be of an advantage to make it clear
that the law in this matter, as in almost other, is in accordance with sound
common sense.
At present I content myself with pointing out that in English law there must be,
and is, some general conception of relations giving rise to a duty of care, or which
the particular cases found in the books are but instances. The liability for
negligence, whether you style it as such or treat it as in other systems as species of
“culpa”, is no doubt based upon a general public sentiment of moral wrong doing
for which the offender must pay…..the rule that you love your neighbour
becomes, in law you must not injure your neighbour: and the lawyers’ 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.

Lord Wilberforce having referred to Lord Atkin’s neighbour principle in M’Alister (or
Donoghue V Stevenson [1932] AC562 continued:
This is saying that foreseeability must be accompanied and limited by the law’s
judgement as to persons who ought, according to its standards of value or justice
to have been in contemplation. Foreseeability, which involves a hypothetical
person, looking with his sight at an event which has occurred, is a formular
adopted by English law, not merely for defining, but also for limiting the person

19
 to whom the duty may be owed, and the consequences for which an actor may be
held responsible.
…foresee ability does not of itself, and automatically, lead to duty of care…
By using the judicial hunch judges are able to foresee the results of the case before them
and the meaning to be desired from a precedent case or statute. The judges are able to
see the results in respect of the litigants and the decision must be made in accordance
with the class of cases and has to be consistent with the whole system. Judges must be
seen as sensitive indicators of social change by either registering such changes in their
decisions or by molding an existing rule to suit a new situation. While on the one hand a
judge is moulded by the values he shares with other members of the community, on the
other hand, he acts as a custodian of those values. The judges and the court system as a
whole must endeavor to meet the expectations of the community in general as well as in a
specific manner. The judgement must reflect the sense of justice as understood by a
broad base of the community.
Judicial justification, therefore, becomes the criteria for a judges’ method of a decision.

Read the following cases to better understand the concepts of judicial hunch or
predisposition.
 Bi Hawa Mohamed V ali Sefu, [1983] TLR [Nyalali CJ Cash then was]
 Francis Ngaire V NIC [1972] HCDn 134, [1973] EA56 Biron J.
 AG V Lesnoi Ndeinaialias Joseph Saleyo Laizer & Two others [1980] TLR 619.
 Laiton Kigara V Musa Bariti [1975] LRT no.40

Legal Positivism: What is meant by the term Legal Positivism? Legal Positivism (as
opposed to Natural law) is the view that regards law as being that which is decreed,
irrespective of its content, in particular irrespective of its moral goodness or badness.
This position was laid down by the fathers of Positivism in Britain namely Jeremy
Bentham (1748-1832) and John Austin (1790- 1859). For the purposes of our study this
stand point will be exemplified by such statements made by the courts or judges:
 We think this action may be supported without laying down a principle which
would lead to that indefinite extent of liability…………we should pause before
we made a precedent by our decision which would be an authority from auction

20
 from vendors, even if such instruments and articles are dangerous in themselves at
the suit of a person into whose hands they might happen to pass and who should
be injured thereby.
Per Parke B in Langridge V Levy [1837] 2w519

 I am clearly of the opinion that the defendant is entitled to our judgement. We

ought not to permit a doubt to rest on this subject, for our doing so, might be the
means of letting in upon an infinity of actions.
Per Lord Abinger C.B. in Winterbottom V Wright 10 M & W 109

 A false statement careless by made without a reasonable ground for believing it to

be true, may be evidence of fraud, but does not necessarily amount to fraud.
Per Stirling, J; in Derry & Others V Peek [1889] 14 App Cases 337
What the judges were stressing was the fact that in English law there were ascertainable
rules of liability like contract. Unless the complaining party was part to it or privy to it,
no liability in law could lie for damages agains the alleged wrongdoer.

 Lord Esher, MR (former BrettMR) in Lelierre V Gould (1893) stated inter alia
Liability for negligence cannot arise at all until it is established that the man who
has been negligent owes some duty to the person who seeks to make him liable
for negligence. What duty is there where there is no relation between the parties
by contract? A man is entitled to be as negligent as he pleases towards the whole
world if he owes tham no duty of care.

Bowen, L. J. in the same case stated. We have not to consider what the law might
be, but what it is.

3. The Ratio in Theory and Practice: Debate on How to Determine the Ratio
Decidendi of the case
To date there is no agreement on how to determine the ratio decidendi of the case.
To show the variation of opinion we shall examine the views of eminent
lawyers/jurists: Karl Llewellyn (American), Professor Goodhart (English), Prof.

21
 Julius Stone (Australian), Prof. W Twining & David Miers and Prof. W Twining
(both Englishmen).

(a) Karl Llewellyn in the Brumble Bush, Oceana Edn. 1951pp 45-49, 66-69
argued that the ratio decidendi of the case is the rule the Court tells you is the
rule of the case. It is based on the ground upon which the court has reached
its decision. It can be narrow or broad.
What you must look for when reading the case in order to extract its ratio
decidendi is to read the actual judgement in the light of the holding on the
point of law and fact or both (which was before the court). The basis of the
judgment are the material facts, issues (the actual dispute to be resolved)
based on or limited by the form or procedure.
What are the facts? Those facts, which have a legal bearing, and those
which must be categorized (i.e. a motor car or motor vehicle) to represent a
wider abstract category of facts. No case exists in isolation. It is important
for you to acknowledge the importance of other cases.
This is important because the function of the case system is that no case can
ever have a meaning by itself. Its meaning is obtained from the background
of other cases. The aspect in which they are similar leads to what is legally
relevant and to operate alike or to operate at all upon the court. The state of
the facts, it must be noted, are rarely quite alike.
Thus the doctrine of precedent is Janus-faced.

(b) Professor Goodhart in “Determining the Ratio Decidendi of a Case” in

Vol. 40 Yale Law Journal [1920] 161-183 had the following to say:
The judge reaches a conclusion upon the facts as he sees them. On the
face of these facts he bases his decision or judgement. So when you are
analyzing a case you must state the material facts as seen by the judge and
his conclusion based on them. It is by his choice of the material facts that
the judge creates law; it is essential to know what the judge has said about
his choice of facts.

22
 He proposed the following steps in determining the principle of a care of
ratio decidendi:
First, ascertain the material facts on which the judge based his conclusion.
Second, if there is no opinion on the statement of facts, then assume that
all the facts given in the report (judgement) are material except those
which relate to place, person, kind and amount (unless they have been
stated by the judge to be material facts).
Third, a rule of law is the same for all persons, at all times, and at all
places within the jurisdiction of the Court.
Fourth, note the summary of Counsels’ speech in a reported case
(judgement of a reported case) to as certain other essential facts.
He advised on how to distinguish material facts from immaterial ones:
o There is a presumption that facts of person, time, place, kind and amount
are immaterial.
o All facts, which the court specifically states to be immaterial.
o All facts which the court treated as immaterial must be considered
immaterial.
o All facts specifically stated or treated material.
o If no distinction is made between material and immaterial facts, then all
the facts set out in his opinion must be treated as material facts except
those which on the face value are immaterial.

In a case where there is more than one opinion i.e. Heaven V Pender or Donoghue V
Stevenson, the principle of the case is limited to a sum total of all facts held to be
material by the various judges.
For example in Heaven V Pender Brett MR. treated as material facts:

The defendant supplied rope for the use of the plaintiff. The defendant must have
known if he thought about it, that the stage would be used immediately by
someone such person as the plaintiff.
But according to Cotton and Bowen LJJ the material fact of the case were that:

23
 The defendant was the owner of the dock and must be taken to have invited the
plaintiff into his premises. The plaintiff was injured due to the dangerous state on
the premises.
Under these circumstances it becomes difficult to generalize what material facts are. We
can safely say what facts were considered material facts by the minority judge and what
the majority judges considered to be the material facts.
The conclusion reached by the judges on the basis of the material facts constitutes the
principle of the case.

(c) Prof. Julius Stone “The Ratio of the Ratio Decidendi” in Vol. 22 Mod.
L.R. (1959) 597 at 603 – 608 maintained that if the ratio of the case is based
on the facts relating to the holding, then in case of Donoghue Stevenson there
are nine facts which can be found and they give rise to many rival ratio
decidendi which correspond to the number of distinguishable facts.
This is so because each of these ‘facts’ are capable of various levels of
generality all embracing “the facts” in question and a precedent and each
yields different results indifferent fact situations. In the case of Donoghue V
Stevenson which was a decision of the House of Lords in 1932 the court
imposed liability on the manufacturer of an opaque bottle of ginger beer
which was found to contain dead snail, for injury (shock and gason enteritis)
to the plaintiff, a Scotch (Woman) widow who drank from the bottle given to
her by one who purchased it from a retailer who in turn purchased it from the
manufacturer. From the proceeding material facts Prof. Stone extracted nine
different levels of stating material facts:
o The facts as to the agent of harm (dead snails, or any other noxious
physical foreign body or foreign element physical or not or any noxious
element).
o Facts as to the Vehicle of harm (an opaque bottle of ginger beer or any
opaque bottle of beverage or any bottle of beverage or any container of
any commodities for human consumption, or any container of any chattels
for human use) or any chattels whatsoever or anything including land or
building.

