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Cite as: [1931] UKHL 3, [1932] AC 562

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM JISCBAILII_CASE_TORT

    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
    Macmillan.

    Lord Buckmaster.

    MY LORDS,

    The facts of this case are simple.

    On August 26th, 1928, the Appellant drank a bottle of ginger
    beer, manufactured by the Respondent, which a friend had bought
    from a retailer and given to her. The bottle contained the decom-
    posed remains of a snail which were not and could not be detected
    until the greater part of the contents of the bottle had been con-
    sumed. As a result she alleged and, at this stage her allegations
    must be accepted as true, that she suffered from shock and severe
    gastro enteritis. She accordingly instituted the proceedings against
    the manufacturers which have given rise to this appeal.

    The foundation of her case is that the Respondent, as the manu-
    facturers of an article intended for consumption and contained in a
    receptacle which prevented inspection owed a duty to her as con-
    sumer of the article to take care that there was no noxious element
    in the goods, that they neglected such duty and are consequently
    liable for any damage caused by such neglect. After certain amend-
    ments which are now immaterial, the case came before the Lord
    Ordinary who rejected the plea in Law of the Respondent and
    allowed a proof. His interlocutor was revoked by the second Division
    of the Court of Session from whose judgment this appeal has been
    brought.

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

    The law applicable is the common law and, though. its prin-
    ciples are capable of application to meet new conditions not con-
    templated when the law was laid down, yet themselves they cannot
    be changed nor can additions be made to them because any particu-
    lar meritorious case seems outside their ambit.

    Now the common law must be sought in law books by writers of
    authority and in the judgments of the Judges entrusted with its
    administration. The law books give no assistance because the work
    of living authors (however deservedly eminent cannot be used as
    authorities though the opinions they express may demand attention,
    and the ancient books do not assist. I turn therefore to the decided
    cases to see if they can be construed so as to support the Appellant's
    case. One of the earliest is the case of Langridge v. Levy, 2 M. &
    W.,519. It is a case often quoted and variously explained. There
    a man sold a gun which he knew was dangerous for the use of the
    purchaser's son. The gun exploded in the son's hands and he was

    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.

    The case of Langridge v. Levy, therefore, can be dismissed from
    consideration with the comment that it is rather surprising it has
    so often been cited for a proposition it cannot support.

    The case of Winterbottom y. Wright, 10 M. & W., 109, is, on the
    other hand, an authority that is closely applicable. Owing to negli-
    gence in the construction of a carriage it broke down and a stranger
    to the manufacture and sale sought to recover damages for injuries
    which he alleged were due to negligence in the work, and it was held
    that he had no cause of action. This case seems to me to show that
    the manufacturer of any article is not liable to a third party
    injured by negligent construction for there can be nothing in the
    character of a coach to place it in a special category.

    It may be noted also that in this case Alderson B. said " The
    " only safe rule is to confine the right to recover to those who enter
    " into the contract. If we go one step beyond that there is no
    " reason why we should not go fifty."

    Longmeid v. 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."

    It is true that he uses the words " lent or given " and omits the
    word; " sold ", but if the duty be entirely independent of contract
    and is a duty owed to a third person, it seems to me the same whether
    the article be originally given or sold. The fact in the present case
    that the gingerbeer originally left the premises of the manufacturer
    on a purchase as was probably the case cannot add to his duty, if
    such existed, to take care in its preparation.

    It has been suggested that the statement of Parke B. does not
    cover the case of negligent construction but the omission to exercise
    reasonable care in the discovery of a defect in the manufacture of
    an article where the duty of examination exists is just as negligent
    as the negligent construction itself.

    The general principle of these cases is stated by 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.

    Until the case of George v. Skivington, L.R., 5 Ex., 1,I know
    of no further modification of the general rule.

    As to (1), in the case of things dangerous in themselves, there is,
    in the words of Dunedin L. " a peculiar duty to take precaution
    '' imposed on those who send forth or instal such articles when it is
    " necessarily the case that other parties will come within their
    " proximity '—Dominion Gas Coy. v. Collins, 1909, A.C., 640.
    And as to (2) this depends on the fact that the knowledge of the
    danger creates the obligation to warn, and its concealment is in the
    nature of fraud.

