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Cite as: [1947] AC 156, [1946] UKHL 2

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JISCBAILII_CASE_TORT

    Die Veneris, 18° Octobris, 1946

    Parliamentary Archives,
    HL/PO/JU/4/3/982



    Viscount
    Simon

    Lord

    Macmillian

    Lord
    Porter

    Lord
    Simonds

    Lord
    Uthwatt

    READ v. J. LYONS AND COMPANY LIMITED.

    Viscount Simon

    MY LORDS,

    In fulfilment of an Agreement dated January 26th, 1942, and
    made between the Ministry of Supply and the Respondents, the
    latter undertook the operation, management and control of the
    Elstow Ordnance Factory as agents for the Ministry. The Respon-
    dents carried on in the factory the business of filling shell-cases
    with high explosives. The Appellant was an employee of the
    Ministry, with the duty of inspecting this filling of shell-cases, and
    her work required her (although she would have preferred and
    had applied for other employment) to be present in the shell-filling
    shop. On August 31st, 1942, whilst the Appellant was lawfully
    in the shell-filling shop in discharge of her duty, an explosion
    occurred which killed a man and injured the Appellant and others.
    No negligence was averred or proved against the Respondents.
    The plea of volenti non fit injuria, for whatever it might be worth,
    has been expressly withdrawn before this House by the Attorney
    General on behalf of the Respondents, and thus the simple question
    for decision is whether in these circumstances the Respondents
    are liable, without any proof or inference that they were negligent,
    to the Appellant in damages, which have been assessed at
    £575 2s- 8d. for her injuries.

    Mr. Justice Cassels, who tried the case, considered that it was
    governed by Rylands v. Fletcher (L.R.1 Ex.265, L.R.3 H.L.330)
    and held that the Respondents were liable, on the ground that they
    were carrying on an ultra-hazardous activity and so were under
    what is called a " strict liability " to take successful care to avoid
    causing harm to persons whether on or off the premises. The
    Court of Appeal (Scott, MacKinnon, and du Parcq L.JJ.) reversed
    this decision, Lord Justice Scott in an elaborately reasoned judg-
    ment holding that a person on the premises had, in the absence
    of any proof of negligence, no cause of action, and that there must
    be an escape of the damage-causing thing from the premises and
    damage caused outside before the doctrine customarily associated
    with the case of Rylands v. Fletcher can apply.

    I agree that the action fails. The Appellant was a person
    present in the factory in pursuance of a public duty (like an
    ordinary factory-inspector) and was consequently in the same
    position as an invitee. The Respondents were managers of the
    factory as agents for the Ministry of Supply and had the same
    responsibility to an invitee as an ordinary occupier in control of
    the premises. The duties of an occupier of premises to an invitee
    have been analysed in many reported cases, but in none of
    them, I think, is there any hint of the proposition necessary to
    support the claim of the Appellant in this case. The fact that the
    work that was being carried on was of a kind which requires
    special care is a reason why the standard of care should be high,
    but it is no reason for saying that the occupier is liable for result-
    ing damage to an invitee without any proof of negligence at all.
    Blackburn J. in delivering the judgment of the Court of Ex-
    chequer Chamber in Fletcher v. Rylands laid down at p.279 of
    L.R.1 Exchequer Cases the proposition that "the person who,
    ' for his own purposes, brings on his lands, and collects and
    ' keeps there, anything likely to do mischief if it escapes, must
    ' keep it in at his peril; and if he does not do so, is prima facie
    '
    answerable for all the damage which is the natural consequence
    ' of its escape."

    It has not always been sufficiently observed that in the House
    of Lords, when the appeal from Fletcher v. Rylands was dismissed
    and Blackburn J.'s pronouncement was expressly approved, Lord
    Cairns L.C. emphasized another condition which must be satisfied
    before liability attaches without proof of negligence. This is that

    the use to which the defendant is putting his land is a non-

    " natural" use.(L.R.3 H.L. at pp. 338-9). Mr. Justice Blackburn

    had made a parenthetic reference to this sort of test when he said

    at p. 280 " it seems but reasonable and just that the neighbour, who

    'has brought something on his own property, which was not

    ' naturally there, harmless to others so long as it is confined to his

    ' own property, but which he knows to be mischievous if it gets on

    'his neighbour's, should be obliged to make good the damage

    ' which ensues if he does not succeed in confining it to his own

    ' property ".

    I confess to finding this test of " non-natural " user (or of bring-
    ing on the land what was not " naturally there ", which is not
    the same test) difficult to apply. Blackburn J., in the sen-
    tence immediately following that which I have last quoted, treats
    cattle-trespass as an example of his generalisation. The pasturing
    of cattle must be one of the most ordinary uses of land, and
    strict liability for damage done by cattle enclosed on one man's
    land if they escape thence into the land of another, is one of the
    most ancient propositions of our law. It is in fact a case of pure
    trespass to property, and thus constitutes a wrong without any
    question of negligence. See per Lord Coleridge C.J. in Ellis y.
    Lojtus Iron Co. (1874) L.R.10 C.P.10 at p. 12. The circumstances in
    Fletcher v. Rylands did not constitute a case of trespass because
    the damage was consequential, not direct. It is to be noted that all
    the counts in the Declaration in that case set out allegations of
    negligence (see L.R.1 Ex.265) but in the House of Lords Lord
    Cairns begins his opinion by explaining that ultimately the case
    was treated as determining the rights of the parties independently
    of any question of negligence.

    The classic judgment of Blackburn J., besides deciding the issue
    before the Court and laying down the principle, of duty between
    neighbouring occupiers of land on which the decision was based,
    sought to group under a single and wider proposition other in-
    stances in which liability is independent of negligence, such for
    example as liability for the bite of a defendant's monkey, May v.
    Burdett
    (1846) 9 Q.B.101; see also the case of a bear on a chain
    on the defendant's premises, Besozzi v. Harris (1858) 1 F. and F.92.
    There are instances, no doubt, in our law in which liability for
    damage may be established apart from proof of negligence, but
    it appears to me logically unnecessary and historically incorrect to
    refer to all these instances as deduced from one common principle.
    The conditions under which such a liability arises are not neces-
    sarily the same in each class of case. Lindley L.J. issued a
    valuable warning in Green v. Chelsea Waterworks Company 70
    L.T.547 at p. 549 when he said of Rylands v. Fletcher that that
    decision " is not to be extended beyond the legitimate principle
    " on which the House of Lords decided it. If it were extended
    " as far as strict logic might require, it would be a very
    " oppressive decision." It seems better, therefore, when a Plaintiff
    relies on Rylands v. Fletcher, to take the conditions declared by
    this House to be essential for liability in that case and to ascertain
    whether these conditions exist in the actual case.

