2.
Sources of Law
a)
Statute
(1)
Evans v Cross [1938] 1 KB 694 (King’s Bench)
Facts:
The appellant drove a motor-car on the wrong side of a white line which had been painted on the highway
round a corner to indicate that traffic should keep to the near side of the road. Road Traffic Act, 1930, s.
48, sub-s. 1: ".... A highway authority may cause or permit traffic signs to be placed on or near any road in
their area." By s. 48, sub-s. 9: ".... The expression 'traffic sign,' includes all signals, warning sign posts,
direction posts, signs, or other devices for the guidance or direction of persons using roads. ...." Sect. 49
provides that a person who "fails to conform to the indication given by" a traffic sign shall be guilty of an
offence.
Lord Hewart CJ
To bring what happened in the present case within the scope of the Road Traffic Act, 1930, it must be
made to appear that the line painted on the highway was a device, and, therefore, a traffic sign, within the
meaning of s. 48, sub-s. 9, of the Act, and that the appellant failed to conform to the indication given by
that sign within s. 49. In my opinion the word "device " in s. 48, sub-s. 9, refers to things ejusdem
generis with "signals, warning sign posts, direction posts, and signs" - which words precede
"device" in the sub-section - and no one would dream of saying that a painted line on the highway
was of the same character as a sign post or direction post or a sign of that nature.
(2)
Fisher v Bell [1961] 1 QB 394 (Queen’s Bench)
Facts:
A shopkeeper displayed in his shop window a knife of the type commonly known as a "flick knife" with a
ticket behind it bearing the words "Ejector knife - 4s." An information was preferred against him by the
police alleging that he had offered the knife for sale contrary to section 1 (1) of the Restriction of
Offensive Weapons Act, 1959: "Any person who manufactures, sells or hires or offers for sale or hire, or
lends or gives to any other person - (a) any knife which has a blade which opens automatically by hand
pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes
known as a 'flick knife' or 'flick gun'; ... shall be guilty of an offence and shall be liable on summary
conviction in the case of a first offence to imprisonment for a term not exceeding three months or to a fine
not exceeding fifty pounds or to both such imprisonment and fine, ..."
Lord Parker CJ
The sole question is whether the exhibition of that knife in the window with the ticket constituted an offer
for sale within the statute. I confess that I think most lay people and, indeed, I myself when I first read the
papers, would be inclined to the view that to say that if a knife was displayed in a window like that with a
price attached to it was not offering it for sale was just nonsense. In ordinary language it is there inviting
people to buy it, and it is for sale; but any statute must of course be looked at in the light of the
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general law of the country. Parliament in its wisdom in passing an Act must be taken to know the
general law. It is perfectly clear that according to the ordinary law of contract the display of an
article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for
sale the acceptance of which constitutes a contract. That is clearly the general law of the country. (…)
In those circumstances I am driven to the conclusion, though I confess reluctantly, that no offence was
here committed. At first sight it sounds absurd that knives of this sort cannot be manufactured, sold, hired,
lent, or given, but apparently they can be displayed in shop windows; but even if this - and I am by no
means saying it is - is a casus omissus it is not for this court to supply the omission. I am mindful of the
strong words of Lord Simonds in Magor and St. Mellons Rural District Council v. Newport Corporation.
In that case one of the Lords Justices in the Court of Appeal had, in effect, said that the court having
discovered the supposed intention of Parliament must proceed to fill in the gaps - what the Legislature has
not written the court must write - and in answer to that contention Lord Simonds in his speech said: "It
appears to me to be a naked usurpation of the legislative function under the thin disguise of
interpretation."
(3)
Magor and St Mellons Rural District Council Appellants v Newport Corporation
Respondents [1950] 2 All ER 1226 (Court of Appeal)
Denning LJ
We do not sit here to pull the language of Parliament to pieces and make nonsense of it. This is an easy
thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of
Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense
of the enactment than by opening it up to destructive analysis.
(4)
Magor and St Mellons Rural District Council Appellants v Newport Corporation
Respondents [1952] AC 189 (House of Lords)
Lord Simonds
My Lords, I have had the advantage of reading the opinion which my noble and learned friend Lord
Morton of Henryton is about to deliver, and I fully concur in his reasons and conclusion, as I do in those
of Parker J. and the majority of the Court of Appeal. Nor should I have thought it necessary to add any
observations of my own were it not that the dissenting opinion of Denning L.J. appears to invite some
comment.
