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Lord Atkin Page 2


ion of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or introduce non-essentials. The attempt was made by Lord Esher in Heaven v. Pender in a definition to which I will later refer. As framed it was demonstrably too wide, though it appears to me if properly limited to be capable of affording a valuable practical guide.

    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, of which the 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 a species of “culpa” is no doubt based upon a general public sentiment of moral wrongdoing for which the defender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's 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. This appears to me to be the doctrine of Heaven v. Pender as laid down by Lord Esher when it is limited by the notion of proximity introduced by Lord Esher himself and A. L. Smith L.J. in Le Lievre v. Gould, 1893, 1 Q.B. 497. Lord Esher at p. 497 says: “That case established that under certain circumstances one man 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 property of another a duty lies upon him not to do that which may cause a personal injury to that other or may injure his property.” So A. L. Smith L.J.: “The decision of Heaven v. Pender was founded upon the principle that a duty to take due care did arise when the 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.” I think that this sufficiently states the truth if proximity be not confined to mere physical proximity; but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act. That this is the sense in which nearness or “proximity” was intended by Lord Esher is obvious from his own illustration in Heaven v. Pender at p. 510 of the application of his doctrine to the sale of goods: “This” (i.e. the rule he has just formulated) “includes the case of goods, etc., supplied to be used immediately by a particular person or persons or one of a class of persons where it would be obvious to the person supplying if he thought that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not or whether there would probably be means of observ-”

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