donoghue v stevenson westlaw_document_17!53!47

*317 Donoghue v Stevenson.

House of Lords

Buckmaster, Atkin, Tomlin, Thankerton, andMacMillan

26 May 1932

Reparation—Negligence—Manufacturer of articleand consumer—Bottle of ginger beer bought fromretailer—Bottle containing remains of decomposedsnail—Injury to consumer—Averments of negli-gence on part of manufacturer in making or bottlingthe ginger beer—Action of damages by consumeragainst manufacturer on ground of negli-gence—Relevance—Held (dissenting Lords Buck-master and Tomlin, reversing judgment of SecondDivision) that where a manufacturer had issued hisgoods in receptacles which prevented any interfer-ence by retailers or others in the course of transmis-sion to the consumer, he owed a duty to the ulti-mate consumer for negligence in the manufactureof his goods which might render him liable in dam-ages—Averments held relevant to go to proof.

Appeal from Interlocutor of Second Division ( TheLord Justice-Clerk, Lords Ormidale and Anderson;Lord Hunter dissenting ).

Mrs May M'Alister or Donoghue brought an actionin the Court of Session against David Stevenson,aerated water manufacturer, Paisley, claiming dam-ages stated at £500 for injuries received by herthrough drinking ginger beer of the defender'smake.

The pursuer averred, inter alia :

COND. 2. At or about 8.50 P.M. on or about 26thAugust 1928 the pursuer was in the shop occupiedby Francis Minchella, and known as Wellmeadow

Café, at Wellmeadow Place, Paisley, with a friend.The said friend ordered for the pursuer ice-creamand ginger beer suitable to be used with the ice-cream as an iced drink. Her friend, acting as afore-said, was supplied by the said Mr Minchella with abottle of ginger beer manufactured by the defenderfor sale to members of the public. The said bottlewas made of dark opaque glass, and the pursuer andher friend had no reason to suspect that the saidbottle contained anything else than the aerated wa-ter. The said Mr Minchella poured some of the saidginger beer from the bottle into a tumbler contain-ing the ice-cream. The pursuer then drank some ofthe contents of the tumbler. Her friend then liftedthe said ginger beer bottle and was pouring out theremainder of the contents into the said tumblerwhen a snail, which had been—unknown to the pur-suer, her friend, or the said Mr Minchella—in thebottle, and was in a state of decomposition, floatedout of the said bottle. In consequence of the naus-eating sight of the snail in said circumstances, andof the noxious condition of the said snail-taintedginger beer consumed by her, the pursuer sustainedthe shock and illness hereinafter condescended on.The said Mr Minchella also sold to the pursuer'sfriend a pear and ice. The averments in answer, sofar as not coinciding herewith, are denied. The saidginger beer bottle was fitted with a metal cap overits mouth. On the side of the said bottle there waspasted a label containing, inter alia , the name andaddress of the defender, who was the manufacturer.It was from this label that the pursuer's said friendgot the name and address of the defender.

COND. 3. The shock and illness suffered by thepursuer were due to the fault of the defender. Thesaid ginger beer was manufactured by the defenderand his servants to be sold as an article of drink tomembers of the public (including the pursuer). Itwas, accordingly, the duty of the defender to exer-cise the greatest care in order that snails would notget into the said bottle, render the said ginger beerdangerous and harmful, and be sold with the said

1932 S.L.T. 317 [1932] A.C. 562 1932 S.C. (H.L.) 31 1932 S.L.T. 317 [1932] W.N. 139 [1932] A.C. 562 1932 S.C. (H.L.) 31 1932S.L.T. 317 [1932] W.N. 139(Cite as: 1932 S.L.T. 317)

© 2012 Thomson Reuters.

ginger beer. Further, it was the duty of the defenderto provide a system of working his business thatwas safe, and would not allow snails to get into hisginger beer bottles (including the said bottle). Sucha system is usual and customary, and is necessaryin the manufacture of a drink like ginger beer to beused for human consumption. In these duties thedefender culpably failed, and pursuer's illness andshock were the direct result of his said failure induty. The pursuer believes and avers that the de-fender's system of working his business was defect-ive, in respect that his ginger beer bottles werewashed and allowed to stand in places to which itwas obvious that snails had freedom of access fromoutside the defender's premises, and in which, in-deed, snails and the slimy trails of snails were fre-quently found. Further, it was the duty of the de-fender to provide an efficient system of inspectionof said bottles before the ginger beer was filled intothem, and before they were sealed. In this duty alsothe defender culpably failed, and so caused the saidaccident. The defender well knew, or ought to haveknown, of the frequent presence of snails in thoseparts of his premises where the ginger beer bottleswere washed and dried, and, further, ought to haveknown of the danger of small animals (includingsnails) getting into his ginger beer bottles. The pur-suer believes and avers that the said snail, in goinginto the said bottle, left on its path a slimy trail,which should have been obvious to anyone inspect-ing the said bottle before the ginger beer was putinto it. In any event, the said trail of the snailshould easily have been discovered on the bottlebefore the bottle was sealed, and a proper (or in-deed any) inspection would have revealed the pres-ence of the said trail and the said snail, and the saidbottle of ginger beer with the snail in it would nothave been placed for sale in the said shop. Further,the defender well knew, or in any event ought tohave known, that small animals like mice or snailsleft in aerated water (including ginger beer), anddecomposing there, render aerated water exceed-ingly dangerous and harmful to persons drinkingthe contaminated aerated water. Accordingly, it washis obvious duty to provide clear ginger beer bottles

so as to facilitate the said system of inspection. Inthis duty also the defender culpably failed, and thesaid accident was the direct result of his said failurein duty. If the defender and his said servants hadcarried out their said duties, the pursuer would nothave suffered the said shock and illness.*318

The pursuer pleaded, inter alia :

“1.The pursuer having sustained loss, injury, anddamage through the fault of the defender, is entitledto reparation therefor from the defender.”

The defender pleaded, inter alia :

“1.The pursuer's averments being irrelevant and in-sufficient to support the conclusions of the sum-mons, the action should be dismissed.”

On 27th June 1930 the Lord Ordinary (Moncrieff)repelled the first plea in law for the defender, andallowed a proof.

The pursuer reclaimed to the Second Division, who,on 13th November 1930, recalled the interlocutorof the Lord Ordinary and dismissed the action.

Their Lordships based their opinions entirely on theviews which they had expressed in Mullen v. A. G.Barr & Co. Ltd. (1929 S.C. 461; 1929, S.L.T. 341)from which the present case was indistinguishable.Lord Hunter dissented on the same grounds onwhich he had dissented in that case.

The pursuer appealed to the House of Lords. Thecase was heard on 10th and 11th December 1931.

On 26th May 1932 their Lordships ( diss. LordsBuckmaster and Tomlin) reversed the judgment ofthe Second Division, and remitted the case forproof.

Lord Buckmaster [read by Lord Tomlin].— Thefacts of this case are simple. On the 26th of August1928 the appellant drank a bottle of ginger beer,manufactured by the respondent, which a friend hadbought from a retailer and given to her. The bottle



http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=999&FindType=Y&SerialNum=1929025999


contained the decomposed remains of a snail whichwere not and could not be detected until the greaterpart of the contents of the bottle had been con-sumed. As a result she alleged, and at this stage herallegations must be accepted as true, that shesuffered from shock and severe gastro-enteritis. Sheaccordingly instituted the proceedings against themanufacturer which have given rise to this appeal.

The foundation of her case is that the respondent, asthe manufacturer of an article intended for con-sumption and contained in a receptacle which pre-vented inspection, owed a duty to her as consumerof the article to take care that there was no noxiouselement in the goods, that he neglected such dutyand is consequently liable for any damage causedby such neglect. After certain amendments whichare now immaterial, the case came before the LordOrdinary, who rejected the plea in law of the re-spondent and allowed a proof. His interlocutor wasrecalled by the Second Division of the Court ofSession, from whose judgment this appeal has beenbrought.

Before examining the merits two comments are de-sirable: (1) That the appellant's case rests solely onthe ground of a tort based not on fraud but on negli-gence; and (2) that throughout the appeal the casehas been argued on the basis, undisputed by theSecond Division and never questioned by counselfor the appellant or by any of your Lordships, thatthe English and the Scots law on the subject areidentical. It is therefore upon the English law alonethat I have considered the matter, and in my opin-ion it is on the English law alone that in the circum-stances we ought to proceed.

The law applicable is the common law, and thoughits principles are capable of application to meet newconditions not contemplated when the law was laiddown, these principles cannot be changed nor canadditions be made to them because any particularmeritorious case seems outside their ambit.

Now the common law must be sought in law booksby writers of authority and in judgments of the

judges entrusted with its administration. The lawbooks give no assistance, because the work of liv-ing authors, however deservedly eminent, cannot beused as authorities, though the opinions they ex-press may demand attention; and the ancient booksdo not assist. I turn therefore to the decided cases tosee if they can be construed so as to support the ap-pellant's case. One of the earliest is the case of Lan-gridge v. Levy (1837, 2 M. & W. 519) . It is a caseoften quoted and variously explained. There a mansold a gun which he knew was dangerous for theuse of the purchaser's son. The gun exploded in theson's hands and he was held to have a right of ac-tion in tort against the gunmaker. How far it is fromthe present case can be seen from the judgment ofParke B., who in delivering the judgment of theCourt used these words: “We should pause beforewe made a precedent by our decision which wouldbe an authority for an action against the vendors,even of such instruments and articles as are danger-ous in themselves, at the suit of any person whom-soever into whose hands they might happen to passand who should be injured thereby” ; and in Long-meid v. Holliday (1851, 6 Ex. 761) the same emin-ent judge points out that the earlier case was basedon a fraudulent misstatement, and he expressly re-pudiates the view that it has any wider application.The case of Langridge v. Levy , therefore, can bedismissed from consideration with the commentthat it is rather surprising it has so often been citedfor a proposition it cannot support.

