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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Donoghue v Stevenson [1931] UKHL 3 (26 May 1931) URL: http://www.bailii.org/uk/cases/UKHL/1931/3.html Cite as: [1931] UKHL 3, [1932] AC 562 |
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Die Jovis, 26° Maii, 1932.
Parliamentary
Archives,
HL/PO/JU/4/3/873
M'ALISTER or DONOGHUE (Pauper)
v.
STEVENSON.
Lord
Buck-
master.
Lord
Atkin.
Lord
Tomlin.
Lord
Thanker-
ton.
Lord Buckmaster.
MY LORDS,
The facts of this case are simple.
15182 A
2 [2]
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 make a precedent by our de-
" cision 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, 5 Ex., 761, the same eminent
Judge
points out that the earlier case was based on a fraudulent
mis-
statement, and he expressly repudiates the view that it has
any
wider application.
Longmeid v. Holliday
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 manufac-
turer so that the case is
not 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
manufacturer, to another, the former should be answer-
"
able to the latter for the subsequent damage accruing by the
"
use of it."
The general principle of these cases is stated by Sumner L in
the case of Blacker v. Lake & Elliot, 106, L.T. 533, in these terms :—
" The breach of the Defendant's contract with A. to use
" care and skill in 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 defective."
3] 3
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
due to some defect or for any other
reason, and this is known
to the manufacturer.
I do not propose to follow the
fortunes of George v. Skivington;
few cases can have
lived so dangerously and lived so long. Sumner
L. in the case of
Blacker v. Lake & Elliot, 106, L.T., 533,
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 v. Wright.
" The point that Mr. Matthews referred to last was raised
"in the case of George v. Skivington 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
4 [4]
" use he knew it was
purchased and their duty having been
" violated and he having
failed to use reasonable care was liable
" in an action at
the suit of the third person."
It is difficult to appreciate
what is the importance of the fact
that the vendor knew who was
the person for whom the article was
purchased unless it be that
the cage was treated as one of fraud and
that without this element
of knowledge it could not be brought with-
in the principle of
Langridge v. Levy. Indeed this is the only view
of
the matter which adequately explains the references in the
judg-
ments in George v. Skivington to Langridge
v. Levy and the
observations of Cleasby B. upon George
v. Skivington.
The dicta of Lord Esher M.R. in
Heaven v. Pender are rightly
relied on by the Appellant.
The material passage is as follows:
" The proposition which
these recognised cases suggest and
" which is therefore to
be deduced from them is that wherever one
" person is by
circumstances placed in such a position with regard
" to
another that everyone of ordinary sense who did think would
at
once recognise that if he did not use ordinary
care
and skill in his own conduct with regard to those
circum-
stances he would cause danger of injury to
the person
or property of the other a duty arises
to use ordinary
care and skill to avoid such
danger. . . . Let us
" apply this
proposition to the case of one person supplying
" goods or
machinery or instruments or utensils or the like for the
"
purpose of their being used by another person but with whom
"
there is no contract as to the supply. The proposition will stand
" thus : whenever one person supplies goods or machinery or the
" like for the purpose of their being used by another person
under
" such circumstances that everyone of ordinary sense
would if he
" thought recognise at once that unless he used
ordinary care and
" skill with regard to the condition of
the thing supplied or the
" mode of supplying it there will
be danger of injury to 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 it 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
[5] 5
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 Lord Esher considered the
cases of manufactured articles,
for he examined Langridge v.
Levy, and says that it does not
negative the proposition
that the case might nave been supported
on the ground of
negligence.
A 3
6 [6]
" duty is there when there
is no relation between the parties by
" contract? A man is
entitled to be as negligent as he pleases
" towards the whole
world if he owes no duty to them. The case
" of Heaven v.
Pender 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 person or may injure his
'
property."
[7] 7
' 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
' insure.'
15182 A 4
[8]
Lord
Buck-
master.
Lord
Atkin.
ton.
M'ALISTER or DONOGHUE (Pauper)
v.
STEVENSON.
Lord Atkin.
My lords,
[9] 2'
tion 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
introduce non-essentials. The attempt
was made by Lord Esher in
Heaven v. Pender 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 afford-
ing a
valuable practical guide.
