Donoghue v. Stevenson [1932].

qualification, I think that the majority of the court in Heaven v. Pender was justified in thinking

that the principle was expressed in too general terms.  There will, no doubt arise cases where it

will be difficult to determine whether the contemplated relationship is so close that the duty arises.

But in the class of case now before the court I cannot conceive any difficulty to arise. A

manufacturer puts up an article of food in a container which he knows will be opened by the

actual consumer. There can be no inspection by any purchaser and no reasonable preliminary

inspection by the consumer.  Negligently in the course of preparation he allows the contents to be

mixed with poison.  It is said that the law of England and Scotland is that the poisoned consumer

has no remedy against the negligent manufacturer.  If this were the result of the authorities, I

should consider the result a grave defect in the law and so contrary to principle that I should

hesitate long before following any decision to that effect which had not the authority of this House.  

I would point out that in the assumed state of the authorities not only would the consumer have no

remedy against the manufacturer, he would have none against anyone else, for in the

circumstances alleged there would be no evidence of negligence against anyone other than the

manufacturer, and except in the case of a consumer who was also a purchaser no contract and no

warranty of fitness, and in the case of the purchase of a specific article under its patent or trade

name, which might  well be the case in the purchase of some articles of food or drink, no

warranty protecting even the purchaser-consumer. There are other instances than of articles of

food and drink where goods are sold intended to be used immediately by the consumer, such as

many forms of goods sold for cleaning purposes, when the same liability must exist. The doctrine

supported by the decision below would not only deny a remedy to the consumer who was injured

by consuming bottled beer or chocolates poisoned by the negligence of the manufacturer, but also

to the user of what should be a harmless proprietary medicine, an ointment, a soap, a cleaning

fluid or cleaning powder. I confine myself to articles of common household use, where everyone,

including the manufacturer, knows that the articles will be used by persons other than the actual

ultimate purchaser - namely, by members of his family and his servants, and, in some cases, his

guests. I do not think so ill of our jurisprudence as to suppose that its principles are so remote

from the ordinary needs of civilised society and the ordinary claims which it makes upon its

members as to deny a legal remedy where there is so obviously a social wrong.

It will be found, I think, on examination, that there is no case in which the circumstances have

been such as I have just suggested where the liability has been negatived. There are numerous

cases where the relations were much more remote when the duty has been held not to exist.

There are also dicta in such cases which go further than was necessary for the determination of

the particular issues, which have caused the difficulty experienced by the courts below.  I venture

to say that in the branch of the law which deals with civil wrongs, dependent in England, at any

rate, entirely upon the application by judges of general principles also formulated by judges, it is

of particular importance to guard against the danger of stating propositions of law in wider terms

than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability

of English law be unduly restricted.  For this reason it is very necessary, in considering reported

cases in the law of torts, that the actual decision alone should carry authority, proper weight, of

course, being given to the dicta of the judges.

In my opinion, several decided cases support the view that in such a case as the present the

manufacturer owes a duty to the consumer to be careful. A direct authority is George v.

Skivington (1869) LR 5 Exch 1; 39 LJ Ex 8; 21 LT 495. That was a decision on a demurrer to

a declaration which averred that the defendant professed to sell a hairwash made by himself and

that the plaintiff, Joseph George, bought a bottle to be used by his wife, the plaintiff Emma

George, as the defendant then knew, and that the defendant had so negligently conducted himself

in preparing and selling the hairwash that it was unfit for use, whereby the female plaintiff was

injured.  Kelly, CB, said that there was no question of warranty, but whether the chemist was

liable in an action on the case for unskilfulness and negligence in the manufacture of it:

“Unquestionably there was such a duty towards the purchaser, and it extends, in my judgment,

to the person for whose use the vendor knew the compound was purchased.”

Piggot and Cleasby BB put their judgments on the same ground.