24
o Facts as to the defendant’s identity (a manufacturer of goods nationally
distributed, through retailers, any manufacturer, any person working on
the object for reward, any person working on the object, or anybody
dealing with the object).

o Facts as to the potential danger from a vehicle of harm, (object likely to

become dangerous by negligence or whether or not so);
o Facts as to the injury of the plaintiff (personal physical injury or any
injury);

o Fact as the plaintiff’s identity (A Scotch widow, a Scotch woman, or a

woman or any adult or any human being or any legal person).

o Fact to the plaintiff’s relation to the vehicle of harm (Donee) purchaser,

from a retailer who bought it from the defendant or the purchaser from
such a retailer or a purchaser from anyone, or any one, or any person
related to such purchaser, or other person, or any person into whose hands
the object rightly comes, or any person into whose hands it comes at all.

o Fact as to the discoverability of agent of harm (the noxious element being

not discoverable by inspection of any intermediate party; or not so
discoverable by any such party who had the duty to inspect, or not
discoverable by any party who could reasonably be expected by the court
or jury to inspect.

o Fact as to the time of litigation (the facts complained of were litigated in

1932 or any time before 1932 or after 1932 or any time (cf Cocacola
Kwanza’s Case in Mwanza)

25
 Note: From each level of standing or abstraction of the facts there
emerges within each different levels of standing or abstraction of
stating the same material facts.

(d) William Twining & David Miers in How To Do Things With Rules 3rd
Edn. Weidenfeld & Micolson London 1991pp 311 – 320 say that the term
ratio decidendi comes into question “when legal advisers, advocates, judges
and experts interpret cases for their particular purposes”. Questions which
they ask themselves include the following:
‘for what rule(s) is the case an authority? Or ‘for what proposition(s) of
law can this case be made to stand?
William Twining & David Miers rightly point out that within the traditional
legal theory the rule or proposition of law asserted by the interpreter is called
the ratio decidendi. But within the traditional legal theory (as already
indicated) there is no agreement (consensus) about what is entailed when the
term is used. They quote an extract from Prof Neil Mac Cormic “Why Cases
Have Rationes and what These Are” as follows:-
It is a disputed question whether there is any such a thing as a or the ratio
in a given case; it is disputed whether or not there is a ratio to be found
authoritatively within a given opinion, or whether the so-called ratio is
simply some proposition of law which a later court or courts find it
expedient to ascribe to an earlier decision as the ground of that decision
which may then be used to help to justify some later decision perhaps even
under the guise of its being that which necessitates the granting of the
given later decision. An extreme version of this view would presumably
be that the ratio of a case is whether it is any time authoritatively said to be
authority for, and thus no one single proposition over time.

William Twining & David Miers identify five usages of the Term ratio decidendi
as found in the Literature:
o The rule(s) of law explicitly stated by the judges as the basis for the
decision, that is, the explicitly answer to question(s) of law in the case;

26
 o The reason(s) explicitly given by the judge for the decision, that is, the
explicit justification for the answer(s) to the question(s) of law in the case;

o The reason(s) implicitly given by the judge for the decision, that is, the
implicit justification for the answer(s) given to the question(s) in the case;
and;

o The rule(s) of law for which a case is made to stand or is cited as authority
by a subsequent interpreter, that is, the imputed answer(s) to question(s) of
law in that case [pp331-332]
No mention is made in relation to material facts of the case as we have previously
seen.

In their view finding a ratio decidendi is not a formalistic exercise but it involves
an element of choice from a range of possibilities. There follows what determines
the choice of ratio decidendi and how wide a range of possibilities should be:
o In reasoning on a point of law one is not confronted with a single isolated
precedent. There is a collection of potentially relevant precedents. Each
case must be read in the context of all other potentially relevant cases.
There is no single way of determining a ratio decidendi.
o It is false to assume that in determining the ratio decidendi we should
depend on the stand point of the judge, because it is not only a judge who
interpretes rules. Consequently, advocates and other officials do interprete
cases in the process of trying to persuade courts to reach decisions in their
favour or infavour of their clients. (see: Grant V Australia Knitting Mills
argument pursued by Counsel for the defendant; Hedley Byrne V Heller
the argument pursued by the counsel for the defendant or in Ngaire V
National Insurance Corporation the argument pursued by the Counsel for
the plaintiff).
On the other hand, one should bear in mind the nature of the
Adversary System in which each side in a cause of action will

27
 press on an interpretation for a relevant precedent which is
consistent with the desired results. Good advocacy consists in
directing attention of the court to the most plausible interpretation.

(e) William Twining in an article titled “Demystifying Precedent in English Law”

says that the term ratio decidendi is no longer of any analytical value in the
discourse about the interpretation of precedents. In his view a distinction
must be made between explicit formulation of a proposition of a judicial
opinions and propositions which are implicit in the reasoning of such opinions
and propositions of law imputed to precedents by subsequent interpreters. He
also calls for a distinction between answers to questions of law (law
propositions) and justifications for such answers. In his view neither
Parliament northe courts have attempted to lay down an authoritative
definition of the term ratio decidendi of a past case.

Both institutions have resisted formalization of the doctrine of precedents in key

aspects. This allows a certain amount of leeway in the interpretation of
precedents.
Explicit formulations of propositions of law and propositions implicit in the
reasoning of prior cases are regularly invoked by lawyers and judges in later cases
as part of their arguments. In respect of binding precedents such propositions are
often presented as if they are binding part of the case, but such assertions are often
upon challenge. Common Law rules are not fixed rules in a verbal form. And
there is no theoretical consensus about the correct way of extracting authoritative
propositions of law from judicial decisions.
The disagreement is based on whether there can be precision in determining the
scope of a proposition. Further, a great majority of reported precedents to day
deal with interpretation of statutes or other rules fixed in verbal form. This
operates as a constraint to subsequent interpretation because the statutory or other
texts provide a more clearly identifiable “encourage” for interpretation and
argumentation that do not exist in judicial opinions. The precise nature and extent
of such a constraint is much debated.

28
 The basic point of departure between William Twining & David Miers and earlier
jurists on the debate on ratio decidendi and how to determine the same lie in the
fact that “a great majority of reported cases or precedents deal with interpretation
of statutes and other rules fixed in Verbal form. This operates as a constraint to
subsequent interpretation because the statutory and other texts provide a more
clearly identifiable encourage for interpretation and argumentation than do the
text of judicial opinion”.

4. (1) The Common Law Case Technique: Development of the Law of Negligence
The decisions of the courts on economic and social questions depend on their
economic and social philosophy- Theodore Roosevelt.
o Stare decisis & Precedent
o Material Facts of a Case
o Issue(s)
o Holding (in whose favour a matter was decided)
o Ratio Decidendi (future value or authority)
o Obiter Dicta (Dicta-future value)
o Dissenting Opinion (Value)

(2) Methods of Reasoning

 Analogy (Example or from case to case)
 Deduction (Syllogism)
 Induction (levels of Abstraction)
 Judicial Hunch
-Socialisation, political view, economic position, religions opinion etc.
 Positivism (formal style)
 Appeal to Higher Values than law itself (the Grand Style)
 Types of judges
-Timorous souls
-Bold spirits

29
 (3) Fleming – the Law of Torts in The 19th C
 expansion of legal protection to persons injured on the country roads and
city streets, along rail roads and factories (they were third parties)
 Courts tries to use the so-called antiquated rules in order to break through
a narrow compass- the law of negligence in embryonic stage- gestating.
 The Pandoras’ Box- called for a careful handling – timorous souls trying
to avoid floodgate of litigation.

Pandora’s Box- an account of Greek Mythology:

A young lady married to a Greek God, lived in a house in which a room was kept
under lock and key. She was warned never to open it lest evil would be fall the
world.
One day, when other occupants of the house were away, she became over curious
and opened the room only to let loose all evil known to the World to day.

In view of the above tradition, timorous soul judges, tried to rationalise the then
competing demands:
 the expansion of Industry
 the risks and dangers to life associated to such development, but
 the law had to be extended to strangers (to what extent was that done?)

Tort(s): Civil Wrongs

Conceptual development of the law of negligence (tort(s) is examined as a process (not as

something, which just developed at once).
A process of a whole compendium of argumentation, methodological in a historical
context, which produced legal rules, principles and standards.

 The Law of negligence has developed through such concepts as: contract, fraud,
dangerous instruments, doctor-patient relationship, fiduciary relationship,
occupier-invitee relationship (physical or legal), Duty of Care etc.
 The development of the law of negligence was not straight but a circular motion

30
According to Professor Edward Levi:
Stage 1: the creation of a legal concept built, as cases are compared.
Stage 2: The concept became more or less fixed through reasoning by
example as items were classified inside and outside the concept (A
process of abstraction – as presented under Deductive and
Inductive Reasoning earlier on).
Stage 3: the breakdown of the concept when reasoning by example moves
far ahead that reference to a particular word became no longer
necessary then the development of a single concept known as
negligence (word or deed).
Negligence – meaning – carelessness – which became a factor establishing
liability as the law became more and more sophisticated. The
process consisted in analogy, induction and deduction – shifting
categorizations, rules, principles, standards and policy.
Policy Issues seen through such statements by Law Lords or judges like:
 proper pigeon-holes
 there is no duty
 the damage is too remote
 to open a floodgate of litigation
 a man can be as negligent as lie pleases to the whole world if he owes
them no duty of care.

