Heaven v Pender (1883) 11 QBD 503

A ship painter was injured when staging ropes provided by a dry dock owner failed. The Court of Appeal, through Brett MR's influential obiter, articulated an early general principle of duty of care in negligence, foreshadowing the modern law established in Donoghue v Stevenson.

Facts

The defendant was the owner of a dry dock used for ship works. The claimant was a ship painter employed by a contractor to paint a ship at the dock. The claimant was using staging slung over the side of the ship, which was supported by ropes provided by the dock owner. These ropes had previously been damaged and evidence showed they were unfit for use. The staging gave way and the painter was injured.

As summarised by Lord Herschell in the later case of Caledonian Railway Co. v. Warwick (1897), the dock’s supporting apparatus:

was part of the facilities which the dock afforded, just as they did by their cranes, their warehouses, or any other appliances, to the vessels that came to use their docks. This particular appliance was in such a condition that a person going upon it, trusting, as he would have a right to trust, that he might go upon it safely because it would bear his weight, was led into what has been called a trap, by which he sustained an injury. He was there upon the invitation of the dock company, and although it is true that the staging was used for painting a ship, it was part of the appliances, supplied by the dock company for purposes connected with the carrying on of their business.

Issues

The key legal issue was whether the dry dock owner owed a duty of care to the ship painter who was injured whilst using equipment provided by the dock owner, despite there being no direct contractual relationship between them.

Judgment

Court of Appeal

The Master of the Rolls, Brett MR (later Lord Esher), delivered a significant judgment in which he articulated a broad principle regarding the duty of care in tort. He stated:

Whenever one person is by circumstances placed in such a position with regard to another that everyone 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 the other, a duty arises to use ordinary skill and avoid such danger.

Brett MR advocated that tort law should assume a broad view of liability, holding that if any person with ordinary sense realises that failure to use proper care and skill could cause damage to another or their property, they should be held liable.

House of Lords

The House of Lords decided the case on narrower grounds, holding that a duty of care was owed by an occupier of land (the dry dock owner) to invitees (the employees of the contractor who were on the site to the economic benefit of the dry dock owner). The Lords did not adopt Brett MR’s broader formulation of the duty of care principle.

Implications

Although Brett MR’s wide formulation of the duty of care was expressed in obiter dicta and was not adopted by the House of Lords at the time, it proved to be of immense historical significance. Lord Atkin expressly adopted Brett MR’s reasoning in Donoghue v Stevenson [1932], when the general concept of a tortious duty of care in negligence was finally established under English law. This case therefore represents a crucial precursor to the modern law of negligence, articulating principles that would eventually become foundational to tort liability.

Verdict: The claimant succeeded in his claim. The House of Lords found that a duty of care was owed by the dry dock owner (as occupier of land) to the injured painter (as an invitee on the premises).

Source: Heaven v Pender (1883) 11 QBD 503