I venture to think that Cotton LJ in Heaven v. Pender (11 QBD 503, 517) misinterprets Cleasby

B’s judgment in the reference to Langbridge v. Levy (1837) 2 M&W 519; affirmed (1838) 4

M&W 337; 150 ER 1458. Cleasby B, appears to me to make it plain that, in his opinion, the

duty to take reasonable care can be substituted for the duty which existed in Langbridge v. Levy

not to defraud.  It is worth noticing that George v. Skivington was referred to by Cleasby B

himself sitting as a member of the Court of Exchequer Chamber in Francis v. Cockrell (1870)

LR 5 QB 501, 515) and was recognised by him as based on an ordinary duty to take care.  It

was also affirmed by Brett MR in Cunnington v. Great Northern Rail Co (1883) 49 LT 392

(CA), decided on July 2, 1883, at a date between the argument and the judgment in Heaven v.

Pender, though as in that case the court negatived any breach of duty the expression of opinion is

not authoritative.

The existence of the duty contended for is also supported by Hawkins v. Smith (1896) 12 TLR

532, where a dock labourer in the employ of the dock company was injured by a defective sack

which had been hired by the consignees from the defendant, who knew the use to which it was to

be put, and which had been provided by the consignees for the use of the dock company which

had been employed by them to unload the ship on the dock company’s premises. The Divisional

Court (Day J and Lawrance J) held the defendant liable for negligence. Similarly, in Elliott v.

Hall or Nailstone Colliery Co (1885) 15 QBD 315; 54 LJQB 518 the defendants, colliery

owners, consigned coal to the plaintiff’s employers, coal merchants, in a truck hired by the

defendants from a wagon company. The plaintiff was injured in the course of unloading the coal

by reason of the defective condition of the  truck and was held by a Divisional Court (Grove J

and AL Smith J) entitled to recover on the ground of the defendants’ breach of duty to see that

the truck was not in a dangerous condition. It is to be noticed that in neither case was the

defective chattel in the defendants’ occupation, possession or control, or on their premises, while

in the latter case it was not even their property. It is sometimes said that the liability in these cases

depends upon an invitation by the defendant to the plaintiff to use his chattel. I do not find the

decisions expressed to be based upon this ground, but rather upon the knowledge that the

plaintiff, in the course of the contemplated use of the chattel, would use it, and the supposed

invitation appears to me to be in many cases a fiction and merely a form of expressing the direct

relation between supplier and user which gives rise to the duty to take care.

A very recent case, which has the authority of this House, is Chapman (or Oliver] v. Saddler &

Co [1929] AC 584; 98 LJPC 87; 141 LT 305 (HL). In that case a firm of stevedores employed

to unload a cargo of maize in bags provided the rope slings by which the cargo was raised to the

ship’s deck by their own men using the ship’s tackle and was then transported to the dock side

by the shore porters, of whom the plaintiff was one. The porters relied on examination by the

stevedores and had themselves no opportunity of examination. In these circumstances this House,

reversing the decision of the First Division, held that there was a duty owed by the stevedore

company to the porters to see that the slings were fit for use, and restored the judgment of the

Lord Ordinary, Lord Morison, in favour of the pursuer. I find no trace of the doctrine of invitation

in the opinions expressed in this House, of which mine was one: the decision was based upon the

fact that the direct relations established, especially the circumstance that the injured porter had no

opportunity of independent examination, gave rise to a duty to be careful.