    In this case no one can suggest the gingerbeer was an article
    dangerous in itself, and the words of Lord Dunedin show that the
    duty attaches only to such articles, for I read the words " a peculiar
    " duty " as meaning a duty peculiar to the special class of subject
    mentioned.

    Of the remaining cases George v. Skivington is the one nearest
    to the present and without that case and the statement of Cleasby B.
    in Francis v. Cockrell, L.R., 5 Q.B. 501, at p. 515, and the dicta
    of Lord Esher M.R. in Heaven v. Pender, 11 Q.B.D., 503 at pp. 500
    et seq., the Appellants would be destitute of authority. George v.
    Skivington related to the sale of a noxious hairwash and a claim
    made by a person who had suffered from its use based on it having
    been negligently compounded was allowed. It is remarkable that
    Langridge v. Levy was used in support of the claim and influenced
    the judgment of all the parties to the decision; both Kelly B. and
    Pigott B. stressed the fact that the article had been purchased to the
    knowledge of the Defendant for the use of the Plaintiff as in Lang-
    ridge
    v. Levy, and Cleasby B. who, realising that Langridge v. Levy
    was decided on the ground of fraud, said: " Substitute the word
    " ' negligent' for ' fraud ' and the analogy between Langridge v.
    " Levy and this case is complete ".

    It is unnecessary to point out too emphatically that such a sub-
    stitution cannot possibly be made. No action based on fraud can be
    supported by mere proof of negligence.

    I do not propose to follow the fortunes of George v. Skivington;
    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.

    In Francis v. Cockrell the Plaintiff had been injured by the fall
    of a stand on a race course for a seat in which he had paid. The
    Defendant was part-proprietor of the stand and acted as receiver
    of the money. The stand had been negligently erected by a con-
    tractor though the Defendant was not aware of the defect. The
    Plaintiff succeeded. The case has no bearing upon the present .but
    in the course of his judgment Cleasby B. made the following
    observation:—

    " The point that Mr. Matthews referred to last was raised

    "in the case of George v. Skivington 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.

    In the same case, however, Cotton L.J., in whose judgment
    Bowen L.J. concurred, said that (he was unwilling to concur with
    the Master of the Rolls in laying down unnecessarily the larger
    principle which he entertained inasmuch as there were many cases
    in which the principle was impliedly negatived.

    He then referred to Langridge v. Levy, and stated that it was
    based upon fraudulent misrepresentation and had been so treated by-
    Coleridge J. in Blackmore v. Bristol and Exeter Railway Co. (8 E.
    & B. 1035), and that in Collis v. Selden (2 M. & W. 519 and M. &
    W. 337) Willes J. had said that tine judgment in Langridge v. Levy
    was based on the fraud of the Defendant. The Lord Justice then
    proceeded as follows: " This impliedly negatives the existence of
    " the larger general principle which is relied on and the decisions
    " in Collis v. Selden and in Langmeid v. Holliday (in each of which
    "the plaintiff failed) are in my opinion at variance with the
    "principle contended for. The case of George v. Skivington and
    " especially what is said by Cleasby B. in giving judgment in that
    " case seem to support the existence of the general principle. But
    " it is not in terms laid down that any such principle exists and
    " that case was decided by Cleasby B. on the ground that the
    " negligence of the Defendant which was his own personal negli-
    " gence was equivalent for the purposes of that action to fraud on
    " which (as he said) the decision in Langridge v. Levy was based.
    " In declining to concur in laying down the principle enunciated
    " by the Master of the Rolls I in no way intimate any doubt as to
    " the principle that anyone who leaves a dangerous instrument as
    " a gun in such a way as to cause danger or who without due warn-
    " ing supplies to others for use an instrument or thing which to his
    " knowledge from its construction or otherwise is in such a con-
    " dition as to cause danger not necessarily incident to the use of
    " such an instrument or, thing is liable for injury caused to others
    " by reason of his negligent act."

