Donoghue v Stevenson

Case Report

1932

Donoghue v. Stevenson.

No. 5.
26 May 1932

HL
Lord Buckmaster. Lord Atkin. Lord Tomlin.
Lord Thankerton. Lord Macmillan.

(POOR) MRS MARY M'ALISTER OR DONOGHUE, Pursuer (Appellant)– Morton, K.C.–Milligan.
DAVID STEVENSON, Defender (Respondent).– Sol.-Gen. Normand–Clyde–T. Elder Jones.

Negligence–Whether duty owed to person injured–Duty of manufacturer of article to ultimate consumer–Bottle of ginger beer bought from retailer–Bottle containing dead snail–Purchaser poisoned by drinking contents-Liability of manufacturer to consumer.

Where the manufacturer of a product intended for human consumption sends it out in a form which shows that he means it to reach the ultimate consumer in the form in which it left his factory, with no reasonable possibility of intermediate examination by the retailer or consumer, and with the knowledge that want of reasonable care on his part in the preparation of the product may result in injury to the consumer, the manufacturer owes a duty to the consumer to take such care, and will be liable to the latter, in damages if he suffers injury through the failure to take such care.
So held (rev, judgment of the Second Division, diss. Lord Buckmaster and Lord Tomlin) in an action of damages brought against a manufacturer of ginger beer by a person who averred that she had been poisoned by ginger beer, which was bought from a retail dealer in an opaque sealed bottle in which it had left the manufacturer's premises, and which contained a decomposed snail.
George v. Skivington, (1869) L. R., 5 Ex. 1, approved.
Dicta of Brett, M.R., in Heaven v. Pender, (1883) 11 Q. B. D. 503, at pp. 509 to 511, considered.
Ground of judgment of Lord Ormidale and Lord Anderson in Mullen v. Barr & Co. and M'Gowan v. Barr & Co., 1929 S. C. 461, disapproved.
Authorities reviewed.

(IN the Court of Session 13th November 1930.)

On 9th April 1929 Mrs Mary M'Alister or Donoghue brought an action against David Stevenson aerated water manufacturer Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by the defender.

The pursuer averred, inter alia:–(Cond. 2) "At or about 8.50 P.M. on or about the 26th August 1928, the pursuer was in the shop occupied by Francis Minchella, and known as Wellmeadow Café, at Wellmeadow Place, Paisley, with a friend. The said friend ordered for the pursuer ice cream, and ginger beer suitable to be used with the ice cream as an iced drink. Her friend, acting as aforesaid, was supplied by the said Mr Minchella with a bottle of ginger beer manufactured by the defender for sale to members of the public. The said bottle was made of dark opaque glass, and the pursuer and her friend had no reason to suspect that the said bottle contained anything else than the aerated water. The said Mr Minchella poured some of the said ginger beer from the bottle into a tumbler containing the ice cream. The pursuer then drank some of the contents of the tumbler. Her friend then lifted the said ginger beer bottle and was pouring out the remainder of the contents into the said tumbler when a snail, which had been, unknown to the pursuer, her friend, or the said Mr Minchella, in the bottle, and was in a state of decomposition, floated out of the

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said bottle. In consequence of the nauseating sight of the snail in said circumstances, and of the noxious condition of the said snail tainted ginger beer consumed by her, the pursuer sustained the shock and illness hereinafter condescended on. The said Mr Minchella also sold to the pursuer's friend a pear and ice. The said ginger beer bottle was fitted with a metal cap over its mouth. On the side of the said bottle there was pasted a label containing inter alia, the name and address of the defender, who was the manufacturer. It was from this label that the pursuer's said friend got the name and address of the defender." (Cond. 3) "The shock and illness suffered by the pursuer were due to the fault of the defender. The said ginger beer was manufactured by the defender and his servants to be sold as an article of drink to members of the public (including the pursuer). It was, accordingly, the duty of the defender to exercise the greatest care in order that snails would not get into the said bottle, render the said ginger beer dangerous and harmful, and be sold with the said ginger beer. Further, it was the duty of the defender to provide a system of working his business that was safe, and would not allow snails to get into his ginger beer bottles (including the said bottle). Such a system is usual and customary, and is necessary in the manufacture of a drink like ginger beer to be used for human consumption. In these duties the defender culpably failed and pursuer's illness and shock were the direct result of his said failure in duty. The pursuer believes and avers that the defender's system of working his business was defective, in respect that his ginger beer bottles were washed and allowed to stand in places to which it was obvious that snails had freedom of access from outside the defender's premises, and in which, indeed, snails and slimy trails of snails were frequently found. Further, it was the duty of the defender to provide an efficient system of inspection of said bottles before the ginger beer was filled into them, and before they were sealed. In this duty also the defender culpably failed, and so caused the said accident. The defender well knew, or ought to have known, of the frequent presence of snails in those parts of his premises where the ginger beer bottles were washed and dried, and, further, ought to have known of the danger of small animals (including snails) getting into his ginger beer bottles. The pursuer believes and avers that the said snail, in going into the said bottle, left on its path a slimy trail, which should have been obvious to anyone inspecting the said bottle before the ginger beer was put into it. In any event, the said trail of the snail should easily have been discovered on the bottle before the bottle was sealed, and a proper (or indeed any) inspection would have revealed the presence of the said trail and the said snail, and the said bottle of ginger beer with the snail in it would not have been placed for sale in the said shop. Further, the defender well knew, or in any event ought to have known, that small animals like mice or snails left in aerated water (including ginger beer), and decomposing there, render aerated water exceedingly dangerous and harmful to persons drinking the contaminated aerated water. Accordingly, it was his obvious duty to provide clear ginger beer bottles, so as to facilitate the said system of inspection. In this duty also the defender culpably failed, and the said accident was the direct result of his said failure in duty. If the defender and his said servants had

