suggested that the employee’s acceptance of a weekly wage was the quid pro quo
for running the risk of being injured in the course of his work. At this time the law
recognised certain factual situations – categories of case – where a duty of care
existed which, if breached, might then give rise to a cause of action in negligence. If
one’s case did not fit into such category then there was no cause of action in law. In
Heaven v Pender, the Claimant was employed by a ship painter. His employer had a
contract with the ship owner. The ship owner, in turn, had a contract with the
Defendant dock owner for the provision of premises and scaffolding to enable
painting work to take place. The Claimant was injured in the course of his
employment when a defective scaffold rope snapped. He sued the Defendant dock
proprietor. The Claimant’s claim was dismissed at first instance and he appealed.
The leading judgment was delivered by the Master of the Rolls: Sir William Brett. He
had no doubts about the basis of the Claimant’s action: ‘The action is in form and
substance an action for negligence.’17 The Master of the Rolls also identified the
ingredients of the tort in a recognisably modern form stating that the focus had to
lie on whether a duty of care existed: a mere ‘want of attention amounting to a want
of ordinary care is not a good cause of action’18 It seems obvious to us that the dock
proprietor should owe a duty of care to the injured employee, but it was far from
obvious at the end of the nineteenth century. Brett MR referred to some of the
established categories of cases where it had been accepted that, in the absence of
a contractual relationship between the parties or any fraud, a duty of care did exist,
but the difficulty he faced was that the circumstances of Mr Heaven’s case did not
fall into any established category. The Master of the Rolls solved this conundrum by
returning to first principles: ‘every one ought’, he said, ‘by the universally
recognised rules of right and wrong, to think so much with regard to the safety of
others who may be jeopardised by his conduct’ and, if reasonable care was not
exercised and injury resulted then, ‘the law, which takes cognisance of and enforces
the rules of right and wrong, will force him to give an indemnity for the injury.
It was, therefore, appeal to a universal principle, a natural law of right and wrong, that