    With the views expressed by Cotton L.J. I agree.
    In Le Liecre v Gould, 1893, 1 Q.B. 491, the mortgagees of the
    interest of a builder under a building agreement advanced money
    to him from time to time on the faith of certificates given by a
    surveyor that certain specified stages in the progress of the build-
    ings had been reached. The surveyor was not appointed by the
    mortgagees and there was no contractual relationship between
    him and them. In consequence of the negligence of the surveyor
    the certificates contained untrue statements as to the progress of
    the buildings, but there was no fraud on his part. It was held
    that the surveyor owed no duty to the mortgagees to exercise care
    in giving his certificates and they could not maintain an action
    against him by reason of his negligence. In this case Lord Esher
    seems to have qualified to some extent what he said in Heaven v.
    Pender, for at p. 497 he says this: " But can the plaintiffs rely
    " upon negligence in the absence of fraud ? The question of
    "liability for negligence cannot arise at all until it is established
    " that the man who has been negligent owed some duty to the
    " person who seeks to make him liable for his negligence. What

    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."

    In the same case at p. 504 A. L. Smith L.J. said: The
    " decision of Heaven v. Pender was founded upon the principle
    " that a duty to take care did arise when the person or property of
    " one was in such proximity to the person or property of another
    " that if due care was not taken damage might be done by one to
    '' the other. Heaven v. Pender goes no further than this, though
    " it is often cited to support all kinds of untenable propositions."
    In Earl v. Lubbock, 1905, 1 K.B. 253, the plaintiff had been
    injured by a wheel coming off a van which he was driving for his
    employer and which it was the duty of the defendant under con-
    tract with such employer to keep in repair. The County Court
    Judge and the Divisional Court both held that even if negligence
    was proved the action would not lie. It was held by the Appeal
    Court that the defendant was under no duty to the plaintiff and
    that there was no cause of action. In his judgment Sir Richard Henn
    Collins M.R. said the case was concluded by the authority of Winter-
    bottom
    v. Wright, and he pointed out that the dictum of Lord Esher
    in Heaven v. Pender was not a decision of the Court and that it was
    subsequently qualified and explained by Lord Esher himself in
    Le Lievre v. Gould. Stirling L.J. said that in order to succeed in
    the action the plaintiff must bring his case within the proposition
    enunciated by Cotton L.J. and agreed to by Bowen L.J. in Heaven
    v. Pender, while Mathew L.J. made the following observation:
    ' The argument of counsel for the plaintiff was that the
    defendant's servants had been negligent in the performance of
    ' the contract with the owners of the van and that it followed as
    ' a matter of law that anyone in their employment or indeed
    anyone else who sustained an injury traceable to that negligence
    ' had a cause of action against the defendant. It is impossible to
    ' accept such a wide proposition and indeed it is difficult to see
    ' how if it were the law trade could be carried on. No prudent
    ' man would contract to make or repair what the employer
    ' intended to permit others to use in the way of his trade."

    In Bates v. Batey & Co. Ld., 1913, 3 K.B. 351, the defendants,
    ginger beer manufacturers, were held not liable to a consumer (who
    had purchased from a retailer one of their bottles) for injury
    occasioned by the bottle bursting as the result of a defect of which
    the defendants did not know, but which by the exercise of reason-
    able care they could have discovered. In reaching this conclusion
    Mr. Justice Horridge stated that he thought the judgments of
    Parke B. in Langmeid v. Holliday, of Cotton and Bowen L.JJ. in
    Heaven v. Pender, of Stirling L.J. in Earl v. Lubbock, and of
    Hamilton J. in Blacker v. Lake and Elliot, made it clear that the
    plaintiff was not entitled to recover, and that he had not felt him-
    self bound by George v. Skivington.

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

    One further case mentioned in argument may be referred to
    certainly not by way of authority but to gain assistance by con-
    sidering how similar cases are dealt with by eminent judges of the
    J.S. A. That such cases can have no close application and no autho-
    rity is clear, for though the source of the law in the two countries
    may be the same, its current may well flow in different channels.
    The case referred to is that of Thomas v. Winchester, 6 N.Y. 397

    [7] 7

    There a chemist issued poison in answer to a request for a harm-
    less drug and he was held responsible to a third party injured by
    his neglect.