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carried out their said duties the pursuer would not have suffered the said shock and illness."

The pursuer pleaded, inter alia:–"(1) The pursuer, having sustained loss, injury, and damage through the fault of the defender, is entitled to reparation therefor from the defender."
The defender pleaded, inter alia:–"(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed."
On 27th June 1930 the Lord Ordinary (Moncrieff) repelled the first plea in law for the defender and allowed a proof.
The defender reclaimed, and on 13th November 1930 the Second Division recalled the interlocutor of the Lord Ordinary and dismissed the action.*
The pursuer appealed to the House of Lords in forma pauperis, and the appeal was heard on 10th and 11th December 1931.

Argued for the appellant,–The appellant had stated a relevant case upon record. Admittedly the present case was indistinguishable from the case of Mullen v. Barr & Co.,¹ and in deciding the present case against the appellant the Second Division had merely followed, as they were logically bound to do, their decision in Mullen.¹ The present appeal was, accordingly, an appeal against Mullen.¹ It was admitted that, on the present question, the law of Scotland and the law of England were the same, and the Second Division had reached their decision upon a consideration of certain English cases. These cases were not consistent, and the cases relied on by the Second Division differed essentially in their facts from the facts in Mullen1 and in the present case. No cast could be found where, in circumstances similar to the present, the, Court had held that the manufacturer was under no duty to the consumer. The Court below proceeded on the view that a manufacturer owed no duty to anyone with whom he had no contractual relation, except either where the article manufactured was dangerous in itself or, although not normally dangerous in itself, was known to the manufacturer to be dangerous owing to some defect or for some other reason. That view of a manufacturer's obligation was too narrow, and the question whether a duty of care on the part of the manufacturer existed towards persons with whom he had no contract was one which in each case depended upon the particular circumstances of the case. Where a manufacturer put on the market an article of food or drink in a form which precluded an examination of the article by the retailer or the consumer, he was liable to the consumer if he did not take reasonable care to make sure that the article was

* The Court heard counsel for the parties. Thereafter the Lord Justice-Clerk stated that they would follow their decision in Mullen v. Barr & Co., 1929 S. C. 461. He further stated that he no longer reserved his opinion upon the question of the liability of the defenders to the pursuer if negligence on their part had been proved, and agreed with the opinions of Lord Ormidale and Lord Anderson that they would not have been liable even if negligent. Lord Ormidale, Lord Hunter, and Lord Anderson adhered to their former opinions, Lord Hunter, who dissented, explaining that he felt justified in dissenting in respect that the actual ground of judgment in Mullen v. Barr & Co. was that negligence on the part of the defenders had not been proved.

1 1929 S. C. 461.

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not injurious. In the present case the ginger beer bottles were opaque, and were sealed and labelled before they left the manufaturer's premises, these circumstances making any examination by the retailer or consumer impossible. Nevertheless, the manufacturer tacitly invited the purchasers to consume the contents of the bottles, and he was liable to the consumer if, through carelessness on his part, the contents were noxious.1 It was true that George v. Skivington² had not always been favourably commented on, but it had never been overruled, and it had been referred to by the House of Lords without disapproval.³ In the United States the law had been laid down as contended for by the appellant.⁴ Reference was also made to the undernoted authorities.⁵

Argued for the respondent;–The general rule was that a manufacturer owed no duty to a consumer with whom he had no contract. To this rule there were two well recognised exceptions–(1) where the article was dangerous in itself; (2) where the article was known to the manufacturer to be dangerous for some reason or other. The present case did not fall within either of these exceptions, and the appellant was trying to introduce into the law a third exception, viz., goods intended for human consumption and sent out by the manufacturer and sold to the consumer in a form in which examination was impossible. There was no hint of any such exception in any of the reported cases. There was no suggestion of the existence of a trap in the present case, and there was no logical reason for differentiating between articles of food or drink and other articles. The principle of liability was stated too widely by Brett, M.R., in Heaven v. Pender⁶; and in Le Lievre v. Gould⁷ he himself and A. L. Smith, L.J., modified his previous statement of that principle. Cotton, L.J., and Bowen, L.J., in Heaven v. Pender⁶ explained the law correctly. In Blacker v. Lake & Elliot⁸ Hamilton, J., and Lush, J., regarded George v. Skivington² as overruled. The principle, according to Hamilton, J., was that the breach by A of his contract with B to use skill and care in the manufacture of an article did not per se entitle C, if injured by the article, to sue A. He regarded George v. Skivington² in so far as it proceeded upon duty to the ultimate user, as being inconsistent with Winterbottom v. Wright.⁹ The general trend of legal decisions was adverse to the appellant.¹⁰