I should not omit in this review of cases the decision in Grote v. Chester and Holyhead Rail Co

(1848) 2 Exch 251; 154 ER 485. That was an action on the case in which it was alleged that the

defendants had constructed a bridge over the Dee on their railway and had licensed the use of the

bridge to the Shrewsbury and Chester Rail Co to carry passengers over it, and had so negligently

constructed the bridge that the plaintiff, a passenger on the last-named railway, had been injured

by the falling of the bridge. At the trial before Vaughan Williams, J, the judge had directed the jury

that the plaintiff was entitled to recover if the bridge was not constructed with reasonable care and

skill. On a motion for a new trial the Attorney-General, Sir John Jervis, contended that there was

a misdirection, for the defendants were liable only for negligence, and the jury might have

understood that there was an absolute liability. The Court of Exchequer, after consulting the trial

judge as to his direction, refused the rule. This case is said by Kelly CB in Francis v. Cockrell

(1870) LR 5 QB 501; 39 LJQB 291; 23 LT 466, in the Exchequer Chamber (LR 5 QB 501,

506), to have been decided upon an implied contract with every person lawfully using the bridge

that it was reasonably fit for the purpose. I can find no trace of such a ground in the pleadings or

in the argument or judgment. It is true that the defendants were the owners and occupiers of the

bridge. The law as to the liability to invitees and licensees had not then been developed. The case

is interesting because it is a simple action on the case for negligence, and the court upheld the duty

to persons using the bridge to take reasonable care that the bridge was safe.

It now becomes necessary to consider the cases which have been referred to in the courts below

as laying down the proposition that no duty to take care is owed to the consumer in such a case

as this.

In Dixon v. Bell (1816) 5 M&S 198; 105 ER 1023 the defendant had left a loaded gun at his

lodgings and sent his servant, a mulatto girl aged about thirteen or fourteen, for the gun, asking the

landlord to remove the priming and give it her. The landlord did remove the priming and gave the

gun to the girl, who later levelled it at the plaintiff’s small son, drew the trigger, and injured the

boy. The action was in case for negligently entrusting the young servant with the gun. The jury at

the trial before Lord Ellenborough had returned a verdict for the plaintiff. A motion by the

Attorney-General, Sir William Garrow, for a new trial was dismissed by the court, Lord

Ellenborough and Bayley J, the former remarking that it was incumbent on the defendant, who by

charging the gun had made it capable of doing mischief, to render it safe and innoxious.

In Langridge v. Levy (1837) 2 M&W 519; affirmed (1838) 4 M&W 337; 150 ER 1458 the

action was in case and the declaration alleged that the defendant, by falsely and fraudulently

warranting a gun to have been made by Nock and to be a good, safe, and secure gun, sold the

gun to the plaintiff’s father for the use of himself and his son, and that one of his sons, confiding in

the warranty, used the gun, which burst and injured him. Plea: Not Guilty and no warranty as

alleged. The report is not very satisfactory. No evidence is reported of any warranty or statement

except that the gun was an elegant twist gun by Nock. The judge left to the jury whether the

defendant had warranted the gun to be by Nock and to be safe, whether it was in fact unsafe, and

whether the defendant warranted it to be safe knowing that it was not so. The jury returned a

general verdict for the plaintiffs. It appears to have been argued that the plaintiff could recover

wherever there is a breach of duty imposed on the defendant by contract or otherwise and the

plaintiff is injured by reason of its breach; by this is meant, apparently, that the duty need not be

owed to the plaintiff, but that he can take advantage of the breach of a duty owed to a third party.

This contention was negatived by the court, who held, however, that the plaintiff could recover if

a representation known to be false was made to a third person with the intention that a chattel

should be used by the plaintiff, even though it does not appear that the defendant intended the

false representation to be communicated to him: see per Parke B (2 M&W at p.531). The same

view was adopted by the Exchequer Chamber, the user by the plaintiff being treated by the court

as one of the acts contemplated by the fraudulent defendant. It is unnecessary to consider

whether the proposition can be supported in its widest form. It is sufficient to say that the case

was based, as I think, in the pleading, and certainly in the judgment, on the ground of fraud, and it

appears to add nothing of value positively or negatively to the present discussion.