3 [10]
'' ing 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 oppor-
" tunity
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, 1893, 1 Q.B. 491, I
think the judgment of
Lord Esher expresses the law of England;
without the qualification
I think that the majority of the Court
in Heaven v. Pender were
justified in thinking the
principle as 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 manufac-
turer. My
Lords, if this were the result of the authorities I should
consider
the result a grave defect in the law, and so contrary to
principle
that I should hesitate long before following any decision
to that
effect which had not the authority of this House. I would
point
out that in the assumed state of the authorities not only would
the
consumer have no remedy against the manufacturer, he would
have
none against anyone else, for in the circumstances alleged
there
would be no evidence of negligence against anyone other than
the
manufacturer; and except in the case of a consumer who was
also a
purchaser no contract and no warranty of fitness and in the
case
of the purchase of a specific article under its patent or trade
name,
which might well be the case in the purchase of some articles
of
food or drink, no warranty protecting even the purchaser-con-
sumer.
There are other instances than of articles of food and
drink where
goods are sold intended to be used immediately by the
consumer,
such as many forms of goods sold for cleaning purposes,
when the
same liability must exist. The doctrine supported by
the decision
below would not only deny a remedy to the consumer
who was injured
by consuming bottled beer or chocolates poisoned
by the negligence
of the manufacturer, but also to the user of what
should be a
harmless proprietary medicine, an ointment, a soap,
a cleaning
fluid or cleaning powder. I confine myself to articles of
common
household use, where everyone including the manufacturer
knows
that the articles will be used by other persons than the
actual
ultimate purchaser, viz., by members of his family and his
servants,
and in some oases his guests. My Lords, I do not think
so ill of
our jurisprudence as to suppose that its principles are
so remote
from the ordinary needs of civilised society and the
ordinary claims
it makes upon its members as to deny a legal
remedy where there
is so obviously a social wrong.
[11] 4:
L.R. 5 Ex. 1. That was a
decision on a demurrer to a
declaration which averred that the
defendant professed to sell a
hair wash 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 negli-
gently 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 toward? the purchaser and it extends in my judg-
''
ment to the person for whose use the vendor knew the compound
"
was purchased," Pigott & Cleasby B.B. put their
judgments
on the same ground. I venture to think that Fry L.J.
in Heaven v:
Pender 12 Q.B.D. at p. 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
Langridge v.
Levy not to defraud. It is worth noticing that George
v.
Skivington was referred to by Cleasby B. himself sitting as
a
member of the Court of Exchequer Chamber in Francis v.
Cockrell
(L.R. 5 Q.B. at p. 515) and was
recognised by him as based on
an ordinary duty to take care. It
was also affirmed by Lord Esher
M.R. in Cunnington v.
South Western Railway Co., 1883 49 L.T.
392, decided on
July 2nd at a date between the argument and the
judgment in
Heaven v. Pender, though as in that case the
Court
negatived any breach of duty the expression of opinion is
not authori-
tative. The existence of the duty contended for is
also supported by
Hawkins v. Greville (1896)
12 T.L.R. 532, where a dock
labourer in the
employ of the Dock Co. 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
Lawrence
J.J., held the defendant liable for negligence. Similarly
in
Elliott v. Hall (1885) 15 Q.B.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 J.J.,
entitled to recover on the
ground of the defendant's 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 defendant's 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:
5 [12]
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 autho-
rity of this House is Chapman v. Sadler &
Co., 1929 A.C.
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 in-
dependent
examination gave rise to a duty to be careful.
I should not omit in this review
of cases the decision in Grote v.
Chester and Holyhead
Railway (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 mis-
direction, 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 in the Exchequer Chamber (1870) L.R. 5
Q.B. at p. 505
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 plead-
ing 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.
[13] 6
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. at p. 531.
The same view was
adopted by the Exchequer Chamber, the user
by the plaintiff being
treated by the Court as one of the acts con-
templated by the
fraudulent defendant. It is unnecessary to
consider whether the
proposition can be supported in its widest
form. It is sufficient
to say that the case was based as I think in
the pleading and
certainly in the judgment on the ground of fraud,
and it appears
to add nothing of value positively or negatively to
the present
discussion. Winterbottom v. Wright 1842 10 M. &
W.
