The House took time for
1932. May 26. LORD BUCKMASTER (read by
LORD TOMLIN). My Lords, the facts of this case are simple. On August 26, 1928,
the appellant drank a bottle of ginger-beer, manufactured by the respondent,
which a friend had bought from a retailer and given to her. The bottle contained
the decomposed remains of a snail which were not, and could not be, detected
until the greater part of the contents of the bottle had been consumed. As a
result she alleged, and at this stage her allegations must be accepted as true,
that she suffered from shock and severe gastro-enteritis. She accordingly
instituted the proceedings against the manufacturer which have given rise to
The foundation of her case is that the
respondent, as the manufacturer of an article intended for consumption and
contained in a receptacle which prevented inspection, owed a duty to her as
consumer of the article to take care that there was no noxious element in the
goods, that he neglected such duty and is consequently liable for any damage
caused by such neglect. After certain amendments, which are now immaterial, the
case came before the Lord Ordinary, who rejected the plea in law of the
respondent and allowed a proof. His interlocutor was recalled by the Second
Division of the Court of Session, from whose judgment this appeal has been
Before examining the merits two comments
are desirable: (1.) That the appellant's case rests solely on the ground of a
tort based not on fraud but on negligence; and (2.) that throughout the appeal
the case has been argued on the basis, undisputed by the Second Division and
never questioned by counsel for the appellant or by any of your Lordships, that
the English and the Scots law on the subject are identical.
It is therefore upon the English law
alone that I have considered the matter, and in my opinion it is on the English
law alone that in the circumstances we ought to proceed.
The law applicable is the common law,
and, though its principles are capable of application to meet new conditions not
contemplated when the law was laid down, these principles cannot be changed nor
can additions be made to them because any particular meritorious case seems
outside their ambit.
Now the common law must be sought in law
books by writers of authority and in judgments of the judges entrusted with its
administration. The law books give no assistance, because the work of living
authors, however deservedly eminent, cannot be used as authority, though the
opinions they express may demand attention; and the ancient books do not assist.
I turn, therefore, to the decided cases to see if they can be construed so as to
support the appellant's case. One of the earliest is the case of Langridge v.
Levy. 2 M & W 519; 4 M & W 337 It is a case often quoted and variously
explained. There a man sold a
gun which he knew was dangerous for the use of the purchaser's son. The gun
exploded in the son's hands, and he was held to have a right of action in tort
against the gunmaker. How far it is from the present case can be seen from the
judgment of Parke B., who, in delivering the judgment of the Court, used these
words: “We should pause before we made a precedent by our decision which would
be an authority for an action against the vendors,
even of such instruments and
articles as are dangerous in themselves, at the suit of any person whomsoever
into whose hands they might happen to pass, and who should be injured thereby”;
and in Longmeid v.
Holliday 6 Ex 761 the same eminent judge points out that the earlier case was based on a
fraudulent misstatement, and he expressly repudiates the view
that it has any
wider application. The case of Langridge v.
Levy 2 M & W 519; 4 M & W 337 , therefore, can be dismissed from consideration with the comment that
it is rather surprising it has so often been cited for a proposition it cannot
The case of Winterbottom v.
Wright 10 M & W 109 is, on the other hand, an authority that is closely applicable. Owing
to negligence in the construction of a carriage it broke down, and a stranger to
the manufacture and sale sought to recover damages for injuries which he alleged
were due to negligence in the work, and it was held that he had no cause of
action either in tort or arising out of contract. This case seems to me to show
that the manufacturer of any article is not liable to a third party injured by
negligent construction, for there can be nothing in the character of a coach to
place it in a special category. It may be noted, also, that in this case
Alderson B. said 10 M & W 115 : “The only safe rule is to confine the right to recover to those who
enter into the contract; if we go one step beyond that, there is no reason why
we should not go fifty.”
Holliday 6 Ex 761, 768 was the case of a defective lamp sold to a man whose wife was injured
by its explosion. The vendor
of the lamp, against whom the action was brought,
was not the manufacturer, so that the case is not exactly parallel to the
present, but the statement of Parke B. in his judgment covers the case of
manufacturer, for he said: “It would be going much too far to say, that so much
care is required in the ordinary intercourse of life between one individual and
another, that, if a machine not in its nature dangerous, …. but which might
become so by a latent defect entirely unknown, although discoverable by the
exercise of ordinary care, should be lent or given by one person, even by the
person who manufactured it, to another, the former should be answerable to the
latter for a subsequent damage accruing by the use of it.” It is true that he
uses the words “lent or given” and omits the word “sold,” but if the duty be
entirely independent of contract and is a duty owed to a third person, it seems
to me to be the same whether the article be originally given or sold. The fact
in the present case that the ginger-beer originally left the premises of the
manufacturer on a purchase, as was probably the case, cannot add to his duty, if
such existed, to take care in its preparation.