The Common Law Case Technique: Development of the Law of Negligence 1837-2001
The Period Between 1833 and 1836 only parties to the contract could sue. The dominant
notion was contract. From 1837 we notice a move away from parties to a contract to the
notion of knowledge of the user of an article which causes injury/damage:

Langridge V Levy [1837] 2M & W 519

The material facts:
The father of the plaintiff went to the defendant who was the seller of guns to buy
for the use of himself and his sons. While at the shop of the defendant the buyer

31
 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. In the process of the sun (the plaintiff) using the gun so purchased, he
sustained injuries and brought an action against the seller.
The Issue was:
Whether the seller was liable?

Argument by counsel for the plaintiff:

Wherever a duty is imposed upon a person by contract or otherwise, and the duty
is violated, anyone who is injured by the violation of it may have a remedy
against the wrongdoer.

Argument by Counsel for the defendant:

There was no privity of contract and therefore the plaintiff was not entitled in the
law to recover damages. Since the father was the contracting party with the
defendant he can alone sue upon the contract for the breach of it.

Holding:
In favour of the plaintiff (rule discharged).

Rato 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 representation (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.

*(1) A Case decided on the basis of implied contract, warrant and knowledge of the
user where the article which causes injury is not dangerous in itself.
(2) In the course of delivering the judgement a number of things were considered:
 The Court was not ready to lay down a broad rule of liability.
 The Court considered the fact that the gun was not an instrument which is
dangerous in itself unless loaded.

32
“If the instrument in question, which is not dangerous in itself, but requires an act to be
done that is, to be loaded, in order to make it so, had been simply delivered by the
defendant, without any contract or representation on his part, to the plaintiff, no action
would have been maintainable for any subsequent damage which the plaintiff might have
sustained by the use of it.

 The Court made use of the principle in Pasley V Freeman 3TR51 that:
Mere falsehood is not enough to give a right of action, but is must be a
falsehood told with an intention that it should be acted upon by the party
injured, and that it must produce injury to him…

 The Court was trying to insist on the fact that an injured person must establish
that the person who in said to have caused injury was such a person as recognized
by the law not to act in the way he did.

Winterbotton V Wright [1842] 10M & W109

The Material Facts:
A contracted with the Post Master General to provide a mail coach to convey mail
bags along a certain line of the road; B was contracted to hire horses and coach
along the same line, at the same time B contracted with C to drive the coach. In
the process of driving the coach C got injured and brought an action against A for
damages due to the injury sustained in the course of driving the coach which
broke due to latent defects in its construction.

Issue:
Whether a (defendant) was liable?
Argument by Counsel for 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 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.
Argument by the Counsel for the plaintiff:

33
 Was based 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 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.
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 may be maintained).

*A case decided on the basis that the injured party was too remote to be
contemplated by the defendant. A movement back to contract.

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.
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. Here the action is brought simply because the defendant was a
contractor with a third person and it is contended that thereupon he becomes
liable to everybody who might use the carriage.
If there had been any ground for such action, there certainly would have been
some precedent for it; but with the exception of actions against innkeepers, and

34
 some few other persons, no cause of action of a similar nature has occurred in
practice.
The rule in Langridge V Levy cannot be applied in Witterbottom V Wright
because according to Lord Abinger, C.B. the case in point is a case of its own
kind.

Lord Alderson, B had the following to say:

I am of the same opinion. If we are 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
continue a 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. [Emphasis supplied]

Rolfer, B had the following to say;

This is one of the unfortunate cases in which there certain has been damnum,
absquiae injuria; it is so, no doubt, a hardship on the plaintiff to be without a
remedy, but by that consideration we ought not to be influenced. Hardcases, it
has been frequently observed, are apt to introduce bad law [emphasis added].

All the three judges were in agreement that in the circumstances of the day the
plaintiff could not recover because he was not a party or privy to the contract. He
was a stranger in so far as the law and the defendants were concerned.

Frederick Longmeid & Eliza (his Wife) V Holliday,

[1851] 6 Ex. 76
Material Facts:
The defendant (Holliday) a seller of lamps sold a lamp to the plaintiff’s husband.
The defendant was not a manufacturer of those lumps. The lumps were called
‘Holliday’s Patent Lamp’. The said lamp was for the purpose of being used by
him (the buyer) and his wife. There was evidence that the lamp was defectively
manufactured. In using the lamp with naphtha (i.e. like Kerosene) the lamp
exploded and the plaintiff’s wife was injured. The two plaintiffs brought an
action (Frederick has previously recovered damages in an action for the

35
 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 that the lamp was in fact defective.

Issue
Whether the plaintiff can recover on the basis of fraud?

Argument by Counsel for the defendant:

As there was no proof of fraud, the action could not be maintained.

Argument for the Counsel of 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 it was not true, and that he knew
who is going to use the lamp, who in fact was injured in the process of using the
lamp. The counsel maintained that this case was in line with the decision in
Langridge V Levy.
Holding
Defendant not liable (Rule absolute).

Ratio Decidendi:
Where in the ordinary course 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.

Obiter Dicta
 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 of
Langridge V Levy [1837] 2M & W 159.

36
  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.

Parke, B. enumerated instances besides contract and fraud in which an action might lie
but which can be distinguished from the above case:
 If an apothecary administers improper medicines to his patients, or a sageon,
unskillfully 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.

 A Stage-Coach proprietor, who may have been 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….

 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….

 If anyone delivers to another without notice an instrument in its nature dangerous,

or under particular circumstances, as a loaded gun which he himself loaded, and
another 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, is liable.
(Dixon V Bell 5M & Selw. 198)

* This was a case of Misfeasance

 If there had been in this case a breach of contract with the plaintiffs, the husband
might have sued for it; but there being no misfeasance towards the wife
independently of contract, she cannot sue and join herself with her husband.

37
 George & Wife V Skivington [1869] LR5 Ex1
Material Facts:
The plaintiff (Joseph George husband to the second plaintiff) purchased a
chemical compound of the defendant as 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.” There was
also an express statement that the defendant knew the purpose for which the
article was bought. Due to the defendant’s “unskillful; negligent and improper”
make of the compound, caused injury complained by the plaintiff (she lost her
hair or her hair fell off).

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?).

Argument by the Counsel for defendant:

There was no warranty, express or implied towards the purchaser, therefore no
liability.

Argument by the Counsel 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 unskillfulness and negligence in the manufacture of it
whereby the person who used it was injured.

Holding
Judgement for the plaintiffs.

Ratio Decidendi:
Apart from the 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 to wards the purchaser and it extends to the person whose

38
 use the vendor knew the compound was purchased Langridge V Levy was cited
as an authority for this proposition. Here a similar duty a rose towards the person
who was known to the defendant to be about to use this wash; namely the duty
that the article sold should be reasonably fit for the purpose it was bought for and
compounded with reasonable care. [Kelly C.B]

Obiter Dicta
Kelly, C.B. distinguished the case of Longmeid Elisa 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:
…. Where the thing purchased is for the use not of the purchaser himself but, to
the defendants’ knowledge, of his wife, does the defendant’s duty extend to her?
I can see no reason why it should not [The judge points to 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 as co-plaintiffs)

 Piggott, B advanced yet a contract situation:

Where a Chemist sells a drug to a customer 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 a liable.

 Cleasby, B was 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 he proceeded applying 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 held to be good in
Langridge V Levy.

39
* A case where the seller of the article that caused injury was also a manufacturer of
the article and knew who the consumers were (here representation was not
relevant).
(The Married Women’s Property Act, 1882 [45 & 46 Vict. C 75 on Position of
Married Women]

Heaven V Pender [1883] QBD503

Note on Material Facts- the Material Facts in this case will be seen through the
Eyes of the judges (Majority and Minority) 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 the ship painter. The ship painter
entered into a contract with a ship-owner whose ship was in the defendants dock
to paint the outside of his ship. 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 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. When the
plaintiff began to use the stage the ropes broke, the stage fell and the plaintiff was
injured.
Issue
Whether the defendant owed a duty of care to the plaintiff.
Argument by the Counsel for 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, 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 in question.
Argument by Counsel for 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 plaintiffs contributory
negligence, therefore the defendant owed a duty of care to the plaintiff.

40
Holding:
Judgment in favour of he plaintiff.
Ratio Decidendi:
Whenever one person is by circumstances placed in such a position with regard to
another that every one of ordinary care and skill in his own conduct with regard to
these circumstances he would cause danger or injury to the person or property of
the other, a duty arises to use ordinary care and skill to avoid such a danger.

