Common Law: Tort and Contract

In Coggs v Bernard 1703 and Action upon the Case was brought against a bailee, (who was held liable) for negligently moving several hogs heads of brandy and spilling their contents, even though he was to receive no remuneration for his work. It was said by the court to be a decit to the bailer for the bailee not to be careful. The bailee made an undertaking, and therefore he owed a duty to take care and be diligent. The 1700's also witnessed a relaxing of the trespass writs by the courts in the evolutionary process of the law of negligence.

The two streams of Case and Trespass appear to merge in Scott v Shepard (1773 p. 202 ). A writ of trespass and assault was brought against the defendant for tossing a lighted squib into a market hall, which after being thrown, (in self defence) between many people, it eventually exploded on the plaintiff causing him to lose the sight in one eye. Until this case, it was only an immediate act that would allow a successful prosecution for Trespass. However, only Justice Blackstone dissented in this case.

The majority opinion of the court was that it did not matter the defendant had not directly thrown the squib at the plaintiff. It was enough that the injury was caused by his direct and immediate action. This case, in the reports view is the real triumph of negligence, and in an age before full industrialisation. Industrialisation merely brought people into closer proximity to one another and produced new items that would give rise to an increased volume accidents that resulted in more cases involving negligence. "Negligence…….

Is a Subsidy to business. " This report further argues that the triumph of negligence was far from a subsidy to business. It consents that it would be fair to assume that most persons involved with running a business would prefer to avoid legal liability resulting from the actions of their employees. It would also be an advantage to business to be able to avoid liability for defective goods or accidents at their workplace, (or as a result there transportation). A brief study of case law examples should prove this point.

The first contention can be seen in Sharwood v L&N. W,Railway Co (1839) in which the court stated, "The master is responsible in action on the case for want of skill or care of the agent. " Secondly, Donoughe v Stephenson (1932) AC 68 in which Lord Atkins 'neighbour' principle (earlier used in Tuberville v Stamp (1697), had an effect on business that some may view as terrible. Manufactures now have to spend more money to inspect their goods to ensure they are free from defects.

From these cases we can see that negligence was certainly not an advantage or a hidden benefit for the business world, and certainly not a disguised subsidy. The final consideration of this point comes from the Lord Abinger's ratio in Priestly v Fowler (1987) (although it should be acknowledged that the case was not focused on issue at hand). Speaking of whether the employer owed any duty to the employee, Lord Abinger stated: "He is no doubt bound to provide for the safety of his servant in the course of his employment to the best of his judgement, information and belief.

" Page 4. In light of the above evidence it can be seen that when faced with the laissez faire system that operated at the time of industrialisation there can be little doubt that the law of negligence was not a subsidy; but was in fact a hindrance to the pursuit of money and profit. In conclusion we can see the law of negligence was being applied by the judiciary long before Stevenson's Rocket and the Spinning Jenny. It is a product of the evolution of various parliaments and Judges throughout legal history and is still evolving to this day.


Baker,J. H, An introduction to English Legal History (2nd Ed, Butterworth, 1979). Baker,J. H, & Milson,S. F. C, Sources of English Legal History: Private Law to 1750 (Butterworth, 1986). Cornish,W. R, & de Clark,G. N, Law & Society 1750-1950 (Sweet & Maxwell, 1989). Fifoot,C. H. S, History and Sources of the Common Law: Tort and Contract (Stevens, 1949). Manchester,A. H, Sources of Modern Legal History (Butterworth, 1984). Milsom,S. F. C, Historical Foundations of the Common Law (2nd Ed, Butterworth, 1991).