It has been suggested that the statement
of Parke B. does not cover the case of negligent construction, but the omission
to exercise reasonable care in the discovery of a defect in the manufacture of
an article where the duty of examination exists is just as negligent as the
negligent construction itself.
The general principle of these cases is
stated by Lord Sumner in the case of Blacker v.
Lake & Elliot, Ld. 106 LT 533, 536 , in these terms: “The breach of the defendant's contract with A. to
use care and skill in and about the manufacture or repair of an article does not
of itself give any cause of action to B. when he is injured by reason of the
article proving to be defective.”
From this general rule there are two
well known exceptions: (1.) In the case of an article dangerous in itself; and
(2.) where the article not in itself dangerous is in fact dangerous, by reason
of some defect or for any other reason, and this is known to the manufacturer.
Until the case of George v.
Skivington LR 5 Ex 1 I know of no further modification of the general rule.
As to (1.), in the case of things
dangerous in themselves, there is, in the words of Lord Dunedin, “a peculiar
duty to take precaution imposed upon those who send forth or install such
articles when it is necessarily the case that other parties will come within
their proximity”: Dominion Natural Gas Co., Ld. v.
Collins & Perkins.  AC 640
, 646 And as to (2.), this depends on the fact that the knowledge of the
danger creates the obligation to warn, and its concealment is in the nature of
fraud. In this case no one can suggest that ginger-beer was an article dangerous
in itself, and the words of Lord Dunedin show that the duty attaches only to
such articles, for I read the words “a peculiar duty” as meaning a duty peculiar
to the special class of subject mentioned.
Of the remaining cases, George v.
Skivington LR 5 Ex 1 is the one nearest to the present, and without that case, and the
statement of Cleasby B. in Francis v.
Cockrell (1870) LR 5 QB 501, 515 and the dicta of Brett M.R. in Heaven v.
Pender 11 QB D 503, 509 et seq , the appellant would be destitute of authority. George v.
Skivington LR 5 Ex 1 related to the sale of a noxious hairwash, and a claim made by a person
who had not bought it but who had suffered from its use, based on its having
been negligently compounded, was allowed. It is remarkable that Langridge v.
Levy 2 M & W 519 was used in support of the claim and influenced the judgment of all the
parties to the decision. Both Kelly C.B. and Pigott B. stressed the fact that
the article had been purchased to the knowledge of the defendant for the use of
the plaintiff, as in Langridge v.
Levy 2 M & W 519 , and Cleasby B., who, realizing that Langridge v.
Levy 2 M & W 519 was decided on the ground of fraud, said: “Substitute the word
‘negligence’ for ‘fraud,’ and the analogy between Langridge v.
Levy 2 M & W 519 and this case is complete.” It is unnecessary to point out too
emphatically that such a substitution cannot possibly be made. No action based
on fraud can be supported by mere proof of negligence.
I do not propose to follow the fortunes
of George v.
Skivington LR 5 Ex 1 ; few cases can have lived so dangerously and lived so long. Lord
Sumner, in the case of Blacker v.
Lake & Elliot, Ld. 106 LT 533, 536 , closely examines its history, and I agree with his analysis. He said
that he could not presume to say that it was wrong, but he declined to follow it
on the ground which is, I think, firm, that it was in conflict with Winterbottom
Wright. 10 M & W 109
In Francis v.
Cockrell LR 5 QB 501, 515 the plaintiff had been injured by the fall of a stand on a racecourse,
for a seat in which he had paid. The defendant was part proprietor of the stand
and acted as receiver of the money. The stand had been negligently erected by a
contractor, though the defendant was not aware of the defect. The plaintiff
succeeded. The case has no bearing upon the present, but in the course of his
judgment Cleasby B. made the following observation: “The point that Mr. Matthews
referred to last was raised in the case of George v.
Skivington LR 5 Ex 1 , where there was an injury to one person, the wife, and a contract of
sale with another person, the husband. The wife was considered to have a good
cause of action, and I would adopt the view
which the Lord Chief Baron took in
that case. He said there was a duty in the vendor
to use ordinary care in
compounding the article sold, and that this extended to the person for whose use
he knew it was purchased, and this duty having been violated,
and he, having
failed to use reasonable care, was liable in an action at the suit of the third
person.” It is difficult to appreciate what is the importance of the fact that
knew who was the person for whom the article was purchased, unless it
be that the case was treated as one of fraud, and that without this element of
knowledge it could not be brought within the principle of Langridge v.
Levy. 2 M & W 519 Indeed, this is the only view
of the matter which adequately explains
the references in the judgments in George v.