    It appears to me that the decision might well rest on the
    principle mat he in tact sold a drug dangerous in itself, none the
    less so because he was asked to sell something else, and on this view
    the case does not advance the matter.

    In another case of Macpherson v. Buick Motor Co,, 1916, 217
    N.Y. 382, where a manufacturer of a defective motor car was held
    liable for damages at the instance of a third party, the learned
    Judge appears to base his judgment on the view that a motor car
    might reasonably be regarded as a dangerous article.

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

    The principle contended for must be this: that the manu-
    facturer or indeed the repairer of any article, apart entirely from
    contract, owes a duty to any person by whom the article is lawfully
    used to see that it has been carefully constructed. All rights in
    contract must be excluded from consideration of this principle, for
    such rights undoubtedly exist in successive steps from the original
    manufacturer down to the ultimate purchaser, embraced in the
    general rule that an article is warranted as reasonably fit for the
    purpose for which it is sold. Nor can the doctrine be confined to
    cases where inspection is difficult or impossible to introduce. This
    conception is simply to misapply to tort doctrines applicable to
    sale and purchase.

    The principle of tort lies completely outside the region where
    such considerations apply and the duty, if it exists, must extend
    to every person who, in lawful circumstances, uses the article made.
    There can be no special duty attaching to the manufacture of food,
    apart from that implied by contract or imposed by statute. If
    such a duty exists it seems to me it must cover the construction of
    every article, and I cannot see any reason why it should not apply
    to the construction of a house. If one step why not fifty? Yet if a
    house be, as it sometimes is, negligently built, and in consequence
    of that negligence the ceiling falls and injures the occupier or
    any one else, no action against the builder exists according to the
    English law, although I believe such a right did. exist according-
    to the laws of Babylon. Were such a principle known and
    recognised, it seems to me impossible, having regard to the
    numerous cases that must have arisen to persons injured by
    its disregard, that with the exception of George v. Skivington,
    no case directly involving the principle has ever succeeded in the
    Courts, and were it well known and accepted much of the discussion
    of the earlier cases would have been waste of time.

    In Mullin v. Barr, 1929 S.C. p. 461, a case indistinguishable
    from the present, excepting upon the ground that a mouse is not
    a snail, and necessarily adopted by the Second Division in their
    judgment, Lord Anderson says this :

    ' In a case like the present where the goods of the
    ' defenders are widely distributed throughout Scotland, it
    ' would seem little short of outrageous to make them
    ' responsible to members of the public for the condition of the
    ' contents of every bottle which issues from their works. It
    ' is obvious that if such responsibility attached to the
    ' Defenders, they might be called on to meet claims of
    damages which they could not possibly investigate or
    ' insure.'

    In agreeing, as I do, with the judgment of Lord Anderson, I
    desire to add that I find it hard to dissent from the emphatic nature
    of the language with which his judgment is clothed. I am of
    opinion that this Appeal should be dismissed, and I beg to move
    your Lordships accordingly.

    15182 A 4

    [8]

    Lord
    Buck-
    master.

    Lord

    Atkin.

    Lord
    Tomlin.

    Lord
    Thanker-

    ton.

    M'ALISTER or DONOGHUE (Pauper)

    v.
    STEVENSON.

    Lord Atkin.

    My lords,

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

    It is remarkable how difficult it is to find in the English autho-
    rities statements of general application defining the relations be-
    tween parties that give rise to the duty. The courts are concerned
    with the particular relations which come before them in actual
    litigation, and it is sufficient to say whether the duty exists in those
    circumstances. The result is that the courts have been engaged
    upon an elaborate classification of duties as they exist in respect of
    property whether real or personal with further divisions as to
    ownership, occupation or control, and distinctions based on the
    particular relations of the one side or the other whether manufac-
    turer salesman or landlord, customer, tenant, stranger and so on.
    In this way it can be ascertained at any time whether the law recog-
    nises a duty, but only where the case can be referred to some par-
    ticular species which has been examined and classified. And yet
    the duty which is common to all the cases where liability is estab-
    lished must logically be based upon some element common to the
    cases where it is found to exist. To seek a complete logical defini-

    [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.

