|
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 duty is
owed may be extended. But they all illustrate the general principal. In
the Dominion Natural Gas Co. v. Collins and Perkins1
the defendants had installed a gas apparatus and were supplying natural
gas on the premises of a railway company. They had installed 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 there was no
relation of contract between the plaintiffs and the defendants,
proceeded (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 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 necessarily the case that
other parties will come within their proximity." This, which respect,
exactly sums up the position. The duty may exist independently of
contract. Whether is 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, although
it obviously would make no difference in the creation of a duty, that
the installation of an apparatus to be used for gas perhaps more 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 and implied warranty– Brass v. Maitland2;
but it is also a duty owed independently of contract, e.g., to the
carrier's servant– Farrant v. Barnes.3 So far as the
cases afford an analogy they seem to support the proposition now
asserted.
I need only mention to distinguish two
cases in this House which are referred to in some of the cases which I
have reviewed. Caledonian Railway Co. v. Mulholland or Warwick,4
in which the appellant railway company were held not liable for injuries
caused by a defective brake on a coal wagon conveyed by them to point in
the transit where their contract ended, and where the wagons were taken
over for haulage
1 [1909] A. C. 640.
2 (1856) 6 E. & B. 470.
3 (1862) 11 C. B. (N. S.) 553, at p. 563.
4 (1897) 25 R. (H. L.) 1, [1898] A. C. 216.
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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 workmen
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,1
the wife of the tenant of a house let unfurnished sought to recover form
the landlord damages for personal injuires 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 contract, and that the well-known absence of any duty in respect
of the letting of an unfurnished house prevented her from relying on any
cause of action for negligence.
In the most recent case– Bottomley
v. Bannister,2, an action under Lord Campbell's Act, the
deceased man, the plaintiff, had taken an unfurnished house form the
defendants, who had installed a gas boiler with a special gas burner,
which, if properly regulated, required no flue. The deceased 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, L.J., 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 has 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 a proximate relationship the
present case will, I trust, supply the deficiency.
It is always a 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 in 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
MacPherson v. Buick Motor Co.3 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 other States than his own.
Whether the principle he affirms would apply to the particular facts of
that case in this country would be a question for consideration 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 the manufacturer and the user of the car
being so close as to create a duty. But the American decision would
1 [1906] A. C. 428.
2 [1932] 1 K. B. 458.
3 217 N. Y. R. 382.
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undoubtedly lead to a decision in favour
of the pursuer in the present case.
If your Lordships accept the view that
this 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 an injury to
the consumer's life or property, owes a duty to the consumer to take
that reasonable care.
It is a proposition which I venture to
say on 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
sense. I think that this appeal should be allowed.
LORD TOMLIN.–I have had an opportunity
of considering the opinion (which I have already read) prepared by my
noble and learned friend Lord Buckmaster. As the reasoning of that
opinion and the conclusion reached therein accord in every respect with
my own views, I propose to say only a few words.
First, I think that, if the appellant
is to succeed, the must be upon the proposition that every manufacturer
or repairer of any article is under a duty to everyone who may
thereafter legitimately use the article to exercise due care in the
manufacture or repair. In is logically impossible to stop short of this
point. There can be no distinction between food and any other article.
Moreover, the fact that an article of food is sent out in a sealed
container can have no relevancy on the question of duty; it is only a
factor which may render it easier to bring negligence home to the
manufacturer.
Secondly, I desire to say that in my
opinion the decision in Winterbottom v. Wright1 is
directly in point against the appellant. The examination of the report
makes it, I think, plain (1) that negligence was alleged and was the
basis of the claim, and (2) that the wide proposition which I have
indicated was that for which the plaintiff was contending. The
declaration averred, inter alia, that the defendant "so
improperly and negligently conducted himself" that the accident
complained of happened. The plaintiff's counsel said: "Here the
declaration alleges the accident to have happened through the
defendant's negligence and want of care." The alarming consequences of
accepting the validity of this proposition were pointed out by the
defendant counsel, who said; "For example, every one of the sufferers by
such an accident as that which recently happened on the Versailles
Railway might have his action against the manufacturer of the defective
axle." That the action, which was in case, embraced a cause of action in
tort is, I think, implicit in its form, and appears from the concluding
sentence of Lord Abinger's
1 10 M. & W. 109.
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judgment (at p. 115), which was these
terms; "By permitting this action, we should be working this injustice,
that after the defendant had done everything to the satisfaction of his
employer, and after all matters between them had been adjusted and all
accounts settled on the footing of their contract, we should subject
them to be ripped open by this action of tort being brought against
him."
I will only add to what has been
already said by my nobles and learned friend, Lord Buckmaster, with
regard to the decisions and dicta relied upon by the appellant and the
other relevant reported cases, that I am unable to explain how the cases
of dangerous articles can have been treated as "exceptions," if the
appellant's contention is well founded. Upon the view which I take of
the matter, the reported cases–some directly, others impliedly–negative
the existence as part of the common law of England of any principle
affording support to the appellant's claim, and therefore there is, in
my opinion, no material form which it is legitimate for your Lordships'
House to deduce such a principle.
LORD THANKERTON.–In this action the
appellant claims reparation form the respondent in respect of illness
and other injurious effects resulting form the presence of a decomposed
snail in a bottle of ginger beer, alleged to have been manufactured by
the respondent, which was partly consumed by her, it having been ordered
by a friend on her behalf in a café in Paisley.