Winterbottom v. Wright (1842) 10 M&W 109; 11 LJ Exch 415; 152 ER 402 was a case

decided on a demurrer. The plaintiff had demurred to two of the pleas as to which there was no

decision by the court, but on the hearing of the plaintiff’s demurrer the court, in accordance with

the practice of the day, were entitled to consider the whole record, including the declaration, and,

owing to the conclusion that this declaration disclosed no cause of action, gave judgment for the

defendant: see Sutton's Personal Actions At Common Law, p.113. The advantage of the

procedure is that we are in a position to know the precise issue at law which arose for

determination. The declaration was in case and alleged that the defendant had contracted with the

Postmaster-General to provide the mail coach to convey mails from Hartford to Holyhead and to

keep the mails in safe condition, that Atkinson and others, with notice of the said contract, had

contracted with the Postmaster-General to I convey the road mail from Hartford to Holyhead,

and that the plaintiff, relying on the said first contract, hired himself to Atkinson to drive the mail

coach, but that the defendant so negligently conducted himself and so utterly disregarded his

aforesaid contract that, the defendant having the means of knowing and well knowing all the

aforesaid premises, the mail coach, being in a dangerous condition owing to certain latent defects

and to no other cause, gave way, whereby, the plaintiff was thrown from his seat and injured. It is

to be observed that no negligence apart from breach of contract was alleged - in other words, no

duty was alleged other than the duty arising out of the contract. It is not stated that the defendant

knew or ought to have known of the latent defect. The argument of the defendant was that on the

fact of the declaration the wrong arose merely out of the breach of a contract, and that only a

party to the contract could sue. The Court of Exchequer adopted that view, as clearly appears

from the judgments of Alderson and Rolfe, BB. There are dicta, by Lord Abinger which are too

wide as to an action of negligence being confined to cases of breach of a public duty. The actual

decision appears to have been manifestly right, no duty to the plaintiff arose out of the contract,

and the duty of the defendant under the contract with the Postmaster-General to put the coach in

good repair would not have involved such direct relations with the servant of the person whom

the Postmaster-General employed to drive the coach as would give rise to a duty of care owed to

such servant.

We now come to Longmeid v. Holliday (1851) 6 Exch 761; 20 LJ Ex 430; 155 ER 752, the

dicta in which have had considerable effect in subsequent decisions. In that case the declaration in

case alleged that the plaintiff, Frederick Longmeid, had bought from the defendant, the maker and

seller of "the Holliday lamp," a lamp to be used by himself and his wife Eliza in the plaintiffs’ shop;

that the defendant induced the sale by the false and fraudulent warranty that the lamp was

reasonably fit for the purpose; and that the plaintiff Eliza, confiding in the said warranty, lighted the

lamp, which exploded, whereby she was injured. It is, perhaps, not an extravagant guess to

suppose that the plaintiffs' pleader had read Langridge v. Levy (supra). The jury found all the

facts for the plaintiffs except the allegation of fraud; they were not satisfied that the defendant

knew of the defects. The plaintiff Frederick had already recovered damages on the contract of

sale for breach of the implied warranty of fitness. The declaration made no averment of

negligence. Verdict was entered at the trial by Martin B for the plaintiff, but with liberty to the

defendant to move to enter the verdict for him. A rule having been obtained, plaintiff’s counsel

sought to support the verdict on the ground that this was an action, not for a breach of duty

arising solely from contract, but for an injury resu1ting from conduct amounting to fraud.

Parke B who delivered the judgment of the court, held that, fraud having been negatived, the

action could not be maintained on that ground. He then went on to discuss case in which a third

person not a party to a contract may sue for damages sustained if it is broken. After dealing with

the negligence of a surgeon or of a carrier, or of a firm in breach of contract committing a

nuisance on a highway, he deals with the case where anyone delivers to another without notice an

instrument in its nature dangerous or under particular circumstances, as a loaded gun, and refers

to Dixon v. Bell (1816) 5 M&S 198; 105 ER 1023, though what this case has to do with

contract it is difficult to see. He then goes on:

”But it would be going much too far to say that so much care is required in the ordinary

intercourse of life between one individual and another that, if a machine not in its nature

dangerous - a carriage, for instance - but which might become so by a latent defect entirely

unknown, although discoverable by the exercise of ordinary care, should be lent or given by

one person, even by the person who manufactured it, to another, the former should be

answerable to the latter for a subsequent damage accruing by the use of it.”