    At present I content myself with pointing out that in English
    law there must be and is some general conception of relations,
    giving rise to a duty of care, of which the particular cases found
    in the books are but instances. The liability for negligence whether
    you style it such or treat it as in other systems as a species of
    " culpa " is no doubt based upon a general public sentiment of
    moral wrongdoing for which the offender must pay. But acts or
    omissions which any moral code would censure cannot in a practical
    world be treated so as to give a right to every person injured by
    them to demand relief. In this way rules of law arise which limit
    the range of complainants and the extent of their remedy. The
    rule that you are to love your neighbour becomes m law you must
    not injure your neighbour; and the lawyer's question " Who is my
    ' neighbour ?" receives a restricted reply. You must take reasonable
    care to avoid acts or omissions which you can reasonably foresee
    would be likely to injure your neighbour. Who then in law is my
    neighbour ? The answer seems to be persons who are so closely and
    directly affected by my act that I ought reasonably to have them in
    contemplation as being so affected when I am directing my mind to
    the acts or omissions which are called in question. This appears to
    me to be the doctrine of Heaven v. Pender as laid down by Lord
    Esher when it is limited by the notion of proximity introduced by
    Lord Esher himself and A. L. Smith L.J. in Le Lievre v. Gould,
    1893,1 Q.B. 497. Lord Esher at p. 497 says : " That case established
    " that under certain circumstances one man may owe a duty to
    " another even though there is no contract between them. If one
    " man is near to another or is near to the property of another a
    ' duty lies upon him not to do that which may cause a personal
    " injury to that other or may injure his property." So A. L.
    Smith L.J. : ' The decision of Heaven v. Pender was founded
    " upon the principle that a duty to take due care did arise when
    " the person or property of one was in such proximity to the person
    " or property of another that if due care was not taken damage
    " might be done by the one to the other." I think that this
    sufficiently states the truth if proximity be not confined to mere
    physical proximity; but be used, as I think it was intended, to ex-
    tend to such close and direct relations that the act complained of
    directly affects a person whom the person alleged to be bound to take
    care would know would be directly affected by his careless act. That
    this is the sense in which nearness or " proximity " was intended
    by Lord Esher is obvious from his own illustration in Heaven v.
    Pender at p. 510 of the application of his doctrine to the sale of
    goods : " This " (i.e. the rule he has just formulated) " includes
    " the case of goods, etc., supplied to be used immediately by a par-
    " ticular person or persons or one of a class of persons where it
    " would be obvious to the person supplying if he thought that the
    " goods would in all probability be used at once by such persons
    " before a reasonable opportunity for discovering any defect which
    " might exist and where the thing supplied would be of such a
    " nature that a neglect of ordinary care or skill as to its condition
    " or the manner of supplying it would probably cause danger to the
    " person or property of the person for whose use it was supplied
    " and who was about to use it. It would exclude a case in which
    " the goods are supplied under circumstances in which it would be
    " a chance by whom they would be used or whether they would be
    " used or not or whether there would probably be means of observ-

    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.

    It will be found I think on examination that there is no case in
    which the circumstances have been such as I have just suggested
    where the. liability has been negatived. There are numerous cases
    where the relations were much more remote where the duty has
    been held riot to exist. There are also dicta in such cases which
    go further than was necessary for the determination of the par-
    ticular issues, which have caused the difficulty experienced by the

    [11] 4:

    Courts below. I venture to say that in the branch of the law which
    deals with civil wrongs, dependent in England at any rate entirely
    upon the application by judges of general principles also formu-
    lated by judges, it is of particular importance to guard against
    the danger of stating propositions of law in wider terms than is
    necessary, lest essential factors be omitted in the wider survey,
    and the inherent adaptability of English law be unduly restricted.
    For this reason it is very necessary in considering reported cases
    in the law of torts that the actual decision Alone should carry autho-
    rity proper weight of course being given to the" dicta of the judges.
    In my opinion several decided cases support the view that in
    such a case as the present the manufacturer owes a duty to the con-
    sumer to be careful. A direct authority is George v. Skivington

    1. 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

    2. (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.