Methodology
What method did Brett, M.R; employ in arriving at such a proposition? Brett,
M.R; employed a case to case approach (Induction) and in each case examined he
found a rule and combination of these rules leading to a general rule for liability
called duty care, this made him to conclude that there was a general rule called
duty of care which he then applied deductively to the fact situation in the case he
was decide. This is a process of Inductive reasoning and after a general rule has
been ascertained, then it is applied by the process of deductive reasoning. In real
terms Brett, M.R; considered the following fact situation:
 Two drivers meeting have a contract with each other.
 Two ships navigating at sea.
 A railway company which has contracted with one person to carry another has not
only a contract with the person carried but also a duty towards that person.
 The owner or occupier of house to come to his house or land has no contracts with
such persons but has a duty towards them or him.
Thus Brett, M.R. 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 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”.
Brett, M.R. 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

41
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.
What is then to be resolved?
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 the 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?
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 approaching each other in such a manner that, unless
they use ordinary care and skill to avoid it, there will be danger of injurious
collision between them. The relation is established in such circumstances
between them, not only if it is 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 care and skill under such circumstances there
would be such a danger. And anyone ought by the universally recognized rules
right and wrong, to think so much with regard to the safety of others who may be
jeopardized by his conduct…
The judge went on to enumerate what would happen in the case of Railway Company as
follows:
In the case of Railway Company carrying a passenger with whom it has not
entered into a 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.
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. 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

42
 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.
Having considered all these instances, which impose a duty of care and skill, Brett, M.R.
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 remote and larger premise, which
embraces both of the major propositions.
The proposition which seems to be in line with the 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, recognized at once that unless he used
ordinary care and skill with regard to the condition of the thing supplied or mode
of supplying it, there will be danger or 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 a thing.

The approach by majority Judges Cotton & Bowen LJJ:

Their ratio decidendi was based on the notion of owner- invitee relationship.
Thus the decision of Cotton, LJ and Bowen, LJ was restricted to the category of
owner-invitee relationship (narrow):

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 a ship to be painted while in the
dock, and the stages which were to be used only in the dock where 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.

43
Issue:
Whether the dock owner was under the obligation to take reasonable care that the
appliances were in a fit state to be used?
Holding: Infavour of the plaintiff.
Ratio decidendi:
The owner of 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.
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 App Case 337

Material facts:
By a special Act 45 & 46 Vict; C Clix the Plymouth Devonport and District Train
Ways Company was authorized to make certain train ways. By S-35 the carriages
used on the train ways might be moved by animal power 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. 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
is prescribed, by animal power only”,
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 louse 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.
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 dependants whereby the plaintiff was induced to take shares in the company.

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 [In the High Court the action was dismissed by Stirling J.] Appeal to the Court of
Appeal.
Issue:
Whether an action of fraudulent misrepresentation would lie?

Holding
The Court of Appeal held that [Cotton, LJ; 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 the Court of Appeal reversed
Ratio Decidendi:
In an action for deceit the plaintiff must prove actual fraud, that is 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.

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.
Lord Herschell send:
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 honestly believed though on insufficient grounds.

The First case of negligent statements causing financial loss

In this case the court was saying that there is a distinction in law between false
representation and fraud or deceit and whoever wants to base an action on false
representation must prove actual deceit.

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 Le Lievre & Diennes V Gould, [1893] 1QB491
Material facts
H. Owner of land, arrange 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 installments 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. In the process D transferred the
mortgage to LL after four installments 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?

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 was 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. In so giving certificates the defendant acted with gross negligence, and in
break of the duty he owed to the plaintiffs.
Arguments by the Defendant:
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.
He was not fraudulent, the certificates were issued bona fide and in belief that the
statements contained in them were true.
Holding
Appeal Dismissed, Judgement infavour of the defendants.

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.

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Obiter Dicta:
Decision of Heaven V Pender
Observations:
1. The judgement of Lord Esher (Former Brett M.R.) M.R. reveals the following:
(i) A duty cannot arise unless there is a relationship of the parties through
contract (what duty is there when there is no relationship between the
parties by contract?)
(ii) A man is entitled to be as negligent as he wishes (pleases) to the whole
world if he owes no duty to them.
(iii) Derry V Peek (House of Lords’ decision) established that in the absence of
contract, an action for negligence cannot be maintained when there is no
fraud.
(iv) Negligence, however great, does not itself constitute fraud.

2. (i) According to Bowen LJ 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 on
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.

(ii) Negligent misrepresentation does not amount to deceit and negligent

misrepresentation can give rise to a cause of action only is 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 a
positivistic utterance by the judge).

(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 certificates may be shown. But the law of
England does not go to that extent, it does not consider that what a man writes on
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.

47
3. In the opinion of A.L. Smith L.J. the decision of Heaten V Pender was
founded upon the principle, that a duty to take 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.

Note on Precedent:
Le Lievre v Gould- According to the strict rule of precedent, the English Court of
Appeal must generally follow its 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 Heaven V
Pender. We saw that strictly, the ratio of Heaven V Pender must be the rule of the
majority of the judges Cotton & Bowen LJJ. Neither Brett’s formulation of the larger
proposition, nor his formulation of supplier’s liability is therefore the ratio, nor part of
the ratio. But does the Court in LeLievre V Gould adhere to these strict rules? Esher
(Brett) M.R. refers to what Heaven V Pender “established,” meaning his own
minority rule. Smith, LJ also refers to Brett’s rule as the principle of Heaven V
Pender. Only Bowen, LJ refers to the ratio of Heaven v Pender as the majority rule.
i.e. the rule of owner of premises.

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 in Heaven v Pender 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.
But in so far as they accept Brett’s rule as the ‘principle’ of Heaven v Pender, to be
followed in future cases where the facts came within that principle they do not adhere
to the strict rule of precedent.
The House of Lords in Donoghue v Stevenson could have said this was wrong. But
they do not- Lord Atkin proves these statements and also refers to Brett’s rule as the
doctrine of Heaven v Pender. Notice also that this is the case of a Court dealing with

48
 one of its own previous decisions. A lower Court could not have so much freedom.
Look at how Mc Cardie J sitting in the High Court, dealt with Heaven V Pender in
Farr v Butters. He had to say the rule of that case is the majority rule, and cannot
follow Brett MR’S rule in preference.

Nocton V Lord Ashburton [1914] AC 932

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. 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.

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
fiduciary relationship with the defendant and which the defendant suffered loss.
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.
Viscount Haldane L.C. Statements are worthy noting:
(i) Derry v Peek which establishes that proof of fraudulent intention is necessary to
sustain an action for deceit, whether the claim is dealt with in a Court of law or by

49
 a Court of Equity---does not narrow the scope of the remedy in actions within the
exclusive jurisdiction of the Court of Equity.

(ii) Although liability for negligence in words has in material respects been developed
in our law differently from liability for negligence in act, it is none-the-less 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 centenance to the idea that recent decisions
have been intended to stereotype 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 (HL)

This was an appeal from Scotland [England and Scotland have two different legal
systems].
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. As a consequence of 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, it was closed
up with a metal cap, and on the side was a label bearing the name of the
manufacturer (the respondent).
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 a 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?

50
The arguments of the two parties are not apparent.

Holding
Appeal allowed; decision infavour of the plaintiff against the defendant.
We shall concentrate on the reasoning of the House of Lords. The case was decided by
Lord Atkin, Lord MacMillan, Lord Buckmaster, Lord Thanketon and Lord Tomlin. Lord
Buckmaster and Tomlin dissented. We examine in turn the extracts from the opinions of
Lord Atkin, Lord MacMillan and Buckmaster:
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 complaint 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.
2. In the present case we are not concerned with the breach of duty
---we are concerned with the question as a mater of law in the
circumstances alleged by the defendant owed a duty to the purchaser to
take care---.
3. In English law there must be, and is, some general conception of
relationships giving rise to a duty of care, of which particular cases found
in the books are but instances. The Liability for negligence, whether you
style it such or treat it as in other systems as species of “culpa” is no doubt
based upon a general public sentiment of a moral wrongdoing 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 lawyers’ question, who is my
neighbour? (Emphasis added) 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. Who then,
in law, is my neighbour? The answer seems to me to be: persons who are
so closely and directly affected by my act that I ought reasonably to have

51
 them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.
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 and Dennes V Gould where Lord Esher MR stated
inter alia
The 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 properly of another, a duty lies upon him not to do that
which may cause a personal injury to that other or injure his property.
Lord Justice A.L. Smith maintained:
The decision of Heaven V Pender was founded upon the principle that a duty to
take care did arise when the person or the property of another that, if due care was
not taken, damage might be done by one to the other.
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---. Lord
Atkin further amplified 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 the
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.

Then he went 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
same form in which they left him, with no reasonable chance of intermediate
examination and without knowledge that the absence of reasonable care in the

52
 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 reasonable care.
Lord MacMillan’s decision had the following characteristics:
(i) 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.
(ii) In the daily contacts social and business alike human beings are thrown in
an infinitive variety of relationships with their fellow, and the law can
refer only to the standards 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.
(iii) 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 products.”
(iv) The Categories of negligence are never closed.
(emphasis added). The Cardinal principle of liability is that the party
complained of should owe a duty to take care and the party complaining
should be able to prove that he has suffered damage as a result or
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).
(v) 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 or noxious and for which the
manufacture 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.

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 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 can not be tempered
with, I regard his control as remaining effective until the article reaches
the consumer and the container is opened by him [emphasis supplied]

The Dissenting Opinion of Lord Buckmaster dealt with the following:

(i) The appeal should be dismissed, because existing authorities are
against the appellants contention.
(ii) There can be no special duty attaching to the manufacturer of food
apart from that implied by contract or imposed by statute. If such a
duty exists, it seems to me it must cover the construction of every
article 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 Skirington no case directly
involving the principle has ever succeeded in the Courts---.
(This case was decided by a majority of 3-2). A Watershed Case.