    Now the strict liability recognised by this House to exist in
    Rylands v. Fletcher is conditioned by two elements which I may
    call the condition of " escape " from the land of something likely
    to do mischief if it escapes, and the condition of " non-natural use "
    of the land. This second condition has in some later cases, which
    did not reach this House, been otherwise expressed, e.g. as " excep-
    tional " user, when such user is not regarded as " natural" and at
    the same time is likely to produce mischief if there is an " escape."
    Dr. Stallybrass, in a learned article in 3 Cambridge Law Review
    p. 376, has collected the large variety of epithets that have been
    judicially employed in this connection. The American Restatement

    [3] 3

    III sect. 519 speaks of "ultra-hazardous activity," but attaches
    qualifications which would appear in the present instance to
    exonerate the Respondents.

    It is not necessary to analyse this second condition on the present
    occasion, for in the case now before us the first essential condition
    of " escape " does not seem to me to be present at all. " Escape ",
    for the purpose of applying the proposition in Rylands v. Fletcher,
    means escape from a place where the defendant has occupation of,
    or control over, land to a place which is outside his occupation or
    control. Blackburn J. several times refers to the defendant s duty as
    being the duty of " keeping a thing in " at the defendant's peril
    and by " keeping in " he does not mean preventing an explosive
    substance from exploding but preventing a thing which may inflict
    mischief from escaping from the area which the Defendant occupies
    or controls. In two well-known cases the same principle of strict
    liability for escape was applied to defendants who held a franchise
    to lay pipes under a highway and to conduct water (or gas) under
    pressure through them (Charing Cross Electric Co. v. Hydraulic
    Power Co.
    [1914] 3 KB 772; Northwestern Utilities Ltd. v.
    London Guarantee etc. Co. [1936] A.C. p. 108).

    In Howard V. Furness Houlder Argentine Lines Ltd. (41 Com-
    mercial Cases 290 at p. 296) Lewis J. had before him a case of
    injury caused by an escape of steam on board a ship where the
    Plaintiff was working. The learned Judge was, I think, right in
    refusing to apply the doctrine of Rylands v. Fletcher on the ground
    that the injuries were caused on the premises of the defendants.
    Apart altogether from the Judge's doubt (which I share) whether
    the owners of the steamship by generating steam therein are making
    a non-natural use of their steamship, the other condition upon
    which the proposition in Rylands v. Fletcher depends was not
    present any more than it is in the case with which we have now to
    deal. Here there is no escape of the relevant kind at all and the
    Appellant's action fails on that ground.

    In these circumstances it becomes unnecessary to consider other
    objections that have been raised, such as the question whether the
    doctrine of Rylands v. Fletcher applies where the claim is for
    damages for personal injury as distinguished from damages to
    property. It may be noted, in passing, that Blackburn J. himself
    when referring to the doctrine of Rylands v. Fletcher in the later-
    case of Cattle v. Stockton Waterworks (1875) LR 10 QB 453
    leaves this undealt with: he treats damages under the Rylands v.
    Fletcher principle as covering damages to property, such as work-
    men's clothes or tools, but says nothing about liability for personal
    injuries.

    On the much litigated question of what amounts to " non-
    natural " use of land, the discussion of which is also unnecessary
    in the present Appeal, I content myself with two further observa-
    tions. The first is that when it becomes essential for the House to
    examine this question it will, I think, be found that Lord Moulton's
    analysis in delivering the judgment of the Privy Council in Richards
    v. Lothian [1913] A.C.263 is of the first importance. The other
    observation is as to the decision of this House in Rainham Chemical
    Works Ltd.
    v. Belvedere Fish Guano Company [1921] 2 A.C.465,
    to which the Appellant's Counsel in the present case made consider-
    able reference in support of the proposition that manufacturing
    explosives was a " non-natural " use of land. This was a case of
    damage to adjoining property: it is reported in the Court of Appeal
    in [1920] 2 K.B. 487 and in the Court of First Instance, where it
    was tried by Lord Justice Scrutton sitting as an additional Judge of
    the King's Bench Division, in 123 L.T. 211. I find in Lord Justice
    Scrutton's judgment that he understood it to be admitted
    before him " that the person in possession of, and responsible
    " for, the D.N.P. was liable, under the doctrine of Rylands v.

    4 [4]

    "Fletcher for the consequences of its explosions". The point
    therefore was not really open for argument to the contrary
    before the House of Lords, where Lord Carson begins his opinion
    by stating that it was not seriously argued, and that the real point
    to be determined was as to the liability of two Directors of the
    Appellant's company. The opinion of Lord Buckmaster, which
    covers many pages, is almost exclusively concerned with establish-
    ing the Directors' liability, and on the other point his observation
    merely is that the making of munitions " was certainly not the
    " common and ordinary use of the land ". I think it not improper
    to put on record, with all due regard to the admission and dicta
    in that case, that if the question had hereafter to be decided whether
    the making of munitions in a factory at the Government's request
    in time of war for the purpose of helping to defeat the enemy is a
    " non-natural " use of land, adopted by the occupier " for his own
    " purposes ", it would not seem to me that the House would be
    bound by this authority to say that it was. In this appeal the
    question is immaterial, as I hold that the Appellant fails for the
    reason that there was no " escape " from the Respondents' factory.

    I move that the Appeal be dismissed with costs.

    Viscount
    Simon

    Lord
    Macmillan

    Lord
    Porter
    Lord
    Simonds

    Lord
    Uthwatt

    [5]

    Lord Macmillan

    MY LORDS,

    Nothing could be simpler than the facts in this appeal; nothing
    more far-reaching than the discussion of fundamental legal
    principles to which it has given rise.

    The Plaintiff, while employed as an inspector by the Ministry
    of Supply at the Elstow Ordnance Factory in Bedfordshire, where
    the Defendants were engaged in the manufacture of high explosive
    shells for the Government, was injured by an explosion in the
    filling shop. She sued the Defendants for damages. In her state-
    ment of claim she made no allegation of negligence on the part
    of the Defendants. All that she averred was that the Defendants
    were engaged in the manufacture of high explosive shells in
    premises occupied by them, that the Defendants knew that high
    explosive shells were dangerous things, and that while she was on
    their premises in the course of her .duties a high explosive shell
    exploded and caused her injury. For aught that appears the
    explosion may have been a pure accident for which no one was to
    blame.