The case of Winterbottom v. Wright (1842, 10 M.& W. 109) is, on the other hand, an authority that isclosely applicable. Owing to negligence in the con-struction of a carriage it broke down, and a strangerto the manufacture *319 and sale sought to recoverdamages for injuries which he alleged were due tonegligence in the work, and it was held that he hadno cause of action either in tort or arising out ofcontract. This case seems to me to shew that themanufacturer of any article is not liable to a thirdparty injured by negligent construction, for therecan be nothing in the character of a coach to placeit 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 recoverto those who enter into the contract; if we go onestep beyond that, there is no reason why we shouldnot go fifty.”

Longmeid v. Holliday was the case of a defectivelamp sold to a man whose wife was injured by itsexplosion. The vendor of the lamp against whomthe action was brought was not the manufacturer, sothat the case is not exactly parallel to the present,but the statement of Parke B. in his judgment cov-ers the case of manufacturer, for he said: “It wouldbe going much too far to say that so much care isrequired in the ordinary intercourse of life betweenone individual and another, that if a machine not inits nature dangerous … . but which might becomeso by a latent defect entirely unknown, althoughdiscoverable by the exercise of ordinary care,should be lent or given by one person, even by themanufacturer, to another, the former should be an-swerable to the latter for a subsequent damage ac-cruing by the use of it.” It is true that he uses thewords “lent or given” and omits the word “sold,”but if the duty be entirely independent of contractand is a duty owed to a third person, it seems to meto be the same whether the article be originally giv-en or sold. The fact in the present case that theginger beer originally left the premises of the man-ufacturer on a purchase, as was probably the case,cannot add to his duty, if such existed, to take carein 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 thediscovery of a defect in the manufacture of an art-icle where the duty of examination exists is just asnegligent as the negligent construction itself.

The general principle of these cases is stated byLord Sumner in the case of Blacker v. Lake & Elli-ot (1912, 106 L. T. 533 at p. 536) in these terms:

“The breach of the defendant's contract with A to

use care and skill in and about the manufacture orrepair of an article does not of itself give any causeof action to B when he is injured by reason of thearticle proving to be defective.”

From this general rule there are two well-knownexceptions: (1) In the case of an article dangerousin itself, and (2) where the article not in itself dan-gerous is in fact dangerous, due to some defect orfor any other reason, and this is known to the manu-facturer. Until the case of George v. Skivington(1869, L.R. 5 Ex. 1) I know of no further modifica-tion of the general rule.

As to (1), in the case of things dangerous in them-selves, there is, in the words of Lord Dunedin, “apeculiar duty to take precaution imposed uponthose who send forth or install such articles when itis necessarily the case that other parties will comewithin their proximity” ( Dominion Natural Gas Co.Ltd. v. Collins, [1909] A.C. 640 ). And as to (2),this depends on the fact that the knowledge of thedanger creates the obligation to warn, and its con-cealment is in the nature of fraud. In this case noone can suggest that ginger beer was an article dan-gerous in itself, and the words of Lord Dunedinshew that the duty attaches only to such articles, forI read the words “a peculiar duty” as meaning aduty peculiar to the special class of subject men-tioned.

Of the remaining cases, George v. Skivington is theone nearest to the present, and without that case,the statement of Cleasby B. in Francis v. Cockrell(1870, L.R. 5 Q.B. 501 at p. 515), and the dicta ofEsher M.R. in Heaven v. Pender (1883, 11 Q.B.D.503 at pp. 509et seq. ), the appellant would be des-titute of authority. George v. Skivington related tothe sale of a noxious hairwash, and a claim made bya person who had not bought it but who hadsuffered from its use, based on its having been neg-ligently compounded, was allowed. It is remarkablethat Langridge v. Levy was used in support of theclaim and influenced the judgment of all the partiesto the decision. Both Kelly B. and Pigott B. stressedthe fact that the article had been purchased to the











knowledge of the defendant for the use of theplaintiff as in Langridge v. Levy , and Cleasby B.,who, realising that Langridge v. Levy was decidedon the ground of fraud, said: “Substitute the word‘negligent’ for ‘fraud’ and the analogy betweenLangridge v. Levy and this case is complete.” It isunnecessary to point out too emphatically that sucha substitution cannot possibly be made. No actionbased on fraud can be supported by mere proof ofnegligence.

I do not propose to follow the fortunes of George v.Skivington ; few cases can have lived so danger-ously and lived so long. Lord Sumner, in the caseof Blacker v. Lake & Elliot , closely examines itshistory, and I agree with his analysis. He said thathe could not presume to say that it was wrong, buthe declined to follow it on the ground, which is, Ithink, firm, *320 that it was in conflict with Win-terbottom v. Wright .

In Francis v. Cockrell the plaintiff had been injuredby the fall of a stand on a racecourse, for a seat inwhich he had paid. The defendant was part-proprietor of the stand and acted as receiver of themoney. The stand had been negligently erected by acontractor, though the defendant was not aware ofthe defect. The plaintiff succeeded. The case has nobearing upon the present, but in the course of hisjudgment Cleasby B. made the following observa-tion: “The point that Mr Matthews referred to lastwas 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 hus-band. The wife was considered to have a goodcause of action, and I would adopt the view whichthe Lord Chief Baron took in that case. He saidthere was a duty on the vendor to use ordinary carein compounding the article sold, and that this exten-ded to the person for whose use he knew it was pur-chased, and this duty having been violated, and he,having failed to use reasonable care, was liable inan action at the suit of the third person.” It is diffi-cult to appreciate what is the importance of the factthat the vendor knew who was the person for whom

the article was purchased unless it be that the casewas treated as one of fraud, and that without thiselement of knowledge it could not be brought with-in the principle of Langridge v. Levy , Indeed, thisis the only view of the matter which adequately ex-plains the references in the judgments in George v.Skivington to Langridge v. Levy and the observa-tions of Cleasby B. upon George v. Skivington .

The dicta of Esher M.R. in Heaven v. Pender arerightly relied on by the appellant. The material pas-sage is as follows:

“The proposition which these recognised cases sug-gest, and which is therefore to be deduced fromthem, is that whenever one person is by circum-stances placed in such a position with regard to an-other that everyone of ordinary sense who did thinkwould at once recognise that if he did not use ordin-ary care and skill in his own conduct with regard tothose circumstances he would cause danger of in-jury to the person or property of the other, a dutyarises to use ordinary care and skill to avoid suchdanger… . . Let us apply this proposition to thecase of one person supplying goods or machinery orinstruments or utensils, or the like, for the purposeof their being used by another person, but withwhom there is no contract as to the supply. The pro-position will stand thus: whenever one person sup-plies goods, or machinery, or the like, for the pur-pose of their being used by another person undersuch circumstances that everyone of ordinary sensewould, if he thought, recognise at once that unlesshe used ordinary care and skill with regard to thecondition of the thing supplied or the mode of sup-plying it, there will be danger of injury to the per-son or property of him for whose use the thing issupplied, and who is to use it, a duty arises to useordinary care and skill as to the condition or man-ner of supplying such thing. And for a neglect ofsuch ordinary care or skill whereby injury happensa legal liability arises to be enforced by an actionfor negligence. This includes the case of goods,etc., supplied to be used immediately by a particu-lar 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 probabil-ity be used at once by such persons before a reason-able opportunity for discovering any defect whichmight exist, and where the thing supplied would beof such a nature that a neglect of ordinary care orskill as to its condition or the manner of supplyingit would probably cause danger to the person orproperty of the person for whose use it was sup-plied and who was about to use it. It would excludea case in which the goods are supplied under cir-cumstances in which it would be a chance by whomthey would be used or whether they would be usedor not, or whether they would be used before therewould probably be means of observing any defect,or where the goods would be of such a nature that awant of care or skill as to their condition or themanner of supplying them would not probably pro-duce danger of injury to person or property. Thecases of vendor and purchaser and lender and hirerunder contract need not be considered, as the liabil-ity arises under the contract, and not merely as aduty imposed by law, though it may not be uselessto observe that it seems difficult to import the im-plied obligation into the contract except in cases inwhich, if there were no contract between theparties, the law would according to the rule abovestated imply the duty.”

“The recognised cases” to which the Master of theRolls refers are not definitely quoted, but they ap-pear to refer to cases of collision and carriage andthe cases of visitation to premises on which there issome hidden danger—cases far removed from thedoctrine he enunciates. None the less this passagehas been used as a tabula in naufragio for many lit-igants struggling in the seas of adverse authority. Itcannot, however, be divorced from the fact that thecase had nothing whatever to do with the questionof manufacture and sale. An unsound staging hadbeen erected on premises to which there had beenan invitation to the plaintiffs to enter, and the casereally depended on the duty of the owner of thepremises to persons *321 so invited. None the lessit is clear that Lord Esher considered the cases of

manufactured articles, for he examined Langridgev. Levy , and says that it does not negative the pro-position that the case might have been supported onthe ground of negligence.