1 George v. Skivington, (1869) L. R., 5 Ex. 1; Heaven v. Pender, (1883) 11 Q. B. D. 503, Brett, M.R., at pp. 509 et seq.; Dominion Natural Gas Co. v. Collins and Perkins, [1909] A. C. 640, Lord Dunedin at p. 6.
2 L. R., 5 Ex. 1.
3 Cavalier v. Pope, [1906] A. C. 428, at p. 433.
4 Thomas v. Winchester, (1852) 57 Amer. Dec. 455, 6 N. Y. R. 397.
5 Dixon v. Bell, (1816) 5 M. & S. 198; Langridge v. Levy, (1837) 2 M. & W. 519, (1838) 4 M. & W. 337; Longmeid v. Holliday, (1851) 6 Ex. 761; Bates v. Batey & Co., [1913] 3 K. B. 351; Weld-Blundell v. Stephens, [1920] A. C. 956, at p. 985.
6 11 Q. B. D. 503.
7 [1893] 1 Q. B. 491.
8 (1912) 106 L. T. 533.
9 (1842) 10 M. & W. 109.
10 Reference was made to Pollock on Torts, (13th ed.) pp. 570 and 571; and Beven on Negligence, (4th ed.) vol. i., p. 49.

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HL

Donoghue v. Stevenson

At delivering judgment on 26th May 1932,–

LORD BUCKMASTER (read by Lord Tomlin).–The facts of this case are simple. On 26th August 1928 the appellant drank a bottle of ginger beer, manufactured by the respondent, which a friend had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were not, and could not be, detected until the greater part of the contents of the bottle had been consumed. As a result she alleged, and at this stage her allegations must be accepted as true, that she suffered from shock and severe gastro-enteritis. She accordingly instituted the proceedings against the manufacturer which have given rise to this appeal.

The foundation of her case is that the respondent, as the manufacturer of an article intended for consumption and contained in a receptacle which prevented inspection, owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, and that he neglected such duty and is consequently liable for any damage caused by such neglect. After certain amendments, which are now immaterial, the case came before the Lord Ordinary, who rejected the first plea in law of the respondent and allowed a proof. His interlocutor was recalled and the action dismissed by the Second Division of the Court of Session, from whose judgment this appeal has been brought.

Before examining the merits two comments are desirable:–(1) that the appellant's case rests solely on the ground of a tort based not on fraud but on negligence; and (2) that throughout the appeal the case has been argued on the basis, undisputed by the Second Division and never questioned by counsel for the appellant or by any of your Lordships, that the English and the Scots law on the subject are identical. It is therefore upon the English law alone that I have considered the matter, and, in my opinion, it is on the English law alone that, in the circumstances, we ought to proceed.

The law applicable is the common law, and, although its principles are capable of application to meet new conditions not contemplated when the law was laid down, these principles cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit. Now, the common law must be sought in law books by writers of authority, and in judgments of the judges entrusted with its administration. The law books give no assistance, because the work, of living authors, however deservedly eminent, cannot be used as authority, although the opinions they express may demand attention, and the ancient books do not assist. I turn, therefore, to the decided cases to see if they can be construed so as to support the appellant's case. One of the earliest is the case of Langridge v. Levy.¹ It is a case often quoted and variously explained. There a man sold a gun, which he knew was dangerous, for the use of the purchaser's son. The gun exploded in the son's hands, and he was held to have a right of action in tort against the gunmaker. How far it is from the present case can be seen from the

12 M. & W. 519,4 M. & W. 337.

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judgment of Parke, B., who, in delivering the judgment of the Court, used these words (at p. 53 & of 2 M. & W.): "We should pause before we made a precedent by our decision which would be an authority for an action against the vendors, even of such instruments and articles as are dangerous in themselves, at the suit of any person whomsoever into whose hands they might happen to pass, and who should be injured thereby"; and in Longmeid v. Holliday¹ the same eminent judge points out that the earlier case was based on a fraudulent misstatement, and he expressly repudiates the view that it has any wider application. The case of Langridge v. Levy,² therefore, can be dismissed from consideration, with the comment that it is rather surprising it has so often been cited for a proposition it cannot support.

The case of Winterbottom v. Wright³ is, on the other hand, an authority that is closely applicable. Owing to negligence in the construction of a carriage it broke down, and a stranger to the manufacture and sale sought to recover damages for injuries which he alleged were due to negligence in the work, and it was held that he had no cause of action either in tort or arising out of contract. This case seems to me to show that the manufacturer of any article is not liable to a third party injured by negligent construction, for there can be nothing in the construction of a coach to place it in a special category. It may be noted, also, that in this case Alderson, B., said (at p. 115):–"The only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty."