Skivington LR 5 Ex 1 to Langridge v.
Levy 2 M & W 519 and the observations of Cleasby B. upon George v.
Skivington. LR 5 Ex 1
The dicta of Brett M.R. in Heaven v.
Pender 11 QB D 503, 509 et seq are rightly relied on by the appellant. The material passage is as
follows: “The proposition which these recognized cases suggest, and which is,
therefore, to be deduced from them, is that whenever one person is by
circumstances placed in such a position with regard to another that every one of
ordinary sense who did think would at once recognize that if he did not use
ordinary care and skill in his own conduct with regard to those circumstances he
would cause danger of injury to the person or property of the other, a duty
arises to use ordinary care and skill to avoid such danger …… Let us apply this
proposition to the case of one person supplying goods or machinery, or
instruments or utensils, or the like, for the purpose of their being used by
another person, but with whom there is no contract as to the supply. The
proposition will stand thus: whenever one person supplies goods, or machinery or
the like, for the purpose of their being used by another person under such circumstances that
everyone of ordinary sense would, if he thought, recognize at once that unless
he used ordinary care and skill with regard to the condition of the thing
supplied or the mode of supplying it, there will be danger of injury to 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 cases 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 2 M & W 519 , 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 2 M & W 519 , and stated that it was based upon fraudulent misrepresentation, and
had been so treated by Coleridge J. in Blackmore v.
Bristol and Exeter Ry. Co. (1858) 8 E & B 1035 , and that in Collis v.
Selden (1868) LR 3 CP 495 Willes J. had said that the judgment in Langridge v.
Levy 2 M & W 519 was based on the fraud of the defendant. The Lord Justice then
proceeded as follows: “This impliedly negatives the existence of the larger
general principle which is relied on, and the decisions in Collis v.
Selden (1868) LR 3 CP 495 and in Longmeid v.
Holliday 6 Ex 761 (in each of which the plaintiff failed), are in my opinion at variance
with the principle contended for. The case of George v.
Skivington LR 5 Ex 1 , and especially what is said by Cleasby B., in giving judgment in that
case, seems 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.
Levy 2 M & W 519 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.
In Le Lievre v.
Gould  1 QB 491, 497 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 11 QB D 503, 509 , for he says this: “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
Pender 11 QB D 503, 509 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 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  1 QB 504 : “The decision of Heaven v.
Pender 11 QB D 503, 509 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.
Pender 11 QB D 503, 509 goes no further than this, though it is often cited to support all
kinds of untenable propositions.”
In Earl v.
Lubbock  1 KB 253 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
Wright 10 M & W 109 , and he pointed out that the dictum of Lord Esher in Heaven v.
Pender 11 QB D 503, 509 was not a decision of the Court, and that it was subsequently qualified
and explained by Lord Esher himself in Le Lievre v.
Gould.  1 QB 491, 497 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 11 QB D 503, 509 , while Mathew L.J. made the following observation: “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., Ld.  3 KB 351 , 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 Parke B. in Longmeid v.
Holliday 6 Ex 761 , of Cotton and Bowen L.JJ. in Heaven v.
Pender 11 QB D 503 , of Stirling L.J. in Earl v.
Lubbock  1 KB 253 , and of Hamilton J. in Blacker v.
Lake & Elliot, Ld. 106 LT 533 , made it clear that the plaintiff was not entitled to recover, and
that he had not felt himself bound by George v.
Skivington. LR 5 Ex 1
So far, therefore, as the case of George
Skivington LR 5 Ex 1 and the dicta in Heaven v.
Pender 11 QB D 503, 509 are concerned, it is in my opinion better that they should be buried so
securely that their perturbed spirits shall no longer vex
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 though 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
Winchester. 6 NY 397 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.
Motor Co. (1916) 217 NY 382 , 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
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
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
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 any
one else, no action against the builder exists according to the English law,
although I believe such a right did exist according to the laws of Babylon. Were
such a principle known and recognized, 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 LR 5 Ex 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
In Mullen v.
Barr & Co. 1929 SC 461
, 479 , 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: “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
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
LORD ATKIN. My Lords, the sole question
for determination in this case is legal: Do the averments made by the pursuer in
her pleading, 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 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
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 recognizes 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 11 QB D 503, 509 , in a definition to which I will later refer. As framed, it was
demonstrably too wide, though it appears to me, if properly limited, to be
capable of affording a valuable
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.
Pender 11 QB D 503, 509 , as laid down by Lord Esher (then Brett
M.R.) when it is limited by the notion of proximity introduced by Lord Esher
himself and A. L. Smith L.J. in Le Lievre v.