    The trial Judge (Cassels J.) found for the Plaintiff. He relied
    mainly on the doctrine formulated in the well-known and much-
    discussed case of Rylands v. Fletcher, 1866, L.R. 1 Ex. 265; 1868,
    3 E. & I. Apps. 330, and on the decision of this House in Rainham
    Chemical Works v. Belvedere Fish Guano Co.
    [1921], 2 A.C. 465.
    The Court of Appeal unanimously reversed the judgment of the
    trial Judge and entered judgment for the Defendants. The Plaintiff
    with the leave of the Court of Appeal has now brought her case to
    your Lordships' Bar.

    In my opinion the Plaintiff's statement of claim discloses no
    ground of action against the Defendants. The action is one of
    damages for personal injuries. Whatever may have been the law
    of England in early times I am of opinion that as the law now stands
    an allegation of negligence is in general essential to the relevancy
    of an action of reparation for personal injuries. The gradual
    development of the law in the matter of civil liability is discussed
    a nd traced by the late Sir William Holdsworth with ample learning
    and lucidity in the eighth volume of his History of English Law,
    pp. 446 et seq., and need not here be rehearsed. Suffice it to say
    that the process of evolution has been from the principle that every
    man acts at his peril and is liable for all the consequences of his
    acts to the principle that a man's freedom of action is subject only
    to the obligation not to infringe any duty of care which he owes
    to others. The emphasis formerly was on the injury sustained,
    and the question was whether the case fell within one of the
    accepted classes of common law actions; the emphasis now is on
    the conduct of the person whose act has occasioned the injury,
    and the question is whether it can be characterised as negligent.
    I do not overlook the fact that there is at least one instance in the
    present law in which the primitive rule survives, namely in the
    case of animals ferae naturae or animals mansuetae naturae which
    have shown dangerous proclivities. The owner or keeper of such
    an animal has an absolute duty to confine or control it so that
    it shall not do injury to others and no proof of care on his part
    will absolve him from responsibility. But this is probably not so
    much a vestigial relic of otherwise discarded doctrine as a special
    rule of practical good sense. At any rate, it is too well established
    to be challenged. But such an exceptional case as this affords no
    justification for its extension by analogy.

    The appellant in her printed case in this House thus poses the
    question to be determined: " Whether the manufacturer of high
    ’ explosive shells is under strict liability to prevent such shells

    A3

    2 [6]

    " from exploding and causing harm to persons on the premises
    " where such manufacture is carried on as well as to persons out-
    " side such premises ". Two points arise on this statement of the
    question. In the first place the expression " strict liability ", though
    borrowed from authority, is ambiguous. If it means the absolute
    liability of an insurer irrespective of negligence, then the answer
    in my opinion must be in the negative. If it means that an exacting
    standard of care is incumbent on manufacturers of explosive shells
    to prevent the occurrence of accidents causing personal injuries, I
    should answer the question in the affirmative, but this will not
    avail the plaintiff. In the next place, the question as stated would
    seem to assume that liability would exist in the present case to
    persons injured outside the defendants' premises without any
    proof of negligence on the part of the defendants. Indeed Mr.
    Justice Cassels in his judgment records that " it was not denied
    " that if a person outside the premises had been injured in the
    " explosion the defendants would have been liable without proof
    " of negligence". I do not agree with this view. In my opinion
    persons injured by the explosion inside or outside the defendants'
    premises would alike require to aver and prove negligence in order
    to render the defendants liable.

    In an address characterised by much painstaking research
    Mr. Paull for the plaintiff sought to convince your Lordships that
    there is a category of things and operations dangerous in them-
    selves and that those who harbour such things or carry on such
    operations in their premises are liable apart from negligence for
    any personal injuries occasioned by these dangerous things or
    operations. I think that he succeeded in showing that in the case
    of dangerous things and operations the law has recognised that
    a special responsibility exists to take care. But I do not think
    that it has ever been laid down that there is absolute liability apart
    from negligence where persons are injured in consequence of the
    use of such things or the conduct of such operations. In truth
    it is a matter of degree. Every activity in which man engages is
    fraught with some possible element of danger to others.
    Experience shows that even from acts apparently innocuous
    injury to others may result. The more dangerous the act the greater
    is the care that must be taken in performing it. This relates itself
    lo the principle in the modern law of torts that liability exists only
    for consequences which a reasonable man would have foreseen.
    One who engages in obviously dangerous operations must be taken
    to know that if he does not take special precautions injury to others
    may very well result.

    In my opinion it would be impracticable to frame a legal classi-
    fication of things as things dangerous and things not dangerous,
    attaching absolute liability in the case of the former but not in the
    case of the latter. In a progressive world things which at one time
    were reckoned highly dangerous come to be regarded as reasonably
    safe. The first experimental nights of aviators were certainly
    dangerous but we are now assured that travel by air is little if at
    all more dangerous than a railway journey.

    Accordingly I am unable to accept the proposition that in law
    the manufacture of high explosive shells is a dangerous operation
    which imposes on the manufacturer an absolute liability for any
    personal injuries which may be sustained in consequence of his
    operations. Strict liability, if you will, is imposed upon him in
    the sense that he must exercise a high degree of care, but that is
    all. The sound view, in my opinion, is that the law in all cases
    exacts a degree of care commensurate with the risk created.

    It was suggested that some operations are so intrinsically
    dangerous that no degree of care however scrupulous can prevent
    the occurrence of accidents, and that those who choose for their

    [7] 3

    own ends to carry on such operations ought to be held to do so
    at their peril. If this were so, many industries would have a serious
    liability imposed on them. Should it be thought that this is a
    reasonable liability to impose in the public interest, it is for
    Parliament so to enact In my opinion it is not the present law
    of England.

    The mainstay of Mr. Paull's argument was his invocation of the
    doctrine of Rylands v. Fletcher, and especially the passage in the
    judgment of Blackburn, J., so often quoted, approved and followed.
    Adopting and adapting the language of Mr. Justice Blackburn he
    said that the defendants here brought on their lands and collected
    and kept there things likely to do mischief. But the immediately
    following words used by that eminent Judge did not suit so well,
    for, according to him the things must be things likely to do mischief
    if they escape, and the duty is to keep them in at peril. In the
    present case it could not be said that anything had escaped from
    the defendants' premises or that they had failed in keeping in any-
    thing. Mr. Paull was accordingly constrained to paraphrase the
    words of Mr Justice Blackburn and read them as if he had said
    " likely to do mischief if not so controlled as to prevent the possi-
    " bility of mischief ". He invoked, as did Mr. Justice Blackburn,
    the case of straying cattle as an illustration of such liability. That
    again, in my opinion, is a special survival with an historical
    background and affords no analogy to the present case.