Longmeid v. Holliday¹ was the case of a defective lamp sold to a man whose wife was injured by its explosion. The vendor of the lamp, against whom the action was brought, was not the manufacturer, so that the case is not exactly parallel to the present, but the statement of Parke, B., in his judgment covers the case of a manufacturer, for he said (at p. 768):–"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 … 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 true that he uses the words "lent or given" and omits the word "sold," but if the duty be entirely independent of contract and is a duty owed to a third person, it seems to me to be the same whether the article be originally given or sold. The fact in the present case that the ginger beer originally left the premises of the manufacturer on a purchase, as was probably the case, cannot add to, his duty, if such existed, to take care in its preparation. It has been suggested that the statement of Parke, B., does not cover the case of negligent construction, but the omission to exercise reasonable care in the discovery of a defect in the manufacture of an article where the duty

1 6 Ex. 761.
2 2 M. & W. 519, 4 M. & W. 337.
3 10 M. & W. 109.

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of examination exists is just as negligent as the negligent construction itself.

The general principle of these cases is stated by Lord Sumner (then Hamilton, J.), in the case of Blacker v. Lake & Elliot,¹ in these terms:–"The breach of the defendant's contract with A to use care and skill in and about the manufacture and repair of an article does not of itself give any cause of action to B when he is injured by reason of the article proving to be defective."

From this general rule there are two well known exceptions: (1) in the case of an article dangerous in itself; and (2) where the article, not in itself dangerous, is in fact dangerous by reason of some defect or for any other reason, and this is known to the manufacturer. Until the case of George v. Skivington² I know of no further modification of the general rule. As to (1), in the case of things dangerous in themselves, there is, in the words of Lord Dunedin, "a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity"– Dominion Natural Gas Co. v. Collins and Perkins.³ And as to (2), this depends on the fact that the knowledge of the danger creates the obligation to warn, and its concealment is in the nature of fraud. In this case no one can suggest that the ginger beer was an article dangerous in itself, and the words of Lord Dunedin show that the duty attaches only to such articles, for I read the words "a peculiar duty" as meaning a duty peculiar to the special class of subject mentioned.

Of the remaining cases, George v. Skivington² is the one nearest to the present, and without that case, and the statement of Cleasby, B., in Francis v. Cockrell⁴ and the dicta of Brett, M. R., in Heaven v. Pender,⁵ the appellant would be destitute of authority. George v. Skivington² related to the sale of a noxious hairwash, and a claim made by a person who had not bought it but had suffered from its use, based on its having been negligently compounded, was allowed. It is remarkable that Langridge v. Levy⁶ was used in support of the claim, and influenced the judgment of all the parties to the decision. Both Kelly, C.B., and Pigott, B., stressed the fact that the article had been purchased to the knowledge of the defendant for the use of the plaintiff, as in Langridge v. Levy⁶; and Cleasby, B., who, realising that Langridge v. Levy⁶ was decided on (the ground of fraud, said (at p. 5): "Substitute the word 'negligence' for 'fraud,' and the analogy between Langridge v. Levy⁶ and this case its complete." It is unnecessary to point out emphatically that such a substitution cannot possibly be made. No action based on fraud can be supported by mere proof of negligence. I do not propose to follow the fortunes of George v. Skivington²; few cases can have lived so dangerously and lived so long. Lord Sumner, in the case of Blacker v. Lake & Elliot,¹ closely examines its history, and I agree with his analysis.

1 106 L. T. 533, at p. 536.
2 L. R., 5 Ex. 1
3 [1909] A. C. 640, at p. 646.
4 (1870) L. R., 5 Q. B. 501, at p. 515.
5 11 Q. B. D. 503, at pp. 509 et seq.
6 2 M. & W. 519.

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He said that he could not presume to say that it was wrong, but he declined to follow it, on the ground, which is, I think, firm, that it was in conflict with Winterbottom v. Wright.¹

In Francis v. Cockrell² the plaintiff had been injured by the fall of a stand on a racecourse, for a seat in which he had paid. The defendant was part-proprietor of the stand and acted as receiver of the money. The stand had been negligently erected by a contractor, although the defendant was not aware of the defect. The plaintiff succeeded. The case has no bearing upon the present, but in the course of his judgment Cleasby, B., made the following observation (at p. 515): "The point that Mr Matthews referred to last was raised in the case of George v. Skivington,³ where there was an injury to one person, the wife, and a contract of sale with another person, the husband. The wife was considered to have a good cause of action, and I would adopt the view which the Lord Chief Baron took in that case. He said there was a duty on the vendor to use ordinary care in compounding the article sold, and that this extended to the person for whose use he knew it was purchased, and this duty having been violated, and he, having failed to use reasonable care, was liable in an action at the suit of the third person." It is difficult to appreciate what is the importance of the fact that the vendor knew who was the person for whom the article was purchased, unless it be that the case was treated as one of fraud, and that, without this element of knowledge, it could not be brought within the principle of Langridge v. Levy.⁴ Indeed, this is the only view of the matter which adequately explains the references in the judgments in George v. Skivington³ to Langridge v. Levy,⁴ and the observations of Cleasby, B., upon George v. Skivington.³