Gould.  1 QB 491, 497, 504 Lord Esher says: “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.: “The
decision of Heaven v.
Pender 11 QB D 503, 509 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 careless act. That this is the
sense in which nearness of “proximity” was intended by Lord Esher is obvious
from his own illustration in Heaven v.
Pender 11 QB D 503, 510 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 QB 491 , 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.
Pender 11 QB D 503 were justified in thinking the principle was expressed in too general
terms. There will no doubt arise cases where it will be difficult to determine
whether the contemplated relationship is so close that the duty arises. But in
the class of case now before the Court I cannot conceive any difficulty to
arise. A manufacturer puts up an article of food in a container which he knows
will be opened by the actual consumer. There can be no inspection by any
purchaser and no reasonable preliminary inspection by the consumer. Negligently,
in the course of preparation, he allows the contents to be mixed with poison. It
is said that the law of England and Scotland is that the poisoned consumer has
no remedy against the negligent manufacturer. If this were the result of the
authorities, I should consider the result a grave defect in the law, and so
contrary to principle that I should hesitate long before following any decision
to that effect which had not the authority of this House. I would point out
that, in the assumed state of the authorities, not only would the consumer have
no remedy against the manufacturer, he would have none against
any one 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 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 every one, 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 in 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 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. LR 5 Ex 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 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 and Cleasby BB. put their judgments on the same ground. I
to think that Cotton L.J., in Heaven v.
Pender 11 QB D 517 , misinterprets Cleasby B.'s judgment in the reference to Langridge v.
Levy. 4 M & W 337 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
Levy 4 M & W 337 not to defraud. It is worth noticing that George v.
Skivington LR 5 Ex 1 was referred to by Cleasby B. himself, sitting as a member of the Court
of Exchequer Chamber in Francis v.
Cockrell LR 5 QB 501, 515 , and was recognized by him as based on an ordinary duty to take care.
It was also affirmed by Brett M.R. in Cunnington v.
Great Northern Ry.
Co. (1883) 49 LT 392 , decided on July 2 at a date between the argument and the judgment in
Pender 11 QB D 517 , though, as in that case the Court negatived any breach of duty, the
expression of opinion is not authoritative. The existence of the duty contended
for is also supported by Hawkins v.
Smith (1896) 12 Times LR 532 , where a dock labourer in the employ of the dock company was injured
by a defective sack which had been hired by the consignees from the defendant,
who knew the use to which it was to be put, and 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 and
Lawrance JJ., held the defendant liable for negligence. Similarly, in Elliott v.
Hall (1885) 15 QB D 315 , the defendants, colliery owners, consigned coal to the plaintiff's
employers, coal merchants, in a truck hired by the defendants from a wagon
company. The plaintiff was injured in the course of unloading the coal by reason
of the defective condition of the truck, and was held by a Divisional Court,
Grove and A. L. Smith JJ., entitled to recover on the ground of the defendants'
breach of duty to see that the truck was not in a dangerous condition. It is to
be noticed that in neither case was the defective chattel in the defendants'
occupation, possession or control, or on their premises, while in the latter
case it was not even their property. It is sometimes said that the liability in
these cases depends upon an invitation by the defendant to the plaintiff to use
his chattel. I do not find the decisions expressed to be based upon this ground,
but rather upon the knowledge that the plaintiff in the course of the
contemplated use of the chattel would use it; and the supposed invitation
appears to me to be in many cases a fiction, and merely a form of expressing the
direct relation between supplier and user which gives rise to the duty to take
care. A very
recent case which has the authority of this House is Oliver v.
Saddler & Co.  AC 584 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 plaintiff was one. The porters
relied on examination by the stevedores and had themselves no opportunity of
examination. In these circumstances this House, reversing the decision of the
First Division, held that there was a duty owed by the stevedore company to the
porters to see that the slings were fit for use, and restored the judgment of
the Lord Ordinary, Lord Morison, in favour of the pursuer. I find no trace of
the doctrine of invitation in the opinions expressed in this House, of which
mine was one: the decision was based upon the fact that the direct relations
established, especially the circumstance that the injured porter had no
opportunity of independent examination, gave rise to a duty to be careful.
I should not omit in this review of
cases the decision in Grote v.
Chester and Holyhead Ry. (1848) 2 Ex 251 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 LR 5 QB 505 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 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
In Dixon v.
Bell 5 M & S 198 , the defendant had left a loaded gun at his lodgings and sent his
servant, a mulatto girl aged about thirteen or fourteen, for the gun, asking the
landlord to remove the priming and give it her. The landlord did remove the
priming and gave it to the girl, who later levelled it at the plaintiff's small
son, drew the trigger and injured the boy. The action was in case for
negligently entrusting the young servant with the gun. The jury at the trial
before Lord Ellenborough had returned a verdict
for the plaintiff. A motion by
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 innoxious.