    The doctrine of Rylands v. Fletcher, as I understand it, derives
    from a conception of the mutual duties of adjoining or neighbour-
    ing landowners, and its congeners are trespass and nuisance. If its
    foundation is to be found in the injunction sic utere tuo ut alienum
    non laedas,
    then it is manifest that it has nothing to do with

    personal injuries. The duty is to refrain from injuring not alium
    but alienum. The two prerequisites of the doctrine are that there
    must be the escape of something from one man's close to another
    man's close and that that which escapes must have been brought
    upon the land from which it escapes in consequence of some non-
    natural use of that land, whatever precisely that may mean.
    Neither of these features exists in the present case. I have already
    pointed out that nothing escaped from the defendants' premises,
    and were it necessary to decide the point I should hesitate to hold
    that in these days and in an industrial community it was a non-
    natural use of land to build a factory on it and conduct there the
    manufacture of explosives. I could conceive it being said that to
    carry on the manufacture of explosives in a crowded urban area
    was evidence of negligence, but there is no such case here and I
    offer no opinion on the point.

    It is noteworthy in Rylands v. Fletcher that all the counts in the
    declaration alleged negligence, and that on the same page of the
    report on which his famous dictum is recorded (p. 279) Mr. Justice

    Blackburn states that " the plaintiff must bear the loss,

    " unless he can establish that it was the consequence of some default
    " for which the defendants are responsible ". His decision for the
    plaintiff would thus logically seem to imply that he found some
    default on the part of the defendants in bringing on their land and
    failing to confine there an exceptional quantity of water. Notwith-
    standing the width of some of the pronouncements, particularly
    on the part of Lord Cranworth, I think that the doctrine of
    Rylands v. Fletcher when studied in its setting is truly a case on
    the mutual obligations of the owners or occupiers of neighbouring
    closes and is entirely inapplicable to the present case, which is
    quite outside its ambit.

    It remains to say a word about the case of Rainham Chemical
    Works.
    There are several features to be noted. Perhaps most
    important is the fact that the application of the doctrine of Rylands
    v. Fletcher
    was not contested except on the ground that it was

    4 [8]

    not non-natural to use land in war-time for the manufacture of
    explosives. At p. 491 Lord Carson says that the liability of the
    defendant company " was not seriously argued ". In the next
    place it was a case of damage to adjoining property. The explosion
    caused loss of life, but we find nothing in the case about any claim
    for personal injuries. It is true that Lord Buckmaster at p. 471
    states (what was not contested, except to the limited extent I have
    indicated) that the use of the land for the purpose of making
    munitions was " certainly not the common and ordinary use of the
    " land " and thus brought the case within the doctrine of Rylands v.
    Fletcher,
    but that was a finding of fact rather than of law. In his
    enunciation of the doctrine he clearly confines it to the case of
    neighbouring lands. And the case is open to this further observa-
    tion, that the real contest was not whether there was liability but
    who was liable, in particular whether two directors of the company
    which was carrying on the manufacture of munitions were in the
    circumstances liable as well as the company itself. The case clearly
    affords no precedent for the present plaintiff's claim.

    Your Lordships' task in this House is to decide particular cases
    between litigants and your Lordships are not called upon to
    rationalize the law of England. That attractive if perilous field
    may well be left to other hands to cultivate. It has been necessary
    in the present instance to examine certain general principles
    advanced on behalf of the appellant because it was said that
    consistency required that these principles should be applied to the
    case in hand. Arguments based on legal consistency are apt to
    mislead, for the common law is a practical code adapted to deal
    with the manifold diversities of human life, and as a great American
    Judge has reminded us " the life of the law has not been logic; it
    " has been experience ". For myself I am content to say that in
    my opinion no authority has been quoted from case or text-book
    which would justify your Lordships, logically or otherwise, in
    giving effect to the appellant's plea. I should accordingly dismiss
    the appeal.

    Viscount
    Simon

    Lord

    Macmillan

    Lord
    Porter

    Lord
    Simonds

    Lord
    Uthwatt

    33917

    [9]

    Lord Porter

    MY LORDS,

    The point for decision by Your Lordships in this case may be
    stated in a sentence. It is, are the occupiers of a munitions factory
    liable to one of those working in that factory who is injured in the
    factory itself by .an explosion occurring there without any
    negligence on the part of the occupiers or their servants.

    Normally at the present time in an action of tort for personal
    injuries if there is no negligence there is no liability.

    To this rule however the appellant contends that there are
    certain exceptions, one of the best known of which is to be found
    under the principle laid down in Rylands v. Fletcher, L.R. 3 H.L.
    330. The Appellant relied upon that case and naturally put it in
    the forefront of his argument.

    To make the rule applicable, it is at least necessary for the person
    whom it is sought to hold liable to have brought on to his premises
    or at any rate to some place over which he has a measure of
    control, something which is dangerous in the sense that, if it escapes,
    it will do damage. Possibly a further requisite is that to bring
    the thing to the position in which it is found is to make a non-
    natural use of that place. Such at any rate appears to have been
    the opinion of Lord Cairns, and this limitation has more than once
    been repeated and approved—see Richards v. Lothian [1913]
    A.C. 280 per Lord Moulton. Manifestly these requirements must
    give rise to difficulty in applying the rule in individual cases and
    necessitate at least a decision as to what can be dangerous and
    what is a non-natural use. Indeed there is a considerable body of
    case law dealing with these questions and a series of findings or
    assumptions as to what is sufficient to establish their existence.
    Amongst dangerous objects have been held to be included, gas,
    explosive substances, electricity, oil, fumes, rusty wire, poisonous
    vegetation, vibrations, a flag-pole and even dwellers in caravans.
    Furthermore in Musgrove v. Pandelis, [1919] 2 K.B. 43, it was held
    that a motor car brought into a garage with full tanks was a
    dangerous object, a conclusion which, as Romer, L.J. pointed out
    in Collingwood v. Home and Colonial Stores, 155 L.T. 550, involves
    the propositions that a motor car is a dangerous thing to bring
    into a garage and that the use of one's land for the purpose of
    erecting a garage and keeping a motor car there is not an ordinary
    or proper use of the land.

    My Lords, if these questions ever come directly before this House
    it may become necessary to lay down principles for their
    determination.