The dicta of Brett, M.R., in Heaven v. Pender⁵ are rightly relied on by the appellant. The material passage is as follows:–"The proposition, which these recognised cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances 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. … Let us apply this proposition to the case of one person supplying goods or machinery, or instruments or utensils, or the like, for the purpose of their being used by another person, but with whom there is no, contract as to the supply. The proposition will stand thus: Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that everyone of ordinary sense would, if he thought, recognise at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to

1 10 M. & W. 109.
2 L. R., 5 Q. B. 501.
3 L. R., 5 Ex. 1.
4 2 M. & W. 519.
5 11 Q. B. D. 503, at pp. 509 et seq.

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the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And, for a neglect of such ordinary care or skill whereby injury happens, a legal liability arises to be enforced by an action for negligence. This includes the case of goods, etc., supplied to be used immediately by a particular person or persons or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property. The eases of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arises under the contract, and not merely as a duty imposed by law, though it may not be useless to observe that it seems difficult to import the implied obligation into the contract except in cases in which if there were no contract between the parties the law would according to the rule above stated imply the duty."

"The recognised cases" to which the Master of the Rolls refers are not definitely quoted, but they appear to refer to cases of collision and carriage, and the cases of visitation to premises on which there is some hidden danger–cases far removed from the doctrine he enunciates. None the less this passage has been used as a tabula in naufragio for many litigants struggling in the seas of adverse authority. It cannot, however, be divorced from the fact that the case had nothing whatever to do with the question of manufacture and sale. An unsound staging had been erected on premises to which there had been an invitation to the plaintiffs to enter, and the case really depended on the duty of the owner of the premises to persons so invited. None the less it is clear that Brett, M.R., considered the cases of manufactured articles, for he examined Langridge v. Levy,¹ and says that it does not negative the proposition that the case might have been supported on the ground of negligence.

In the same case, however, Cotton, L.J., in whose judgment Bowen, L.J., concurred, said that he was unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertained, inasmuch as there were many cases in which the principle was impliedly negatived. He then referred to Langridge v. Levy,¹ and stated that it was based upon fraudulent misrepresentation, and had

1 2 M. & W. 519.

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been so treated by Coleridge, J., in Blackmore v. Bristol and Exeter Railway Co.¹; and that in. Collis v. Seldon2 Willes, J., had said that the judgment in Langridge v. Levy³ was based on the fraud of the defendant. The Lord Justice then proceeded as follows (at p. 516): "This impliedly negatives the existence of the larger general principle which is relied on, and the decisions in Collis v. Seldon² and in Longmeid v. Holliday⁴ (in each of which the plaintiff failed) are, in my opinion, at variance with the principle contended for. The case of George v. Skivington,⁵ and especially what is said by Cleasby, B., in giving judgment in that case, seem to support the existence of the general principle. But it is not in terms laid down that any such principle exists, and that case was decided by Cleasby, B., on the ground that the negligence of the defendant which was his own personal negligence was equivalent, for the purposes of that action, to fraud, on which (as he said) the decision in Langridge v. Levy³ was based. In declining to concur in laying down the principle enunciated by the Master of the Rolls, I in no way intimate any doubt as to the principle that anyone who leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such a condition as to cause danger, not necessarily incident to the use of such an instrument or thing, is liable for injury caused to others by reason of his negligent act."

With the views expressed by Cotton, L.J., I agree.

In Le Lievre v. Gould⁶ the mortgagees of the interest of a builder under a building agreement advanced money to him from time to time on the faith of certificates given by a surveyor that certain specified stages in the progress of the buildings had been reached. The surveyor was not appointed by the mortgagees, and there was no contractual relationship between him and them. In consequence of the negligence of the surveyor the certificates contained untrue statements as to the progress of the buildings, but there was no fraud on his part. It was held that the surveyor owed no duty to the mortgagees to exercise care in giving his certificates, and they could not maintain an action against him by reason of his negligence. In this case Lord Esher seems to have qualified to some extent what he said in Heaven v. Pender,⁷ for he says this (at p. 497): "But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. The case of Heaven v. Pender⁸ has no bearing upon the present question. That case established that, under certain circumstances, one man may owe a duty to another even though there is no contract between them. If one man is near to another, or is

1 (1858) 8. E. & B. 1035.
2 (1868) L. R., 3 C. P. 495.
3 2 M. & W. 519.
4 6 Ex. 761.
5 L. R., 5. Ex. 1:
6 [1893] 1 Q. B. 491.
7 11 Q. B. D. 503, at p. 509.
8 11 Q. B. D. 503.

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near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property." In that same case A. L. Smith, L.J., said (at p. 504): "The decision of Heaven v. Pender¹ was founded upon the principle that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. Heaven v. Pender¹ goes no further than this, though it is often cited to support all kinds of untenable propositions."