It is worth noticing how guarded this dictum is. The case put is a machine, such as a carriage, not

in its nature dangerous, which might become dangerous by a latent defect entirely unknown. Then

there is the saving “although discoverable by the exercise of ordinary care,” discoverable by

whom it is not said; it may include the person to whom the innocent machine is “lent or given.”

Then the dictum is confined to machines “lent or given” (a later sentence makes it clear that a

distinction is intended between these words and “delivered to the purchaser under the contract of

sale”), and the manufacturer is introduced for the first time - “even by the person who

manufactured it.” I do not for a moment believe that Parke B had in his mind such a case as a loaf

negligently mixed by the baker with poison which poisoned a purchaser’s family. He is, in my

opinion, confining his remarks primarily to cases where a person is seeking to rely upon a duty of

care which arises out of a contract with a third party, and has never even discussed the case of a

manufacturer negligently causing an article to be dangerous and selling it in that condition whether

with immediate or mediate effect upon the consumer. It is noteworthy that he refers only to "letting

or giving" chattels, operations known to the law, where the special relations thereby created have

a particular bearing on the existence or non-existence of a duty to take care.

Next in his chain of authority come George v. Skivington (1869) LR 5 Exch 1; 39 LJ Exch 8;

21 LT 495 and Heaven v. Pender (1883), which I have already discussed. The next case is

Earl v. Lubbock [1905] 1 KB 253; 74 LJKB 121; 91 LT 830; 21 TLR 71 (CA). The plaintiff

sued in the county court for personal injuries due to the negligence of the defendant. The plaintiff

was a driver in the employ of a firm who owned vans. The defendant, a master wheelwright, had

contracted with the firm to keep their vans in good and substantial repair. The allegation of

negligence was that the defendant’s servant had negligently failed to inspect and repair a defective

wheel, and had negligently repaired the wheel. The learned county court judge had held that the

defendant owed no duty to the plaintiff, and the Divisional Court (Lord Alverstone CJ, Willis and

Kennedy JJ) and the Court of Appeal agreed with him. Collins MR said that the case was

concluded by Winterbottom v. Wright (1842) 10 M&W 109; 11 LJ Ex 415; 152 ER 402. In

other words, he must have treated the duty as alleged to arise only from a breach of contract, for,

as has been pointed out, that was the only allegation in Winterbottom v. Wright (supra),

negligence, apart from contract, being neither averred nor proved. It is true that he cites with

approval the dicta of Lord Abinger in the case, but obviously I think his approval must be limited

to those dicta so far as they related to the particular facts before the Court of Appeal, and to

cases where, as Lord Abinger says, the law permits a contract to be turned into a tort. Stirling LJ,

it is true, said that to succeed the plaintiff must bring his case within the proposition of the majority

in Heaven v. Pender (supra), that any one who, without due warning, supplies to others for use

an instrument which to his knowledge is in such a condition as to cause danger is liable for injury.

I venture to think that the Lord Justice was mistakenly treating a proposition which applies one

test of a duty as though it afforded the only criterion. Mathew LJ, appears to me to put the case

on its proper footing when he says:

“The argument of counsel for the plaintiff was that the defendant’s servants had been negligent

in the performance of the contract with the owners of the van, and that it followed as a matter

of law that anyone in their employment ... had a cause of action against the defendant. It is

impossible to accept such a wide proposition and, indeed, it is difficult to see how, if it were

the law, trade could be carried on.”

