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Appendix Page 5


and is at least a relevant juridical fact, in every case in which the sufferer, within a reasonable anticipation, may be found to be within the outlook of a danger resulting from failure to discharge the duty. The comments on the proposition enunciated in that passage have been directed to question the general existence of a duty rather than to dispute the fact of a relation. See (for example) Heaven v. Pender. cited supra, per Cotton and Bowen, L.JJ., p. 516. I prefer the Opinion of Lord Esher himself in Le Lievre & Dennes v. Gould, 1893, 1 Q.B.D. 491, who held that Heaven v. Pender 'had no application to that case', to the Opinion of Collins, M.R. in Earl v. Lubbock, 1905, 1 K.B. 253, in so far as it expressed the view that the pronouncement in Heaven v. Pender had subsequently been 'qualified and explained' by its author. (Third and finally) A causal connection between the breach of the duty and any resulting injury which links the injury to the wrong as its proximate cause. Upon this analysis, if it be a proper one, I am of opinion that the duty (and it may be also the proximity of cause and effect) is dependant on the quality of the accompanying danger, while the relation is dependant only on the outlook or prospect of incidence of the danger, and is not dependant on its quality.

    In the absence of a danger there can be no duty or breach of duty, and accordingly no negligence. The duty in any particular case will thus be applied by the facts with no less assertive influence than it will be enjoined by law, and will vary with the circumstances of each particular case in which it falls to be affirmed. A duty to inspect material, in the interests of the safety of those who may have occasion to handle it, will not, in my opinion, be affirmed unless there is ground for a reasonable apprehension that, in default of such inspection, the use of the material may be attended with danger. The element of danger must accordingly be present; but the function of



Lord Moncrieff

Appendix Page 5

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