References: [1893] 1 QB 491, (1893) 9 The Times LR 243, 62 LJQB 353, 68 LT 626, 57 JP 484
Coram: Lord Esher MR, AL Smith LJ, Bowen LJ
Ratio: Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no contract between them. The surveyor was negligent, and his certificates contained untrue statements as to progress, but there was no fraud on his part.
Held: The surveyor owed no duty to the mortgagees to exercise care in giving his certificates, and they could not maintain an action against him by reason of his negligence.
Lord Esher MR said: ‘But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. The case of Heaven v. Pender has no bearing upon the present question. That case established that, under certain circumstances, one man may owe a duty to another even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.’
Bowen LJ said: ‘the law . . does not consider that what a man writes on paper is like a gun or other dangerous instrument’ and also refered to the principle: ‘that a duty to take due 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 the one to the other.’
Smith LJ said: ‘The decision of Heaven -v- Pender was founded upon the principle, that a duty to take due 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 the one to the other. Heaven v. Pender goes no further than this, though it is often cited to support all kinds of untenable propositions.’
This case cites:
- Distinguished – Heaven v Pender, Trading As West India Graving Dock Company CA ((1883) 11 QBD 503, 52 LJQB 702, 49 LT 357, 47 JP 709)
The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
Held: The defendant had . .
(This list may be incomplete)
This case is cited by:
- Cited – Mutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC (lip, [1971] 2 WLR 23)
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . . - Cited – Donoghue (or M’Alister) v Stevenson HL ([1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, Hamlyn, [1932] All ER Rep 1, (1932) 101 LJPC 119, (1932) 147 LT 281, [1932] SLT 317, (1932) 48 TLR 494, (1932) 37 Com Cas 350, Bailii, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47)
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . . - Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL ([1964] AC 465, [1963] 2 All ER 575, UBC, Bailii, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, Bailii)
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . . - Cited – Candler v Crane Christmas and Co CA ([1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371)
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . . - Cited – Sutradhar v Natural Environment Research Council HL (Bailii, [2006] UKHL 33, Times 07-Jul-06, [2006] 4 All ER 490)
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . . - Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . . - Cited – Manners v Whitehead SCS ((1898) 1 F 171, 36 Sc LR 94, 6 SLT 190)
(Inner House) An innocent misrepresentation does not give rise to damages. To be actionable it must be made fraudulently, but a person to whom a fraudulent representation of the profitability of a business, or a business opportunity, had been made . . - Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
(This list may be incomplete)
Last Update: 18 March 2019
Ref: 181006