"We sit here," he says, "to find out the intention of Parliament and of Ministers and carry it out, and we do
this better by filling in the gaps and making sense of the enactment than by opening it up to destructive
analysis. " The first part of this passage appears to be an echo of what was said in Heydon's Case 300
years ago, and, so regarded, is not objectionable. But the way in which the learned Lord Justice
summarizes the broad rules laid down by Sir Edward Coke in that case may well induce grave
misconception of the function of the court. (…) The duty of the court is to interpret the words that the
legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the
court to travel outside them on a voyage of discovery are strictly limited (…) The view expressed by
the learned Lord Justice (…) cannot be supported. It appears to me to be a naked usurpation of the
legislative function under the thin disguise of interpretation.
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(5)
James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd, [1977] QB 208
(Court of Appeal)
Lord Denning
We have for years tended to stick too closely to the letter - to the literal interpretation of the words. We
ought, in interpreting this convention, to adopt the European method. They [judges in other EU countries,
AO] adopt a method which they call in English by strange words - at any rate they were strange to
me - the "schematic and teleological" method of interpretation. It is not really so alarming as it
sounds. All it means is that the judges do not go by the literal meaning of the words or by the
grammatical structure of the sentence. They go by the design or purpose which lies behind it. When
they come upon a situation which is to their minds within the spirit - but not the letter - of the legislation,
they solve the problem by looking at the design and purpose of the legislature - at the effect which it was
sought to achieve. They then interpret the legislation so as to produce the desired effect. This means that
they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of
dealing with this situation so as to give effect to the presumed purpose of the legislation? They lay down
the law accordingly. If you study the decisions of the European Court, you will see that they do it every
day. To our eyes - shortsighted by tradition - it is legislation, pure and simple. But, to their eyes, it is
fulfilling the true role of the courts. They are giving effect to what the legislature intended, or may be
presumed to have intended. I see nothing wrong in this. Quite the contrary. It is a method of interpretation
which I advocated long ago (…) It did not gain acceptance at that time. It was condemned by Lord
Simonds in the House of Lords in Magor and St. Mellons Rural District Council v. Newport Corporation
[1952] A.C. 189, 191, as a "naked usurpation of the legislative power." But the time has now come when
we should think again. In interpreting the Treaty of Rome (which is part of our law) we must
certainly adopt the new approach. Just as in Rome, you should do as Rome does. So in the
European Community, you should do as the European Court does. So also in interpreting an
international convention (such as we have here) we should do likewise. We should interpret it in the
same spirit and by the same methods as the judges of the other countries do. So as to obtain a
uniform result. Even in interpreting our own legislation, we should do well to throw aside our
traditional approach and adopt a more liberal attitude. We should adopt such a construction as will
"promote the general legislative purpose" underlying the provision.
(6)
Pepper v Hart, [1993] AC 593 (House of Lords)
Lord Browne-Wilkinson
Under present law, there is a general rule that references to Parliamentary material as an aid to statutory
construction is not permissible ("the exclusionary rule"): Davis v. Johnson [1979] A.C. 264 and Hadmor
Productions Ltd v. Hamilton [1983] 1 A.C. 191. This rule did not always apply but was judge made. Thus,
in Ash v. Abdy (1678) 3 Swans. 664 Lord Nottingham took judicial notice of his own experience when
introducing the Bill in the House of Lords. (…) Although the courts' attitude to reports leading to
legislation has varied, until recently there was no modern case in which the court had looked at
parliamentary debates as an aid to construction.
The reasons put forward for the present rule are first, that it preserves the constitutional proprieties
leaving Parliament to legislate in words and the courts (not Parliamentary speakers), to construe the
meaning of the words finally enacted; second, the practical difficulty of the expense of researching
Parliamentary material which would arise if the material could be looked at; third, the need for the
citizen to have access to a known defined text which regulates his legal rights; fourth, the
improbability of finding helpful guidance from Hansard.
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I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the
exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a)
legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of
one or more statements by a Minister or other promoter of the Bill together if necessary with such
other Parliamentary material as is necessary to understand such statements and their effect; (c) the
statements relied upon are clear. Further than this, I would not at present go.