In Langridge v.
Levy 2 M & W 519; 4 M & W 337 the action was in case, and the declaration alleged that the defendant,
by falsely and fraudulently warranting a gun to have been made by Nock and to be
a good, safe, and secure gun, sold the gun to the plaintiff's father for the use
of himself and his son, and that one of his sons, confiding in the warranty,
used the gun, which burst and injured him. Plea not guilty and no warranty as
alleged. The report is not very
satisfactory. No evidence is reported of any
warranty or statement except that the gun was an elegant twist gun by Nock. The
judge left to the jury whether the defendant had warranted the gun to be by Nock and to be safe; whether it
was in fact unsafe; and whether the defendant warranted it to be safe knowing
that it was not so. The jury returned a general verdict
for the 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 531 The same view
was adopted by the Exchequer Chamber, the user by the
plaintiff being treated by the Court as one of the acts contemplated by the
fraudulent defendant. It is unnecessary to consider whether the proposition can
be supported in its widest form. It is sufficient to say that the case was
based, as I think, in the pleading, and certainly in the judgment, on the ground
of fraud, and it appears to add nothing of value
positively or negatively to the
present discussion. Winterbottom v.
Wright 10 M & W 109 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 that the defendant, having the means of knowing, and well
knowing, all the aforesaid premises, the mail-coach, being in a dangerous
condition, owing to certain latent defects and to no other cause, gave way,
whereby the plaintiff was thrown from his seat and injured. It is to be observed
that no negligence apart from breach of contract was alleged — in other words,
no duty was alleged other than the duty arising out of the contract; it is not
stated that the defendant knew, or ought to have known, of the latent defect.
The argument of the defendant was that, on the 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 and Rolfe BB. There are dicta by Lord Abinger
which are too wide as to an action of negligence being confined to cases of
breach of a public duty. The actual decision appears to have been manifestly
right; no duty to the plaintiff arose out of the contract; and the duty of the
defendant under the contract with the Postmaster-General to put the coach in
good repair 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 6 Ex 761 , 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 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. 2 M & W 519; 4 M & W 337 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
was entered at the trial by Martin B. for the plaintiff, but
with liberty to the defendant to move to enter the verdict
for him. A rule
having been obtained, plaintiff's counsel sought to support the verdict
ground that this was not an action 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 a firm in breach of contract committing a nuisance on a
highway, he deals with the case where any one 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 5 M & S 198 , though what this case has to do with contract it is difficult to see.
He then goes on: “But it would be going much too far to say that so much care is
required in the ordinary intercourse of life between one individual and another,
that, if a machine not in its nature dangerous — a carriage for instance — but
which might become so by a latent defect entirely unknown although discoverable
by the exercise of ordinary care, should be lent or given by one person, even by
the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage
accruing by the use of it.” It is worth noticing how guarded this dictum is. The
case put is a machine such as a carriage, not in its nature dangerous, which
might become dangerous by a latent defect entirely unknown. Then there is the
saving, “although discoverable by the exercise of ordinary care,” discoverable
by whom 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 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 giving” chattels, operations known
to the law, where the special relations thereby created have a particular
bearing on the existence or non-existence of a duty to take care. Next in this
chain of authority come George v.
Skivington LR 5 Ex 1 and Heaven v.
Pender 11 QB D 503 , which I have already discussed. The next case is Earl v.
Lubbock.  1 KB 253 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 L.C.J.,
Wills and Kennedy JJ.) 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
Wright. 10 M & W 109 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 10 M & W 109 , 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 11 QB D 503 , that any one who, without due warning, supplies to others for use an
instrument which to his knowledge is in such a condition as to cause danger is
liable for injury. I venture
to think that the Lord Justice 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  1 KB 259 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 any one 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 & Elliot, Ld. 106 LT 533 , approaches more nearly the facts of this case. I have read and
re-read it, having unfeigned respect for the
authority of the two learned judges, Hamilton and Lush JJ., who decided it, and
I am bound to say I have found difficulty in formulating the precise grounds
upon which the judgment was given. The plaintiff had been injured by the
bursting of a brazing lamp which he had bought from a shopkeeper who had bought
it from the manufacturer, the defendant. The plaintiff had used the lamp for
twelve months before the accident. The case was tried in the county court before
that excellent lawyer the late 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
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. says 106 LT 536 that it has been decided in authorities from Winterbottom v.
Wright 10 M & W 109 to Earl v.
