The law of negligence has it's origins in Action on the Case and Trespass. Action on the case was used as far back as the mid 1300, (p.552 1986). According to sources such as Palmer, Baker and other authors on this period one of the earliest reported cases was Navenby v Lassels (1368).
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Between the years of 1500 and 1540 nearly sixty actions for negligence were noted in the rolls of the Kings Bench. These were mainly concerned where the defendant was alleged to have undertaken to do some specified work, and that it had been performed without care causing harm as a result. At this time the liability was closer to tort than contract, as it was rare for the writ to express and undertaking to use skill or care, (Seldon Soc p.225 1977 vol.4). However, an undertaking to take care did exist, and it was often implied that if one undertook to look after good, they thereby undertook the risk and was liable if the goods were damaged or stolen.
In Morse v Slue (1671), an action on the case was brought against a ships captain for 'negligent keeping and carriage of goods by sea, causing the goods to be lost.' The captain was held liable for the loss of these goods. Amongst the reasons given by the court for this verdict, no.4 was that "he did not take diligent enough precautions in guarding the ship." This case most certainly was a case of negligence, where the defendant was held liable due to his negligent conduct.
The process of the law negligence was slow and the areas confusing to both plaintiffs and defendants alike. Whether to issue a writ in Trespass or Case was the biggest dilemma often encountered by plaintiffs. Milsom (1969) comments that in this blurry period, it was usually to the advantage of the plaintiff to bring proceedings in case when dealing with negligence, as it was the defendants burden of proof to show that they had not been negligent.
Although the report so far admits problems with cases involving negligence, as far a court action is concerned, it has, established negligence as an acknowledged wrong in a pre-industrial age. The evolution of law is slow and we can draw comparisons from the pre-industrial period with problems encountered today in the Equity courts, (of making the wrong fit the writ). This is basically what can be seen from the 1500's onwards. But it was not easy for defendants to evade justice from their negligent conduct, although negligence had not yet been brought under one heading. As stated above, the remedies were available under the two headings of Trespass and Case.
In 1697 in the case of Turberville v Stamp (p.167) a writ of Trespass upon the Case was brought against John Stamp for not keeping his fire in a safe and controlled manner. The majority opinion of the court was that if the fire was on the defendants land, it was the same as it being in his house, (which was the established rule at this time) and that he owed a duty to take care not to injure his neighbour and not to be negligent.
These examples from the late seventeenth century show that the principles that govern us today, in terms of our duty to take care are not a new product but have been applied for a least the last 3 centuries.
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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."
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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.
Bibliography
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).