Lord Griffiths
My Lords, I have long thought that the time had come to change the self- imposed judicial rule that
forbade any reference to the legislative history of an enactment as an aid to its interpretation. The ever
increasing volume of legislation must inevitably result in ambiguities of statutory language which are not
perceived at the time the legislation is enacted. The object of the court in interpreting legislation is to give
effect so far as the language permits to the intention of the legislature. If the language proves to be
ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the
meaning that the words were intended to carry. The days have long passed when the courts adopted a strict
constructionist view of interpretation which required them to adopt the literal meaning of the language.
The courts now adopt a purposive approach which seeks to give effect to the true purpose of
legislation and are prepared to look at much extraneous material that bears upon the background
against which the legislation was enacted. Why then cut ourselves off from the one source in which
may be found an authoritative statement of the intention with which the legislation is placed before
Parliament? (…) I cannot agree with the view that consulting Hansard will add so greatly to the cost of
litigation, that on this ground alone we should refuse to do so. Modern technology greatly facilitates the
recall and display of material held centrally.
Lord Oliver of Aylmerton
A statute is, after all, the formal and complete intimation to the citizen of a particular rule of the law
which he is enjoined, sometimes under penalty, to obey and by which he is both expected and
entitled to regulate his conduct. We must, therefore, I believe, be very cautious in opening the door
to the reception of material not readily or ordinarily accessible to the citizen whose rights and duties
are to be affected by the words in which the legislature has elected to express its will. But experience
shows that language - and, particularly, language adopted or concurred in under the pressure of a tight
Parliamentary timetable - is not always a reliable vehicle for the complete or accurate translation of
legislative intention; and I have been persuaded, for the reasons so cogently deployed in the speech of my
noble and learned friend, that the circumstances of this case demonstrate that there is both the room and
the necessity for a limited relaxation of the previously well-settled rule which excludes reference to
Parliamentary history as an aid to statutory construction. It is, however, important to stress the limits
within which such a relaxation is permissible and which are set out in the speech of my noble and learned
friend. It can apply only where the expression of the legislative intention is genuinely ambiguous or
obscure or where a literal or prima facie construction leads to a manifest absurdity and where the difficulty
can be resolved by a clear statement directed to the matter in issue.
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b)
Case law
(1)
Donoghue v Stevenson [1932] AC 562 (House of Lords)
Facts:
C (= the claimant) and her friend F visited a café in Glasgow. F treated C to a bottle of ginger beer. The
bottle consisted of dark opaque glass. The waiter poured some of the beer into a glass and C drank. When
the glass was empty, F poured the rest of the contents into the glass. At that moment, the remains of a
decomposed snail floated out of the bottle. In consequence of the nauseating sight of the snail and of the
noxious condition of the snail-tainted ginger beer consumed by her, C suffered a shock and became sick.
Lord Atkin
The question is whether the manufacturer of an article of drink sold by him to a distributor, in
circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by
inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable
care that the article is free from defect likely to cause injury to health. (…)
I speak with little authority on this point, but my own research, such as it is, satisfies me that the principles
of the law of Scotland on such a question as the present are identical with those of English law; and I
discuss the issue on that footing. The law of both countries appears to be that in order to support an action
for damages for negligence the complainant has to show that he has been injured by the breach of a duty
owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. In the
present case we are not concerned with the breach of the duty; if a duty exists, that would be a question of
fact which (…) for present purposes must be assumed. We are solely concerned with the question
whether, as a matter of law in the circumstances alleged, the defender owed any duty to the pursuer to take
care. It is remarkable how difficult it is to find in the English authorities statements of general application
defining the relations between parties that give rise to the duty.
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour;
and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The answer seems to be-- persons who
are so closely and directly affected by my act that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions which are called in
question.
If your Lordships accept the view that this pleading discloses a relevant cause of action you will be
affirming the proposition that by Scots and English law alike a manufacturer of products which he sells
in such a form as to show that he intends them to reach the ultimate consumer in the form in which
they left him with no reasonable possibility of intermediate examination, and with the knowledge
that the absence of reasonable care in the preparation or putting up of the products is likely to
result in injury to the consumer's life or property, owes a duty to the consumer to take that
reasonable care. It is a proposition that I venture to say no one in Scotland or England who was not
a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this
matter, as in most others, is in accordance with sound common sense.