In the same case, however, Cotton L.J., in whosejudgment Bowen L.J. concurred, said that he wasunwilling to concur with the Master of the Rolls inlaying down unnecessarily the larger principlewhich he entertained, inasmuch as there were manycases in which the principle was impliedly negat-ived. He then referred to Langridge v. Levy , andstated that it was based upon fraudulent misrepres-entation, and had been so treated by Coleridge J. inBlackmore v. Bristol and Exeter Railway Co. (8 E.& B. 1035) , and that in Collis v. Selden (L.R. 3C.P. 495) Willes J. had said that the judgment inLangridge v. Levy was based on the fraud of thedefendant. The Lord Justice then proceeded as fol-lows:

“This impliedly negatives the existence of the lar-ger general principle which is relied on, and the de-cisions in Collis v. Selden and in Longmeid v. Holl-iday (in each of which the plaintiff failed) are in myopinion at variance with the principle contendedfor. The case of George v. Skivington , and espe-cially what is said by Cleasby B. in giving judg-ment in that case, seems to support the existence ofthe general principle. But it is not in terms laiddown that any such principle exists, and that casewas decided by Cleasby B. on the ground that thenegligence of the defendant, which was his ownpersonal negligence, was equivalent, for the pur-poses of that action, to fraud, on which (as he said)the decision in Langridge v. Levy was based. In de-clining to concur in laying down the principle enun-ciated by the Master of the Rolls, I in no way intim-ate any doubt as to the principle that anyone wholeaves a dangerous instrument, as a gun, in such away as to cause danger, or who without due warn-ing supplies to others for use an instrument or thingwhich to his knowledge, from its construction orotherwise, is in such a condition as to cause danger,not necessarily incident to the use of such an instru-







ment or thing, is liable for injury caused to othersby reason of his negligent act.”

With the views expressed by Cotton L.J. I agree.

In Le Lievre v. Gould ([1893] 1 Q.B. 491) themortgagees of the interest of a builder under abuilding agreement advanced money to him fromtime to time on the faith of certificates given by asurveyor that certain specified stages in the pro-gress of the buildings had been reached. The sur-veyor was not appointed by the mortgagees andthere was no contractual relationship between himand them. In consequence of the negligence of thesurveyor the certificates contained untrue state-ments as to the progress of the buildings, but therewas no fraud on his part. It was held that the sur-veyor owed no duty to the mortgagees to exercisecare in giving his certificates, and they could notmaintain an action against him by reason of hisnegligence. In this case Lord Esher seems to havequalified 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 theabsence of fraud? The question of liability for neg-ligence cannot arise at all until it is established thatthe man who has been negligent owed some duty tothe person who seeks to make him liable for hisnegligence. What duty is there when there is no re-lation between the parties by contract? A man is en-titled to be as negligent as he pleases towards thewhole world if he owes no duty to them. The caseof Heaven v. Pender has no bearing upon thepresent question. That case established that, undercertain circumstances, one man may owe a duty toanother even though there is no contract betweenthem. If one man is near to another, or is near to theproperty of another, a duty lies upon him not to dothat which may cause a personal injury to that oth-er, 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 foundedupon the principle that a duty to take due care did

arise when the person or property of one was insuch proximity to the person or property of anotherthat, if due care was not taken, damage might bedone by one to the other. Heaven v. Pender goes nofurther than this, though it is often cited to supportall kinds of untenable propositions.”

In Earl v. Lubbock ([1905] 1 K.B. 253) the plaintiffhad been injured by a wheel coming off a vanwhich he was driving for his employer and which itwas the duty of the defendant under contract withsuch employer to keep in repair. The County Courtjudge and the Divisional Court both held that, evenif negligence was proved, the action would not lie.It was held by the Appeal Court that the defendantwas under no duty to the plaintiff and that there wasno cause of action. In his judgment Collins M.R.said the case was concluded by the authority ofWinterbottom v. Wright , and he pointed out thatthe dictum of Lord Esher in Heaven v. Pender wasnot a decision of the Court and that it was sub-sequently qualified and explained by Lord Esherhimself in Le Lievre v. Gould . Stirling L.J. saidthat in order to succeed in the action the plaintiffmust bring his case within the proposition enunci-ated by Cotton L.J. and agreed to by Bowen L.J. inHeaven v. Pender , while *322 Mathew L.J. madethe following observation:

“The argument of counsel for the plaintiff was thatthe defendant's servants had been negligent in theperformance of the contract with the owners of thevan, and that it followed as a matter of law thatanyone in their employment, or indeed anyone elsewho sustained an injury traceable to that negli-gence, 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 thelaw, trade could be carried on. No prudent manwould contract to make or repair what the employerintended to permit others to use in the way of histrade.”

In Bates v. Batey & Co. Ltd. ([1913] 3 K.B. 351)the defendants, ginger beer manufacturers, wereheld not liable to a consumer (who had purchased






from a retailer one of their bottles) for injury occa-sioned by the bottle bursting as the result of a de-fect of which the defendants did not know, butwhich by the exercise of reasonable care they couldhave discovered. In reaching this conclusion MrJustice Horridge stated that he thought the judg-ments of Parke B. in Longmeid v. Holliday , ofCotton and Bowen L.JJ. in Heaven v. Pender , ofStirling L.J. in Earl v. Lubbock , and of Hamilton J.in Blacker v. Lake and Elliot , made it clear that theplaintiff was not entitled to recover, and that he hadnot felt himself bound by George v. Skivington .

So far, therefore, as the case of George v. Skiving-ton and the dicta in Heaven v. Pender are con-cerned, it is in my opinion better that they shouldbe buried so securely that their perturbed spiritsshall no longer vex the law.

One further case mentioned in argument may be re-ferred to, certainly not by way of authority, but togain assistance by considering how similar casesare dealt with by eminent judges of the U.S.A. Thatsuch cases can have no close application and no au-thority is clear, for though the source of the law inthe two countries may be the same, its current maywell flow in different channels. The case referred tois that of Thomas v. Winchester (1852, 6 N.Y. 397). There a chemist issued poison in answer to a re-quest for a harmless drug, and he was held respons-ible to a third party injured by his neglect. It ap-pears to me that the decision might well rest on theprinciple that he, in fact, sold a drug dangerous initself, none the less so because he was asked to sellsomething else, and on this view the case does notadvance the matter.

In another case of MacPherson v. Buick Motor Co.(1916, 217 N.Y. 382) , where a manufacturer of adefective motor car was held liable for damages atthe instance of a third party, the learned judge ap-pears to base his judgment on the view that a motorcar might reasonably be regarded as a dangerousarticle.

In my view, therefore, the authorities are against

the appellant's contention, and, apart from author-ity, it is difficult to see how any common law pro-position can be formulated to support her claim.

The principle contended for must be this: that themanufacturer, or indeed the repairer, of any article,apart entirely from contract, owes a duty to any per-son by whom the article is lawfully used to see thatit has been carefully constructed. All rights in con-tract must be excluded from consideration of thisprinciple, for such contractual rights as may exist insuccessive steps from the original manufacturerdown to the ultimate purchaser are ex hypothesi im-material. Nor can the doctrine be confined to caseswhere inspection is difficult or impossible to intro-duce. This conception is simply to misapply to tortdoctrines applicable to sale and purchase.

The principle of tort lies completely outside the re-gion where such considerations apply, and the duty,if it exists, must extend to every person who, inlawful circumstances, uses the article made. Therecan be no special duty attaching to the manufactureof food apart from those implied by contract or im-posed by statute. If such a duty exists, it seems tome it must cover the construction of every article,and I cannot see any reason why it should not applyto the construction of a house. If one step, why notfifty? Yet if a house be, as it sometimes is, negli-gently built, and in consequence of that negligencethe ceiling falls and injures the occupier or anyoneelse, no action against the builder exists accordingto the English law, although I believe such a rightdid exist according to the laws of Babylon. Weresuch a principle known and recognised, it seems tome impossible, having regard to the numerous casesthat must have arisen to persons injured by its dis-regard, that with the exception of George v. Skiv-ington no case directly involving the principle hasever succeeded in the Courts, and, were it wellknown and accepted, much of the discussion of theearlier cases would have been waste of time, andthe distinction as to articles dangerous in them-selves or known to the vendor to be dangerouswould be meaningless.



In Mullen v. Barr (1929 S.C. 461) , a case indistin-guishable from the present excepting upon theground that a mouse is not a snail, and necessarilyadopted by the Second Division in their judgment,Lord Anderson says this:

“In a case like the present, where the goods of thedefenders are widely distributed throughout Scot-land, it would seem little short of outrageous tomake them responsible to members of the public forthe condition of the contents of every *323 bottlewhich issues from their works. It is obvious that, ifsuch responsibility attached to the defenders, theymight be called on to meet claims of damageswhich they could not possibly investigate or an-swer.”