The action is based on negligence, and
the only question in this appeal is whether, taking the appellant's
averments pro veritate, they disclose a case relevant in law so
as to entitle her to have them remitted for proof. The Lord Ordinary
allowed a proof, but on a reclaiming note for the respondent the Second
Division of the Court of Session recalled the Lord Ordinary interlocutor
and dismissed the action, following their decision in the recent cases
of Mullen v. Barr & Co. and M'Gowan v. Barr & Co.1
The appellant's case is that the
bottle was sealed with a metal cap, and was made of dark opaque glass,
which not only excluded access to the contents before consumption, if
the contents were to retain their aerated condition, but also excluded
the possibility of visual examination of the contents form outside; and
that on the side of the bottle there was pasted a label containing the
name and address of the respondent, who was the manufacturer. She states
that the shopkeeper who supplied the ginger beer opened it and poured
some of its contents into a tumbler, which contained some ice cream, and
that she drank some of the contents of the tumbler; that her friend then
lifted the bottle and was pouring the remainder of the contents into the
tumbler when a snail, which had been, unknown to her, her friend, or the
shopkeeper, in the bottle, and was in a state of decomposition, floated
out of the bottle.
The duties which the appellant accuses
the respondent of having neglected may be summarised as follows: (a)
that the ginger beer was manufactured by the respondent or his servants
to be sold as an article
1 1929 S. C. 461.
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of drink to members of the public
(including the appellant), and that accordingly, it was his duty to
exercise the greatest care in order that snails would not get into the
bottles, render the ginger beer dangerous and harmful, and be sold with
the ginger beer; (b) a duty to provide a system of working his
business which would not allow snails to get into the bottles, and, in
particular, would not allow the bottles when washed to stand in places
to which snails had access; (c) a duty to provide and efficient
system of inspection which would prevent snails from being in the sealed
bottles; and (d) a duty to provide clear bottles so as to
facilitate the said system of inspection.
There can be no doubt, in my opinion,
that, equally in the law of Scotland and the law of England, it lies
upon the party claiming redress in such a case to show that there was
some relation of duty between her and the defender which required the
defender to exercise due and reasonable care for her safety. It is not
at all necessary that there should be any direct contract between them,
because the action is based, not upon contract, but upon negligence; but
it is necessary for the pursuer in such an action to show that there was
a duty owed to her by the defender, because a man cannot be charged with
negligence if be has no obligation to exercise diligence– Kemp &
Dougall v. Darnga & Coal Co.,1 per Lord Kinnear;
see also Clelland v. Robb,2, per Lord President
Dunedin and Lord Kinnear. The question in each case is whether the
pursuer has established, or, in the stage of the present appeal, has
relevantly averred, such facts as involve the existence of such a
relation of duty.
We are not dealing here with a case of
what is called and article per se dangerous, or one which was
known by the defender to be dangerous, in which cases a special duty of
protection or adequate warning is placed upon the person who uses or
distributes it. The present case is that of a manufacturer and a
consumer, with whom he has no contractual relation, of an article which
the manufacturer did not know to be dangerous; and, unless the consumer
can establish a special relationship with the manufacturer, it is clear,
in my opinion, that neither the law of Scotland nor the law of England
will hold that the manufacturer has any duty towards the consumer to
exercise diligence. In such a case the remedy of the consumer, if any,
will lie against the intervening party from whom he has procured the
article. I am aware that the American Courts, in the decisions referred
to by my noble and learned friend Lord Macmillan, have taken a view more
favourable to the consumer.
The special circumstances form which
the appellant claims that such a relationship of duty should be inferred
may, I think, be stated thus, namely, that the respondent, in placing
his manufactured article of drink upon the market, has intentionally so
excluded interference with, or examination of, the article by any
intermediate handler of the goods between himself and the consumer that
he has, of his own own accord, brought himself into direct relationship
with the consumer, with the result that the consumer is entitled to rely
upon the exercise of diligence by the manufacturer to secure that the
article shall not be harmful to
1 1909 S. C. 1314, at p. 1319.
2 1191 S. C. 253, at p. 256.
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the consumer. If that contention be sound,
the consumer, on her showing that the article has reached her intact,
and that she has been injured by the harmful nature of the article owing
to the failure of the manufacturer to take reasonable care in its
preparation prior to its enclosure in the sealed vessel, will be
entitled to reparation from the manufacturer.
In my opinion, the existence of a
legal duty under such circumstances is in conformity with the principles
of both the law of Scotland and the law of England. The English cases
demonstrate how impossible it is to catalogue finally, amid the
ever-varying types of human relationships, those relationships in which
a duty to exercise care arises apart from contract, and each of these
cases relates to its own set of circumstances, out of which it was
claimed that the duty had arisen. In none of these cases were the
circumstances identical with the present case as regards that which I
regard as the essential element in this case, namely, the manufacturer's
own action in bringing himself into direct relationship with the party
injured. I have had the privilege of considering the discussion of these
authorities by my noble and learned friend Lord Atkin in the judgment
which he has just delivered, and I so entirely agree with it that I
cannot usefully add anything to it.