    For the present I need only say that each seems to be a question
    of fact subject to a ruling of the Judge as to whether the particular
    object can be dangerous or the particular use can be non-natural,
    and in deciding this question I think that all the circumstances of
    the time and place and practice of mankind must be taken into
    consideration, so that what might be regarded as dangerous or
    non-natural may vary according to those circumstances.

    I do not however think that it is necessary for Your Lordships
    to decide these matters now, inasmuch as the defence admits that
    high explosive shells are dangerous things and, whatever view may
    be formed as to whether the filling of them is or is not a non-natural
    use of land, the present case can, in my opinion, be determined
    upon a narrower ground.

    In all cases which have been decided, it has been held necessary,
    in order to establish liability that there should have been some
    form of escape from the place in which the dangerous object has
    been retained by the defendant to some other place not subject
    to his control.

    a5

    2 [10]

    In Rylands v. Fletcher (sup.) it was water, in Rainham Chemical
    Works v. Belvedere,
    [1921] 2 A.C. 465, it was explosive matter, in
    National Telephone Company v. Baker,
    [1893] 2 Ch 186, it was
    electricity, in Northwestern Utilities v. London Guarantee and
    Accident Company,
    [1936] AC 108, it was gas which escaped from
    the defendants mains into property belonging to the plaintiff, and
    so on in the other instances. In every case, even in Charing Cross
    Electricity Supply Company v. Hydraulic Power Company,
    [1914] 3 KB 772, there was escape from the container in which
    the defendants had a right to carry the dangerous substance, and
    which they had at least a licence to use, and also an escape into
    property over which they had no control.

    Such escape is, I think, necessary if the principle of Rylands v.
    Fletcher
    (sup.) is to apply. The often quoted words of Blackburn J.
    in that case in the Court of Exchequer, L.R. 1 Exch. 265 at p. 280,
    are: " it seems but reasonable and just that the neighbour, who has
    " brought something on his own property which was not naturally
    " there, harmless to others so long as it is confined to his own
    " property, but which he knows to be mischievous if it gets to his
    " neighbour's, should be obliged to make good the damage which
    " ensues if he does not succeed in confining it to his own property."
    and in Howard v. Houlder Lines Limited, 41 Com. Cas. 290,
    Lewis J. so decided in a judgment with the result of which I agree.

    The limitations within which the judgment of Blackburn J.
    confines the doctrine have all been the subject of discussion, more
    particularly as to who is a neighbour, whether knowledge of the
    danger is a condition of liability and how far personal injuries are
    covered, but I know of no case where liability was imposed for
    injury occurring on the property in which the dangerous thing was
    confined.

    It was urged upon Your Lordships that it would be a strange
    result to hold the respondents liable if the injured person was just
    outside their premises but not liable if she was just within them.

    There is force in the objection, but the liability is itself an
    extension of the general rule and in my view it is undesirable to
    to extend it further. As Lindley L.J. said in Green v. Chelsea
    Waterworks Company,
    70 L.T. 547 at p. 549, ' That case"
    (Rylands v. Fletcher] " is not to be extended beyond the legitimate
    "principle on which the House of Lords decided it. If it were
    " extended as far as strict logic might require, it would be a very
    " oppressive decision."

    Much of the width of principle which has been ascribed to it is
    derived not from the decision itself but from the illustrations by
    which Blackburn J. supported it. Too much stress must not in
    my opinion be laid upon these illustrations. They are but
    instances of the application of the rule of strict liability, having for
    the most part separate historical origins, and though they support
    the view that liability may exist in cases where neither negligence,
    nuisance nor trespass are to be found, yet it need not as I think
    necessarily be said' that they form a separate coherent class, in
    which liability is created by the same elements throughout.

    I would add that in considering the matter now in issue before
    Your Lordships it is not in my view necessary to determine
    whether injury to the person is one of those matters in respect of
    which damages can be recovered under the rule. Atkinson J.
    thought it was—see Shiftman v. Order of St. John (1936), 1 A.E.R.
    557, and the language of Fletcher Moulton L.J. in Wing v. London
    General Omnibus Company,
    [1909] 2 KB 652, where he says at
    p. 665:" This cause of action is of the type usually described by
    " reference to the well-known case of Rylands v. Fletcher (sup.).
    " For the purpose of today it is sufficient to describe this class of
    " actions as arising out of cases where by excessive use of some

    [11] 3

    " private right a person has exposed his neighbour's property or
    " person to danger ", is to the same effect and, although the jury
    found negligence on the part of the defendants in Miles v. Forest
    Rock Granite Company Limited,
    (1918) 34 T.L.R. 500, the Court
    of Appeal applied the rule in Rylands v. Fletcher (sup.) in support
    of a judgment in favour of the plaintiff for £850 in respect of
    personal injuries.

    Undoubtedly the opinions expressed in these cases extend the
    application of the rule, and may some day require examination.
    For the moment it is sufficient to say that there must be escape
    from a place over which a defendant has some measure of control
    to a place where he has not.

    In the present case there was no such escape and I would
    dismiss the Appeal.

    [12]

    Viscount
    Simon

    Lord
    Macmillan Lord
    Porter

    Lord

    Simonds

    Lord
    Uthwatt

    Lord Simonds

    MY LORDS,

    It is undeniable that this appeal raises a question of great
    importance in the law of tort. But I have no doubt how it should
    be answered and I hope that I shall not be thought wanting in
    respect to the learned Judge who heard the case or to the careful
    and far-ranging argument of counsel for the Appellant if I do not
    deal with every point that has been raised.

    The Appellant claims damages from the Respondents for
    personal injuries received by her in consequence of an explosion
    upon their premises on the 31st August, 1942, and founds her
    claim upon the following pleas: that the Respondents were at
    all material times the occupiers of certain premises known as the
    Elstow Ordnance Factory, that at the said premises the Respon-
    dents carried on the manufacture of high explosive shells which
    were to their knowledge dangerous things, and that, she was law-
    fully in a shell filling shop at the said premises when a high
    explosive shell exploded whereby she suffered injuries, loss, and
    damage.