In agreeing, as I do, with the judgment of Lord An-derson, I desire to add that I find it hard to dissentfrom the emphatic nature of the language withwhich his judgment is clothed. I am of opinion thatthis appeal should be dismissed, and I beg to moveyour Lordships accordingly.

Lord Atkin.

The sole question for determination in this case islegal: Do the averments made by the pursuer in herpleading, if true, disclose a cause of action? I neednot restate the particular facts. The question iswhether the manufacturer of an article of drink soldby him to a distributor, in circumstances which pre-vent the distributor or the ultimate purchaser orconsumer from discovering by inspection any de-fect, is under any legal duty to the ultimate pur-chaser or consumer to take reasonable care that thearticle is free from defect likely to cause injury tohealth. I do not think a more important problem hasoccupied your Lordships in your judicial capacity:important both because of its bearing on publichealth and because of the practical test which it ap-plies to the system of law under which it arises. Thecase has to be determined in accordance with Scotslaw; but it has been a matter of agreement betweenthe experienced counsel who argued this case, andit appears to be the basis of the judgments of the

learned judges of the Court of Session, that for thepurposes of determining this problem the laws ofScotland and of England are the same. I speak withlittle authority on this point, but my own research,such as it is, satisfies me that the principles of thelaw of Scotland on such a question as the presentare identical with those of English law; and I dis-cuss the issue on that footing. The law of bothcountries appears to be that in order to support anaction for damages for negligence the complainanthas to shew that he has been injured by the breachof a duty owed to him in the circumstances by thedefendant to take reasonable care to avoid such in-jury. In the present case we are not concerned withthe breach of the duty; if a duty exists, that wouldbe a question of fact which is sufficiently averredand for present purposes must be assumed. We aresolely concerned with the question whether, as amatter of law in the circumstances alleged, the de-fender owed any duty to the pursuer to take care.

It is remarkable how difficult it is to find in theEnglish authorities statements of general applica-tion defining the relations between parties that giverise to the duty. The Courts are concerned with theparticular relations which come before them in ac-tual litigation, and it is sufficient to say whether theduty exists in those circumstances. The result is thatthe Courts have been engaged upon an elaborateclassification of duties as they exist in respect ofproperty whether real or personal, with further divi-sions as to ownership, occupation, or control, anddistinctions based on the particular relations of theone side or the other, whether manufacturer, sales-man or landlord, customer, tenant, stranger, and soon. In this way it can be ascertained at any timewhether the law recognises a duty, but only wherethe case can be referred to some particular specieswhich has been examined and classified. And yetthe duty which is common to all the cases where li-ability is established must logically be based uponsome element common to the cases where it isfound to exist. To seek a complete logical defini-tion of the general principle is probably to go bey-ond the function of the judge, for the more general




the definition the more likely it is to omit essentialsor to introduce non-essentials. The attempt wasmade by Lord Esher in Heaven v. Pender in a defin-ition to which I will later refer. As framed, it wasdemonstrably too wide, though it appears to me, ifproperly limited, to be capable of affording a valu-able practical guide.

At present I content myself with pointing out that inEnglish law there must be, and is, some generalconception of relations giving rise to a duty of care,of which the particular cases found in the books arebut instances. The liability for negligence, whetheryou style it such or treat it as in other systems as aspecies of “culpa,” is no doubt based upon a gener-al public sentiment of moral wrongdoing for whichthe offender must pay. But acts or omissions whichany moral code would censure cannot in a practicalworld be treated so as to give a right to every per-son injured by them to demand relief. In this wayrules of law arise which limit the range of com-plainants and the extent of their remedy. The rulethat you are to love your neighbour becomes in law,you must not injure your neighbour; and the law-yer's question, Who is my neighbour? receives a re-stricted reply. You must take reasonable care toavoid acts or omissions which you can reasonablyforesee would be likely to injure your neighbour.Who, then, in law is my neighbour? The answerseems to be— persons who are so closely and dir-ectly affected by my act that I ought reasonably tohave them in contemplation as being so affectedwhen I am directing my mind to the acts or omis-sions which are called in question. This appears tome to be the doctrine of Heaven v. Pender as *324laid down by Lord Esher when it is limited by thenotion of proximity introduced by Lord Esher him-self and A. L. Smith L.J. in Le Lievre v. Gould([1893] 1 Q.B. 491) . Lord Esher, at p. 497, says:“That case established that, under certain circum-stances, one man may owe a duty to another, eventhough there is no contract between them. If oneman is near to another, or is near to the property ofanother, a duty lies upon him not to do that whichmay cause a personal injury to that other, or may

injure his property.” So A. L. Smith L.J.: The de-cision of Heaven v. Pender was founded upon theprinciple, that a duty to take due care did arisewhen the person or property of one was in suchproximity to the person or property of another that,if due care was not taken, damage might be done bythe one to the other. I think that this sufficientlystates the truth if proximity be not confined to merephysical proximity, but be used, as I think it was in-tended, to extend to such close and direct relationsthat the act complained of directly affects a personwhom the person alleged to be bound to take carewould know would be directly affected by his care-less act. That this is the sense in which nearness of“proximity” was intended by Lord Esher is obviousfrom his own illustration in Heaven v. Pender (at p.510) of the application of his doctrine to the sale ofgoods. “This” ( i.e. the rule he has just formulated)“includes the case of goods, etc., supplied to beused immediately by a particular person or persons,or one of a class of persons, where it would be ob-vious to the person supplying, if he thought that thegoods would in all probability be used at once bysuch persons before a reasonable opportunity fordiscovering any defect which might exist, andwhere the thing supplied would be of such a naturethat a neglect of ordinary care or skill as to its con-dition or the manner of supplying it would probablycause danger to the person or property of the personfor whose use it was supplied, and who was aboutto use it. It would exclude a case in which thegoods are supplied under circumstances in which itwould be a chance by whom they would be used orwhether they would be used or not, or whether theywould be used before there would probably bemeans of observing any defect, or where the goodswould be of such a nature that a want of care orskill as to their condition or the manner of supply-ing them would not probably produce danger of in-jury to person or property.” I draw particular atten-tion to the fact that Lord Esher emphasises the ne-cessity of goods having to be “used immediately”and “used at once before a reasonable opportunityof inspection.” This is obviously to exclude thepossibility of goods having their condition altered





by lapse of time, and to call attention to the proxim-ate relationship, which may be too remote where in-spection even of the person using, certainly of anintermediate person, may reasonably be interposed.With this necessary qualification of proximate rela-tionship as explained in Le Lievre v. Gould ([1893]1 Q.B. 491) , I think the judgment of Lord Esherexpresses the law of England; without the qualifica-tion, I think that the majority of the Court in Heav-en v. Pender were justified in thinking the principlewas expressed in too general terms. There will nodoubt arise cases where it will be difficult to de-termine whether the contemplated relationship is soclose that the duty arises. But in the class of casenow before the Court I cannot conceive any diffi-culty to arise. A manufacturer puts up an article offood in a container which he knows will be openedby the actual consumer. There can be no inspectionby any purchaser and no reasonable preliminary in-spection by the consumer. Negligently, in thecourse of preparation, he allows the contents to bemixed with poison. It is said that the law of Eng-land and Scotland is that the poisoned consumerhas no remedy against the negligent manufacturer.If this were the result of the authorities, I shouldconsider the result a grave defect in the law, and socontrary to principle that I should hesitate long be-fore following any decision to that effect which hadnot the authority of this House. I would point outthat, in the assumed state of the authorities, notonly would the consumer have no remedy againstthe manufacturer, he would have none against any-one else, for in the circumstances alleged therewould be no evidence of negligence against anyoneother than the manufacturer; and except in the caseof a consumer who was also a purchaser, no con-tract and no warranty of fitness, and in the case ofthe purchase of a specific article under its patent ortrade name, which might well be the case in thepurchase of some articles of food or drink, no war-ranty protecting even the purchaser-consumer.There are other instances than of articles of foodand drink where goods are sold intended to be usedimmediately by the consumer, such as many formsof goods sold for cleaning purposes, when the same

liability must exist. The doctrine supported by thedecision below would not only deny a remedy tothe consumer who was injured by consumingbottled beer or chocolates poisoned by the negli-gence of the manufacturer, but also to the user ofwhat should be a harmless proprietary medicine, anointment, a soap, a cleaning fluid or cleaningpowder. I confine myself to articles of commonhousehold use, where everyone, including the man-ufacturer, knows that the articles will be used byother persons than the *324 actual ultimate pur-chaser, viz. by members of his family and his ser-vants, and in some cases his guests. I do not thinkso ill of our jurisprudence as to suppose that itsprinciples are so remote from the ordinary needs ofcivilised society and the ordinary claims it makesupon its members as to deny a legal remedy wherethere is so obviously a social wrong.

It will be found, I think, on examination that thereis no case in which the circumstances have beensuch as I have just suggested where the liability hasbeen negatived. There are numerous cases wherethe relations were much more remote where theduty has been held not to exist. There are also dictain such cases which go further than was necessaryfor the determination of the particular issues, whichhave caused the difficulty experienced by theCourts below. I venture to say that in the branch ofthe law which deals with civil wrongs, dependent inEngland at any rate entirely upon the application byjudges of general principles also formulated byjudges, it is of particular importance to guardagainst the danger of stating propositions of law inwider terms than is necessary, lest essential factorsbe omitted in the wider survey and the inherent ad-aptability of English law be unduly restricted. Forthis reason it is very necessary in considering repor-ted cases in the law of torts that the actual decisionalone should carry authority, proper weight ofcourse being given to the dicta of the judges.

