Another interesting feature of English law is its readiness to hold property owners strictly liable, even for matters outside their control. Ryland’s efforts in safeguarding his reservoir were insufficient to convince the courts that the inevitable breach mitigated any liability. The presence of the reservoir was a risk enough. Anything that followed would make Ryland strictly liable. The risk of hazard in the 1860s was significant. It is unsurprising that during a time of huge industrial activity, in the absence of regulation, the courts took steps to allocate risk and responsibility. Concurrent with industrial growth was the increase in entrepreneurial ventures. English case law remained a mechanism through which risk and responsibility were allocated. Take Carlill v Carbolic Smoke Ball as a case in point. This case revolved around a carbolic acid-filled rubber ball that, when squeezed, would release vapours. It was boldly advertised, with the manufacturer claiming that the device would prevent influenza (the flu had had a deadly impact during this time in 1890) and if it didn’t, they would deposit £100 in the bank account of anyone for whom the product didn’t work. Unfortunately, Mrs. Carlill did fall ill and, once recovered, sued the smoke ball company. The court rejected the idea that there was no contract – by making the The concept that a higher level of care is owed by those who offer advice, is another transformation achieved through judicial ingenuity.
The uncodified nature of the English legal system has endowed it with a malleable quality, allowing it to respond to social, cultural and commercial changes. More significantly, this feature has enabled case law to establish principles of fairness, pre-empting and challenging existing norms, and offering alternative visions. Sarju Kotecha discusses the impact of case law on present-day social, cultural and commercial norms. Law students are familiar with the fate of the poor snail that found itself in Stevenson’s factory. Its adventure is forever remembered in textbooks when Mrs. Donoghue mistakenly consumed its decomposed body with her unlucky purchase of bottled ginger beer. Following a bout of illness, Mrs. Donoghue sued Stevenson, the manufacturer, despite having no direct contract with him, and won. Lord Atkin’s ‘neighbour principle’ has since become a fundamental prism through which to understand social relationships beyond the contract. The concept that a higher level of care is owed by those who offer advice, is another transformation achieved through judicial ingenuity. Words have an impact and should be offered carefully, especially when they are to be relied upon. This idea, first promulgated in the 1964 House of Lords decision of Hedley Byrne v Heller, established that negligent statements, where they could foreseeably be relied upon, could form the basis of a claim for losses. Balance is achieved through extrapolation, discussion, and debate. In their wisdom, the courts provided guidance in Caparo Industries about 30 years later, establishing three parts: a duty of care could only be imposed when it was foreseeable, proximate, and fair.
THE LEGAL CORNER MAGAZINE | ISSUE 009 OCTOBER '24 | HALLOWEEN EDITION HB 6
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