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(2)
Candler v Crane, Christmas & Co [1951] 1 All ER 426 (Court of Appeal)
Facts:
The claimant (C) was considering the possibility of investing 2,000 ₤ in a limited liability company, but,
before deciding to do so, desired to see the accounts of the company. The director instructed the
defendants (D), the accountants of the company, to prepare the accounts and present them to C. As a
result, C invested his money in the company. The accounts were carelessly prepared, contained numerous
false statements and gave a wholly misleading picture of the state of the company, which was wound up
within a year, C losing the whole of his investment.
Lord Denning
Let me first be destructive and destroy the submissions put forward by Mr. Foster. His first submission
was that a duty to be careful in making statements arose only out of a contractual duty to the plaintiff or a
fiduciary relationship to him. Apart from such cases, no action, he said, had ever been allowed for
negligent statements, and he urged that this want of authority was a reason against it being allowed now.
This argument about the novelty of the action does not appeal to me in the least. It has been put forward in
all the great cases which have been milestones of progress in our law, and it has always, or nearly always,
been rejected. If you read the great cases of Ashby v. White, Pasley v. Freeman and Donoghue v.
Stevenson you will find that in each of them the judges were divided in opinion. On the one side
there were the timorous souls who were fearful of allowing a new cause of action. On the other side
there were the bold spirits who were ready to allow it if justice so required. It was fortunate for the
common law that the progressive view prevailed.
Let me now be constructive and suggest the circumstances in which I say that a duty to use care in
statement does exist apart from a contract in that behalf. First, what persons are under such duty? My
answer is those persons such as accountants, surveyors, valuers and analysts, whose profession and
occupation it is to examine books, accounts, and other things, and to make reports on which other people other than their clients - rely in the ordinary course of business. (…) Secondly, to whom do these
professional people owe this duty? I will take accountants, but the same reasoning applies to the others.
They owe the duty, of course, to their employer or client; and also I think to any third person to whom
they themselves show the accounts, or to whom they know their employer is going to show the accounts,
so as to induce him to invest money or take some other action on them. But I do not think the duty can be
extended still further so as to include strangers of whom they have heard nothing and to whom their
employer without their knowledge may choose to show their accounts. Once the accountants have handed
their accounts to their employer they are not, as a rule, responsible for what he does with them without
their knowledge or consent.
Asquith LJ
I have the misfortune to differ from my brother on the more important point raised in this case. (…)
Singular consequences would follow if the principle laid down in the snail case were applied to negligent
misrepresentation in every case in which the representee were proximate to the representor. The case has
been instanced by Professor Winfield and referred to by my brother Denning of a marine hydrographer
who carelessly omits to indicate on his map the existence of a reef. The captain of the "Queen Mary", in
reliance on the map and having no opportunity of checking it by reference to any other map, steers her on
the unsuspected rocks, and she becomes a total loss. Is the unfortunate cartographer to be liable to her
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owners in negligence for some millions of pounds damages? If so, people will, in future, think twice
before making maps. Cartography would become an ultra-hazardous occupation. Yet what line can be
drawn between the map-maker and the defendants in the present case. If it be said that there is no
proximity between the cartographer and those for whose use his map is designed, the reply surely is that
there is just as much "proximity" as there was between the manufacturer of the peccant ginger beer bottle
and its ultimate consumer.
In the present state of our law different rules still seem to apply to the negligent misstatement on the
one hand and to the negligent circulation or repair of chattels on the other; and Donoghue's case
does not seem to me to have abolished these differences. I am not concerned with defending the
existing state of the law or contending that it is strictly logical - it clearly is not. I am merely
recording what I think it is. If this relegates me to the company of "timorous souls", I must face that
consequence with such fortitude as I can command.
(3)
Home Office Appellants v Dorset Yacht Co Ltd [1970] 2 All ER 294
Facts
Seven Borstal boys, who were working on an island under the control and supervision of three officers,
left the island at night and boarded, cast adrift and damaged the plaintiffs' yacht which was moored
offshore. The plaintiffs brought an action for damages against the Home Office alleging negligence. They
particularised that alleged negligence as being that, knowing of the boys' criminal records and records of
previous escapes from Borstal institutions and knowing that craft such as the plaintiffs' yacht were moored
offshore, the officers had failed to exercise any effective control or supervision over the boys.