In Earl v. Lubbock² the plaintiff had been injured by a wheel coming off a van which he was driving for his employer, and which it was the duty of the defendant, under contract with the employer, to keep in repair. The County Court judge and the Divisional Court both held that, even if negligence was proved, the action would not lie. It was held by the Appeal Court that the defendant was under no duty to the plaintiff, and that there was no cause of action. In his judgment Sir Richard Henn Collins, M.R., said the case was concluded by the authority of Winterbottom v. Wright,³ and he pointed out that the dictum of Lord Esher in Heaven v. Pender¹ was not a decision of the Court, and that it was subsequently qualified and explained by Lord Esher himself in Le Lievre v. Gould.⁴ Stirling, L.J., said that, in order to succeed in the action, the plaintiff must bring his case within the proposition enunciated by Cotton, L.J., and agreed to by Bowen, L.J., in Heaven v. Pender,¹ while Mathew, L.J., made the following observation (at p. 259):–"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, or, indeed, anyone else who sustained an injury traceable to that negligence, 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. No prudent man would contract to make or repair what the employer intended to permit others to use in the way of his trade."

In Bates v. Batey & Co.⁵ the defendants, ginger beer manufacturers, were held not liable to a consumer (who had purchased from a retailer one of their bottles) for injury occasioned by the bottle bursting as the result of a defect of which the defendants did not know, but which by the exercise of reasonable care they could have discovered. In reaching this conclusion Horridge, J., stated that he thought the judgments of Clarke, B., in Longmeid v. Holliday,⁶ of Cotton, L.J., and Bowen, L.J., in Heaven v. Pender,¹ of Stirling, L.J., in Earl v. Lubbock,² and of Hamilton, J., in Blacker v. Lake & Elliot,⁷ made it clear that the plaintiff was not entitled to recover, and that he had not felt himself bound by George v. Skivington.⁸

1 11 Q. B. D. 503.
2 [1905] 1 K. B. 253.
3 10 M. & W. 109.
4 [1893] 1 Q. B. 491.
5 [1913] 3 K. B. 351.
6 6 Ex. 761.
7 106 L. T. 533.
8 L. R., 5 Ex. l.

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So far, therefore, as the case of George v. Skivington¹ and the dicta in Heaven v. Pender² are concerned, it is, in my opinion, better that they should be buried so securely that their perturbed spirits shall no longer vex the law.

One further case mentioned in argument may be referred to, certainly not by way of authority, but to gain assistance by considering how similar cases are dealt with by eminent judges of the United States. That such cases can have no close application and no authority is clear, for although the source of the law in the two countries may be the same, its current may well flow in different channels. The case referred to is that of Thomas v. Winchester.³ There a chemist issued poison in answer to a request for a harmless drug, and he was held responsible to a third party injured by his neglect. It appears to me that the decision might well rest on the principle that he, in fact, sold a drug dangerous in itself, none the less so because he was asked to sell something else, and on this view the case does not advance the matter.

In another case of MacPherson v. Buick Motor Co.,⁴ where a manufacturer of a defective motor car was held liable for damages at the instance of a third party, the learned judge appears to base his judgment on the view that a motor car might reasonably be regarded as a dangerous article.

In my view, therefore, the authorities are against the appellant's contention; and, apart from authority, it is difficult to see how any common law proposition can be formulated to support her claim.

The principle contended for must be this, that the manufacturer, or indeed the repairer, of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed. All rights in contract must be excluded from consideration of this principle; such contractual rights as may exist in successive steps from the original manufacturer down to the ultimate purchaser are ex hypothesi immaterial. Nor can the doctrine be confined to cases where inspection is difficult or impossible to introduce. This conception is simply to misapply to tort doctrine applicable to sale and purchase.

The principle of tort lies completely outside the region where such considerations apply, and the duty, if it exists, must extend to every person who, in lawful circumstances, uses the article made. There can be no special duty attaching to the manufacture of food apart from that implied by contract or imposed by statute. If such a duty exists, it seems to me it must cover the construction of every article, and I cannot see any reason why it should not apply to the construction of a house. If one step, why not fifty? Yet if a house be, as it sometimes is, negligently built, and in consequence of that negligence the ceiling falls and injures the occupier or anyone else, no action against the builder exists according to the English law, although I believe such a right did exist

1 L. R 5 Ex. 1.
2 11 Q. B. D. 503.
3 57 Amer, Dec. 455, 6 N. Y. R. 397.
4 (1916) 217 N. Y. R. 382, Ann. Cas. 1916 C. 440.

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according to the laws of Babylon. Were such a principle known and recognised, it seems to me impossible, having regard to the numerous cases that must have arisen to persons injured by its disregard, that, with the exception of George v. Skivington,¹ no case directly involving the principle has ever succeeded in the Courts, and, were it well known and accepted, much of the discussion of the earlier cases would have been waste of time, and the distinction as to articles dangerous in themselves or known to be dangerous to the vendor would be meaningless.