109 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 con-
sider
the whole record including the declaration, and coming to
the
conclusion that the declaration disclosed no cause of action,
gave
judgment for the defendant. 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 Post-
master-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 bad contracted
with the
Postmaster-General to convey the road mailcoach from
Hartford to
Holyhead : and that the plaintiff relying on the said
first
contract hired himself to Atkinson to drive the mailcoach, 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 mailcoach 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 con-
tract : 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 B.B. There
are dicta by Lord Abinger which are
too wide as to an action
of negligence being confined to cases of
breach of a public
duty. The actual decision appears to have been
manifestly
* See Button "Personal
Actions at Common Law" page 113.
16189 A
7
7 [14]
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
those 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 Langmeid
v. Holliday (1851)
6 Ex. 761, the dicta in which have had consider-
able effect in
subsequent decisions. In that case the declaration in
case
alleged that the plaintiff, Frederick Langmeid, 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. 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 con-
tract of sale for breach of the
implied warranty of fitness. The
declaration made no averment
of negligence. Verdict was entered
at the trial by Baron Martin
for the plaintiff but with liberty to
the defendant to move to
enter the verdict for him. A rule having
been obtained
plaintiff's counsel sought to support the verdict on
the ground
that this was not an action for a breach of duty arising
solely
from contract but for an injury resulting from conduct
amounting
to fraud. Baron Parke, 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 anyone delivers to another without notice an
instrument
in its nature dangerous or under particular
circumstances', as a
loaded gun, and refers to Dixon v.
Bell, 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 Baron Parke 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
[15] 8
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, 1869, L.R. 5, Ex. 1,
and
Heaven v. Pender, 1883, 11 Q.B.D. 503, which I
have already
discussed. The next case is Earl v. Lubbock, 1905,
1 K.B. 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,
J.J., and the
Court of Appeal agreed with him. The Master of the
Rolls, Sir R.
Henn Collins, said that the case was concluded
by Winterbottom
v. Wright, 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, 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 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.
9 [16]
of making an essential joint
between the container and the
vaporiser; that the Defendants did
not know that it was dangerous
but ought as reasonable men to have
known it. Hamilton J. seems
to have thought that there was no
evidence of negligence in this
respect. Lush J. expressly says so
and implies " I also think "
that Hamilton J. so
thought. If so the case resolves itself into a
series of important
dicta. Hamilton J. says at p. 536 that it
has been decided in
authorities from Winterbottom v. Wright to
Earl v.
Lubbock 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 irrele-
vant 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 breach of
care or skill in the
manufacture of goods, as contrasted with
repair. The only manu-
facturing case was Langmeid v.
Holliday where negligence was not
alleged. Hamilton J.
recognises that George v. Skivington 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. I find this
very
difficult to understand : for George v. Skivington was
based
upon a duty in the manufacturer to take care independently
of con-
tract while Winterbottom v. Wright was
decided on demurrer in a
case where the alleged duty was based
solely on breach of a contrac-
tual duty to keep in repair and no
negligence was alleged. Lush J.
says in terms that there are only
3 classes of cases in which a
stranger to a contract can sue for
injury by a defective chattel: one
is fraud, the second is
articles dangerous or noxious in themselves
where the duty is only
to warn, the third is public nuisance. He
does not bring the cases
represented by Elliott v. Hall (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 manage-
ment
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 as in Hawkins v.
Smith (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 judg-
ments 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., Ltd.
(1913,
3 K.B., 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 manu-
facturers. 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 danger-
ous in itself, but that 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
[17] 10
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. My Lords,
I do not find it necessary to
discuss at length the cases dealing with
duties where a thing is
dangerous, or in the narrower category
belongs to a class of
things which are dangerous in themselves. I
regard the
distinction as an unnatural one so far as it is used to
serve 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 Hope & Son v.
Anglo
American Oil Co. (1922), 12 Lloyds List 183 at p.
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 con-
" struction
dangerous as a particular thing. The latter if anything
"
seems the more dangerous of the two : it is a wolf in sheep's
cloth-
" ing 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., Ltd. v. Collins & Perkins 1909 A.C.