An interesting illustration of similar
circumstances is to be found in Gordon v. M'Hardy,1,
in which the pursuer sought to recover damages from a retail grocer on
account of the death of his son by ptomaine poisoning, caused by eating
tinned salmon purchased form the defender. The pursuer averred that the
tin, when sold, was dented, but he did not suggest that the grocer had
cut through the metal and allowed air to get in, or had otherwise caused
injury to the contents. The action was held irrelevant, the Lord
Justice-Clerk remarking (at p.212); "I do not see how the defender could
have examined the tin of salmon which he is alleged to have sold without
destroying the very condition which the manufacturer had established in
order to preserve the contents, the tin not being intended to be opened
until immediately before use." Apparently in that case the
manufacturer's label was off the tin when sold, and he had not been
identified. I should be sorry to think that the meticulous care of the
manufacturer to exclude interference or inspection by the grocer in that
case should relieve the grocer of any responsibility to the consumer
without any corresponding assumption of duty by the manufacturer.
I am of opinion that the contention of
the appellant is sound, and that she has relevantly averred a
relationship of duty as between the respondent and herself, as also that
her averments of the respondent's neglect of that duty are relevant.
The cases of Mullen and
M'Gowan,2 which the learned judges of the Second Division
followed in the present case, related to facts similar in every respect,
except that the foreign matter was a decomposed mouse. In these cases
the same Court (Lord Hunter dissenting) held that the manufacturer owed
no duty to the consumer. The view of the majority
1 (1903) 6 F. 210.
2 1929 S. C. 461.
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was that the English authorities excluded
the existence of such duty but Lord Ormidale1 would otherwise
have been prepared to come to a contrary conclusion. Lord Hunter's
opinion seems to be in conformity with the view I have expressed above.
My conclusion rests upon the facts
averred in this case, and would apparently also have applied in the
cases of Mullen and M'Gowan,2 in which, however, there had been a proof
before answer, and there was also a question whether the pursuers had
proved their averments.
I am therefore of opinion that the
appeal should be allowed, and that the case should be remitted for
proof, as the pursuer did not ask for an issue.
LORD MACMILLAN.–The incident which in
its legal bearings your Lordships are called upon to consider in this
appeal was in itself of a trivial character, although the consequences
to the appellant, as she describes them, were serious enough. It appears
from the appellant's allegations that, on and evening in August 1928,
she and a friend visited a café in Paisley, where her friend ordered for
her some ice cream and a bottle of ginger beer. These were supplied by
the shopkeeper, who opened the ginger beer bottle and poured some of the
contents over the ice cream, which was contained in a tumbler. The
appellant drank part of the mixture, and her friend then proceeded to
pour the remaining contents of the bottle, into the tumbler. As she was
doing so a decomposed snail floated out with the ginger beer. In
consequence of her having drunk part of the contaminated contents of the
bottle is stated to have been of dark opaque glass, so that the
condition of the contents could not be ascertained by inspection, and to
have been closed with a metal cap; while on the side was a label bearing
the name of the respondent, who was the manufacturer of the ginger beer
of which the shopkeeper was merely the retailer.
The allegations of negligence on which
the appellant founds her action against the respondent may be shortly
summarised. She says that the ginger beer was manufactured by the
respondent for sale as an article of drink to members of the public,
including herself; that the presence of a decomposing snail in ginger
beer renders the ginger beer harmful and dangerous to those consuming
it; and that it was the duty of the respondent to exercise his process
of manufacture with sufficient care to prevent snails getting into or
remaining in the bottles which he filled with ginger beer. The appellant
attacks the respondent's system of conducting his business, alleging
that he failed to have his bottles properly inspected for the presence
of foreign matter before he filled them.
The respondent challenged the
relevancy of the appellant's averments; and, taking them pro veritate,
as for this purpose he was bound to do, pleaded that they disclosed no
ground of legal liability on his part to the appellant.
1 1929 S. C. 461, at p. 471.
2 1929 S. C. 461.
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The Lord Ordinary repelled the
respondent's plea to the relevancy and allowed the parties a proof of
their averments, but on reclaiming note, their Lordships of the Second
Division (Lord Hunter dissenting, or, perhaps more accurately,
protesting) dismissed the action, and in doing so followed their
decision in the previous cases of Mullen v. Barr & Co.1
and M'Gowan v.Barr & Co.1 The only difference in fact
between those cases and the present case is that it was a mouse and not
a snail which was found in the ginger beer. The present appeal is
consequently in effect against the decision in these previous cases,
which I now proceed to examine.
These two cases, being to all intents
and purposes identical, were heard and decided together. In Mullen v.
Barr & Co.1 the Sheriff-substitute allowed a proof, but
the Sheriff, on appeal, dismissed the action as irrelevant. In
M'Gowan v. Barr & Co.1 the Sheriff-substitute allowed a
proof, and the Sheriff altered his interlocutor by allowing a proof
before answer–that is to say, a proof under reservation of all
objections to the relevancy of the action. On the cases coming before
the Second Division, on the appeals of the pursuer and the defenders
respectively, their Lordships ordered a proof before answer in each
case, and the evidence was taken before Lord Hunter. It will be
sufficient to refer to Mullen's case,1 in which their
Lordships gave their reasons for assoilzieing the defenders in both
cases. The Lord Justice-Clerk held that negligence had not been proved,
and therefore did not pronounce upon the question of relevancy. Lord
Ormidale held that there was no relevant case against the defenders, but
would have been prepared, if necessary, to hold that in any case
negligence had not been established by the evidence. Lord Hunter held
that the case was relevant and that negligence had been proved. Lord
Anderson held that the pursuer had no case in law against the defenders,
but that, if this view was erroneous, negligence had not been proved.