In my opinion several decided cases support theview that in such a case as the present the manufac-turer owes a duty to the consumer to be careful. A





direct authority is George v. Skivington (1869, L.R.5 Ex. 1) . That was a decision on a demurrer to adeclaration which averred that the defendant pro-fessed to sell a hairwash made by himself and thatthe plaintiff Joseph George bought a bottle, to beused by his wife, the plaintiff, Emma George, as thedefendant then knew, and that the defendant had sonegligently conducted himself in preparing andselling the hairwash that it was unfit for use,whereby the female plaintiff was injured. KellyC.B. said that there was no question of warranty,but whether the chemist was liable in an action onthe case for unskilfulness and negligence in themanufacture of it. “Unquestionably there was sucha duty towards the purchaser, and it extends, in myjudgment, to the person for whose use the vendorknew the compound was purchased.” Pigott andCleasby BB. put their judgments on the sameground. I venture to think that Cotton L.J., in Heav-en v. Pender (11 Q.B.D. at p. 517) , misinterpretsCleasby B.'s judgment in the reference to Langridgev. Levy (4 M. & W. 337) . Cleasby B. appears tome to make it plain that in his opinion the duty totake reasonable care can be substituted for the dutywhich existed in Langridge v. Levy not to defraud.It is worth noticing that George v. Skivington wasreferred to by Cleasby B. himself sitting as a mem-ber of the Court of Exchequer Chamber in Francisv. Cockrell (1870, L.R. 5 Q.B. at p. 515) and wasrecognised by him as based on an ordinary duty totake care. It was also affirmed by Esher M.R. inCunnington v. Great Northern Railway Co. (1883,49 L.T. 392) , decided on 2nd July at a datebetween the argument and the judgment in Heavenv. Pender , though as in that case the Court negat-ived any breach of duty the expression of opinion isnot authoritative. The existence of the duty conten-ded for is also supported by Hawkins v. Smith(1896, 12 T.L.R. 532) , where a dock labourer inthe employ of the dock company was injured by adefective sack which had been hired by the con-signees from the defendant, who knew the use towhich it was to be put, and had been provided bythe 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 DivisionalCourt, Day and Lawrence J.J., held the defendantliable for negligence. Similarly, in Elliott v. Hall(1885, 16 Q.B.D. 315) the defendants, collieryowners, consigned coal to the plaintiff's employers,coal merchants, in a truck hired by the defendantsfrom a wagon company. The plaintiff was injuredin the course of unloading the coal by reason of thedefective condition of the truck, and was held by aDivisional Court, Grove and A. L. Smith JJ., en-titled to recover on the ground of the defendant'sbreach of duty to see that the truck was not in adangerous condition. It is to be noticed that inneither case was the defective chattel in the defend-ants' occupation, possession or control, or on theirpremises, while in the latter case it was not eventheir property. It is sometimes said that the liabilityin these cases depends upon an invitation by the de-fendant to the plaintiff to use his chattel. I do notfind the decisions expressed to be based upon thisground but rather upon the knowledge that theplaintiff in the course of the contemplated use ofthe chattel would use it: and the supposed invitationappears to me to be in many cases a fiction, andmerely a form of expressing the direct relationbetween supplier and user which gives rise to theduty to take care. A very recent case which has theauthority of this House is Oliver v. Sadler & Co.([1929] A.C. 584; 1929 S.C. (H.L.) 94) . In thatcase a firm of stevedores employed to unload acargo of maize in bags provided the rope slings bywhich the cargo was raised to the ship's deck bytheir own men using the ship's tackle, and thentransported *325 to the dockside by the shore port-ers of whom the plaintiff was one. The porters re-lied on examination by the stevedores and hadthemselves no opportunity of examination. In thesecircumstances this House, reversing the decision ofthe First Division, held that there was a duty owedby the stevedore company to the porters to see thatthe slings were fit for use, and restored the judg-ment of the Lord Ordinary, Lord Morison, in favourof the pursuer. I find no trace of the doctrine of in-vitation in the opinions expressed in this House, ofwhich mine was one: the decision was based upon










the fact that the direct relations established, espe-cially the circumstance that the injured porter hadno opportunity of independent examination, gaverise to a duty to be careful.

I should not omit in this review of cases the de-cision in Grote v. Chester and Holyhead Railway(1848, 2 Ex. 251) . That was an action on the casein which it was alleged that the defendants had con-structed a bridge over the Dee on their railway andhad licensed the use of the bridge to the Shrews-bury and Chester Railway to carry passengers overit, and had so negligently constructed the bridgethat the plaintiff, a passenger of the last-named rail-way, had been injured by the falling of the bridge.At the trial before Vaughan Williams J. the judgehad directed the jury that the plaintiff was entitledto recover if the bridge was not constructed withreasonable care and skill. On a motion for a newtrial the Attorney-General (Sir John Jervis) conten-ded that there was misdirection, for the defendantswere only liable for negligence, and the jury mighthave understood that there was an absolute liability.The Court of Exchequer, after consulting the trialjudge as to his direction, refused the rule. This caseis said by Kelly C.B. in Francis v. Cockrell in theExchequer Chamber (1870, L.R. 5 Q.B. at p. 505)to have been decided upon an implied contract withevery person lawfully using the bridge that it wasreasonably fit for the purpose. I can find no trace ofsuch a ground in the pleading or in the argument orjudgment. It is true that the defendants were theowners and occupiers of the bridge. The law as tothe liability to invitees and licensees had not thenbeen developed. The case is interesting, because itis a simple action on the case for negligence, andthe Court upheld the duty to persons using thebridge to take reasonable care that the bridge wassafe.

It now becomes necessary to consider the caseswhich have been referred to in the Courts below aslaying down the proposition that no duty to takecare is owed to the consumer in such a case as this.

In Dixon v. Bell (1816, 5 M. & S. 198) the defend-

ant had left a loaded gun at his lodgings and senthis servant, a mulatto girl aged about thirteen orfourteen, for the gun, asking the landlord to removethe priming and give it her. The landlord did re-move the priming and gave it to the girl, who laterlevelled it at the plaintiff's small son, drew the trig-ger, and injured the boy. The action was in case fornegligently entrusting the young servant with thegun. The jury at the trial before Lord Ellenboroughhad returned a verdict for the plaintiff. A motion bySir William Garrow, Attorney-General, for a newtrial was dismissed by the Court, Lord Ellenbor-ough and Bayley J., the former remarking that itwas incumbent on the defendant, who by chargingthe gun had made it capable of doing mischief, torender 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 de-claration alleged that the defendant, by falsely andfraudulently warranting a gun to have been made byNock and to be a good, safe, and secure gun, soldthe gun to the plaintiff's father for the use of him-self and his son, and that one of his sons, confidingin the warranty, used the gun, which burst and in-jured him. Plea not guilty and no warranty as al-leged. The report is not very satisfactory. No evid-ence is reported of any warranty or statement ex-cept that the gun was an elegant twist gun by Nock.The judge left to the jury whether the defendant hadwarranted the gun to be by Nock and to be safe;whether it was in fact unsafe; and whether the de-fendant warranted it to be safe knowing that it wasnot so. The jury returned a general verdict for theplaintiff. It appears to have been argued that theplaintiff could recover wherever there is a breach ofduty imposed on the defendant by contract or other-wise, and the plaintiff is injured by reason of itsbreach; by this is meant apparently that the dutyneed not be owed to the plaintiff, but that he cantake advantage of the breach of a duty owed to athird party. This contention was negatived by theCourt, who held, however, that the plaintiff couldrecover if a representation known to be false wasmade to a third person with the intention that a








chattel should be used by the plaintiff, even thoughit does not appear that the defendant intended thefalse representation to be communicated to him (seeper Parke B., 2 M. & W. at p. 531 ). The same viewwas adopted by the Exchequer Chamber, the userby the plaintiff being treated by the Court as one ofthe acts contemplated by the fraudulent defendant.It is unnecessary to consider whether the proposi-tion can be supported in its widest form. It is suffi-cient to say that the case was based, as I think, inthe pleading, and certainly in the judgment, on*327 the ground of fraud, and it appears to addnothing of value positively or negatively to thepresent 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 towhich there was no decision by the Court; but onthe hearing of the plaintiff's demurrer the Court, inaccordance with the practice of the day, were en-titled to consider the whole record, including thedeclaration, and, coming to the conclusion that thisdeclaration disclosed no cause of action, gave judg-ment for the defendant (see Sutton's Personal Ac-tions at Common Law, p. 113). The advantage ofthe procedure is that we are in a position to knowthe precise issue at law which arose for determina-tion. The declaration was in case, and alleged thatthedefendanthadcontractedwiththePostmaster-Gen-eral to provide the mail-coach to convey mails fromHartford to Holyhead and to keep the mails in safecondition; that Atkinson and others, with notice ofthe said contract, had contracted with the Post-master-General to convey the road mail-coach fromHartford to Holyhead; and that the plaintiff, relyingon the said first contract, hired himself to Atkinsonto drive the mail-coach; but that the defendant sonegligently conducted himself and so utterly disreg-arded his aforesaid contract that the defendant, hav-ing the means of knowing, and well knowing, allthe aforesaid premises, the mail-coach being in adangerous condition owing to certain latent defectsand to no other cause gave way, whereby theplaintiff was thrown from his seat and injured. It isto be observed that no negligence apart from breachof contract was alleged—in other words, no duty