In Mullen v. Barr & Co.,² a case indistinguishable from the present excepting upon the ground that a mouse is not a snail, and necessarily adopted by the Second Division in their judgment, Lord Anderson says this (at p. 479): "In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer." In agreeing, as I do, with the judgment of Lord Anderson, I desire to add that I find it hard to dissent from the emphatic nature of the language with which his judgment is clothed.

I am of opinion that this appeal should be dismissed, and I beg to move your Lordships accordingly.

LORD ATKIN.–The sole question for determination in this case is legal. Do the averments made by the pursuer in her pleadings, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. I do not think a more important problem has occupied your Lordships in your judicial capacity, important both because of its bearing on public health and because of the practical test which it applies to the system under which it arises. The case has to be determined in accordance with Scots law, but it has been a matter of agreement between the experienced counsel who argued this case, and it appears to be the basis of the judgments of the learned judges of the Court of Session, that, for the purposes of determining this problem, the laws of Scotland and, of England are the same. I speak with little authority on this point, but my own research, such as it is, satisfies me that the principles of the law of Scotland on such a question as the present are identical with those of English law, and I discuss the issue on that footing. The law of both countries appears to be that, in order to support an action for damages for negligence, the complainant has to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. In the present

1 L. R., 5 Ex. 1.
2 1929 S. C. 461.

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case we are not concerned with the breach of the duty; if a duty exists, that would be a question of fact which is sufficiently averred and for present purposes must be assumed. We are solely concerned with the question whether, as a matter of law in the circumstances alleged, the defender owed any duty to the pursuer to take care.

It is remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty. The Courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the Courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation, or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognises a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. The attempt was made by Brett, M.R., in Heaven v. Pender,¹ in a definition to which I will later refer. As framed, it was demonstrably too wide, although it appears to me, if properly limited, to be capable of affording a valuable practical guide.

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v. Pender¹ as laid down by Lord Esher (then Brett, M.R.), when it is

1 11 Q. B. D. 503, at p. 509

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limited by the notion of proximity introduced by Lord Esher himself and A. L. Smith, L.J., in Le Lievre v. Gould.¹ Lord Esher says ([1893] 1 Q. B. at p. 497): "That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property." So A. L. Smith, L.J., (at p. 504): "The decision of Heaven v. Pender² was founded upon the principle that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other." I think that this sufficiently states the truth, if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his act. That this is the sense in which nearness or "proximity" was intended by Lord Esher is obvious from his own illustration in Heaven v. Pender³ of the application of his doctrine to the sale of goods. "This" (i.e., the rule he has just formulated) "includes the case of goods, etc., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property." I draw particular attention to the fact that Lord Esher emphasizes the necessity of goods having to be "used immediately" and "used at once before a reasonable opportunity of inspection." This is obviously to exclude the possibility of goods having their condition altered by lapse of time, and to call attention to the proximate relationship, which may be too remote where inspection even of the person using, certainly of an intermediate person, may reasonably be interposed. With this necessary qualification of proximate relationship as explained in Le Lievre v. Gould,¹ I think the judgment of Lord Esher expresses the law of England; without the qualification, I think the majority of the Court in Heaven v. Pender² were justified in thinking the principle was expressed in too general terms.

1 [1893] l Q. B. 491.
2 11 Q. B. D. 503.
3 11 Q. B. D. 503, at p. 510.

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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 any one 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 those 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, where 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 other persons 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 civilized society and the ordinary claims 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, where 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,

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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.¹ 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, C.B., said (at p. 3) 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." Pigott, B., and Cleasby, B., put their judgments on the same ground. I venture to think that Cotton, L.J., in Heaven v. Pender,² misinterprets Cleasby, B.'s, judgment in the reference to Langridge v. Levy.³ 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 Langridge v. Levy³ not to defraud. It is worth noticing that George v. Skivington¹ was referred to by Cleasby, B., himself, sitting as a member of the Court of Exchequer Chamber in Francis v. Cockrell,⁴ and was recognised by him as based on an ordinary duty to take care. It was also affirmed by Brett, M.R., in Cunnington v. Great Northern Railway Co.,⁵ decided on 2nd July at a date between the argument and the judgment in Heaven v. Pender,⁶ although, 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,⁷ 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 had been provided by the consignees for the use of the dock company who 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,⁸ 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

1 L. R., 5 Ex. 1.
2 11 Q. B. D. 503, at p. 517.
3 4 M. & W. 337.
4 L. R., 5 Q. B. 501, at p. 515.
5 (1883) 49 L. T. 392.
6 11 Q. B. D. 503.
7 (1896) 12 T. L. R. 532.
8 (1885) 15 Q. B. D. 315.

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truck, and was held by a Divisional Court (Grove, J., and A. L. 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 plantiff 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 the supplier and user which gives rise to the duty to take care.