Farr V Butters Bros & Company [1932] 2 K.B. 66

Note: Between the date of the judgement given by McCardia J and the hearing
of the appeal, the House of Lords had delivered a very important judgement in
M’Alister (Donoghne) V Stevenson. How far was the decision in this case to
affect the present case?
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. 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,

54
 their 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. 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.
Issue:
Whether there was liability on the part of the manufacturers to the employee of
the purchaser. Was there liability in Tort?
Argument by the defendant:
Having manufactured and supplied the part of the crane to the purchaser 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.
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.
Ratio Decidendi:
Important Observations made by Scrutton LJ.
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.”
2. Scrutton 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, least essential factors be omitted in the

55
 wider survey and the inherent adaptability of English law be unduly
restricted.
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.
Thus he further stated his famous proposition on the way English judges operate;
“English judges have bee slow in stating principles going far beyond the
facts they are considering. They find themselves in a difficulty if they
state to wide propositions and find that they do not suit the actual facts.”
He then 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 lawyers’ 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. 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,”
In the case in point the judge goes with the opinion of Lord McMillan 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 a 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, [1936] AC 85

Material Facts The appellant contracted dermatitis of an external origin as a result
of wearing a woolen under pant which, when purchased from the retailers,
was in defective condition owing to the presence of excess sulphates,

56
 which, it was found, had been negligently left in the process of
manufacture.
The appellants claimed damages both against retailers and manufacturers.
Issues:
Whether the manufacturers were liable in tort and retailers in contract?
Whether the principle of Donoghue V Stevenson is applicable to this case?

Argument advanced by the plaintiff:

The decision of the House of Lords in Donoghue V Stevenson was
binding on the Court to follow.

Argument by the defendant

Donoghue V Stevenson was a case of food and drink to be consumed
internally, whereas the pants were to be worn externally. While
Donoghue V Stevenson’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. 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 by the manufacturer to the retailers, still the mere
possibility and not the fact of their condition having changed was
sufficient to distinguish Donoghues case. There was no “control” because
nothing was done by the manufacturer 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 breath no line could be drawn, the manufacturer’s liability would be
extended indefinitely.

57
Holding
The case was within the principle of Donoghues’ case, decision atgains 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.

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
known circumstances even if the manufacturer could by
apt evidence have rebutted that inference they have not
done so.

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.

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 cause of actionable
negligence will arise unless the duty to be careful exists,

58
4. ---If the term ‘proximity’ is to be applied at all, it can
only be in the sense that the want of care, and the injury
are in essence directly and intimately connected; though
there may be intervening transactions of sale and
purchase, and intervening handling between those two
events are themselves unaffected by what happened
between them; “proximity” can only properly be used or
of some interfering complication between the want of
care and the injury---.

5. Equally also may the word “control” embrace, though it

is conveniently used in the opinions in Donoghues’ case
to emphasise the essential factor that the consumer must
use the article exactly as it left the maker, that is all
material features, and use it as it was intended to be used.
In that sense the maker may be said to control the thing
until it is used.

6. ---duty is difficulty to define, because when the act of

negligence in manufacture occurs there is no specific
person towards whom the duty could be said to exist, ---
the duty cannot at the time of the manufacture be other
than the potential or contingent, and only can become
vested by the fact of actual use by a particular person.

7. In Donoghue’s case the thing was dangerous in fact,

though the danger was hidden, and the thing was
dangerous only because of want of care in making it---.

8. The principle of Donoghues’s case can only be applied

where the defect is hidden and unkown to the consumer,

59
 otherwise the directness of cause and effect is absent, the
man who consumes or uses a thing which he knows to be
noxious cannot complain in respect of whatever mischief
follows, because it follows from his own conscious
Volition in choosing to incur the risk.

[Read Mukoyogo 1 on Precedent at app 180 – 182]

Candler V Crane Christmas, [1951] 2 KB 164

Material Facts
The plaintiff invested money in a company relying on accounts put before them
by accountants. The accounts were wrong and negligently prepared. The plaintiff
lost money and sued the accountants.

Issue
Whether the defendants were liable in tort of negligence?

Argument by plaintiff’s Counsel

Was based on the decision of the House or Lords in Donoghue’s case namely that
since that decision there was no distinction between negligent manufacture
causing physical harm and negligent statements leading to financial loss.
Defendants were liable.

Arguments by the Counsel for the defendants:

That there was no cause of action, that is no liability in tort for negligent
misstatement. Further that there is no liability in tort for negligent statements
causing financial loss as opposed to physical harm, and further that the
accountants were liable in contract to the company and not liable to the plaintiffs
in tort.

Holding

60
 The Court of Appeal Held in favour of the defendant in that they were not liable.
(Majority 2:1)

Ratio Decidendi
There is no duty of care in negligence as for negligent misstatements.

Obiter Dicta
Dissenting Judgement of Lord Denning L.J. (as he then was) sought to make it
clear that since the House of Lords’ decision in Donoghue’s case no distinction
existed between negligent manufacturer causing physical injury and negligent
statements causing economic loss.
[It must be noted that to date Courts in England have retained such a distinction as
we shall see later.]

Lord Denning, L.J. maintained that the case of Donoghue V Stevenson, had substantially
changed the law. It did cast doubt on the authority of older cases such as Lelievre V
Gould which negative actions in tort for negligent misstatements. The courts must accept
that there was a cause of action for negligent misstatements.

On the arguments by the defendant he said:

The argument that there was no cause of action, that is no liability in tort for
negligent maintainable because there was need for progress in the law rather than
stagnation.

The argument that there is no liability in tort for negligent acts (or statements) causing
financial loss as opposed to physical harm, he said that, the Counsel did not dispute that
there would be no liability in two hypothetical cases:
(1) the analyst who tests food and negligently states that it is wholesome, whereas
it is harmful,
(2) who negligently states that a lift is safe when it is not,

61
 It might have been that the Counsel only accepted those hypothetical cases on
the ground that they are both cases of physical harm, resulting from negligent
misstatements, and that on the facts of this case, there being no physical
damage, they would not make the defendant liable.
The Counsel retreated from his earlier position that there is no liability for negligent
misstatement at all, to the position that there was only liability if such statements
resulting to physical harm, but not otherwise.

According to Lord Denning, there is no distinction between physical harm and financial
loss in relation to duty of care. It might be more difficult to prove the proximate
relationship, that is foreseability of damage, in the case of purely financial loss, but that is
a matter of proof in each case.

Dealing with the third argument of the Counsel for the defendant, namely, that the
accountants were liable in contract to the company and not liable to the plaintiff in tort.
Lord Denning rejected the 19th Century fallacy. In his view “It is a well established rule
that is A is liable to B in contract, that in no way prevents him being liable to C in tort on
the same facts.”
The tort of negligence according to Lord Denning is an entirely separate cause of action,
so it is irrelevant that another cause of action exists as regards to other persons.

Lord Denning’s judgement is a Dissenting judgement, it is not part of the ratio of

Candler’s case, it is not binding. The ratio of Candler’s case is a statement of the
majority, expressed by Lord Asquith, that there is no duty of care in negligence as for
negligent misstatements.
[This ratio was later overruled by the House of Lords in Hedley Byrne V Heller]

Lord Asquith’s treatment of the House of Lords’

Decision in Donoghue V Stevenson:
He rejected Lord Atkin’s neighbour principle on the ground that it was not
accepted by other judges of the majority. He does not think Lord MacMillan
agreed with Atkin’s broad principle when he said that:

62
 “The categories of negligence are never closed.”
Since he finds that the ratio of Donoghue V Stevenson is restricted to
manufacturer’s liability, it did not overrule earlier Court of Appeal decisions in
LeLierre V Gould.

Lord Asquith and Lord Cohen delivered a majority judgement which was based
on the distinction between economic loss and physical injury. Lord Asquith
referred to the decision in Derry V Peek and maintained that Donoghue V
Stevenson was not intended parenthetically or subsilentio to sweep away such
substratum. Nor did Donoghue V Stevenson reverse or qualify the principle laid
down in LeLievre V Gould:
In the present state of our law different rules seem to apply to negligent
misstatements, on the one hand, and to negligent circulation or repair of
Chattels on the other, and Donoghue V Stevenson does not seen to have
abolished those differences.
Lord Asquith was ready to be called a “timorous Soul” as opposed to “bold
spirits”
Note: the extension of the above dichotomy can be found in the following decisions to
day in England:
 Simaan Co. V Pilkington Glass, (No2) [1988] IALLER 671 (Ch.D.)
 Capro Industries PLC V Dickman, [1990] IAIIER568 at 571-608 (Ch.D.)
 Davis & An. V Radcliff & others, [1990] 2AIIER536 (PC)

Clayton V Woodman, [1962] 2QB 533 (HC & CA decision)

Material Facts
The plaintiff, a bricklayer was employed by the first defendants, a regional
hospital board to install a lift and motor room in one of their hospitals. The
contract required that the work should be done with directions of an architect,
third defendants. To install a lift it was necessary to demolish part of the
building. On the instructions of the architect the plaintiff embarked on the

63
 installation in the process of which he was injured and brought this action against
the defendants.
Issue
Whether the defendants were liable and on the basis of which authority?