was alleged other than the duty arising out of thecontract; it is not stated that the defendant knew, orought to have known, of the latent defect. The argu-ment of the defendant was that, on the face of thedeclaration, the wrong arose merely out of thebreach of a contract, and that only a party to thecontract could sue. The Court of Exchequer adoptedthat view, as clearly appears from the judgments ofAlderson and Rolfe BB. There are dicta by LordAbinger which are too wide as to an action of negli-gence being confined to cases of breach of a publicduty. The actual decision appears to have beenmanifestly right; no duty to the plaintiff arose outof the contract; and the duty of the defendant underthe contract with the Postmaster-General to put thecoach in good repair could not have involved thosedirect relations with the servant of the personswhom the Postmaster-General employed to drivethe coach as would give rise to a duty of care owedto such servant. We now come to Longmeid v. Hol-liday (1851, 6 Ex. 761) , the dicta in which havehad considerable effect in subsequent decisions. Inthat case the declaration in case alleged that theplaintiff, Frederick Longmeid, had bought from thedefendant, the maker and seller of “the Hollidaylamp,” a lamp to be used by himself and his wifeEliza in the plaintiff's shop; that the defendant in-duced the sale by the false and fraudulent warrantythat the lamp was reasonably fit for the purpose;and that the plaintiff Eliza, confiding in the saidwarranty, lighted the lamp, which exploded,whereby she was injured. It is perhaps not an extra-vagant guess to suppose that the plaintiffs' pleaderhad read the case of Langridge v. Levy . The juryfound all the facts for the plaintiffs except the alleg-ation of fraud; they were not satisfied that the de-fendant knew of the defects. The plaintiff Frederickhad already recovered damages on the contract ofsale for breach of the implied warranty of fitness.The declaration made no averment of negligence.Verdict was entered at the trial by Baron Martin forthe plaintiff, but with liberty to the defendant tomove to enter the verdict for him. A rule havingbeen obtained, plaintiffs' counsel sought to supportthe 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 amountingto fraud. Baron Parke, who delivered the judgmentof the Court, held that, fraud having been negat-ived, the action could not be maintained on thatground. He then went on to discuss cases in which athird person not a party to a contract may sue fordamages sustained if it is broken. After dealingwith the negligence of a surgeon or of a carrier, orof a firm in breach of contract committing a nuis-ance on a highway, he deals with the case whereanyone delivers to another without notice an instru-ment in its nature dangerous, or under particularcircumstances, as a loaded gun, and refers to Dixonv. Bell , though what this case has to do with con-tract it is difficult to see. He then goes on: “But itwould be going much too far to say that so muchcare is required in the ordinary intercourse of lifebetween one individual and another, that, if a ma-chine not in its nature dangerous—a carriage for in-stance—but which might become so by a latent de-fect entirely unknown although discoverable by theexercise of ordinary care, should be lent or given byone person, even by the person who manufacturedit, to another, the former should be answerable tothe latter for a subsequent damage accruing by theuse of it.” It is worth noticing how guarded thisdictum is. The case put is a machine such as a car-riage not in its nature dangerous which might be-come dangerous by a latent defect entirely un-known. Then there is the saving “although discov-erable by the *328 exercise of ordinary care,” dis-coverable by whom is not said; it may include theperson to whom the innocent machine is “lent orgiven.” Then the dictum is confined to machines“lent or given” (a later sentence makes it clear thata distinction is intended between these words anddelivered to the purchaser under the contract ofsale), and the manufacturer is introduced for thefirst time, “even by the person who manufacturedit.” I do not for a moment believe that Baron Parkehad in his mind such a case as a loaf negligentlymixed with poison by the baker which poisoned apurchaser's family. He is, in my opinion, confininghis remarks primarily to cases where a person is

seeking to rely upon a duty of care which arises outof a contract with a third party, and has never evendiscussed the case of a manufacturer negligentlycausing an article to be dangerous and selling it inthat condition whether with immediate or mediateeffect upon the consumer. It is noteworthy that heonly refers to “letting or giving” chattels, opera-tions known to the law where the special relationsthereby created have a particular bearing on the ex-istence or non-existence of a duty to take care. Nextin this chain of authority come George v. Skiving-ton (1869, L.R. 5 Ex. 1) and Heaven v. Pender(1883, 11 Q.B.D. 503) , which I have already dis-cussed. The next case is Earl v. Lubbock ([1905] 1K.B. 253) . The plaintiff sued in the County Courtfor personal injuries due to the negligence of thedefendant. The plaintiff was a driver in the employof a firm who owned vans. The defendant, a masterwheelwright, had contracted with the firm to keeptheir vans in good and substantial repair. The alleg-ation of negligence was that the defendant's servanthad negligently failed to inspect and repair a defect-ive wheel, and had negligently repaired the wheel.The learned County Court judge had held that thedefendant owed no duty to the plaintiff, and the Di-visional Court (Lord Alverstone L.C.J., Wills andKennedy JJ.), and the Court of Appeal agreed withhim. The Master of the Rolls, Sir R. Henn Collins,said that the case was concluded by Winterbottomv. Wright (10 M. & W. 109) . In other words, hemust have treated the duty as alleged to arise onlyfrom a breach of contract; for, as has been pointedout, that was the only allegation in Winterbottom v.Wright , negligence apart from contract beingneither averred nor proved. It is true that he citeswith approval the dicta of Lord Abinger in thatcase; but obviously I think his approval must belimited to those dicta so far as they related to theparticular facts before the Court of Appeal, and tocases where, as Lord Abinger says, the law permitsa contract to be turned into a tort. Stirling L.J., it istrue, said that to succeed the plaintiff must bring hiscase within the proposition of the majority in Heav-en v. Pender that anyone who, without due warning,supplies to others for use an instrument which to











his knowledge is in such a condition as to causedanger is liable for injury. I venture to think that theLord Justice is mistakenly treating a propositionwhich applies one test of a duty as though it af-forded the only criterion.

Mathew L.J. appears to me to put the case on itsproper footing when he says (at p. 259) the argu-ment of the plaintiff was that the defendant's ser-vants had been negligent in the performance of thecontract with the owners of the van, and that it fol-lowed as a matter of law that anyone in this em-ployment had a cause of action against the defend-ant. “It is impossible to accept such a wide proposi-tion, and indeed it is difficult to see how, if it werethe law, trade could be carried on.” I entirely agree.I have no doubt that in that case the plaintiff failedto shew that the repairer owed any duty to him. Thequestion of law in that case seems very differentfrom that raised in the present case. The case ofBlacker v. Lake & Elliot Ltd. (1912, 106 L.T. 533)approaches more nearly the facts of this case. Ihave read and re-read it, having unfeigned respectfor the authority of the two learned judges,Hamilton and Lush JJ., who decided it, and I ambound to say I have found difficulty in formulatingthe precise grounds upon which the judgment wasgiven. The plaintiff had been injured by the burst-ing of a brazing lamp which he had bought from ashopkeeper who had bought it from the manufac-turer, the defendant. The plaintiff had used the lampfor twelve months before the accident. The casewas tried in the County Court before that excellentlawyer the late Sir Howland Roberts. That learnedjudge had directed the jury that the plaintiff couldsucceed if the defendants had put upon the market alamp not fit for use in the sense that a person work-ing it with reasonable care would incur a risk whicha properly constructed lamp would not impose uponhim. The jury found that the lamp was defective byreason of an improper system of making an essen-tial joint between the container and the vaporiser;that the defendants did not know that it was danger-ous, 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 re-solves itself into a series of important dicta.Hamilton J. says (at p. 536) that it has been decidedin authorities from Winterbottom v. Wright to Earlv. Lubbock that the breach of the defendants' con-tract with A, to use care and skill in *329 and aboutthe manufacture or repair of an article, does not it-self give any cause of action to B when injured bythe article proving to be defective in breach of thatcontract. He then goes on to say, how is the case ofthe plaintiffs any better when there is no contractproved of which there could be a breach. I thinkwith respect that this saying does not give sufficientweight to the actual issues raised by the pleadingson which alone the older cases are an authority. Ifthe issue raised was an alleged duty created by con-tract, it would have been irrelevant to consider du-ties created without reference to contract; and con-tract cases cease to be authorities for duties allegedto exist beyond or without contract. Moreover, it isa mistake to describe the authorities as dealing withthe breach of care or skill in the manufacture ofgoods, as contrasted with repair. The only manufac-turing case was Longmeid v. Holliday , where neg-ligence was not alleged. Hamilton J. recognises thatGeorge v. Skivington was a decision which, if it re-mained an authority, bound him. He says that,without presuming to say it was wrong, he cannotfollow it because it is in conflict with Winterbottomv. Wright . I find this very difficult to understand,for George v. Skivington was based upon a duty inthe manufacturer to take care independently of con-tract, while Winterbottom v. Wright was decided ondemurrer in a case where the alleged duty wasbased solely on breach of a contractual duty to keepin repair, and no negligence was alleged. Lush J.says in terms that there are only three classes ofcases in which a stranger to a contract can sue forinjury by a defective chattel: one is fraud; thesecond is articles dangerous or noxious in them-selves, where the duty is only to warn; the third ispublic nuisance. He does not bring the cases repres-ented by Elliot v. Hall (the defective coal wagon)



