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 to 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
9/25/15, 8:20 AMTort Cases: Donoghue v Stevenson - Buckmaster judgment
Page 10 of 12http://netk.net.au/Tort/Case1.asp
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 Mathew 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