Arguments by Counsels are in a way scattered. So it is advised that they will be

presented as we analyse the judgement as a whole.

Holding
The High Court held defendant 1 and defendant 3 liable.
This was reversed by the Court of Appeal on ground other than those made by
Salmond J.

Judgement of Salmond J. [and the use of the term ratio]

He distinguished Derry V Peek, LeLievre V Gould and Candler V Crane
Christmas (all decisions of the Court of Appeal binding on him) on ground that
there, the damage was financial and not physical, i.e. the fact that the damage in
those cases was financial was material.
This fact was not mentioned in Derry V Peek, in that case it was impliedly treated
as material. The fact was not mentioned in LeLievre V Gould in that case there is
nothing to suggest that the judges thought the results would have been different
had the negligent misstatement resulted in physical harm.
Salmond J in fact employs the different ratio called the rule of induction.

Salmon J in his distinction admitted that Asquith L.J in Candler V Crane Chrismas
excluded all cases of negligent statements from liability. He had to accept the authority
of Candler’s case as it is a Court of Appeal Case, and could not deny that some negligent
misstatements are not actionable. He admits that his distinction between negligent
misstatements that cause financial loss, not physical damage was “illogical.”

Other important statements of Salmond J:

64
 It was suggested that the fall was triggered off by the action of the plaintiff
himself, but even if this be so (and) far from being satisfied that it is, it seemed to
be immaterial.
In my view, the first defendants have no defence to this action. It was their duty
as the plaintiff’s employers to take reasonable care for his safety. They knew that
the work had reached a stage when the chase was about to be out in the gable.
They should have appreciated that this would be a highly dangerous operation
unless the gable were supported by cutting or shoving, but they allowed the work
to be carried out without any such shutting or shoving. In my judgement, the first
defendants were clearly negligent in that they did not shove or shut this wall when
they knew that the chase was about to be cut in it. This negligence was the cause
of the accident [liability is based on duty of care (owner-invitee) and strict
liability (statutory).

I am quite unable to find that the second defendants in any way failed in their duty of care
to their invitees. Types of mistakes, which can be performed by professionals:
There are, of course, many mistakes that a professional man can make without
failing to exercise reasonable skill or care but not an elementary mistake of this
kind. I have no doubt at all that any ordinary architect using reasonable care and
skill would certainly have realized the extreme danger of cutting the case without
shoving or shutting the gable.

In reaching the conclusion that since neither LeLievre V Gould nor Candler V Crane
Christmas was concerned with a careless statement causing physical damage, they cannot
exclude the application of the principle enunciated in Donoghue V Stevenson to the
particular facts of the case.

Although the dicta of Asquith LJ must carry the greatest weight, I do not consider
that the decision in Candler V Crane Christmas excluded careless statements from
the ambit of Donoghue V Stevenson. It may be difficult to think of the logical
reasons why there should be, in some circumstances, a duty to take care in making
statements causing physical damage and never such a duty in making statements

65
 causing financial loss. Logic and Common sense, are uncertain guides in this
branch of the Law.
(The same as Holmes “The Path of the law” where he categorically stated” The
life of the law is not logic but experience”.)

Note: Milner on Negligence in Modern Law

Butterworth 1967 p 32:

‘On the other hand, failure to take positive precautions against a peril which was
not (even remotely) of your own making or proceeding from property which is
under your control or was so at the relevant time is not generally regarded as
negligence. The law does not exact altruistic behaviour, it does not require you to
love your neighbour, but only that you shall not injure your neighbour.

Salmond J’s example of “altruistic behaviour”

(1) Bwana Juma is driving along Morogoro Road one night and is involved in a
serious collision with another vehicle. His car ends up on a wrong side of the
road, the driver’s door flies open and Bwan Juma is deposited, unconscious
and bleeding on the road.
Dr. Mshenzi, driving to town, sees the accident and Bwana Juma lying on the
road, but decides that after a hard day’s work he is in real need of a Tusker,
and decides to ignore the accident. He drives round the unconscious man and
the wrecked car, and proceeds to the Ulevi Bar to quench his thirst.

(2) Dr. Ndugu, driving along a few minutes later though tired after a busy day
stops his car and goes to the aid of Bwana Juma. He attends to Bwan Juma’s
injuries, and seeing that he has lost a lot of blood decides to give him
transfusion. He has in his car, by lucky chance, a bottle of blood, of the
common (blood group, O positive). He has no means of testing Bwana
Juma’s blood group. It is, however, obvious that if Bwana Juma does not get
blood soon, he will die. Dr. Ndugu takes chance, and administers the blood,
Bwana Juma dies a few minutes later. When he is taken to the mortuary later

66
 it is discovered that he was wearing a medallion round his neck beneath his
clothing which said “Warning, I have a rare blood group: Group A negative.
In an emergence contact Ocean Road Hospital Tel 02252361 at Once”.
Bwana Juma died directly as a result of his being given the wrong blood
group. Dr. Ndugu has been charged of murder. Advise him of his liability.
Hedley Byrne & Co Ltd V Heller & Patners Ltd, [1963]
2 All ER 575 at 578-618

Material Facts:
The appellants were a firm of advertising agents. The respondent were merchant
bankers. The appellants case against the respondents was that having placed on
behalf of a client X on credit terms substantial orders of advertising time on the
Television programmes and for advertising space in news papers on terms under
which the appellants became personally liable to the TV and newspaper
companies, they inquired through their own baker (the respondent) as to the credit
worthness of X who were the customer of the respondents satisfactory references.
In those reply the respondents clearly stated that such information was given on
the understanding that “It was for private use and without responsibility on the
part of the bank or its officials” (disclaimer from liability).
The references turned out not to be justified, and it was the plaintiff’s claim that
reliance on such references resulted into loss. The appellants were seeking to
recover the incurred financial loss from the respondents on the ground that the
replies were given negligently and in breach of the respondents duty to exercise
care in giving them.
The High Court, McNair J gave judgement in favour of the respondents on the
ground that they owed no duty of care to the appellants:

McNair J said inter alia:

I am accordingly driven to the conclusion by the authority binding upon me that
no such action lies in the absence of contract or fiduciary relationship. In my
judgement, however, these facts though clearly relevant to the question of honesty
if this had been in issue, are not sufficient to establish any special relationship

67
 involving a duty of care even if it was open to extend the sphere of special
relationship beyond that of contract and fiduciary relationship.

The judgement of McNair J was affirmed by the Court of Appeal on the basis of authority
binding on the Court of Appeal and that there was no sufficient close relationship
between these parties to give rise to any duty.

The case was before the House of Lords and the Law Lords who heard the appeal were
Lord Reid, Lord Morris of Borth-Y-Guesh (read by Lord Hodson), Lord Hodson, Lord
Devlin (read by Lord Pearce) and Lord Pearce.

Issue:
Whether the respondents were liable?

Arguments by the appellants:

The argument was based on the decision of Donoghue V Stevenson on the notion
of proximity.

Argument by the respondents

That they owed the appellants no duty of care and in any case they had given their
replies with a disclaimer of liability.

Holding:
Appeal dismissed (case decided in favour of the respondents).

Ratio Decidendi:
When a mere inquiry is made by one baker of another, who stands in no special
relationship to him, then in the absence of special circumstances from which a
contract to be careful can be inferred,--- there is no duty except the duty of
common honesty---.

Obiter dicta:

68
 If, in the ordinary course of business or professional affairs, a person seeks
information or advise from another, who is not under contractual or fiduciary
obligation to give information or advise, in Circumstances in which a reason able
man so asked would know that he was being trusted, or that his skill or judgement
was being relied on, and the person so asked chooses to give the information or
advise without clearly so qualifying his answer as to show that he does not accept
responsibility, then the person replying accept a legal duty to exercise such care as
the circumstances require in making his reply; and for failure to exercise that care
action for negligence will lie if damage results.

Note: In this case the Law Lords drew a distinction between liability likely to arise
when there is a contract between the parties or there is fiduciary relationship.
They also underscored the effect a disclaimer when a person gives advise to
another with whom he has no contract or fiduciary relationship.
The Law Lords emphasized the point that the banker-customer relationship was
such that, the banker will not at any point release information to any other person
that will prejudice his/her client.

What came out of the speeches of the Law Lords:

Lord Raid responding to the authority of Donoghue V Stevenson, acknowledged
the importance of that decision, but maintained that, that decision was not
intended to disregard existing authorities. The law must treat negligent words
differently from negligent acts.
The Law ought so far as possible to reflect the standards of the reasonable man,
and that is what Donoghue V Stevenson sets out to do. The most obvious
difference between negligent words and negligent acts lies in this:
Quite careful people often express definite opinions on social or informal
occasions, even when they see that others are likely to be influenced by them; and
they often do that without taking care which they would take if asked of their
opinion professionally, or in a business connection.
Another obvious difference is that a negligently made article will only cause one
accident, so it is not very difficult to find the necessary degree of proximity or

69
 neighbourhood between the negligent manufacturer and the injured person, But
words can be broadcast with or without the consent or the foresight of the speaker
or writer. It would be one thing to say that the speaker owes a duty to a limited
class, but it would be going very far to say that he owes a duty to every ultimate
“Consumer” who acts on those words to his detriment. So it seems to me that
there is good sense behind our present law that in general an innocent but
negligent misrepresentation gives no cause of action. There must be something
more than the mere statement.