    It now becomes necessary to consider the cases which have been
    referred to in the Courts below as laying down the proposition that
    no duty to take care is owed to the consumer in such a case as this.

    In Dixon v. Bell, 1816 5 M. & S. 198, the defendant had left a
    loaded gun at his lodgings and sent his servant, a mulatto girl aged
    about 13 or 14, for the gun, asking the landlord to remove the
    priming and give it her. The landlord did remove the priming
    and gave it to the girl, who later levelled it at the plaintiff's small
    son, drew the trigger and injured the boy. The action was in
    case for negligently entrusting the young servant with the gun.
    The jury at the trial before Lord Ellenborough had returned a
    verdict for the plaintiff. A motion by Sir William Garrow,
    Attorney-General, for a new trial was dismissed by the Court. Lord
    Ellenborough and Bayley J.J., the former remarking that it was
    incumbent on the defendant, who by charging the gun had made
    it capable of doing mischief, to render it safe and innoxious.

    In, Langridge v. Levy (1837) 2 M. & W. 519 (1838) 4 M. & W.
    337 the action was in case and the declaration alleged that the

    [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.

    Mathew, L.J., appears to me to put the case on its proper
    footing when he says at p. 259 the argument of the Plaintiff was
    that the Defendant's servants had been negligent in the perform-
    ance of the contract with the owners of the van and that it followed
    as a matter of law that any one in this employment had a cause of
    action against the Defendant. " It is impossible to accept such a
    " wide proposition and indeed it is difficult to see how if it
    " were the law trade could be carried on." I entirely agree. I
    have no doubt that in that case the Plaintiff failed to show that
    the repairer owed any duty to him. The question of law in that
    case seems very different to that raised in the present case. The
    case of Blacker v. Lake & Elliot Ltd. 1912 (104 L.T. 533)
    approaches more nearly the facts of this case. I have read and
    re-read it having unfeigned respect for the authority of the two
    learned judges, Hamilton and Lush, J.J., who decided it: and I am
    bound to say I have found difficulty in formulating the precise
    grounds upon which the judgment was given. The Plaintiff had been
    injured by the bursting of a brazing lamp which he had bought
    from a shopkeeper who had bought it from the manufacturer, the
    Defendant. The Plaintiff had used the lamp for 12 months
    before the accident. The case was tried in the County
    Court before that excellent lawyer, the late Judge Sir Rowland
    Roberts. That learned judge had directed the jury that
    the Plaintiff could succeed if the Defendants had put upon
    the market a lamp not fit for use in the sense that a person work-
    ing it with reasonable care would incur a risk which a properly
    constructed lamp would not impose upon him. The jury found
    that the lamp was defective by reason of an improper system

    A8

    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.

    In the most recent case Bottomley v. Bannister (1932) 101 L. J.
    K.B. 46 an action under Lord Campbell's Act the deceased man the
    father of the plaintiff had taken an unfurnished house from the
    defendants who had installed a gas boiler with a special gas burner
    which if properly regulated required no flue. The deceased and his
    wife were killed by fumes from the apparatus. The case was deter-
    mined on the ground that the apparatus was part of the realty and
    that the landlord did not know of the danger : but there is a dis-
    cussion of the case on the supposition that it was a chattel. Greer
    L.J. at p. 54 states with truth that it is not easy to reconcile all the
    authorities : and that there is no authority binding on the Court of
    Appeal that a person selling an article which he did not know to
    be dangerous can be held liable to a person with whom he has made
    no contract by reason of the fact that reasonable inquiries might
    have enabled him to discover that the article was in fact dangerous.
    When the danger is in fact occasioned by his own lack of care then in
    cases of a proximate relationship this case will I trust supply the
    deficiency.