Lubbock  1 KB 253 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 pleadings on which alone the older cases are
an authority. If the issue raised was an alleged duty created by contract, it
would have been irrelevant to consider duties created
without reference to contract; and contract 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 or skill in the
manufacture of goods, as contrasted with repair. The only manufacturing case was
Holliday 6 Ex 761 , where negligence was not alleged. Hamilton J. recognizes that George
Skivington LR 5 Ex 1 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. 10 M & W 109 I find this very
difficult to understand, for George v.
Skivington LR 5 Ex 1 was based upon a duty in the manufacturer to take care independently of
contract, while Winterbottom v.
Wright 10 M & W 109 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 is only to warn; the third of public nuisance. He does not bring the
cases represented by Elliott v.
Hall 15 QB D 315 (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 thing upon premises creates a duty.” I have already
pointed out that this distinction is unfounded in fact, for in Elliott v.
Hall 15 QB D 315 , as in Hawkins v.
Smith 12 Times LR 532 (the defective sack), the defendant exercised no control over the
article and the accident did not occur on his premises. With all respect, I
think that the judgments in the case err by seeking to confine the law to rigid
and exclusive categories, and by not giving sufficient attention to the general
principle which governs the whole law of negligence in the duty owed to those who will be immediately injured
by lack of care. The last case I need refer to is Bates v.
Batey & Co.,
Ld.  3 KB 351 , where manufacturers of ginger-beer were sued by a plaintiff who had
been injured by the bursting of a bottle of ginger-beer bought from a shopkeeper
who had obtained it from the manufacturers. The manufacturers had bought the
actual bottle from its maker, but were found by the jury to have been negligent
in not taking proper means to discover whether the bottle was defective or not.
Horridge J. found that a bottle of ginger-beer was not dangerous in itself, but
this defective bottle was in fact dangerous; but, as the defendants did not know
that it was dangerous, they were not liable, though by the exercise of
reasonable care they could have discovered the defect. This case differs from
the present only by reason of the fact that it was not the manufacturers of the
ginger-beer who caused the defect in the bottle; but, on the assumption that the
jury were right in finding a lack of reasonable care in not examining the
bottle, I should have come to the conclusion that, as the manufacturers must
have contemplated the bottle being handled immediately by the consumer, they
owed a duty to him to take care that he should not be injured externally by
explosion, just as I think they owed a duty to him to take care that he should
not be injured internally by poison or other noxious thing. I do not find it
necessary to discuss at length the cases dealing with duties where 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. (1922) 12 Ll LRep 183, 187 , a case which was ultimately decided on a question of fact.
“Personally, I do not understand the difference between a thing dangerous in
itself, as poison, and a thing not dangerous as a class, but by negligent
construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it
is a wolf in sheep's clothing instead of an obvious wolf.” The nature of the
thing may very
well call for different degrees of care, and the person dealing
with it may well contemplate persons as being within the sphere of his duty to
take care who would not be sufficiently proximate with less dangerous goods; so
that not only the degree of care but the range of persons to whom a duty is owed
may be extended. But they all illustrate the general principle. In the Dominion
Natural Gas Co., Ld. v.
Collins and Perkins  AC 640
, 646 the appellants 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
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: “There may be, however, in the case of anyone
performing an operation, or setting up and installing a machine, a relationship
of duty. What that duty is will vary
according to the subject-matter of the
things involved. It has, however, again and again been held that in the case of
articles dangerous in themselves, such as loaded firearms, poisons, explosives,
and other things ejusdem generis, there is a peculiar duty to take precaution
imposed upon those who send forth or install such articles when it is
necessarily the case that other parties will come within their proximity.” This,
with respect, exactly sums up the position. The duty may exist independently of
contract. Whether it exists or not depends upon the subject-matter involved; but
clearly in the class of things enumerated there is a special duty to take
precautions. This is the very
opposite of creating a special category in which
alone the duty exists. I may add, though it obviously would make no difference in the creation of a
duty, that the installation of an apparatus to 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 an implied warranty: Brass v.
Maitland (1856) 6 E & B 470 ; but it is also a duty owed independently of contract, e.g., to the
carrier's servant: Farrant v.
Barnes. (1862) 11 CB (NS) 553, 563 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 Ry. Co. v.
Mulholland or Warwick  AC 216 , in which the appellant company were held not liable for injuries
caused by a defective brake on a coal wagon conveyed by the railway company to a
point in the transit where their contract ended, and where the wagons were taken
over for haulage for the last part of the journey by a second railway company,
on which part the accident happened. It was held that the first railway company
were under no duty to the injured 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
Pope  AC 428
), the wife of the tenant of a house let unfurnished sought to recover
from the landlord damages for personal injuries arising from the non-repair of
the house, on the ground that the landlord had contracted with her husband to
repair the house. It was held that the wife was not a party to the contract, and
that the well known absence of any duty in respect of the letting an unfurnished
house prevented her from relying on any cause of action for negligence.