I entirely agree. I have no doubt that in that case the plaintiff failed to show that the repairer owed

any duty to him. The question of law in that case seems very different from that raised in the

present case. Blacker v. Lake and Elliot Ltd (1912) 106 LT 533 approaches more nearly the

facts of this case. I have read and re-read it, having unfeigned respect for the authority of the two

learned judges, Hamilton and Lush JJ, who decided it, and I am bound to say I have found

difficulty in formulating the precise grounds upon which the judgment was given. The plaintiff had

been injured by the bursting of a brazing lamp which he had bought from a shopkeeper, who had

bought it from the manufacturer, the defendant. The plaintiff had used the lamp for twelve months

before the accident. The case was tried in the county court before that excellent lawyer, the late

Judge Sir Howland Roberts. That learned judge had directed the jury that the plaintiff could

succeed if the defendants had put upon the market a lamp not fit for use in the sense that a person

working it with reasonable care would incur a risk which a properly constructed lamp would not

impose upon him. The jury found that the lamp was defective by reason of an improper system of

making an essential joint between the container and the vaporiser; that the defendants did not

know that it was dangerous, but ought, as reasonable men, to have known it. Hamilton J seems to

have thought that there was no evidence of negligence in this respect. Lush J expressly says so,

and implies by the words “I also think” that Hamilton J so thought. If so, the case resolves itself

into a series of important dicta. Hamilton J says (106 LT at p. 536) that it has been decided in

authorities from Winterbottom v. Wright (supra) to Earl v. Lubbock (supra) that the breach of

the defendant's contract with A to use care and skill in and about the manufacture or repair of an

article does not itself give any cause of action to B when injured by the article proving to be

defective in breach of that contract. He then goes on to say: How is the case of the plaintiff any

better when there is no contract proved of which there could be breach? I think, with respect,

that this saying does not give sufficient weight to the actual issues raised by the pleadings, on

which alone the older cases are an authority. If the issue raised was an alleged duty created by

contract, it would have been irrelevant to consider duties created without reference to contract,

and contract eases cease to be authorities for duties alleged to exist beyond or without contract.

Moreover, it is a mistake to describe the authorities as dealing with the breach of care or skill in

the manufacture of goods, as contrasted with repair.

The only manufacturing case was Longmeid v. Holliday (supra), where negligence was not

alleged. Hamilton J recognises that George v. Skivington (supra) was a decision which, if it

remained an authority, bound him. He says that, without presuming to say it was wrong, he cannot

follow it because it is in conflict with Winterbottom v. Wright (supra). I find this very difficult to

understand, for George v. Skivington (supra) was based upon a duty in the manufacturer to take

care independently of contract, while Winterbottom v. Wright (supra) was decided on a

demurrer in a case where the alleged duty was based solely on breach of a contractual duty to

keep in repair and no negligence was alleged. Lush J says in terms that there are only three

classes of cases in which a stranger to a contract can sue for injury by a defective chattel: one is

fraud, the second is the case of articles dangerous or noxious in themselves where the duty is only

to warn, the third is public nuisance. He does not bring the cases represented by Elliott v. Hall

(supra) (the defective coal wagon) within his classes at all. He says (106 LT at 541) that they

belong to a totally different class

“where the control of premises or the management of a dangerous thing upon premises creates

a duty.”

I have already pointed out that this distinction is unfounded in fact, for in Elliott v. Hall (supra),

as in Hawkins v. Smith (supra) (the defective sack), the defendant exercised no control over the

article and the accident did not occur on his premises. With all respect I think that the judgments

in the case err by seeking to confine the law to rigid and exclusive categories, and by not giving

sufficient attention to the general principle which governs the whole law of negligence in the duty

owed to those who will be immediately injured by lack of care.