Then the judge examined authorities:

The most natural requirement would be that expressly or by implication from the
circumstances the speaker or writer has undertaken some responsibility---. It
must now be taken that Derry V Peek did not establish any universal rule that in
the absence of Contract an innocent but negligent misrepresentation can not give
rise to an action. But as it is shown in this House Nocton V Lord Ashburton, that
it is too much widly stated: “To found an action for damages there must be a
contract and breach and fraud.” Derry V Peek. We cannot therefore accept as
accurate the numerous statements to that effect in cases between 1889 and 1914
and we now determine the extent of the exceptions to that rule.
Cases in which besides that obligation arising from honesty the breach may give
rise to damages:
 Cases where a person within whose special province it lay to know a
particular fault was given an erroneous answer to an inquiry made with regard
to it by a person desirous of ascertaining the fact for the purpose of
determining his course.

 “Constructive fraud”

 breach of special duty,

Lord Morris of Barth-Y-Guest had the following to say:
Quait apart from employment or contract there may be circumstances in which a
duty to exercise care will a rise if a service is voluntarily undertaken.

70
 A medical doctor may unexpectedly come across an unconscious man, who is a
complete stranger to him, and who is in urgent need of skilled attention: If the
medical man, following the fine tradition of his profession, proceeds to treat the
unconscious man he must exercise reasonable skill and care in doing so.
In the case of a banker the judge said:
If someone who was not a customer of a bank made a formal approach to the bank
with a definite request that the bank would give him deliberate advise as to certain
financial matters of a nature with which the bank dealt the bank would be under
no obligation to accede to the request; if however they undertook, though
gratuitously, to give deliberate advise they would be under a duty to exercise
reasonable care in doing it.
There can be no negligence unless there is a duty but that duty may arise in many ways:
They may be duties owed to the world at large: alterum non lacdere. There may
be duties arising from a relationship without the interrention of contract in the
ordinary sense of the term, such as duties of a trustee to his Cestui que trust or of
a guardian to his ward.

On someone who possesses special skills:

My Lords I consider that it follows and that it should not be regarded as settled
that, if someone possesses a special skill undertakes, quite irrespective of contract,
to apply that skill for the assistance of another person who relies on such skill, a
duty of care arises. The fact that the service is to be given by means of, or by the
instrumentality of, words can make no difference. Furthermore, if in a sphere in
which a person is so placed that others could reasonably rely on his judgement or
skill or on his ability to make careful inquiry, a person takes it on himself to give
information or advise to, or to allow his information or advise to be passed on to,
another person who, as he knows or should know will place reliance on it, then
the duty of care will arise.

Lord Hodson had the following to say:

I shall refer to certain cases which support the view that apart from what are
usually called fiduciary relationships such as those between trustee and Cestuique

71
 trust, solicitor and client, parent and child or guardian and ward there are other
circumstances in which the law imposes a duty to be careful, which is not limited
to a duty to be careful to avoid personal injury or injury to property but covers a
duty to avoid inflicting pecuniary loss provided always that there is sufficiently
close relationship to give rise to a duty of care.
It is impossible to catalogue the special features which must exist for a duty of
care to a rise;
If in a sphere where a person is not placed that others could reasonably
rely on his judgement or skill or his ability to make careful inquiry such
person takes it on himself to give information or advise to, or allows his
information or advise to be passed onto, another person who, as he knows,
or should know, will place reliance on it, then a duty of care will arise.
Lord Devlin delt with on how English law has developed:
On the authority of Donoghue V Stevenson I come next to Donoghue V
Stevenson. In his celebrated speech in that case Lord Atkin did two things. He
started with what he described as a general conception and from that conception
he formulated a specific proposition of law. In between he gave a warning
“against the danger of starting propositions of law in wider terms than is
necessary, least essential factors be omitted in a wider survey and the inherent
adaptability of English law be unduly restricted.”
What Lord Atkin called” a general conception of relations giving rise to duty of
care” is now often referred to as the principle of “proximity”. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour, In the eyes of the law your neighbour is
a person who is so closely and directly affected by your act that you ought
reasonably to have him in contemplation as being so affected when your directing
your mind to the acts or omissions which are called in question.
What did the above proposition mean in the light of the case in point:
Now it is in my opinion a sensible application of what Lord Atkin was saying for
a judge to be invited on the facts of a particular case to say whether or not there
was “proximity” between the plaintiff and the defendant.

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 That would be a misuse of a general conception and it is not the way in which
English law develops. What Lord Atkin did was to use his general conception to
open up a category of cases giving rise to a special duty. It was already clear that
the law recognized the existence of such a duty in the category of articles that
were dangerous in themselves.
What Donoghue V Stevenson did may be described either as the widening of an
old category or as the creating of a new and similar one. The general conception
can be used to produce other categories in the same way. An existing category
grows as instances of its application multiply, until the time comes when the cell
divides.
The Value of Donoghue V Stevenson to Hadley B V Heller- The real value of
Donoghue V Stevenson to the argument in this care is that it shows how the law
can be developed to solve particular problems. Is the relationship between the
parties in this case such that it can be brought within a category giving rise to a
special duty?
Always in English law the first step in such an inquiry is to see how far the
authorities have gone, for new categories in the law do not spring in existence
overnight.
It would be surprising if the sort of problem that is created by the facts of this case
had never until recently a risen in English law. As a problem it is a by product of
the doctrine of consideration.
If the respondent had made a norminal charge for the reference, the problem
would not exist. It were possible in English law to construct a contract without
consideration, the problem would be more at once out of the first and general
phase into the particular; and the question would be, not whether on the facts of
the case there was special relationship, but whether on the facts of the case there
was a contract.
A promise given without consideration to perform a service cannot be enforced as
a contract by the promisee, but if the service is in fact performed and done
negligently, the promise can recover in an action in tort.
** The judge drew a distinction between words and acts or omissions.
Lord Pearce had the following to say after quoting a passage by the Lord Chancellor

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Viscount Haldene in Nocton V Lord Ashburton:
The law of negligence has been deliberately limited in its range by the courts’
insistence that there can be no actionable negligence in Vacuo without existence
of some duty to the plaintiff. Negligence in word creates problems different from
those of negligence in act. Words are more violable than deeds. They travel fast
and far a field. They are used without being expanded and take effect in
combination with innumerable facts and other words. Yet they are dangerous and
cause vast financial damage.
[Cites Grant V Astralia Knitting Mills] then went on to say: If the mere hearing
or reading of words were held to create proximity, there might be no limit, to the
person to whom the speaker or writer could be liable. Damage by negligent acts
to persons or property on the other hand, is more visible and obvious, its limits are
more easily defined and it is with this damage that the earlier cases were more
concerned.

Then the Judge examined the development of the law of liability on the basis of words:
The case of Pasley V Freeman (1789) which laid down a duty of honesty in words
to the whole world at large-creating a remedy designed to protect the economic as
opposed to the physical interests of the community. The extention was made in
Derry V Peek a duty to use reasonable care in the presentation of the document
called a valuation. But the ratio decidendi of Derry V Peek is said to have been
wrongly applied in LeLievre V Gould as explained by Lord Denning LJ in
Candler V Crane Christmas and in Nocton V Lord Ashburton it was said that the
authority of Derry V Peek has been too much emphasized.

Commenting on the decision of the House of Lords in Donoghue V Stevenson Lord

Pearce said:
The range of negligence in act was greatly extended in Donoghue v Stevenson on
the wide principle of the good neighbour – SIC utere tuo alienuum non Laedas.

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 How far economic loss alone without some physical or material to support it, can
afford a cause of negligence by act? The House of Lords in Donoghue V
Stevenson was, in fact, dealing with negligent acts causing physical damage and
the opinion cannot be read as if they were dealing with negligence in words
causing economic damage. That case can no more help in this sphere than by
affording some analogy from the broad outlook which it imposed on the law
relating to physical negligence.

As to the position of English law on Negligent acts and statements to day read:
 Home office V Dorset Yatch Co Ltd [1970]
2 ALL ER 294;[1970] AC 1004 at 1026.

 Anns V Merton Landon Borough, [1977] 2

ALL ER 492; [1978] AC 728

 Carpro Industries PLC V Dickman, [1990] IALLE R 568 at 571-608 Ch.D.