I desire to draw special attention to
certain passages in the opinions of their Lordships. The learned Lord
Justice-Clerk states (at p. 470) that he prefers "to base his judgment
on the proposition that the pursuer has failed to prove fault on the
part of the defenders," and feels "absolved from expressing a concluded
opinion on the thorny and difficult question of law, whether, assuming
fault to be proved on the part of the defenders, the pursuer had in law
a right to sue them." In the present case his Lordship, after pointing
out that he had formally reserved his opinion on the point in Mullen
v. Barr & Co.,1 proceeds; "I think I indicated, not
obscurely, the view which I entertained on a perusal of the English
cases," and to that view, in deference to the English cases which his
Lordship has reconsidered, he has given effect adversely to the present
appellant. That the opinions of the majority of the judges of the Second
Division in Mullen's case1 on the question of
relevancy are founded entirely on their reading of the series of English
cases cited to them is make clear by Lord Ormidale. After stating the
questions in the case, the first being "whether, in absence of any
contractual relation
1 1929 S. C. 461.
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between the pursuers and the defenders,
the & owed a duty to the pursuers, as the consumers of the beer, of
taking & to see that nothing of a poisonous or deleterious nature was
allowed to enter and remain in the bottle," his Lordship proceeds (at p.
471); "I recognise the difficulty of determining the first of these
questions with either confidence or satisfaction; and, were it not for
the unbroken and consistent current of decisions beginning with
Winterbottom v. Wright,1 to which we were referred, I
should have been disposed to answer it in the affirmative. The evidence
shows that the greatest care is taken by the manufacturers to insure by
tab and label that the ginger beer should pass, as it were, from the
hand of the maker to the hand of the ultimate user uninterfered with by
the retail dealer–who has little interest in, and no opportunity of,
examining the contents of the containers. Accordingly, it would appear
to be reasonable and equitable to hold that, in the circumstances and
apart altogether form contract, there exists a relationship of duty as
between the maker and the consumer of the beer. Such considerations,
however, as I read the authorities, have been held to be irrelevant in
analogous circumstances." Lord Ormidale thus finds himself constrained
to reach a conclusion which appears to him to be contrary to reason and
equity by his reading of what he describes as an "unbroken and
consistent current of decisions beginning with Winterbottom v. Wright.1"
In view of the deference thus paid to English precedents, it is a
singular fact that the case of Winterbottom v. Wright1
is one in which no negligence, in the sense of breach of a duty owed by
the defendant to the plaintiff, was alleged on the part of the
plaintiff. The truth, as I hope to show, is that there is in the English
reports no such "unbroken and consistent current of decisions" as would
justify the aspersion that the law of England has committed itself
irrevocably to what is neither reasonable nor equitable, or require a
Scottish judge in following them to do violence to his conscience. "In
my opinion," said Lord Esher in Emmens v. Pottle,2
"any proposition the result of which would be to show that the common
law of England is wholly unreasonable and unjust, cannot be part of the
common law of England."
At your Lordships' bar counsel for
both parties to the present appeal, accepting, as I so also, the view
that there is no distinction between the law of Scotland and the law of
England in the legal principles applicable to the case, confined their
arguments to the English authorities. The appellant endeavoured to
establish that, according to the law of England, the pleadings disclose
a good cause of action; the respondent endeavoured to show that, on the
English decisions, the appellant had stated no admissible case. I
propose therefore to address myself at once to an examination of the
relevant English precedents.
I observe, in the first place, that
there is no decision of this House upon the point at issue, for I agree
with Lord Hunter that such cases as Cavalier v. Pope3
and Cameron v. Young,4 which decided that "a stranger
to a lease cannot found upon a landlord's failure to fulfil obligations
1 10 M. & W. 109.
2 (1885) 16 Q. B. D. 354, at pp. 357, 358.
3 [1906] A. C. 428.
4 1908 S. C. (H. L.), [1908] A. C. 176.
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undertaken by him under contract with his
lessee," are in a different chapter of the law. Nor can it by any means
be said that the cases present "an unbroken and consistent current" of
authority, for some flow one way and some the other.
It humbly appears to me that the
diversity of view which is exhibited in such cases as George v.
Skivington1 on the one hand and Blacker v. Lake &
Elliot2 on the other hand–to take two extreme
instances–is explained by the fact that in the discussion of the topic
which now engages your Lordships' attention two rival principles of the
law find a meeting place where each has contended for supremacy, On the
one hand, there is the well-established principle that no one other than
a party to a contract can complain of a breach of that contract. On the
other hand, there is the equally well-established doctrine that
negligence apart form contract gives a right of action to the party
injured by that negligence–and here I use the term negligence, of
course, in its technical legal sense, implying a duty owed and
neglected. The fact that there is a contractual relationship between the
parties, which may give rise to an action for breach of contract, does
not exclude the co-existence of a right of action founded on negligence
as between the same parties, independently of the contract, although
arising out of the relationship in fact brought about by the contract.