    My Lords, it does not surprise me that the Respondents defended
    the action by pleading that the statement of claim disclosed no
    cause of action. For, be it observed, the Appellant did not allege
    negligence on the part of the Respondents. That was not an issue
    in the case. Boldly she averred and by her counsel maintained
    the averment before this House, that he who lawfully carries on
    the business of manufacturing high explosive shells upon his
    premises is, without proof of negligence, liable to any person law-
    fully upon those premises who suffers damage by reason of an
    explosion. For, she said, high explosive shells are " dangerous
    "things" and the Respondents knew it. My Lords, there is, I believe,
    no justification for such a proposition of law nor was any authority
    cited for it. The approach to it was ingenious, for in the Appellant's
    formal case the question was thus stated " Whether the manu-
    " facturer of high explosive shells is under strict liability to
    " prevent such shells from exploding and causing harm to persons
    " on the premises where such manufacture is carried on as well
    " as to persons outside such premises." The question thus
    stated assumes that, if the Appellant had been outside the
    premises when she was damaged by the explosion, she would
    have had a cause of action, and for this assumption it is clear that
    Rainham Chemical Works Ltd. v. Belvedere Fish Guano Company
    Ltd.,
    1921 2 A.C. 465, is relied on. That case is an authority binding
    on your Lordships for whatever it decided, but two things at least
    it did not decide, the first that which is indicated in the question
    that I have cited, viz. whether the Respondents have the same
    liability to those within as to those outside their premises, the
    second that the liability, to whomsoever it may be owed,
    extends to purely personal injuries such as the Appellant
    suffered. Holding the view that I do upon the first question I
    think it inexpedient to express a final view upon the second, but I
    would not be taken as assenting to the proposition that if, e.g., the
    plaintiff in Rainham's case had been a natural person who had
    suffered personal injury the result would necessarily have been
    the same.

    I turn then to the first question, which raises the familiar problem
    of strict liability, a phrase which I use to express liability without
    proof of negligence. Here is an age-long conflict of theories which
    is to be found in every system of law. " A man acts at his peril "
    says one theory. " A man is not liable unless he is to blame "
    answers the other. It will not surprise the students of English law
    or of anything English to find that between these theories a middle
    way, a compromise, has been found. For it is beyond question

    [13] 2

    that in respect of certain acts a man will be liable for the harmful
    consequences of those acts, be he never so careful, yet in respect
    of other acts he will not be liable unless he has in some way fallen
    short of a prescribed standard of conduct. It avails not at all to
    argue that because in some respects a man acts at his peril, there-
    fore in all respects he does so. There is not one principle only
    which is to be applied with rigid logic to all cases. To this result
    both the infinite complexity of human affairs and the historical
    development of the forms of action contribute.

    The House has had the advantage not only of an exhaustive
    argument in which a large number of cases were cited and dis-
    cussed and many authoritative text books and articles quoted,
    but also of careful and elaborate judgments in the Courts below,
    and I am left with the impression that it would be possible to find
    support in decision or dictum or learned opinion for almost any
    proposition that might be advanced. Yet I would venture to say
    that the law is that, subject to certain specific exceptions which I
    will indicate, a man is not in the absence of negligence liable in
    respect of things, whether they are called dangerous or not, which
    he has brought or collected or manufactured upon his premises,
    unless such things escape from his premises and, so escaping,
    injure another, and, as I have already said, I would leave it open
    whether even in the event of such escape he is liable (still in the
    absence of negligence) for personal injury as distinguished from
    injury to some proprietary interest.

    My Lords, in this branch of the law it is inevitable that reference
    should be made to what Blackburn J. said in Fletcher v. Rylands
    and what Lord Cairns said in Rylands v. Fletcher. In doing so
    1 think it is of great importance to remember that the subject matter
    of that action was the rights of adjoining landowners and, though
    the doctrine of strict liability there enforced was illustrated by
    reference to the responsibility of the man who keeps beasts, yet
    the defendant was held liable only because he allowed, or did
    not prevent, the escape from his land onto the land of the plaintiff
    of something which he had brought onto his own land and which
    he knew or should have known was liable to do mischief if it
    escaped from it. I agree with the late Lord Justice MacKinnon
    that this and nothing else is the basis of the celebrated judgment
    of Blackburn J., and I think it is no less the basis of Lord Cairns'
    opinion. For it is significant that he emphasises that, if the
    accumulation of water (the very thing which by its escape in that
    case caused the actionable damage) had arisen by the natural user
    of the defendant's land, the adjoining owner could not have
    complained. The decision itself does not justify the broad pro-
    position which the appellant seeks to establish, and I would
    venture to say that the word " escape " which is used so often in
    the judgment of Blackburn J. meant to him escape from the
    defendant's premises and nothing else. It has been urged that
    escape means escape from control, and that it is irrelevant where
    damage takes place if there has been such an escape, but, though
    it is arguable that that ought to be the law, I see no logical
    necessity for it and much less any judicial authority. For, as I
    have said, somewhere the line must be drawn unless full rein be
    given to the doctrine that a man acts always at his peril, that
    " coarse and impolitic idea " as Mr. Justice Holmes somewhere
    calls it. I speak with all deference of modern American text books
    and judicial decisions, but I think little guidance can be obtained
    from the way in which this part of the common law has developed
    on the other side of the ocean, and I would reject the idea that,
    if a man carries on a so-called ultra-hazardous activity on his
    premises, the line must be drawn so as to bring him within the
    limit of strict liability for its consequences to all men everywhere.
    On the contrary I would say that his obligation to those lawfully

    3 [14]

    upon his premises is to be ultra-cautious in carrying on his ultra-
    hazardous activity, but that it will still be the task of the injured
    person to show that the defendant owed to him a duty of care
    and did not fulfil it. It may well be that in the discharge of that
    task he will sometimes be able to call in aid the maxim " res ipsa
    " loquitur ".

    My Lords, I have stated a general proposition and indicated that
    there are exceptions to it. It is clear for instance that if a man
    brings and keeps a wild beast on his land or a beast known to him
    to be ferocious of a species generally mansuetae naturae he may
    be liable for any damage occurring within or without his premises
    without proof of negligence. Such an exception will serve to
    illustrate the proposition that the law of torts has grown up
    historically in separate compartments, and that beasts have
    travelled in a compartment of their own. So also it may be that
    in regard to certain chattels a similar liability may arise, though
    I accept, and would quote with respect, what my learned and noble
    friend Lord Macmillan said in Donoghue v. Stevenson, 1932 A.C.
    562, at p. 611: " 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 ".
    There may be other exceptions. Professor Winfield, to whose
    " Textbook of the Law of Tort", 3rd Edition, 1946, I would
    acknowledge my indebtedness, is inclined to include certain
    " dangerous structures " within the rule of strict liability. This
    may be so. It is sufficient for .my purpose to say that unless a
    plaintiff can point to a specific rule of law in relation to a specific
    subject matter he cannot in my opinion bring himself within the
    exceptions to the general rule that I have stated. I have already
    expressed my view that there is no rule which imposes on him who
    carries on the business of making explosives, though the activity
    may be " ultra-hazardous " and an explosive " a dangerous thing ",
    a strict liability to those who are lawfully on his premises.

