In precedent, there was an obiter suggestion by Lord Esher in "Heaven v Pender" that "whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense ... would at once recognise that if he did not use ordinary care and skill in his own conduct ... he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger". However, this approach had been rejected by the two other judges in the Court of Appeal. Lord Esher's attempt to reintroduce the principle in further obiter remarks in "Le Lievre v Gould", in which he stated that "Heaven" only established that there may be a duty even if there is no contract and that this duty arose if there was proximity between the parties, was also unsuccessful.