Of this the best illustration is the right of the injured railway
passenger to sue the railway company either for breach of the contract
of safe carriage or for negligence in carrying him, And there is no
reason why the same set of facts should not give one person a right of
action in contract and another person a right of action in tort. I may
be permitted to adopt as my own the langrage of a very distinguished
English writer on this subject. "It appears," says Sir Frederick
Pollock, Law of Torts, (13th ed.) p. 570, "that there has been (thought
perhaps there is no longer) a certain tendency to hold that facts which
constitute a contract cannot have any other legal effect. The
authorities formerly relied on for this proposition really proved
something different and much more rational, namely, that if A breaks his
contract with B (which may happen without any personal default in A or
A's servants), that is not of itself sufficient to make A liable to C, a
stranger to the contract, for consequential damage. This, and only this,
is the substance of the perfectly correct decisions of the Court of
Exchequer in Winterbottom v. Wright3 and Longmeid
v. Holliday.4 In each case the defendant delivered, under
a contract of sale or hiring, a chattel which was in fact unsafe to use,
but in the one case it was not alleged, in the other was alleged but not
proved, to have been so to his knowledge. In each case a stranger to the
contract, using that chattel–a coach in the one case, a lamp in the
other–in the ordinary way, came to harm through its dangerous condition,
and was help not to have any cause-of action against the purveyor. Not
in contract, for there was no contract between these parties; not in
tort, for no bad faith or negligence on the defendant's part was
proved."
1 L. R., 5 Ex. 1.
2 106 L. T. 533.
3 10 M. & W. 109.
4 6 Ex. 761.
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Where, as in cases like the present,
so much depends upon the avenue of approach to the question, it is very
easy to take the wrong turning. If you begin with the sale by the
manufacturer to the retail dealer, then the consumer who purchases from
the retailer is at once seen to be a stranger to the contract between
the retailer and the manufacturer and so disentitled to sue upon it.
There is no contractual relation between the manufacturer and the
consumer; and thus the plaintiff, if he is to succeed, is driven to try
to bring himself within one or other of the exceptional cases where the
strictness of the rule that none but a party to a contract can found on
a breach of that contract has been mitigated in the public interest, as
it has been in the case of a person who issues a chattel which is
inherently dangerous or which he knows to be in a dangerous condition.
If, on the other hand, you disregard the fact that the circumstances of
the case at one stage include the existence of a contract of sale
between the manufacturer and the retailer, and approach the question by
asking whether there is evidence of carelessness on the part of the
manufacturer, and whether he owed a duty to be careful in a question
with the party who has been injured in consequence of his want of care,
the circumstance that the injured party was not a party to the
incidental contract of sale becomes irrelevant, and his title to sue the
manufacturer is unaffected by that circumstance. The appellant in the
present instance asks that her case be approached as a case of delict,
not as a case of beach of contract. She does not require to invoke the
exceptional cases in which a person not a party to a contract has been
held to be entitled to complain of some defect in the subject-matter of
the contract which has caused him harm. The exceptional case of things
dangerous in themselves, or known to be in a dangerous condition, has
been regarded as constituting a peculiar category outside the ordinary
law both of contract and of tort. I may observe that it seems to me
inaccurate to describe the case of dangerous things as an exception to
the principle that no one but a party to a contract can sue on that
contract. I rather regard this type of case as a special instance of
negligence where the law exacts a degree of diligence so stringent as to
amoung practically to a guarantee of safety.
With these preliminary observations I
turn to the series of English cases which is said to compose the
consistent body of authority on which we are asked to nonsuit the
appellant. It will be found that in most of them the facts were very
different from the facts of the present case, and did not give rise to
the special relationship, and consequent duty, which in my opinion, is
the deciding factor here. Dixon v. Bell1 is the
starting point. There a maidservant was sent to fetch a gun from a
neighbour's house; on the way back she pointed it at a child, and the
gun went off and injured the child. The owner of the gun was held liable
for the injury to the child on the ground that he should have seen that
the charge was drawn before he entrusted the gun to the maidservant. "It
was incumbent on him who, by charging the gun, had made it capable of
doing mischief, to render it safe and innoxious." This case, in my
1 5 M. & S. 198.
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opinion, merely illustrates the high
degree of care, amounting in effect to insurance against risk, which the
law exacts from those who take the responsibility of giving out such
dangerous things as loaded firearms, The decision, if it has any
relevance, is favourable to the appellant, who submits that human drink
rendered poisonous by careless preparation may be as dangerous to life
as any loaded firearm. Langridge v. Levy1 is another
case of a gun, this time of defective make and known to the vendor to be
defective. The purchaser's son was help entitled to sue for damages in
consequence of injuries sustained by him through the defective condition
of the gun causing it to explode. The ground of the decision seems to
have been that there was a false representation by the vendor that the
gun was safe, and the representation appears to have been help to extend
to the purchaser's son. The case is treated by commentators as turning
on its special circumstances, and as not deciding any principle of
general application. As for Winterbottom v. Wright2
and Longmeid v. Holliday,3 neither of these cases is
really in point, for the reason indicated in the passage from Sir
Frederick Pollock's treatise which I have quoted above. Then comes
George v. Skivington,4 which is entirely in favour of the
appellant's contention. There was a sale in that case by a chemist of
some hairwash to a purchaser for the use of this wife, who suffered
injury from using it by reason of its having been negligently
compounded. As Kelly, C.B., points out, the action was not founded on
any warranty implied in the plaintiff, the purchaser's wife, was not
seeking to sue on the contract to which she was not a party. The
question, as the Chief Baron stated it (at p. 3), was "whether the
defendant, a chemist, compounding the article sold for a particular
purpose, and knowing of the purpose for which it was bought, is liable
in an action on the case for unskilfulness and negligence in the
manufacture of it whereby the person who used it was injured." And this
question the Court unanimously answered in the affirmative. I may
mention in passing that Lord Atkinson in this House, speaking of that
case and of Langridge v. Levy,1 observed that "In both
these latter case the defendant represented that the article sold was
fit and proper for the purposes for which it was contemplated that it
should be used and the party injured was ignorant of tits unfitness for
these purposes"– Cavalier v. Pope.5 It is true that
George v. Skivington4 has been the subject of some
criticism and was said by Hamilton, J., as he then was, in Blacker v.