    My Lords, it was urged by counsel for the appellant that a

    decision against her when the plaintiff in Rainham's case succeeded

    would show a strange lack of symmetry in the law. There is some

    force in the observation. But your Lordships will not fail to

    observe that such a decision is in harmony with the development

    of a strictly analogous branch of the law, the law of nuisance, in

    which also negligence is not a necessary ingredient in the case.

    For if a man commits a legal nuisance it is no answer to his

    injured neighbour that he took the utmost care not to commit it.

    There the liability is strict, and there only he has a lawful claim

    who has suffered an invasion of some proprietary or other interest

    in land. To confine the rule in Rylands v. Fletcher to cases in

    which there has been an escape from the defendants' land appears

    to me consistent and logical. It is worthy of note that so closely

    connected are the two branches of the law that text books on the

    law of nuisance regard cases coming under the rule in Rylands v.

    Fletcher as their proper subject, and, as the judgment of

    Blackburn J. in that case itself shows, the law of nuisance and the

    rule in Rylands v. Fletcher might in most cases be invoked

    indifferently. One /typical illustration will suffice. In Charing

    Cross Electricity Supply Company v. Hydraulic Power Company,

    1914 3 KB 772, it was the rule in Rylands v. Fletcher that was

    relied on by the Court of Appeal; but the authority of Midwood 6-

    Company Ltd. v. Mayor etc. of Manchester, 1905 2 KB 597, was

    invoked, and that was a case of nuisance and nothing else.

    In suggesting to your Lordships (that except in reference to
    specific subject matter the rule in Rylands v. Fletcher must be
    confined to the escape of something from the defendant's premises
    I am pressed by the fact that in the Charing Cross case the escape


    [15] 4

    was not strictly from the defendant's premises but from pipes laid
    in the soil of another. So also in West v. Bristol Tramways
    Company,
    1908 2 KB 14, the escape was of creosote from wood-
    blocks laid in the highway. It is not necessary to pronounce finally
    upon these cases. It is possible that the rule should be extended
    to include the case where something has escaped from a pipe or
    whatever it may be which has been laid and maintained by the
    defendant by virtue of some right or franchise in the land of
    another. That is not this case. Nor would I exclude the possibility
    of a special rule being applicable as between co-users of a highway,
    for the highway has a law of its own. But that also is not this
    case. For the present purpose it is sufficient to say negatively that
    the appellant being on the respondents' premises cannot hold them
    liable for the damage suffered by her unless she alleges and proves
    negligence by them in their manufacture of explosives.

    The Respondents had a second line of defence on the maxim
    " Volenti non fit injuria ", but this was not maintained before this
    House. It was made clear that the appellant was upon the
    Respondents' premises only because, being registered under the
    National Service Acts, she was required to work there as an
    employee of the Armaments Inspection Department of the
    Ministry of Supply. Had she been a free agent she would not have
    remained there. I content myself by saying that I see no ground
    for dissenting from the opinion of Mr. Justice Cassels on this point.
    It is not, I think, the law of England that the will of a directing
    official of a Government Department becomes the will of the
    unwilling citizen whom he directs.

    Viscount
    Simon

    Lord

    MacrailLan

    Lord
    Porter

    Lord
    Simonds

    Lord
    Uthwatt

    [16]

    Lord Uthwatt

    MY LORDS,

    Under an agreement made in January, 1942, between the Minister
    of Supply and the Respondents, the Respondents agreed that they
    would as agents of the Minister undertake the operation and control
    of the Elstow Ordnance Factory the property of the Minister.
    Pursuant to that agreement the Respondents went into occupation
    of the factory and there manufactured high explosive shells. In
    April, 1942, the Appellant was told at the Labour Exchange that
    she must work at the factory. No statutory direction to that effect
    was served upon her but a direction would have been so served
    had she refused to go. In the result the Appellant, against her
    personal wishes, went to the factory and was there employed in
    the inspecting department as an employee of the Minister. While
    she was in the course of her duties in the shell filling shop, an
    explosion occurred which injured her and others. The appellant
    does not allege either negligence or lack of skill on the part of
    the Respondents. Her case is that by reason of the dangerous
    nature of the business which involved the risk of explosion, they
    owed to her a duty to safeguard her from any harm resulting from
    its dangerous character.

    In substance the Appellant was on the Respondents' premises
    in performance of a statutory duty incumbent on her as a citizen,
    but it is, I think, obvious that this circumstance did not alter the
    nature of the duty which the Respondents owed to her as a person
    who with their consent was present on their premises on business
    bent.

    At the trial and in the Court of Appeal the Respondents raised
    the defence that the Appellant voluntarily incurred the risk of
    explosion as a risk incident to her employment and that the rule
    embodied in the maxim volenti non fit injuria, barred her claim.
    That defence found no favour in the Courts below and was aban-
    doned, and in my opinion rightly abandoned, in this House. The
    Appellant willed what she did, but her will was determined for
    her. Consent by the Appellant to exempt the Respondents from
    any duty they owed to her cannot be implied.

    The only question at issue therefore is whether the Respondents
    owed to the Appellant the absolute duty for which the Appellant
    contends. In my opinion they did not.

    There is much authority on the extent of the duty which an
    occupier of land owes to a person who for one reason or another is
    found on the occupier's land. The background is the original free-
    dom of the landowner keeping within his own bounds to do what
    he liked with and on his own, the King's law save in felonies and
    trespass actions stopping at his boundary. With the development
    of the law and the appearance of the conception of negligence as
    a general ground of liability, that freedom of action without liability
    for resulting harm has been curtailed, and to the rights of a land-
    owner, now represented by the occupier, there have been attached
    the duties of a host. The result is that there is no general standard
    of duty. The circumstances attending the presence of the stranger
    have to be taken into account and determine the duty owed. Put
    broadly, the trespasser can complain of uncivilised conduct, and
    if a child, of the fascinations offered by the occupier's land to
    which, with resulting damage to himself, he has not unnaturally
    succumbed; the demands of a polite society are thereby satisfied:
    the bare licencee is entitled to assume that the gift to him possesses
    its face value as the occupier sees it but cannot otherwise call for
    a review of its character; courtesy is not to be repaid by
    ingratitude: and to the licencee with an interest, commonly called
    an invitee, (and the Appellant comes within this class of invitees),
    a duty of care is owed, the reason being that the invitee may reason-

    [17] 2

    ably expect his interests to be considered. (The animal cases, so
    far as they relate to injuries suffered on the occupier's property, I
    regard as exceptional. They state rules not in themselves
    irrational, but do not exemplify any general principle.) The common
    feature of the duties so far imposed on the occupier is that there
    is demanded of him a standard of conduct no higher than what
    a reasonably minded occupier of land with due regard to his own
    interests might well agree to be fair and no lower than a trespasser,
    bare licencee or invitee might in a civilised community reasonably
    expect.