In the most recent case (Bottomley v.
Bannister  1 KB 458; (1932) 101 LJ (KB) 46, 54 ), an action under Lord Campbell's Act, the deceased man, the father
of the plaintiff, had taken an unfurnished house from the defendants, who had
installed a gas boiler with a special gas-burner which if properly regulated
required no flue. The deceased and his wife were killed by fumes from the
apparatus. The case was determined on the gound 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
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
Buick Motor Co. in the New York Court of Appeals 217 NY 382 , 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 manufacturer and the user
of the car being so close as to create a duty. But the American decision would
undoubtedly lead to a decision in favour of the pursuer in the present
My Lords, if your Lordships accept the
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
say no one in Scotland or England who was not a lawyer would for one moment
doubt. It will be an advantage to make it clear that the law in this matter, as
in most others, is in accordance with sound common sense. I think that this
appeal should be allowed.
LORD THANKERTON. My Lords, in this
action the appellant claims reparation from the respondent in respect of illness
and other injurious effects resulting from the presence of a decomposed snail in
a bottle of ginger-beer, alleged to have been manufactured by the respondent,
and which was partially 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
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's interlocutor and dismissed the action, following their decision
in the recent cases of Mullen v.
Barr & Co. and M'Gowan v.
Barr & Co. 1929 SC 461
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 from 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 summarized as follows: (a) That the ginger-beer was manufactured by the respondent or his
servants to be sold as an article 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 sealed 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 an efficient system of inspection
which would prevent snails from getting into 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 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 not based upon contract,
but upon negligence; but it is necessary for the pursuer in such an action to
show there was a duty owed to her by the defender, because a man cannot be
charged with negligence if he has no obligation to exercise diligence: Kemp
& Dougall v.
Darngavil Coal Co. 1909 SC 1314, 1319 , per Lord Kinnear; see also Clelland v.
Robb 1911 SC 253, 256 , 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 an 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 from 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 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 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
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 of 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 (1903) 6 F 210 , 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 from 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: “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 manufacturers' label was off the tin when sold, and they 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.
My Lords, 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 1929 SC 461
, 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 was that the English authorities
excluded the existence of such a duty, but Lord Ormidale 1929 SC 471 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
My conclusion rests upon the facts
averred in this case and would apparently also have applied in the cases of
Mullen and M'Gowan 1929 SC 461
, 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 the case should be remitted for proof, as the
pursuer did not ask for an issue.
LORD MACMILLAN. My Lords, the incident
which in its legal bearings your Lordships are called upon to consider in this
appeal was in itself of a trivial character, though the consequences to the
appellant, as she describes them, were serious enough. It appears from the
appellant's allegations that on an evening in August, 1928, she and a friend
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
the appellant alleges that she contracted a serious illness. 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
summarized. 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 kept his bottles in premises to which snails had
access, and 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.
The Lord Ordinary repelled the
respondent's plea to the relevancy and allowed the parties a proof of their
averments, but on a 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
Barr & Co. and M'Gowan v.
Barr & Co. 1929 SC 461
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.
The two cases, being to all intents and
purposes identical, were heard and decided together. In Mullen v.
Co. 1929 SC 461
the Sheriff-Substitute allowed a proof, but the Sheriff, on appeal,
dismissed the action as irrelevant. In M'Gowan v.
Barr & Co. 1929 SC 461
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 1929 SC 461
, 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
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 1929 SC 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 has 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. 1929 SC 461
, proceeds: “I think I indicated, not obscurely, the view
entertained on a perusal of the English cases,” and to that view,
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 case 1929 SC 461
on the question of relevancy are founded entirely on their reading of
the series of English cases cited to them is made clear by Lord Ormidale. After
stating the questions in the case, the first being “whether, in the absence of
any contractual relation between the pursuers and the defenders, the latter
owed a duty to the pursuers, as the consumers of the beer, of taking precautions
to see that nothing of a poisonous or deleterious nature was allowed to enter
and remain in the bottles,” his Lordship proceeds: “I recognize 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 10 M & W 109 , 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 ensure 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
from 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.” 10 M & W 109 In view
of the deference thus paid to English precedents, it is a
singular fact that the case of Winterbottom v.
Wright 10 M & W 109 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
to his conscience. “In my opinion,” said Lord Esher, in Emmens v.
Pottle (1885) 16 QB D 354, 357, 358 , “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 do 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.
Pope  AC 428
and Cameron v.
Young  AC 176; 1908 SC (HL) 7 , which decided that “a stranger to a lease cannot found upon a
landlord's failure to fulfil obligations 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.
Skivington LR 5 Ex 1 on the one hand and Blacker v.