Lake & Elliot,6 to have been in later cases as nearly
disaffirmed as is possible without being expressly overruled. I am not
sure that it has been so severely handled as that. At any rate, I do not
think that it deserved to be, and certainly, so far as I am aware, it
has never been disapproved in this House.
Heaven v. Pender7
has probably been more quoted and discussed in
1 2 M. & W. 519, 4 M. & W. 337.
2 10 M. & W.109.
3 6 Ex.761.
4. L. R., 5 Ex. 1.
5 [1906] A. C.428, at p. 433.
6 106 L. T. 533.
7 11 Q. B. D. 503.
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this branch of the law than any other
authority, because of the dicta of Brett, M.R., as he then was, on the
general principles regulating liability to third parties. In his opinion
(at p. 509) "it may, therefore, safely be affirmed to be a true
proposition" 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 circumstance 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." The
passage specially applicable to the present case is as follows (at p.
510): "Whenever one person supplies goods … for the purpose of their
being used by another person under such circumstances that everyone of
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
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." Cotton, L.J., with whom
Bowen, L.J., agreed, expressed himself (at p. 516)as "unwilling to
concur with the Master of the Rolls in laying down unnecessarily the
larger principle which he entertains, inasmuch as there are many cases
in which the principle was impliedly negatived," but the decision of the
Court of Appeal was unanimously in the plaintiff's favour. The passages
I have quoted, like all attempts of formulate principles of law
compendiously and exhaustively, may be open to some criticism, and their
universality, may require some qualification, but as enunciations of
general legal doctrine. I am prepared, like Lord Hunter, to accept them
as sound guides.
I now pass to the three modern cases
of Earl v. Lubbock,1 Blacker v. Lake & Elliot,2
and Bates v. Batey & Co.3 The first of these cases
related to van which had recently been repaired by the defendant under
contract with the owner of the van. A driver in the employment of the
owner was injured in consequence of defect in the van which was said to
be due to the careless manner in which the repairer had done his work.
It was held that the driver had no right of action against the repairer.
The case turns upon the rule that a stranger to a contract cannot found
an action of tort on a breach of that contract. It was pointed out that
there was no evidence that the plaintiff had been invited by the
defendant to use the van, and the van owner was not complaining of the
way in which the van had been repaired. The negligence, if negligence
there was, was too remote, and the practical consequences of affirming
liability in such a case were considered to be such as would render it
difficult to carry on a trade at all. "No prudent man," says Mathew, L.J.
(at p. 259), "would contract to make or repair what the
1 [1905] 1 K. B. 253.
2 106 L.T.533.
3 [1913] 3 K. B.351.
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employers intended to permit others to use
in the way of his trade." The species facti in that case seems to me to
differ widely from the circumstances of the present case, where the
manufacturer has specifically in view the use and consumption of his
products by the consumer, and where the retailer is merely the vehicle
of transmission of the products to the consumer, and by the nature of
the products is precluded from inspecting or interfering with them in
any way.
The case of Blacker v. Lake &
Elliot1 is of importance because of the survey of
previous decisions which it contains. It related to a brazing lamp
which, by exploding owing to a latent defect, injured a person other
than the purchase of it, and the vendor was held not liable to the party
injured. There appears to have been some difference of opinion between
Hamilton, J., and Lush, J., who heard the case in the Divisional Court,
as to whether the lamp was an inherently dangerous things. The case
seems to have turned largely on the question whether, there being a
contract of sale of the lamp between the vendor and the purchaser, the
article was of such a dangerous character as to impose upon the vendor,
in a question with a third party, any responsibility for its condition.
This question was answered in the negative. So far as negligence was
concerned, it may well have been regarded as too remote, for I find that
Hamilton, J., used these words (at p. 537); "In the present case all
that can be said is that the defendants did not know that their lamp was
not perfectly safe, and had no reason to believe that it was not so in
the sense that no one had drawn their attention to the fact, but that
had they been wiser men or more experienced engineers they would then
have know what the plaintiff's experts say that they ought to have
known." I should doubt, indeed, if that is really a finding of
negligence at all. The case on its facts is very far from the present
one; and if any principle of general application can be derived from it
adverse to the appellant's contention, I should not be disposed to
approve of such principle. I may add that the in White v. Steadman2
I find that Lush, J., who was a party to the decision in Blacker v.
Lake & Elliot,1 expressed the view "that a person who has
the means of knowledge and only does not know that the animal or chattel
which he supplies is dangerous because he does not take ordinary care to
avail himself of his opportunity of knowledge is in precisely the same
position as the person who knows."
As for Bates v. & Co.,2
where a ginger beer bottle burst owing to a defect in it which, though
unknown to the manufacturer of the ginger beer, could have been
discovered by him by the exercise of reasonable care, Horridge, J.,
there held that the plaintiff, who bought the bottle of ginger beer from
a retailer to whom the manufacturer had sold it, and who was injured by
its explosion, had no right of action against the manufacturer. The case
does not advance matters, for it really turns upon the fact that the
manufacturer did not know that the bottle was defective, and this, in
the view of view of Horridge, J., as he reads the authorities,
1 106 L. T. 533.
