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duty is there when 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 no duty to them. The case of Heaven v. Pender has no bearing upon the present question. That case established that under certain circumstances one man 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 property of another a duty lies upon him not to do that which may cause a personal injury to that person or may injure his property."
In the same case at p. 504 A. L. Smith L.J. said: "The decision of Heaven v. Pender was founded upon the principle that a duty to take 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 one of the other. Heaven v. Pender goes no further than this, though it is often cited to support all kinds of untenable propositions."
In Earl v. Lubbock, 1905, 1 K.B. 253, the plaintiff had been injured by a wheel coming off a van which he was driving for his employer and which it was the duty of the defendant under contract with such employer to keep in repair. The County Court Judge and the Divisional Court both held that even if negligence was proved the action would not lie. It was held by the Appeal Court that the defendant was under no duty to the plaintiff and that there was no cause of action. In his judgment Sir Richard Henn Collins M.R. said the case was concluded by the authority of Winterbottom v. Wright, and he pointed out that the dictum of Lord Esher in Heaven v. Pender was not a decision of the Court and that it was subsequently qualified and explained by Lord Esher himself in Le Lievre v. Gould. Stirling L.J. said that in order to succeed in the action the plaintiff must bring his case within the proposition enunciated by Cotton L.J. and agreed to by Bowen L.J. in Heaven v. Pender, while Matthew L.J. made the following observation: "The argument of counsel for the plaintiff was that the defendant's servants had been negligent in the performance of the contract with the owners of the van and that it followed as a matter of law that anyone in their employment or indeed anyone else who sustained an injury traceable to that negligence had a cause of action against the defendant. It is impossible to accept such a wide proposition and indeed it is difficult to see how if it were the law trade could be carried on. No prudent man would contract to make or repair what the employer intended to permit others to use in the way of his trade."
In Bates v. Batey & Co. Ld., 1913, 3 K.B. 351, the defendants, ginger beer manufacturers, were held not liable to a consumer (who had purchased from a retailer one of their bottles) for injury occasioned by the bottle bursting as the result of a defect of which the defendants did not know, but which by the exercise of reasonable care they could have discovered. In reaching this conclusion Mr. Justice Horridge stated that he thought the judgments of Parke B. in Langmeid v. Holliday, of Cotton and Bowen L.JJ. in Heaven v. Pender, of Stirling L.J. in Earl v. Lubbock, and of Hamilton J. in Blacker v. Lake and Elliot, made it clear that the plaintiff was not entitled to recover, and that he had not felt himself bound by George v. Skivington.
So far therefore as the case of George v. Skivington and the dicta in Heaven v. Pender are concerned it is in my opinion better that they should be buried so securely that their perturbed spirits shall no longer vex the law.
One further case mentioned in argument may be referred to certainly not by way of authority but to gain assistance by considering how similar cases are dealt with by eminent judges of the U.S.A. That such cases can have no close application and no authority is clear, for though the source of the law in the two countries may be the same, its current may well flow in different channels. The case referred to is that of Thomas v. Winchester, 6 N.Y. 397.
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