    It is always a satisfaction to an English lawyer to be able to
    test his application of fundamental principles of the common law
    by the development of the same doctrines by the lawyers of the
    Courts of the United States. In that country I find that the law
    appears to be well established in the sense in which I have indicated.
    The mouse had emerged from the ginger beer bottle in the U.S.
    before it appeared in Scotland but there it brought a liability
    upon the manufacturer. I must not in this long judgment do more
    than refer to the illuminating judgment of Cardozo J. in McPher-
    son
    v. Buick Motor Co. in the New York Court of Appeals (1916) 217
    N.Y. 382 in which he states the principles of the law as I should
    desire to state them and reviews the authorities in other States than
    his own. Whether the principle he affirms would apply to the par-
    ticular facts of that case in this country would be a question for
    consideration if the case arose. It might be that the course of busi-
    ness by giving opportunities of examination to the immediate pur-
    chaser or otherwise prevented the relation between manufacturer and
    the user of the car being so close as to create a duty. But the
    American decision would undoubtedly lead to a decision in favour
    of the pursuer in the present case.'

    [19] 12

    My Lords if your Lordships accept the view that this pleading
    discloses a relevant cause of action you will be affirming the pro-
    position that by Scots and English law alike a manufacturer of
    products which he sells in such a form as to show that he intends
    them to reach the ultimate consumer in the form in which they left
    him with no reasonable possibility of intermediate examination,
    and with the knowledge that the absence of reasonable care in the
    preparation or putting up of the products is likely to result in injury
    to the consumers life or property owes a duty to the consumer to take
    that reasonable care. It is a proposition that I venture to say no
    one in Scotland or England who was not a lawyer would for one
    moment doubt. It will be an advantage to make it clear that the
    law in this matter as in most others is in accordance with sound
    common sense. I think that this appeal should be allowed.

    [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 examination of the report makes it, I think, plain (1) that
    negligence was alleged and was the basis of the claim, and (2) that
    the wide proposition which I have indicated was that for which the
    plaintiff was contending.

    The declaration averred (inter alia) that the defendant " so im-
    properly and negligently conducted himself " that the accident com-
    plained of happened.

    The plaintiff's counsel said, " here the declaration alleges the
    " accident to have happened through the defendant's negligence
    " and want of care."

    The alarming consequences of accepting the validity of this

    proposition were pointed out by the defendant'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."

    That the action which was in case embraced a cause of action in
    tort is I think implicit in its form and appears from the concluding
    sentence of Lord Abinger's judgment, which was in these terms:
    " By permitting this action we should be working this injustice,
    " that after the defendant had done everything to the satisfaction
    " of his employer and after all matters between them had been
    " adjusted and all accounts settled on the footing of their contract,
    " we should subject them to be ripped open by this action of tort
    " being brought against him."

    I will only add to what has been already said by my 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,

    In this action the Appellant claims reparation from the Res-
    pondent in respect of illness and other injurious effects resulting
    from the presence of a decomposed snail in a bottle of gingerbeer,
    alleged to have been manufactured by the Respondent, and which
    was partially consumed by her, it having been ordered by a friend
    on her behalf in a cafe in Paisley.

    The action is based on negligence, and the only question in this
    appeal is whether, taking the Appellant's averments pro veritate,
    they disclose a case relevant in law, so as to entitle her to have
    them remitted for proof. The Lord Ordinary allowed a proof, but,
    on a reclaiming note for the Respondent, the Second Division of
    the Court of Session recalled the Lord Ordinary's interlocutor and
    dismissed the action, following their decision in the recent cases
    of Mullen v. Barr & Co. and McGowan v. Barr & Co., 1929 S.C. 461.

    The Appellant's case is that the bottle was sealed with a metal
    cap, and was made of dark opaque glass, which not only excluded
    access to the contents before consumption if the contents were to
    retain their aerated condition, but also excluded the possibility of
    visual examination of the contents from outside; and that on the
    side of the bottle there was pasted a label containing the name and
    address of the Respondent, who was the manufacturer. She states
    that the shopkeeper, who supplied the gingerbeer, opened it and
    poured some of its contents into a tumbler, which contained some
    ice cream, and that she drank some of the contents of the tumbler;
    that her friend then lifted the bottle and was pouring the remainder
    of the contents into the tumbler, when a snail, which had been, un-
    known to her, her friend, or the shopkeeper, in the bottle, and was
    in a state of decomposition, floated out of the bottle.