2 [1913] 3 K. B. 340, at p. 348.
3 [1913] 3 K. B. 351.
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was enough to absolve the manufacturer. I
would observe that, in a true case if negligence, knowledge of the
existence of the defect causing damage is not an essential element at
all.
This summary survey sufficient to
show, what more detailed study confirms, that the current of authority
has by no means always set in the same direction. In addition to
George v. Skivington,1 there is the American case of
Thomas v. Winchester,2 which has met with considerable
acceptance in this country, and which is distinctly on the side of the
appellant. There a chemist carelessly issued, in response to an order
for extract of dandelion, a bottle containing belladonna, which he
labelled extract of dandelion, with the consequence that a third party
who took a dose from the bottle suffered severely. The chemist was held
responsible. This case is quoted by Lord Dunedin, in giving the judgment
of the Privy Council in Dominion Natural Gas Co. v. Collins and
Perkins,3 as an instance of liability to third parties,
and I think it was a sound decision.
In the American Courts the law has
advanced considerably in the development of the principle exemplified in
Thomas v. Winchester.4 In one of the latest cases in
the United States, MacPherson v. Buick Motor Co.,4 the
plaintiff, who had purchased from a retailer a motor car manufactured by
the defendant company, was injured in consequence of a defect in the
construction of the car, and was help entitled to recover damages from
the manufacturer. Cardozo, J., the very eminent Chief Judge of the New
York Court of Appeals, and now an Associate Justice of the United States
Supreme Court, thus stated the law5: "There is no claim that
the defendant knew of the defect and wilfully concealed it … The charge
is one, not of fraud, but of negligence. The question to be determined
is whether the defendant owed a duty of care and vigilance to anyone but
the immediate purchaser. … The principle of Thomas v. Winchester2
is not limited to poisons, explosives, and things of like nature, to
things which in their normal operation are implements of destruction. If
the nature of a thing is such that it is reasonably certain to place
life and limb in peril when negligently made, it is then a thing of
danger. Its nature gives warning of the consequence to be expected. If
to the element of danger there is added knowledge that the thing will be
used by persons other than the purchaser, and used without new tests,
then irrespective of contract, the manufacture of this thing of danger
is under a duty to make it carefully. That is as far as we are required
to go for the decision of this case. There must be knowledge of a
danger, not merely possible, but probable. … There must also be
knowledge that, in the usual course of events, the danger will be shared
by others than the buyer. Such knowledge may often be inferred from the
nature of the transaction. … The dealer was indeed the one person of
whom it might be said with some approach to certainty that by him car
would not be used. Yet the
1 L. R., 5 Ex.1.
2 57 Amer. Dec. 455, 6 N. Y. R. 397.
3 [1909] A. C. 640.
4 Ann. Cas. 1916, C. p. 440, 217 N. Y. R. 382.
5 217 N. Y. R., at p. 385.
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defendant would have us say that he was
the one person whom it [the defendant company] was under a legal duty to
protect. The law does not lead us to so inconsequent a conclusion."
The prolonged discussion of English
and American cases into which I have been led might well dispose your
Lordship to think that I had forgotten that the present is a Scottish
appeal which must be decided according to Scots law. But this discussion
has been rendered inevitable by the course of the argument at your
Lordships' bar, which, as I have said, proceeded on the footing that the
law applicable to the case was the same in England and in Scotland.
Having regard to the inconclusive state of the authorities in the Courts
below and to the fact that the important question involved is now before
your Lordships for the first time, I think it desirable to consider the
matter from the point of view of the principles applicable to this
branch of law which are admittedly common to both English and Scottish
jurisprudence.
The law takes no cognizance of
carelessness in the abstract. It concerns itself with carelessness only
where there is a duty to take care and where failure in that duty has
caused damage. In such circumstances carelessness assumes the legal
quality of negligence, and entails the consequences in law of
negligence. What then are the circumstances which give rise to this duty
to take care? In the daily contacts of social and business life, human
beings are thrown into, or place themselves in, an infinite variety of
relations with their fellows; and the law can refer only to the
standards of the reasonable man in order to determine whether any
particular relation gives rise to a duty to take care as between those
who stand in the relation to each other. The grounds of action may be
responsibility may develop in adaptation to altering social conditions
and standards. The criterion of judgment must adjust and adapt itself to
the changing circumstances of life. The categories of negligence are
never closed. The cardinal principle of liability is that the party
complained of should owe to the party complaining a duty to take care,
and that the party complaining should be able to prove that he has
suffered damage in consequence of a breach of that duty. Where there is
room for diversity of view, it is in determining what circumstances will
establish such a relationship between the parties as to give rise, on
the one side, to a duty to take care, and, on the other side, to a right
to have care taken.
To descend from these generalities to
the circumstances of the present case, I do not think that any
reasonable man, or any twelve reasonable men, would hesitate to hold
that, if the appellant establishes her allegation, the respondent has
exhibited carelessness in the conduct of his business. For a
manufacturer of aerated water to store his empty bottles in a place
where snails can get access to them, and to fill his bottles without
taking any adequate precautions, by inspection or otherwise, to ensure
that they contain no deleterious foreign matter, may reasonably be
characterised as carelessness, without applying too exacting a standard.