The last case I need refer to is Bates and another v. Batey & Co [1913] 3 KB 351; 82 LJKB

963; 108 LT 1036; 29 TLR 616, where manufacturers of ginger-beer were sued by a plaintiff

who had been injured by the bursting of a bottle of ginger-beer bought from a shopkeeper who

had obtained it from the manufacturers. The manufacturers had bought the actual bottle from its

maker, but were found by the jury to have been negligent in not taking proper means to discover

whether the bottle was defective or not. Horridge J found that a bottle of ginger-beer was not

dangerous in itself, but that this defective bottle was in fact dangerous, but, as the defendants did

not know it was dangerous, they were not liable, though by the exercise of reasonable care they

could have discovered the defect. This case differs from the present only by reason of the fact

that it was not the manufacturers of the ginger-beer who caused the defect in the bottle, but, on

the assumption that the jury were right in finding a lack of reasonable care in not examining the

bottle, I should have come to the conclusion that, as the manufacturers must have contemplated

the bottle being handled immediately by the consumer, they owed a duty to him to take care that

he should not be injured externally by explosion, just as I think they owed a duty to him to take

care that he should not be injured internally by poison or other noxious thing.

I do not find it necessary to discuss at length the cases dealing with duties where a thing is

dangerous, or, in the narrower category, belongs to a class of things which are dangerous in

themselves. I regard the distinction as an unnatural one so far as it is used to serve us a logical

differentiation by which to distinguish the existence or non-existence of a legal right. In this respect

I agree with what was said by Scrutton LJ in Hope & Son v. Anglo-American Oil Co (1922) 12

Ll L Rep 183, at p.197, a case which was ultimately decided on a question of fact :

"Personally, I do not understand the difference between a. thing dangerous in itself as poison

and a thing not dangerous as a class, but by negligent construction dangerous as a particular

thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep's

clothing instead of an obvious wolf."

The nature of the thing may very well call for different degrees of care, and the person dealing

with it may well contemplate persons as being within the sphere of his duty to take care who

would not be sufficiently proximate with less dangerous goods, so that not only the degree of care

but the range of persons to whom a duty is owed may be extended. But they all illustrate the

general principle. In Dominion Natural Gas Co Ltd v. Collins [1909] AC 640; 79 LJPC 13;

101 LT 359; 25 LTR 831 (PC) the appellants had installed a gas apparatus and were supplying

natural gas on the premises of a railway company. They had inslalled a regulator to control the

pressure and their men negligently made an escape valve discharge into the building instead of into

the open air. The railway workmen - the plaintiffs - were injured by an explosion in the premises.

The defendants were held liable. Lord Dunedin, in giving the judgment of the Judicial Committee,

consisting of himself, Lord MacNaghten, Lord Collins, and Sir Arthur Wilson, after stating that

them was no relation of contract between the plaintiffs and the defendants, proceeded ([1909]

A.C. at p. 646):

"There may be, however, in the case of anyone performing an operation, or setting up and

installing a machine, a relationship of duty. What that duty is will vary according to the subject-

matter of the things involved. It has, however, again and again been held that in the case of

articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things

ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send

forth or install such articles when it is necesaarily the case that other parties will come within

their proximity."

This, with respect, exactly sums up the position. The duty may exist independently of contract.

Whether it exists or not depends upon the subject-matter involved, but clearly in the class of

things enumerated there is a special duty to take precautions. This is the very opposite of creating

a special category in which alone the duty exists. I may add, though it obviously would make no

difference in the creation of a duty, that the installation of an apparatus to he used for gas perhaps

morc closely resembles the manufacture of a gun than a dealing with a loaded gun. In both cases

the actual work is innocuous; it is only when the gun is loaded or the apparatus charged with gas

that the danger arises. I do not think it necessary to consider the obligation of a person who

entrusts to a carrier goods which are dangerous or which he ought to know are dangerous. As far

as the direct obligation of the consignor to the carrier is concerned, it has been put upon an

implied warranty, Brass v. Maitland (1856) 6 E & B 470; 26 LJQB 49; 27 LTOS 249; 119 ER

940, but it is also a duty owed independently of contract - eg, to the carrier's servant, Farrant v.

Barnes (1862) 11 CBNS 553; 31 LJCP 137; 142 ER 912.