    The duties which the Appellant accuses the Respondent of
    having neglected may be summarised as follows: (a) that the gin-
    gerbeer was manufactured by the Respondent or his servants to be
    sold as an article of drink to members of the public (including the
    Appellant), and that accordingly it was his duty to exercise the
    greatest care in order that snails would not get into the bottles,
    render the gingerbeer dangerous and harmful, and be sold with the
    gingerbeer, (b) a duty to provide a system of working his business
    which would not allow snails to get into the sealed bottles, and in
    particular would not allow the bottles when washed to stand in
    places to which snails had access, (c) a duty to provide an efficient
    system of inspection, which would prevent snails getting into the
    sealed bottles, and (d) a duty to provide clear bottles, so as to
    facilitate the said system of inspection.

    There can be no doubt, in my opinion, that equally in the law
    of Scotland and of England it lies upon the party claiming redress
    in such a case to show that there was some relation of duty between
    her and the defender which required the defender to exercise due
    and reasonable care for her safety. It is not at all necessary that

    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.

    We are not dealing here with a case of what is called an article
    per se dangerous or one which was known by the defender to be
    dangerous, in which cases a special duty of protection or adequate
    warning is placed upon the person who uses or distributes it. The
    present case is that of a manufacturer and a consumer, with whom
    he has no contractual relation, of an article which the manufacturer
    did not know to be dangerous, and, unless the consumer can estab-
    lish a special relationship with the manufacturer, it is clear, in my
    opinion, that, neither the Law of Scotland nor the Law of England,
    will hold that the manufacturer has any duty towards the consumer
    to exercise diligence. In such a case the remedy of the consumer, if
    any, will lie against the intervening party from whom he has pro-
    cured the article. I am aware that the American Courts, in the
    decisions referred to by my noble and learned friend Lord Mac-
    millan, have taken a view more favourable to the consumer.

    The special circumstances, from which the Appellant claims
    that such a relationship of duty should be inferred, may, I think,
    be stated thus, viz. that the Respondent, in placing his manu-
    factured article of drink upon the market, has intentionally so
    excluded interference with, or examination of, the article by any
    intermediate handler of the goods between himself and the con-
    sumer, that he has, of his own accord, brought himself into direct
    relationship with the consumer, with the result that the consumer
    is entitled to rely upon the exercise of diligence by the manufacturer
    to secure that the article shall not be harmful to the consumer. If
    that contention be sound, the consumer, on her showing that the
    article has reached her intact, and that she has been injured by the
    harmful nature of the article owing to the failure of the manu-
    facturer to take reasonable care in its preparation prior to its
    enclosure in the sealed vessel, will be entitled to reparation from
    the manufacturer.

    In my opinion the existence of a legal duty under such
    circumstances is in conformity with the principles of both the Law
    of Scotland and of the Law of England. The English cases
    demonstrate how impossible it is to finally catalogue, amid the ever-
    varying types of human relationships, those relationships in which
    a duty to exercise care arises apart from contract, and each of these
    cases relates to its own set of circumstances, out of which it was
    claimed that the duty had arisen. In none of these cases were the
    circumstances identical with the present case as regards that which
    regard as the essential element in this case, viz., the manu-
    facturer's own action in bringing himself into direct relationship
    with the party injured. I have had the privilege of considering
    the discussion of these authorities by my noble and learned friend
    Lord Atkin in the judgment which he has just delivered, and I so
    entirely agree with it that I cannot usefully add anything to it.

    An interesting illustration of similar circumstances is to be
    found in Gordon v. McHardy, (1903) 6 F. 210, in which the pursuer
    sought to recover damages from a retail grocer on account of the
    death of his son by ptomaine poisoning, caused by eating tinned

    [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.

    My Lords, I am of opinion that the contention of the Appellant
    is sound and that she has relevantly averred a relationship of duty
    as between the Respondent and herself, as also that her
    averments of the Respondent's neglect of that duty are relevant.

    The cases of Mullen and McGowan which t