 Dans & Anoth V Radcliff & Others [1990]2 ALIER 536 (PC)

 Burton v Islington Health Authority [1992]3

ALLER 833 (CA)

 Goodwill v Pregnancy Service [1996]2 ALL ER 161 at 164 – 166 (CA)

 In Tanzania:
Cocacola Kwanza Ltd v Wilson Bezibwa,
(PC) Civil Appeal No 33 of 1999 (HC) (Unreported) Kyando J (now deceased)

Francis Ngaire v National Insurance Corporation,

[1972] HCDn 134; [1973] E.A 56

Material Facts

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 The plaintiff on 15/4/68 (a driver and mechanic) while sitting in his motor
vehicle, parked on its correct side of the road, lost his arm when another vehicle
owned by Mr James Mushi and driven by his driver collided with the plaintiff’s
vehicle. Subsequently the driver was charged and convicted on counts of careless
driving, failing to stop after an accident, failing to report an accident and driving a
vehicle on a public road with defective brakes. The plaintiff duly filed an action
in the High Court against the owner of the vehicle and his driver, not being of
sufficient means was granted leave to sue in forma pauperis (as a pauper). The
plaintiff’s advocate was informed by the police officer who investigated the case,
that the vehicle in question at the material time was being insured by the National
Insurance Corporation of Tanzania Ltd.
On telephoning the corporation through the motor vehicle claims department the
plaintiff’s lawyer was informed by a clerk in charge of the department, that Mr.
Mushi’s vehicle was in fact insured by the corporation. There followed
correspondences between the Corporation and the plaintiff’s lawyer, and
subsequently the plaintiff filed a claim against the owner of the vehicle Mr. Mushi
and the driver. The owner’s defence was that he was not liable but the driver
admitted having been at fault and that at the time of the accident he was
performing an official duty.
The case came before the former Chief Justice Georges who gave judgement in
favour of the plaintiff and awarded him Shs 50,000/= damages.
The plaintiff’s lawyer attempted to secure damages from the corporation, the
corporation repudiated liability. The plaintiff duly filed an action in tort against
the corporation in wrongly informing him that the vehicle of Mr. Mushi was
insured by the corporation, when in fact the vehicle was insured by the British
India General Insurance Company and at the time such information was revealed
the plaintiff was already time barred.

Issues
A number of interrelated issues were agreed upon. They were as follows:

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  Whether Mr. Mwaikambo of the defendant company verbally presented to the
plaintiff’s counsel that Mr. Mushi’s vehicle was insured on the date of the
accident?

 Whether the defendant’s letter addressed to the plaintiff’s advocate represented

that Mr. Mushi was their insured in respect of motor vehicle registration No TDN
518 was alleged in the plaint?

 Whether the defendant company by their letter addressed to the plaintiff’s lawyer
(Advocate) put the plaintiff on inquiry as to the Company with which the motor
vehicle registration number TDN 518 was insured at the date of the accident as
alleged in the plaint?

 Whether the answer to Issues (1) and (2) were in the affirmative the defendant
company was under a duty to the plaintiff to make representations with care?

 If the answer to issue No. 4 was in the affirmative, whether the defendant
company made the said representations negligently and thereby admitted a breach
of duty?

 If the answer to issue No 5 was in the affirmative whether the plaintiff had
suffered loss and damage as a result of such negligence?

 If the answer to issue 6 was in the affirmative what relief was the plaintiff
entitled?

Arguments by Counsel for the plaintiff:

A servant or agent of the defendant did negligently drive the vehicle in question
that it collided with the car of the plaintiff causing the plaintiff personal injury and
resulting into the plaintiff’s lose his right arm.

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 That the plaintiff instituted a Civil Case in the High Court against the defendants
and the results of the proceedings were infavour of the plaintiff being awarded
damages in the sum of 50,000/=
That prior to the Institution of proceedings the plaintiff’s advocate did contact one
agent of the National Insurance Corporation in the claims partment. The
defendants were the sole company permitted by law to undertake the Insurance of
Vehicles in Tanzania against third party risks.
The plaintiff’s advocate inquired whether the vehicle that caused an accident was
in fact insured by the corporation and the agent of the defendant did represent to
the said advocate that the said vehicle was insured at the material date.
That acting on the said representation, the plaintiff’s advocate immediately after
instituting the proceedings did notify the defendant of the institution of
proceedings by letter, no notification to any other company was made.
That later the defendant company through a letter denied that the said vehicle was
insured with them at the material time of the accident and refused to satisfy the
judgement as pleaded.
That the defendant company were under a duty to the plaintiff to make the
statements and representations with care.
Arguments by Counsel for defendants:
The defendant denied that at the time of accident, it was the sole company
permitted by law to undertake Tanzania insurance of vehicles against any third
party risks.
That the advocate of the plaintiff did not contact the agent of the defendant
company who made the allegation that the said vehicle was at the material time
insured by the defendant company;
The communication by letter to the plaintiff’s advocate had denied that the
company was liable and therefore refused to satisfy the judgement.
That the defendant company was not under any duty to the plaintiff to make the
alleged or any statement or representations, that there was no breach of the
alleged duty, that the defendant was not guilty of any negligence to the plaintiff.

Holding:

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 Judgement for the plaintiff

Ratio Decidendi:
When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceedings
between himself and such person or his representative, to deny the truth of that
thing.

Important remarks by Biron, J. (as he then was)

1. Reading the answers given by the agent of the Company to the Advocate of
the plaintiff:
Mr. Chakera’s version of the telephone conversation, he actually telephoned
when the plaintiff called at his office enquiring on the progress of the case,
was that he first of all referred to his letter of March 4--- and enquired from
Mr. Mwaikambo whether the vehicle in question was insured by the
Corporation.
Mr. Mwaikambo not only confirmed, that it was, but asked rhetorically “who
else could have insured the Vehicle?”

2. It is abundantly clear from Mr. Mwaikambo’s evidence that when having

obtained the file referred to by him, which he himself said it was motor claim
file, Evidence, there was, I would say beyond a shadow of doubt only one
letter on the file---
As this was the only letter on the file that which Mr. Mwaikambo consulted,
he must have known, or at least should have known as it so explicitly stated,
that the accident occurred on 15 April, and Mr. Chakera’s query was in
respect of that accident, Mr. Mwaikambo himself admitted that there had been
no other claim brought against the vehicle.

3. In answering Issues four and five Justice Biron made reference to the House
of Lords decisions, which at that time were of persuasive value. This came

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 about the fact that at independence appeals no longer lay to the Privy Council
(see Module V) from the courts in East Africa and the Court of Appeal for
East Africa in 1968 made a decision in Dodhia V National & Grindlays Bank
Ltd, [1970] EA on the rules of precedent applicable to East Africa which
affected the Court’s attitude towards foreign decisions.
(a) quoted a remark by Lord MacMillan in Donoghue V Stevenson, [1932]
AC 562;

The categories of negligence are never closed.

To this remark Justice Biron (as he then was) went on to say;
Although the authorities have distinguished between injury or damage
resulting from statements oral or written, and physical acts, I think, there
is a divergence of view and attitude adopted by Australian Courts, and the
American Courts are much more liberal than the English ones, I must
confess my inability to distinguish between statements and other physical
acts, after all, a statement is a physical act, whether oral or written, and to
quote the old adage, the pen is mightier than the word, to which I add,
that the tongue could be equally as mischievous as the pen (emphasis
added).

However, in England the matter has now, I think, been finally settled by
the House of Lords’ case of Hedley Byrne V Heller & Partners [1963] 2
ALLE R 575. I think it is sufficient to quote the head-notes as follows:
“If, in the ordinary course of business or professional affairs, a person
seeks information or advise from another, who is not under contractual or
fiduciary obligation to give the information or advice, in circumstances in
which a reasonable man so asked would know that he was being trusted or
that his skill or judgement was being relied on, and the person asked
chooses to give the information or advice without deeply so qualifying his
answer as to show that he does not accept responsibility, then the person
replying accepts a legal duty to exercise such care as the circumstances

80
 require in making his reply; and for a failure to exercise that care action
for negligence will lie if damage results”.

As you might notice this is an “If” proposition not binding on the judge at all. At the
same time the judge realized that English decisions or authorities were no longer
binding:

For the record I ought to add that, although English authorities are no longer
binding on this court, I can sense reason for holding that the law as laid down by
the House of Lords, is any different in this country, but in the contrary, I have not
the slightest hesitation in holding that it is the same. (emphasis added)

But because of the seemingly inadequacy of the case law authorities, the judge based his
judgement (decision) more firmly by employing the Doctrine of Estoppel from the Law
of Evidence Act, 1967 S.123:
---when a declaration is made by an employee in the ordinary course of his duties
or employment is liable for such a declaration.

He went on further to say:

There is a duty cast on an insurance company from whom an inquiry is made as to
whether a certain vehicle is covered by that company, to exercise the utmost care
and diligence to give the correct information, as a failure to do so would occasion
loss or damage to the inquirer.
I would go even further to say the law has established a relationship between the
public and insurance companies and laid a fiduciary relationship or obligation on
the part of Insurance Companies, to exercise all due care and diligence in giving
proper and true information.

The judge further commented that:

At the time the National Insurance corporation had a monopoly of Insurance
business in Tanzania as specifically provided for by the law. If courts did not

81
 protect the public then the corporation was likely to conduct itself in a manner
injurious to the community at large.
“Therefore I have not the slightest hesitation in holding that the Corporation was
under the duty to exercise due care and diligence in giving Mr Chakera a true
answer to his inquiry, as to whether the vehicle which caused so much damage
and injury to the plaintiff was insured with the corporation at the material time.
Be it as it may, it is possible that Mr. Mwaikambo failed to consult the policy file
and assumed that the vehicle must have been insured with the corporation,
because by Insurance (Vesting of Interests and Regulations) Act, 1967, Part Vs,13
the corporation was granted monopoly in this country for handling such
Insurance.”

Notice the judge’s hunch. The decision was not based on precedents by a statutory
provision.

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