A's part. That duty does not arise from contract. C has not shown that it arises from any other source - not from DECEIT (per Langridge V. Levy ) because there was none, nor from negligence because in all old cases of inadvertence [Common Calling cases, public office cases, bailee cases, etc] the duty did not extend beyond the two persons immediately concerned: therefore A was held not liable.
112 A year before WINTERBOTTOM VS WRIGHT, the Queen's Bench, in LYNCH V. NURDIN (1841) 1 QB 29 showed express recognition of negligence as a tort, but is silent about duty, an all-important ingredient in the Tort of Negligence. In HEAVEN V. PENDER II QBD 503 (1883) Lord Esher gave sharp expression of the idea of duty. The Plaintiff was employed by G, a ship painter. G contracted with X to paint X's ship, which was in Defendant's dock. Defendant supplied, under his contract with x, a stage to be slung outside the ship for painting purposes. The stage was defective and, while the Plaintiff was on it, he fell and was injured. He sued the Defendant for negligence. The Defendant contended that there was no contract between him and the Plaintiff and that he was therefore not liable. The Court of Appeal, reversing the decision of the Divisional Court, held that he was liable, LORD ESHER, M.R. said: " The action is in form and substance an action for negligence . That stage was, through want of attention of the Defendant's servants, supplied in a state unfit for use is