640
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 discharge
into the building
instead of into the open air. The railway
workmen—the plaintiffs
—were injured by an explosion
in the premises. The defendants
were held liable. Lord
Dunedin in giving the judgment of the
Judicial Committee
consisting of himself, Lord Macnaghten, Lord
Collins and Sir
Arthur Wilson, after stating that there was no
relation of
contract between the plaintiffs and the defendants,
proceeded:
''There may be, however, in the case of anyone per-
"
forming 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 particular duty to take pre-
" caution imposed
upon those who send forth or instal such articles
" where 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. My Lords, 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 danger-
ous. As far as the direct obligation
of the consignor to the carrier
is concerned, it has been put upon
an implied warranty (Brass v.
11 [18]
Maitland (1856) 6 E. &
B. 470), but it is also a duty owed in-
dependently of contract,
e.g. to the carrier's servant (Farrant v.
Barnes 11
C.B.N.S. 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 Rail-
way Co.
v. Warwick 1898 A.C. 216 in which the appellant com-
pany
were held not liable for injuries caused by a defective brake
on a
coal wagon conveyed by the railway company to a point in
the
transit where their contract ended and where the wagons were
taken
over for haulage for the last part of the journey by a second
railway
company on which part the accident happened. It was
held that
the first railway company were under no duty to the
injured
workman to examine the wagon for defects at the end of
their
contractual haulage. There was ample opportunity for in-
spection
by the second railway company. The relations were not
proximate.
In the second Cavalier v. Pope (1906 A.C. 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.
[19] 12
[20]
McALISTER or DONOGHUE (pauper)
Lord Buck-
master.
Lord
Atkin.
Lord
Tomlin.
Lord
Thanker-
ton.
Lord
Macmillan.
V.
STEVENSON.
Lord Tomlin.
MY LORDS,
I have had an opportunity of
considering the opinion prepared
by my noble and learned friend
Lord Buckmaster which I have
already read. As the reasoning of
that opinion and the conclusions
reached therein accord in every
respect with my own views, I pro-
pose to say only a few words.
First I think that if
the appellant is to succeed it must be upon
the proposition that
every manufacturer or repairer of any article
is under a duty to
everyone who may thereafter legitimately use the
article to
exercise due care in the manufacture or repair. It is
logically
impossible to stop short of this point. There can be no
distinction
between food and any other article. Moreover the fact
that an
article of food is sent out in a sealed container can have
no
relevancy on the question of duty. It is only a factor which
may
render it easier to bring negligence home to the
manufacturer.
Secondly I desire to say
that in my opinion the decision in
Winterbottom v. Wright,
10 M. & W. 109, is directly in point
against the
appellant.
The alarming consequences of accepting the validity of this
proposition were pointed out by the defendant's counsel, who said,
" For example, every one of the sufferers by such an accident as
" that which recently happened on the Versailles Railway might
" have his action against the manufacturer of the defective axle."
I will only add to what has
been already said by my noble and
learned friend Lord Buckmaster
with regard to the decisions and
dicta relied upon by the
appellant, and the other relevant reported
cases that I am unable
to explain how the cases of dangerous articles
can have been
treated as " exceptions " if the appellant's contention
is
well founded. Upon the view which I take of the matter the
re-
ported cases, some directly, others impliedly, negative the
existence
as part of the Common Law of England of any principle
affording
support to the appellant's claim, and therefore there
is in my
opinion no material from which it is legitimate for your
Lordships'
House to deduce such a principle.
[21]
M'ALISTER or DONOGHUE (pauper)
v.
DAVID STEVENSON.
Lord
Buck-
master.
Lord
Atkin.
Lord
Tomlin.
Lord
T hanker-
ton.
Lord
Macmillan.
Lord Thankerton.
MY LORDS,
2 [22]
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 negli-
gence if he
has no obligation to exercise diligence—Kemp & Dougall
v
Darngavil Coal Co., 1909 S.C. 1314, per Lord Kinnear at
p.
1319; See also Clelland v. Robb, 1911 S.C. 253, per
Lord Presi-
dent Dunedin and Lord Kinnear at p. 256. 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.
[23] 3
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 irre-
levant, 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 con-
"
tents, 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
manufac-
turer to exclude interference or inspection by the grocer
in that case
should relieve the grocer of any responsibility to
the consumer with-
out any corresponding assumption of duty by the
manufacturer.