Lake & Elliot, Ld. 106 LT 533 , 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 from 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, though 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 language 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 (though 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.
Wright 10 M & W 109 and Longmeid v.
Holliday. 6 Ex 761 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 the 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 held 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
Where, as in cases like the present, so
much depends upon the avenue of approach to the question, it is very
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
breach 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 amount 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.
Bell 5 M & S 198 is the starting-point. There a maid-servant 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 opinion, merely illustrates the high
degree of care, amounting in effect to insurance against risk, which the law
extracts 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.
Levy 2 M & W 519; 4 M & W 337 is another case of a gun, this time of defective make and known to the
to be defective. The purchaser's son was held 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 held 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.
Wright 10 M & W 109 and Longmeid v.
Holliday 6 Ex 761 , 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 LR 5 Ex 1 , 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
his 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 contract of sale between the vendor
purchaser; and 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, 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 2 M & W 519; 4 M & W 337 , observed that: “In both these latter cases 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 its
unfitness for these purposes”: Cavalier v.
Pope.  AC at p 433 It is true that George v.
Skivington LR 5 Ex 1 has been the subject of some criticism, and was said by Hamilton J.,
as he then was, in Blacker v.
Lake & Elliot, Ld. 106 LT 533 , 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
Pender 11 QB D 503 has probably been more quoted and discussed in 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 “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 recognize that if he
did not use ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or property of the
other, a duty arises to use ordinary care and skill to avoid such danger.” The
passage specially applicable to the present case is as follows 11 QB D 510 : “Whenever one person supplies goods …. for the purpose of their
being used by another person under such circumstances that everyone of ordinary
sense would, if he thought, recognize at once that, unless he used ordinary care
and skill with regard to the condition of the thing supplied or the mode of
supplying it, there will be danger of injury to 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 11 QB D 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 to 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 KB 253 ; Blacker v.
Lake & Elliot, Ld. 106 LT 533, 537 ; and Bates v.
Batey & Co., Ld.  3 KB 351 The first of these cases related to a 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 a 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., “would contract to make or repair what the 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
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
Lake & Elliot, Ld. 106 LT 533, 537 , 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 purchaser of it, and the vendor
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 thing. 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
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: “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 known 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 in White v.
Steadman  3 KB 340, 348 I find that Lush J., who was a party to the decision in Blacker v.
Lake & Elliot, Ld. 106 LT 533 , 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
Batey & Co., Ld.  3 KB 351 , 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 Horridge J., as he read the authorities,
was enough to absolve the manufacturer. I would observe that, in a true case of
negligence, knowledge of the existence
of the defect causing damage is not an essential element at all.
This summary survey is 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 LR 5 Ex 1 there is the American case of Thomas v.
Winchester 6 NY 397 , 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 & Perkins  AC 640
, as an instance of liability to third parties, and I think it was a
In the American Courts the law has
advanced considerably in the development of the principle exemplified in Thomas
Winchester. 6 NY 397 In one of the latest cases in the United States, MacPherson v.
Motor Co. 217 NY 382 , 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 held 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 law 217 NY 385 : “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
to anyone but the immediate purchaser …… The principle of Thomas v.
Winchester 6 NY 397 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
consequences 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 manufacturer 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 the car would not be used. Yet the 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
The prolonged discussion of English and
American cases into which I have been led might well dispose your Lordships 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 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
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 that
relation to each other. The grounds of action may be as various
and manifold as
human errancy; and the conception of legal 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 allegations, 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 characterized
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 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 of these articles. That duty, in my opinion, he owes to those
whom he intends to consume his products. He manufactures his commodities for
human 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 no sense so
remote as to excuse him from foreseeing it. Suppose that a baker, through
carelessness, allows a large quantity of arsenic to be mixed with a batch of his
bread, with the result that those who subsequently eat it are poisoned, could he
be heard to say that he 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 principle of the decision appealed from is that
the manufacturer of food 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 care that he does not poison them.
My Lords, 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 the practical
problem of everyday life which this appeal presents the legal systems of the two
countries are in no way at variance,
and that the principles of both alike are
sufficiently consonant with justice and common sense to admit of the claim which
appellant seeks to establish.
I am anxious to emphasize 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 6 Ex 761, 768 , where he said: “But it would be going much too far to say, that so
much care is required in the ordinary intercourse of life between one individual
and another, that, if a machine not in its nature dangerous — a carriage, for
instance — but which might become so by a latent defect entirely unknown,
although discoverable by the exercise of ordinary care, should be lent or given
by one person, even by the person who manufactured it, to another, the former
should be answerable to the latter for a subsequent damage accruing by the use
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 product 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 held to 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'Hardy. 6 F 210
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 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.