A very recent case which has the authority of this House is Oliver v. Saddler & Co.¹ 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 then transported to the dockside by the shore porters, of whom the pursuer 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 Railway.² 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 Railway to carry passengers over it, and had so negligently constructed the bridge that the plaintiff, a passenger of 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 misdirection, for the defendants were only liable 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, C.B., in Francis v. Cockrell,³ in the Exchequer Chamber, to have been decided upon an implied contract with every person lawfully using the bridge that it was reasonably fit for the

1 1929 S. C. (H. L.) 94, [1929] A. C. 584.
2 (1848) 2 Ex. 251.
3 L. R., 5 Q. B. 501, at p. 505.

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purpose. I can find no trace of such a ground in the pleading 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. Bell¹ 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 the gun to 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 Ellen-borough had returned a verdict for the plaintiff. A motion by Sir William Garrow (Attorney-General) 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 innocuous.

In Langridge v. Levy² 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 sons, 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 plaintiff. 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

1, 5 M. & S. 198.
2 2 M. & W. 519,4 M. & W. 337.

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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. Wright¹ 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, coming 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 convey the road mail-coach 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–the defendant having the means of knowing, and well knowing, all the aforesaid premises–that 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 face 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, B., and Rolfe, B. 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 could not have involved such direct relations with the servant of the persons 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,² 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 plaintiff's shop; that the

1 10 M. & W. 109.
2 6 Ex. 761.

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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 the case of Langridge v. Levy.¹ 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 plaintiffs, but with liberty to the defendant to move to enter the verdict for him. A rule having been obtained, plaintiffs' counsel sought to support the verdict on the ground that this was and action, not for a breach of duty arising solely from contract, but for an injury resulting 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 cases 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 firm in breach of contract committing a nuisance on a highway, he deals with the oase 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,² although what this case has to do with contract it is difficult to see. He then goes on (at p. 768): "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 buy 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 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 with poison by the baker 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

1 2 M. & W. 519, 4 M. & W. 337.
2 5 M. & S. 198.

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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 only refers to "letting or getting" 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 this chain of authority come George v. Skivington¹ and Heaven v. Pender,² which I have already discussed.

The next case is Earl v. Lubbock.³ 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, C.J., Wills, J., and Kennedy, J.), and the Court of Appeal, agreed with him. The Master of the Rolls, Sir R. Henn Collins, said that the case was concluded by Winterbottom v. Wright.⁴ 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,⁴ negligence apart from contract being neither averred nor proved. It is true that he cites with approval the dicta of Lord Abinger in that 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, L.J., it is true, said that to succeed the plaintiff must bring his case within the proposition of the majority in Heaven v. Pender,² that anyone 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 is mistakenly treating a proposition which applies one test of a duty as though it afforded the only criterion. Mathew, L.J., appears to me to put the case on its proper footing when he says (at p. 259) that the argument of 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 this 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.

The case of Blacker v. Lake & Elliot⁵ 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, J., and Lush, J., who

1 L. R., 5 Ex. 1
2 11 Q. B. D. 503.
3 [1905] 1 K. B. 253.
4 10 M. & W. 109.
5 106 L. T. 533.

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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 Country Court before that excellent lawyer the late 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 vaporizer; 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–"I also think"–that Hamilton, J., so thought. If so, the case resolves itself into a series of important dicta. Hamilton, J., says¹ that it has been decided in authorities from Winterbottom v. Wright² to Earl v. Lubbock³ that the breach of the defendants' 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 plaintiffs any better when there is no contract proved of which there could be a breach? I think, with respect that this saying does not give sufficient weight to the actual issues raised by the pleading 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 cases 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 failure of care and skill in the manufacture of goods, as contrasted with repair. The only manufacturing case was Longmeid v. Holliday,⁴ where negligence was not alleged. Hamilton, J., recognises that George v. Skivington⁵ 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.² I find this very difficult to understand, for George v. Skivington⁵ was based upon a duty in the manufacturer to take care independently of contract, while Winterbottom v. Wright² was decided on 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 that of fraud; the second of articles dangerous or noxious in themselves, where the duty

1 106 L. T., at p. 536.
2 10 M. & W. 109.
3 [1905] 1 K. B. 253.
4 6 Ex. 761.
5 L. R., 5 Ex. 1.

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is only to warn; the third of public nuisance. He does not bring the cases represented by Elliott v. Hall¹ (the defective coal wagon) within his classes at all. He says they belong to a totally different class, "where the control of premises or the management of a dangerous things upon premises creates a duty." I have already pointed out that this distinction is unfounded in fact, for in Elliott v. Hall,¹ as in Hawkins v. Smith² (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, i.e., the duty owed to those who will be immediately injured by lack of care.

The last case I need refer to is Bates v. Batey & Co.,³ 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 manufactures. 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 this defective bottle was in fact dangerous; but, as the defendants did not know that it was dangerous, they were not liable, although by the exercise of reasonable care they could have discovered the defect. The 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 the 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 as 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, L.J., in Hodge & Sons v. Anglo American Oil Co.,⁴ 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 we contemplate persons as being within

1 15 Q. B. D. 315.
2 12 T. L. R. 532.
3 [1913] 3 K. B. 351.
4 (1922) 12 Ll. L. Rep. 183, at p. 187.

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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