within his classes at all. He says they belong to atotally different class, “where the control ofpremises or the management of a dangerous thingupon premises creates a duty.” I have already poin-ted out that this distinction is unfounded in fact, forin Elliot v. Hall , as in Hawkins v. Smith (the de-fective sack), the defendant exercised no controlover the article and the accident did not occur onhis premises. With all respect, I think that the judg-ments in the case err by seeking to confine the lawto rigid and exclusive categories, and by not givingsufficient attention to the general principle whichgoverns the whole law of negligence in the dutyowed to those who will be immediately injured bylack of care. The last case I need refer to is Bates v.Batey & Co. Ltd. ([1913] 3 K.B. 351) , where man-ufacturers of ginger beer were sued by a plaintiffwho had been injured by the bursting of a bottle ofginger beer bought from a shopkeeper who had ob-tained it from the manufacturers. The manufactur-ers had bought the actual bottle from its maker, butwere found by the jury to have been negligent innot taking proper means to discover whether thebottle was defective or not. Horridge J. found that abottle of ginger beer was not dangerous in itself,but this defective bottle was in fact dangerous; but,as the defendants did not know that it was danger-ous, they were not liable, though by the exercise ofreasonable care they could have discovered the de-fect. This case differs from the present only byreason of the fact that it was not the manufacturersof the ginger beer who caused the defect in thebottle; but on the assumption that the jury wereright in finding a lack of reasonable care in not ex-amining the bottle, I should have come to the con-clusion that, as the manufacturers must have con-templated the bottle being handled immediately bythe consumer, they owed a duty to him to take carethat he should not be injured externally by explo-sion, just as I think they owed a duty to him to takecare that he should not be injured internally bypoison or other noxious thing. I do not find it ne-cessary to discuss at length the cases dealing withduties where the thing is dangerous, or in the nar-rower category belongs to a class of things which

are dangerous in themselves. I regard the distinc-tion as an unnatural one so far as it is used to serveas a logical differentiation by which to distinguishthe existence or non-existence of a legal right. Inthis respect I agree with what was said by ScruttonL.J. in Hodge & Sons v. Anglo-American Oil Co.(1922, 12 Lloyds List 183 at p. 187), a case whichwas ultimately decided on a question of fact.“Personally, I do not understand the differencebetween a thing dangerous in itself, as poison, anda thing not dangerous as a class, but by negligentconstruction dangerous as a particular thing. Thelatter, if anything, seems the more dangerous of thetwo; it is a wolf in sheep's clothing instead of anobvious wolf.” The nature of the thing may verywell call for different degrees of care, and the per-son dealing with it may well contemplate personsas being within the sphere of his duty to take carewho would not be sufficiently proximate with lessdangerous goods; so that not only the degree of carebut the range of persons to whom a duty is owedmay be extended. But they all illustrate the generalprinciple. In the Dominion Natural Gas Co. Ltd. v.Collins ([1909] A.C. 640) the appellants had in-stalled a gas apparatus and were supplying naturalgas on the premises of a railway company. Theyhad installed a regulator to control the pressure andtheir men negligently made an escape-valve dis-charge into the building *330 instead of into theopen air. The railway workmen—theplaintiffs—were injured by an explosion in thepremises. The defendants were held liable. LordDunedin, in giving the judgment of the JudicialCommittee consisting of himself, Lord Macnaght-en, Lord Collins, and Sir Arthur Wilson, after stat-ing that there was no relation of contract betweenthe plaintiffs and the defendants, proceeded: “Theremay be, however, in the case of anyone performingan operation, or setting up and installing a machine,a relationship of duty. What that duty is will varyaccording to the subject-matter of the things in-volved. It has, however, again and again been heldthat in the case of articles dangerous in themselves,such as loaded firearms, poisons, explosives, andother things ejusdem generis , there is a peculiar







duty to take precaution imposed upon those whosend forth or install such articles when it is neces-sarily the case that other parties will come withintheir proximity.” This, with respect, exactly sumsup the position. The duty may exist independentlyof contract. Whether it exists or not depends uponthe subject-matter involved; but clearly in the classof things enumerated there is a special duty to takeprecautions. This is the very opposite of creating aspecial category in which alone the duty exists. Imay add, though it obviously would make no dif-ference in the creation of a duty, that the installa-tion of an apparatus to be used for gas perhapsmore closely resembles the manufacture of a gunthan a dealing with a loaded gun. In both cases theactual work is innocuous; it is only when the gun isloaded or the apparatus charged with gas that thedanger arises. I do not think it necessary to considerthe obligation of a person who entrusts to a carriergoods which are dangerous or which he ought toknow are dangerous. As far as the direct obligationof the consignor to the carrier is concerned, it hasbeen put upon an implied warranty ( Brass v. Mait-land, 1856, 6 E. & B. 470 ), but it is also a dutyowed independently of contract, e.g. to the carrier'sservant ( Farrant v. Barnes, 11 C.B., N.S. 563 ). Sofar as the cases afford an analogy they seem to sup-port the proposition now asserted. I need only men-tion to distinguish two cases in this House whichare referred to in some of the cases which I have re-viewed. Caledonian Railway Co. v. Warwick([1898] A.C. 216) , in which the appellant companywere held not liable for injuries caused by a defect-ive brake on a coal wagon conveyed by the railwaycompany to a point in the transit where their con-tract ended, and where the wagons were taken overfor haulage for the last part of the journey by asecond railway company, on which part the acci-dent happened. It was held that the first railwaycompany were under no duty to the injured work-men to examine the wagon for defects at the end oftheir contractual haulage. There was ample oppor-tunity for inspection by the second railway com-pany. The relations were not proximate. In thesecond ( Cavalier v. Pope, [1906] A.C. 428 ), the

wife of the tenant of a house let unfurnished soughtto recover from the landlord damages for personalinjuries arising from the non-repair of the house, onthe ground that the landlord had contracted with herhusband to repair the house. It was held that thewife was not a party to the contract, and that thewell-known absence of any duty in respect of theletting an unfurnished house prevented her from re-lying 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 LordCampbell's Act, the deceased man, the father of theplaintiff, had taken an unfurnished house from thedefendants, who had installed a gas boiler with aspecial gas burner which if properly regulated re-quired no flue. The deceased and his wife werekilled by fumes from the apparatus. The case wasdetermined on the ground that the apparatus waspart of the realty and that the landlord did not knowof the danger; but there is a discussion of the caseon the supposition that it was a chattel. Greer L.J.(at p. 54) states with truth that it is not easy to re-concile all the authorities, and that there is no au-thority binding on the Court of Appeal that a personselling an article which he did not know to be dan-gerous can be held liable to a person with whom hehas made no contract by reason of the fact that reas-onable enquiries might have enabled him to discov-er that the article was in fact dangerous. When thedanger is in fact occasioned by his own lack ofcare, then in cases of a proximate relationship thiscase will, I trust, supply the deficiency.

It is always a satisfaction to an English lawyer to beable to test his application of fundamental prin-ciples of the common law by the development ofthe same doctrines by the lawyers of the Courts ofthe United States. In that country I find that the lawappears to be well established in the sense in whichI have indicated. The mouse had emerged from theginger beer bottle in the U.S. before it appeared inScotland, but there it brought a liability upon themanufacturer. I must not in this long judgment domore than refer to the illuminating judgment of








Cardozo J. in M'Pherson v. Buick Motor Co. in theNew York Court of Appeals (1916, 217 N.Y. 382) ,in which he states the principles of the law as Ishould desire to state them and reviews the author-ities in other States than his own. Whether the prin-ciple he affirms would apply to the par- *331 ticu-lar facts of that case in this country would be aquestion for consideration if the case arose. It mightbe that the course of business, by giving opportunit-ies of examination to the immediate purchaser orotherwise, prevented the relation between manufac-turer and the user of the car being so close as tocreate a duty. But the American decision would un-doubtedly lead to a decision in favour of the pur-suer in the present case.

If your Lordships accept the view that this pleadingdiscloses a relevant cause of action you will be af-firming the proposition that by Scots and Englishlaw alike a manufacturer of products which he sellsin such a form as to shew that he intends them toreach the ultimate consumer in the form in whichthey left him with no reasonable possibility of inter-mediate examination, and with the knowledge thatthe absence of reasonable care in the preparation orputting up of the products is likely to result in in-jury to the consumer's life or property, owes a dutyto the consumer to take that reasonable care. It is aproposition that I venture to say no one in Scotlandor England who was not a lawyer would for onemoment doubt. It will be an advantage to make itclear that the law in this matter, as in most others, isin accordance with sound common sense. I thinkthat this appeal should be allowed.

Lord Tomlin

I have had an opportunity of considering the opin-ion (which I have already read) prepared by mynoble and learned friend Lord Buckmaster. As thereasoning of that opinion and the conclusionsreached therein accord in every respect with myown views, I propose to say only a few words.