But, as I have pointed out, it is not enough to prove the respondent to
be careless in his process of manufacture. The question is: Does he owe
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a duty to take care, and to whom does he
owe that duty? Now, I have no hesitation in affirming that a person, who
for gain engages in the business of manufacturing articles of food and
drink intended for consumption by members of the public in the form in
which he issues them, is under a duty to take care in the manufacture to
these articles. That duty, in my opinion, he owes to those whom he
intends to consume his products. He manufactures his commodities for
human to consumption; he intends and contemplates that they shall be
consumed. By reason of that very fact, he places himself in a
relationship with all the potential consumers of his commodities, and
that relationship, which he assumes and desires for his own ends,
imposes upon him a duty to take care to avoid injuring them. He owes
them a duty not to convert by his own carelessness an article which he
issues to them as wholesome and innocent into an article which is
dangerous to life and health. It is sometimes said that liability can
only arise where a reasonable man would have foreseen, and could have
avoided, the consequences of his act or omission. In the present case
the respondent, when he manufactured his ginger beer, had directly in
contemplation that it would be consumed by members of the public. Can it
be said that he could not be expected as a reasonable man to foresee
that, if he conducted his process of manufacture carelessly, he might
injure those whom he expected and desired to consume his ginger beer?
The possibility of injury so arising seems to me in on some so remote as
to excuse him from foreseeing it. Suppose that a baker, through
carelessness, allow a large quantity of arsenic to be mixed with a batch
of his bead, with the result that those who subsequently eat it are
poisoned, could he be heard to say that be owed no duty to the consumers
of his bread to take care that it was free from poison, and that, as he
did not know that any poison had got into it, his only liability was for
breach of warranty under his contract of sale to those who actually
bought the poisoned bread from him? Observe that I have said "through
carelessness," and thus excluded the case of a pure accident such as may
happen where every care is taken. I cannot believe, and I do not
believe, that neither in the law of England nor in the law of Scotland
is there redress for such a case. The state of facts I have figured
might well give rise to a criminal charge, and the civil consequence of
such carelessness can scarcely be less wide than its criminal
consequences. Yet the products intended by him for human consumption
does not owe to the consumers whom he has in view any duty of care, not
even the duty to take he does not poison them.
The recognition by counsel that the
law of Scotland applicable to the case was the same as the law of
England implied that there was no special doctrine of Scots law which
either the appellant or the respondent could invoke to support her or
his case; and your Lordships have thus been relieved of the necessity of
a separate consideration of the law of Scotland. For myself, I am
satisfied that there is no specialty of Scots law involved, and that the
case may safely be decided on principles common to both systems. I am
happy to think that in their relation to
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the practical problem of everyday life
which this appeal presents, the legal systems of the two countries are
no way at variance, and that the principles of both alike ate
sufficiently consonant with justice and common sense to admit of the
claim which the appellant seeks to establish.
I am anxious to emphasise that the
principle of judgment which commends itself to me does not give rise to
the sort of objection stated by Parke, B., in Longmeid v. Holliday,1
where he said: "But it would be going much too far to say, that so much
care is required in the ordinary inter-course 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 give 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." I read this
passage rather as a note of warning that the standard of care exacted in
human dealings must not be pitched too high, than as giving any
countenance to the view that negligence may be exhibited with impunity.
It must always be a question of circumstances whether the carelessness
amounts to negligence, and whether the injury is not too remote from the
carelessness. I can readily conceive that, where a manufacturer has
parted with his products and it has passed into other hands, it may well
be exposed to vicissitudes which may render it defective or noxious, for
which the manufacturer could not in any view be to blame. It may be a
good general rule to regard responsibility as ceasing when control
ceases. So, also, where between the manufacturer and the user there is
interposed a party who has the means and opportunity of examining the
manufacturer's product before he re-issues it to the actual user. But
where, as in the present case, the article of consumption is so prepared
as to be intended to reach the consumer in the condition in which it
leaves the manufacturer, and the manufacturer takes steps to ensure this
by sealing or otherwise closing the container so that the contents
cannot be tampered with, I regard his control as remaining effective
until the article reaches the consumer and the container is opened by
him. The intervention of any exterior agency is intended to be excluded,
and was in fact in the present case excluded. It is doubtful whether in
such a case there is any redress against the retailer– Gordon v.
M'Cardy.2
The burden of proof must always be
upon the injured party to establish that the defect which caused the
injury was present in the article when it left the hands of the party
whom he sues; that the defect was occasioned by the carelessness of that
party; and that the circumstances are such as to cast upon the defender
a duty to take care not to injure the pursuer. There is no presumption
of negligence in such a case as the present, nor is there any
justification for applying the maxim res ipsa loquitur. Negligence must
be both averred and proved. The appellant accepts this burden of proof,
and, in my opinion, she is entitled to have an opportunity of
discharging it if she can. I am accordingly of opinion
1 6 Ex.761, at p. 768.
2 (1903) 6 F. 210.
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that this appeal should be allowed, the
judgment of the Second Division of the Court of Session reversed, and
the judgment of the Lord Ordinary restored.
INTERLOCUTOR
appealed from reversed and interlocutor of the Lord Ordinary restored;
cause remitted back to the Court of Session in Scotland to do therein as
shall be just and consistent with the judgment; the respondent to pay to
the appellant the costs of this action in the Inner House and also the
costs incurred by her in respect of the appeal to this House, much
last-mentioned costs to be taxed in the manner usual when then appellant
sues in forma pauperis.
HORNER
& HORNER–W. G. LEECHMAN
& CO.–LAWRENCE
JONES & CO.–MACPHERSON
& MACKAY, W.S.
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