So far as the cases afford an analogy they seem to support the proposition now asserted. I need

only mention, to distinguish them, two cases in this House which are referred to in some of the

cases which I have reviewed. The first is Caledonian Rail Co v. Warwick [1898] AC 216; 67

LJPC 1; 77 LT 570 (HL), in which the appellant company were held not liable for injuries caused

by a defective brake on a coal wagon conveyed by the railway company to a point in the transit

where their contract ended and where the wagons were taken over for haulage for the last part of

the journey by a second railway company, on which part the accident happened. It was held that

the first railway company were under no duty to the injured workman to examine the wagon for

defects at the end of their contractual haulage. There was ample opportunity for inspection by the

second railway company. The relations were not proximate. In the second, Cavalier v. Pope

[1906] AC 428; 75 LJKB 609; 95 LT 65; 22 TLR 648 (HL), the wife of the tenant of a house

let unfurnished sought to recover from the landlord damages for personal injuries arising from the

non-repair of the house, on the ground that the landlord had contracted with her husband to

repair the house. It was held that the wife was not a party to the contrat, and that the well-known

absence of any duty in respect of the letting an unfurnished house prevented her from relying on

any cause of action for negligence.

In the most recent case, Bottomley and another v. Bannister and another (28), an action under

Lord Campbell's Act, the deceased man, the father of the plaintiff, had taken an unfurnished

house from the defendants, who had installed a gas boiler with a special gas burner which, if

properly regulated, required no flue. The father and his wife were killed by fumes from the

apparatus. The case was determined on the ground that the apparatus was part of the realty and

that the landlord did not know of the danger, but there is a discussion of the case on the

supposition that it was a chattel. Greer LJ, states with truth that it is not easy to reconcile all the

authorities, and that there is no authority binding on the Court of Appeal that a person selling an

article which he did not know to be dangerous can be held liable to a person with whom he made

no contract, by reason of the fact that reasonable inquiries might have enabled him to discover

that the article was in fact dangerous. When the danger is in fact occasioned by his own lack of

care then in cases of proximate relationship, this case will, I trust, supply the difficiency.

It is alway8s satisfaction to an English lawyer to be able to test his application of fundamental

principles of the common law by the development of the same doctrines by the lawyers of the

courts of the United States. In that country I find that the law appears to be well established in the

sense which I have indicated. The mouse had emerged from the ginger-beer bottle in the United

States before it appeared in Scotland, but there it brought a liability upon the manufacturer. I must

not in this long judgment do more than refer to the illuminating judgment of Cardozo J in

McPherson v. Buick Motor Co, 217 NY 382 (1916), in the New York Court of Appeals, in

which he states the principles of the law as I should desire to state them and reviews the

authorities in states other than his own. Whether the principle which he affirms would apply to the

particular facts of that case in this country would be a question for considemtion if the case arose.

It might be that the course of business, by giving opportunities of examination to the immediate

purchaser or otherwise, prevented the relation between manufacturer and the user of the car from

being so close as to create a duty. But the American decision would undoubtedly lead to a

decision in favour of the pursuer in the present case.

If your Lordships accept the view that the appellant's pleading discloses a relevant cause of

action, you will be affirming the proposition that by Scots and English law alike a manufacturer of

products which he sells in such a form as to show that he intends them to reach the ultimate

consumer in the form in which they left him, with no reasonable possibility of intermediate

examination, and with the knowledge that the absence of reasonable care in the preparation or

putting up of the products will result in injury to the consumer's life or property, owes a duty to

the consumer to take that reasonable care.

It is a proposition that I venture to say no one in Scotland or England who was not a lawyer

would for one moment doubt. It will be an advantage to make it clear that the law in this matter,

as in most others, is in accordance with sound common aense. I think that this appeal should be

allowed."

 

 

 

 

Ref: Normal.dot/ 12        ?R.W.Craig        21/12/2005