Heaven v Pender

Heaven v Pender

Relevance

A foundational case for the law of negligence and the principle of duty of care.

Facts

Heaven was contracted to paint a ship. Pender, the dock owner, had built a stage around the ship which gave way due to a defective rope, causing Heaven to fall and be injured.

Held

The defendant was found to be under an obligation to the plaintiff to use ordinary care and skill in supplying a safe staging. In a minority decision in obiter dicta, Sir William Brett, the Master of Rolls, considered the circumstances in which a duty of care may be imposed outside of contract and fraud, holding:

‘... everyone ought, 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, being in such circumstances, he does not think, and in consequence neglects, or if he neglects to use ordinary care or skill, and injury ensue, the law, which takes cognizance of, and enforces, the rules of right and wrong, will force him to give an indemnity for injury.’

Brett MR considered a number of examples of relationships where a duty of care and skill arose, in particular drivers approaching each other on the road, a train company and its passengers and a store owner and their customers. The premise underlying these duties was held to be:

‘... 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 care and skill to avoid such danger.’

References

Heaven v Pender (1883) 11 QBD 503

James Plunkett, Historical Foundations of the Duty of Care, 41(3) Monash University Law Review 717.