Lord Diplock
The plaintiff's argument in the present appeal (…) seeks to treat as a universal not the specific proposition
of law in Donoghue v. Stevenson which was about a manufacturer's liability for damage caused by his
dangerous products but the well-known aphorism used by Lord Atkin to describe a "general conception of
relations giving rise to a duty of care " [1932] A.C. 562, 580: "You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in
law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question." Used as a guide to characteristics which will be
found to exist in conduct and relationships which give rise to a legal duty of care this aphorism
marks a milestone in the modern development of the law of negligence. But misused as a universal it
is manifestly false.
Lord Reid
In later years there has been a steady trend towards regarding the law of negligence as depending on
principle so that, when a new point emerges, one should ask not whether it is covered by authority but
whether recognised principles apply to it. Donoghue v. Stevenson [1932] A.C. 562 may be regarded as
a milestone, and the well-known passage in Lord Atkin's speech should I think be regarded as a
statement of principle. It is not to be treated as if it were a statutory definition. It will require
qualification in new circumstances. But I think that the time has come when we can and should say
that it ought to apply unless there is some justification or valid explanation for its exclusion.
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(3)
Anns and Others v Merton London Borough Council [1977] 2 All ER 492 (House of Lords)
Lord Wilberforce
Through the trilogy of cases in this House - Donoghue v. Stevenson [1932] A.C. 562, Hedley Byrne
& Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office
[1970] A.C. 1004, the position has now been reached that in order to establish that a duty of care
arises in a particular situation, it is not necessary to bring the facts of that situation within those of
previous situations in which a duty of care has been held to exist. Rather the question has to be
approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the
person who has suffered damage there is a sufficient relationship of proximity or neighbourhood
such that, in the reasonable contemplation of the former, carelessness on his part may be likely to
cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first
question is answered affirmatively, it is necessary to consider whether there are any considerations
which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it
is owed or the damages to which a breach of it may give rise: see Dorset Yacht case [1970] A.C. 1004,
per Lord Reid at p. 1027. Examples of this are Hedley Byrne's case [1964] A.C. 465 where the class of
potential plaintiffs was reduced to those shown to have relied upon the
correctness of statements made (…).
(4)
Caparo Industries Plc v Dickman and Others [1990] 2 AC 605 (House of Lords)
Lord Bridge of Harwich
Whilst recognising, of course, the importance of the underlying general principles common to the
whole field of negligence, I think the law has now moved in the direction of attaching greater
significance to the more traditional categorisation of distinct and recognisable situations as guides to
the existence, the scope and the limits of the varied duties of care which the law imposes. We must
now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in
Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1, 43-44, where he said: 'It is preferable, in
my view, that the law should develop novel categories of negligence incrementally and by analogy
with established categories, rather than by a massive extension of a prima facie duty of care
restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed."
(5)
Murphy v. Brentwood District Council [1991] 1 AC 398 (House of Lords)
Lord Keith of Kinkel
In my opinion there can be no doubt that Anns has for long been widely regarded as an unsatisfactory
decision. In relation to the scope of the duty owed by a local authority it proceeded upon what must, with
due respect to its source, be regarded as a somewhat superficial examination of principle and there has
been extreme difficulty, highlighted most recently by the speeches in D. & F. Estates, in ascertaining upon
exactly what basis of principle it did proceed. I think it must now be recognised that it did not proceed on
any basis of principle at all, but constituted a remarkable example of judicial legislation. It has engendered
a vast spate of litigation, and each of the cases in the field which have reached this House has been
distinguished. Others have been distinguished in the Court of Appeal. The result has been to keep the
effect of the decision within reasonable bounds, but that has been achieved only by applying strictly the
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words of Lord Wilberforce and by refusing to accept the logical implications of the decision itself. These
logical implications show that the case properly considered has potentiality for collision with longestablished principles regarding liability in the tort of negligence for economic loss. There can be no
doubt that to depart from the decision would re-establish a degree of certainty in this field of law
which it has done a remarkable amount to upset.
My Lords, I would hold that Anns was wrongly decided as regards the scope of any private law duty of
care resting upon local authorities in relation to their function of taking steps to secure compliance with
building byelaws or regulations and should be departed from. It follows that Dutton v. Bognor Regis
Urban District Council [1972] 1 Q.B. 373 should be overruled, as should all cases subsequent to Anns
which were decided in reliance on it.
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