    Is there any good reason, consistent with respect for the rights
    of dominion and user incident to the occupation of land and with
    an appreciation of the position of an invitee, for subjecting the
    occupier carrying on a dangerous but lawful business to an absolute
    duty to safeguard the invitee from harm? I can see none. In
    carrying on such a business the occupier may be doing something
    which is not common, but he is not doing anything which is out
    of the ordinary course of affairs or which is concealed from the
    invitee. He is in no way abusing his right to use his land. To
    subject him to an absolute duty to an invitee would be, to my
    mind to impose an unreasonable limitation on the due exercise
    of that right. But the relation between the parties is the govern-
    ing consideration and it is the incidents which the law attaches to
    that relation that are in question. I can understand an invitee,
    whatever be the nature of the business carried on, questioning in
    his own mind whether he is entitled to expect that the occupier will
    in conducting his business take due care or whether he is to expect
    only that the occupier will continue to conduct his business in his
    accustomed manner, whatever that may be. But I do not think
    that the invitee, any more than the occupier, would assume that by
    reason only of the dangerous nature of the business carried on,
    the occupier guaranteed him freedom from harm. If that be so,
    it is against reason that the law, whose function it is to give effect
    to reasonable expectations, should impose such a guarantee. A
    measure of care determined by the degree of danger is in my
    opinion the utmost that either party would envisage, and in my
    opinion the law demands that and no other standard of duty. This
    denial of absolute liability to an invitee is indeed not inconsistent
    with the assertion—I do not make it—of an absolute duty towards
    persons who suffer harm outside the occupier's premises. Matters
    happening within one's own bounds are one thing and matters
    happening outside those bounds are an entirely different thing. In
    the latter case the personal relation is absent and the occupier's
    dominion over and right to use his land have to be reconciled with
    the rights of others to use or be present on adjoining lands not
    subject to his dominion.

    Unless compelled by authority to come to a contrary conclusion,
    I would therefore reject the Appellant's contention.

    There is no authority which directly supports that contention.
    The Appellant to some extent relied on the animal cases, but they
    are of no real help. Her sheet anchor was Rylands v. Fletcher.

    That case on the facts related only to the duty which an occupier
    of land—nuisance and negligence not being involved and trespass
    treated as not being involved—owed to an occupier of other land
    in respect of an intrusion from the land of the one to the
    land of the other. The accommodation between occupiers of land
    there laid down was that things liable to escape must be kept by
    an occupier within his bounds unless their presence within those
    bounds was due to a natural use of his land. The liability and
    the excuse both relate to the use of land as affecting other land.
    I do not regard Rylands v. Fletcher as laying down any principle
    other than a principle applicable between occupiers in respect of

    3 [18]

    their lands or as reflecting an aspect of some wider principle
    applicable to dangerous businesses or dangerous things. For the
    purposes of my opinion, therefore, it is unnecessary to consider
    whether or not the use of land here in question was a natural use
    but I desire to express my agreement with the observations which
    the Noble and Learned Lord on the Woolsack has made with refer-
    ence to Richards v. Lothian (1913) A.C.263 and Rainham Chemical
    Works v. Belvedere Fish Guano Company,
    (1921) 2 A.C-465. I
    would only add that "natural" does not mean "primitive".

    The decision of Lewis J. in Howard v. Houlder Lines Ltd. (41
    Com. Cas. 290) is adverse to the Appellant's contention, and there
    is a statement in Membery v. Great Western Railway Co., (14 Ap.
    Cas. 179) which, as I read it, is adverse to it.

    In that case the Railway Co. agreed with a contractor that he
    should shunt their engines supplying horses and men, the Company
    to provide boys to help when they had boys available and when they
    had not the shunting to be done without boys. The operation
    of shunting was dangerous to any man performing it without the
    assistance of boys. While engaged in shunting without a boy, the
    Plaintiff, an employee of the contractor, was without negligence on
    his part injured by a truck running over him. The Plaintiff, who
    was in the circumstances an invitee, based his case on negligence,
    and somewhat surprisingly won in the Court of First Instance.
    Lord Herschell, however, took the opportunity of making a
    statement of his conception of the duties of an occupier to an
    invitee. At p. 191 of the report he said: —

    " Now I do not for a moment doubt that there was a duty in-

    " cumbent upon the defendants towards the plaintiff at the time

    " when he was upon their premises. They were not without duty

    " towards him. But it is not enough to arrive at the conclusion

    " that there was a duty, or even a duty to take care; the extent of

    " that duty requires to be determined. My Lords, I cannot doubt

    " that they were bound to take care that the machinery, or

    " appliances, or tackle of theirs, which he had to use in the course

    " of his discharge of those duties in which they were interested,

    "were in a reasonably fit and proper condition; and certainly if

    " they were not in such a condition, and if the defect in them was

    " unknown to the plaintiff, I cannot doubt that the plaintiff would

    ' have his remedy against them. In addition to that, I think they

    ' were under the duty to him, having invited him upon their

    ' premises, not to permit their premises to be in such a condition

    ' that he unwittingly might fall into a trap of the existence of which

    'he, unacquainted with their premises, would be ignorant, by

    ' which he might sustain an injury. Further than that, it might

    ' be (and I confess that I should myself be disposed to think that

    ' it was) their duty to take due and reasonable care that in the

    " carrying on of their business they did not subject him to unreason-

    " able risk owing to the acts which they did in the carrying on of

    " that business. If they were carrying on a dangerous business,

    "and one which would subject people employed upon their

    " premises for their benefit to risk, they must take reasonable care,

    " as it seems to me, that they do not do any act (I emphatically

    "use the word 'act') which would endanger the safety of the

    "( persons who thus, to their knowledge, are employed about their

    "business upon their premises."

    I understand the latter part of this dictum as emphasising that
    in relation to a dangerous business a duty of care to an invitee is
    demanded from the undertaker, but that a claim based only on the
    dangerous nature of the business is not admissible. So understood,
    I agree with it.

    I would dismiss the appeal.


    (539171 Wt. 8226—24 30 11/46 D.L. G. 338


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