justified the rule which the MR applied to the case. Heaven v Pender may be
regarded as another, secular, ancestor of Lord Atkin’s neighbour principle. Brett MR
went on to formulate the following ‘larger proposition’:
‘... whenever one person is by circumstances placed in such a position with
regard to another that every one of ordinary sense who did think would at
once recognise that if he did not use ordinary care and skill in his own
conduct with regard to those circumstances he would cause danger of injury
to the person or property of another, a duty arises to use ordinary care and
skill to avoid such danger.’20
Sir William Brett was apparently so convinced of the generality of this
principle that he made clear that it included, ‘all the recognised cases of liability.’ In
other words, the piecemeal development of the tort of negligence – identifying
factual categories of case in which a duty of care was owed – was to be no more.
Instead, the Brett MR formula could be deployed. Thus, a duty of care would be
owed and an action in negligence might be available where a person supplied
goods or machinery to another knowing that, unless reasonable care and skill were
exercised in the supply of the goods or machinery, a danger of injury might result.
Clearly, in Heaven v Pender the Claimant’s case satisfied the MR’s formula. A duty
of care had been owed by the Defendant to the Claimant and liability was
established.
The ambition of the leading judgment in Heaven v Pender could, if allowed
to develop and to be applied, have led to a very significant extension of the law of
negligence at a time when the fairly rudimentary industrial machinery of the
nineteenth century was killing and maiming people in increasingly industrial
quantities. The roots set down by Heaven v Pender proved, however, to be shallow.
People – by which I mean other lawyers – started to be rude about Sir William
Brett’s formula very quickly. The process of retreat began in the same case. Lords
Justices Cotton and Bowen agreed with the Master of the Rolls that the Claimant
should win his appeal. However, they based their decision on much narrower