Skip to the content

Respondent's Case Page 9

lie altogether apart from the question whether a duty is owed by one person to another, and it is respectfully submitted that the creation of new specialties is a thing to be avoided, and that in any event the present appeal provides no adequate ground in equity for establishing legal distinctions not hitherto understood to exist.  
Moreover, in the latest Scottish case before your Lordship's House in which where this department of the law was touched upon, Lord Dunedin definitely affirms one of the exceptions from the general rule noted above as distinguishing the case then under consideration from another earlier Scottish case. For his Lordship says: 'The one point of difference (between the two cases) is this — in the present case the use to which the chattel was being put was obviously dangerous … in the Caledonian case there was no obvious danger in allowing the wagon to be taken off their own line on to another for transit into a siding.' In view of this observation it seems difficult to affirm the Lord Ordinary's view that the two systems are governed by different principles, or that the propositions noted above are not as accurate in Scotland as they would be in England. Oliver and Others v, Saddler & Co. 1929 S.C.(H.L.) 94 at 104.
The Lord Ordinary also founds strongly upon certain criticisms in Salmond on Torts upon the line of authorities relied on by the Respondents, and uses these criticisms as a basis for doubting the validity of these decisions. The ground of that learned author's criticisms of these cases, and the ground upon which he professes to find them 'unsatisfactory' and 'inconsistent' depends, however, upon a distinction which he seeks to make between nonfeasance and misfeasance — a distinction which forms no part of the decision in any of them, and which, it is humbly submitted, in no way impairs their authority. Indeed it only enables the learned author to justify some of the decisions upon grounds upon which the cases were neither argued nor decided, and to con-



Respondent's Case Page 9

Back to index