First, I think that if the appellant is to succeed itmust be upon the proposition that every manufac-

turer or repairer of any article is under a duty toeveryone who may thereafter legitimately use thearticle to exercise due care in the manufacture orrepair. It is logically impossible to stop short of thispoint. There can be no distinction between food andany other article. Moreover, the fact that an articleof food is sent out in a sealed container can have norelevancy on the question of duty; it is only a factorwhich may render it easier to bring negligencehome to the manufacturer.

Secondly, I desire to say that in my opinion the de-cision 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 thebasis of the claim, and (2) that the wide propositionwhich I have indicated was that for which theplaintiff was contending.

The declaration averred, inter alia , that the defend-ant “so improperly and negligently conducted him-self” that the accident complained of happened.

The plaintiff's counsel said:

“Here the declaration alleges the accident to havehappened through the defendant's negligence andwant of care.”

The alarming consequences of accepting the valid-ity of this proposition were pointed out by the de-fendant's counsel, who said:

“For example, every one of the sufferers by such anaccident as that which recently happened on theVersailles Railway might have his action againstthe manufacturer of the defective axle.”

That the action which was in case embraced a causeof action in tort is, I think, implicit in its form, andappears from the concluding sentence of LordAbinger's judgment, which was in these terms:

“By permitting this action we should be workingthis injustice, that after the defendant had done




everything to the satisfaction of his employer, andafter all matters between them had been adjustedand all accounts settled on the footing of their con-tract, we should subject them to be ripped open bythis action of tort being brought against him.”

I will only add to what has been already said by mynoble and learned friend Lord Buckmaster with re-gard to the decisions and dicta relied upon by theappellant and the other relevant reported cases, thatI am unable to explain how the cases of dangerousarticles can have been treated as “exceptions” if theappellant's contention is well founded. Upon theview which I take of the matter the reportedcases—some directly, others impliedly— negativethe existence as part of the common law of Englandof any principle affording support to the appellant'sclaim, and therefore there is, in my opinion, no ma-terial from which it is legitimate for your Lord-ships' House to deduce such a principle.

Lord Thankerton

In this action the appellant claims reparation fromthe respondent in respect of illness and other injuri-ous effects resulting from the presence of a decom-posed snail in a bottle of ginger beer, alleged tohave been manufactured by the respondent, andwhich was partially consumed by her, it havingbeen ordered by a friend on her behalf in a café inPaisley.

The action is based on negligence, and the onlyquestion in this appeal is whether, taking the appel-lant's averments pro veritate , they disclose a caserelevant in law so as to entitle her to have them re-mitted for proof. The Lord Ordinary allowed aproof, but on a reclaiming note for the respondentthe Second *332 Division of the Court of Sessionrecalled the Lord Ordinary's interlocutor and dis-missed the action, following their decision in therecent cases of Mullen v. Barr & Co. and M'Gowanv. Barr & Co. (1929 S.C. 461) .

The appellant's case is that the bottle was sealedwith a metal cap, and was made of dark opaque

glass, which not only excluded access to the con-tents before consumption, if the contents were toretain their aerated condition, but also excluded thepossibility of visual examination of the contentsfrom outside; and that on the side of the bottle therewas pasted a label containing the name and addressof the respondent, who was the manufacturer. Shestates that the shopkeeper, who supplied the gingerbeer, opened it and poured some of its contents intoa tumbler, which contained some ice-cream, andthat she drank some of the contents of the tumbler;that her friend then lifted the bottle and was pour-ing the remainder of the contents into the tumblerwhen a snail, which had been, unknown to her, herfriend, or the shopkeeper, in the bottle, and was in astate of decomposition, floated out of the bottle.

The duties which the appellant accuses the respond-ent of having neglected may be summarised as fol-lows: (a) That the ginger beer was manufactured bythe respondent or his servants to be sold as an art-icle of drink to members of the public (includingthe appellant), and that accordingly it was his dutyto exercise the greatest care in order that snailswould not get into the bottles, render the gingerbeer dangerous and harmful, and be sold with theginger beer; (b) a duty to provide a system of work-ing his business which would not allow snails to getinto the sealed bottles, and in particular would notallow the bottles when washed to stand in places towhich snails had access; (c) a duty to provide an ef-ficient system of inspection which would preventsnails from getting into the sealed bottles; and (d) aduty to provide clear bottles so as to facilitate thesaid system of inspection.

There can be no doubt, in my opinion, that equallyin the law of Scotland and of England it lies uponthe party claiming redress in such a case to shewthat there was some relation of duty between herand the defender which required the defender to ex-ercise due and reasonable care for her safety. It isnot at all necessary that there should be any directcontract between them, because the action is notbased upon contract, but upon negligence; but it is





necessary for the pursuer in such an action to shewthere was a duty owed to her by the defender, be-cause a man cannot be charged with negligence ifhe 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 President Dunedinand Lord Kinnear at p. 256). The question in eachcase is whether the pursuer has established, or inthe stage of the present appeal has relevantlyaverred, such facts as involve the existence of sucha relation of duty.

We are not dealing here with a case of what iscalled an article per se dangerous, or one which wasknown by the defender to be dangerous, in whichcases a special duty of protection or adequate warn-ing is placed upon the person who uses or distrib-utes it. The present case is that of a manufacturerand a consumer, with whom he has no contractualrelation, of an article which the manufacturer didnot know to be dangerous, and unless the consumercan establish a special relationship with the manu-facturer it is clear, in my opinion, that neither thelaw of Scotland nor the law of England will holdthat the manufacturer has any duty towards the con-sumer to exercise diligence. In such a case the rem-edy of the consumer, if any, will lie against the in-tervening party from whom he has procured the art-icle. I am aware that the American Courts, in thedecisions referred to by my noble and learnedfriend Lord Macmillan, have taken a view more fa-vourable to the consumer.

The special circumstances from which the appellantclaims that such a relationship of duty should be in-ferred may, I think, be stated thus, viz. that the re-spondent, in placing his manufactured article ofdrink upon the market, has intentionally so ex-cluded interference with, or examination of, the art-icle by any intermediate handler of the goodsbetween himself and the consumer, that he has, ofhis own accord, brought himself into direct rela-tionship with the consumer, with the result that theconsumer is entitled to rely upon the exercise of di-

ligence by the manufacturer to secure that the art-icle shall not be harmful to the consumer. If thatcontention be sound, the consumer, on her shewingthat the article has reached her intact and that shehas been injured by the harmful nature of the articleowing to the failure of the manufacturer to takereasonable care in its preparation prior to its enclos-ure in the sealed vessel, will be entitled to repara-tion from the manufacturer.

In my opinion the existence of a legal duty in suchcircumstances is in conformity with the principlesof both the law of Scotland and of the law of Eng-land. The English cases demonstrate how im-possible it is to catalogue finally, amid the ever-varying types of human relationships, those rela-tionships in which a duty to exercise care arisesapart from contract, and each of these cases relatesto its own set of *333 circumstances, out of whichit was claimed that the duty had arisen. In none ofthese cases were the circumstances identical withthe present case as regards that which I regard asthe essential element in this case, viz. the manufac-turer's own action in bringing himself into direct re-lationship with the party injured. I have had theprivilege of considering the discussion of these au-thorities by my noble and learned friend Lord Atkinin the judgment which he has just delivered, and Iso entirely agree with it that I cannot usefully addanything to it.

An interesting illustration of similar circumstancesis to be found in Gordon v. M'Hardy (1903, 6 F.210) , in which the pursuer sought to recover dam-ages from a retail grocer on account of the death ofhis son by ptomaine poisoning, caused by eatingtinned salmon purchased from the defender. Thepursuer averred that the tin, when sold, was dented,but he did not suggest that the grocer had cutthrough the metal and allowed air to get in, or hadotherwise caused injury to the contents. The actionwas held irrelevant, the Lord Justice-Clerk remark-ing: “I do not see how the defender could have ex-amined the tin of salmon which he is alleged tohave sold without destroying the very condition









which the manufacturer had established in order topreserve the contents, the tin not being intended tobe opened until immediately before use.” Appar-ently in that case the manufacturer's label was offthe tin when sold, and they had not been identified.I should be sorry to think that the meticulous careof the manufacturer to exclude interference or in-spection by the grocer in that case should relievethe grocer of any responsibility to the consumerwithout any corresponding assumption of duty bythe manufacturer.

I am of opinion that the contention of the appellantis sound, and that she has relevantly averred a rela-tionship of duty as between the respondent and her-self, as also that her averments of the respondent'sneglect of that duty are relevant.

The cases of Mullen and M'Gowan which thelearned judges of the Second Division followed inthe present case related to facts similar in every re-spect except that the foreign matter was a decom-posed mouse. In these cases the same Court (LordHunter dissenting) held that the manufacturer owedno duty to the consumer. The view of the majoritywas that the English authorities excluded the exist-ence of such a duty, but Lord Ormidale (at p. 471)would otherwise have been prepared to come to acontrary conclusion. Lord Hunter's opinion seemsto be in conformity with the view I have expressedabove.

My conclusion rests upon the facts averred in thiscase, and would apparently also have applied in thecases of Mullen and M'Gowan , in which, however,there had been a proof before answer, and there wasalso a question as to whether the pursuers hadproved their averments.

I am therefore of opinion that the appeal should beallowed and the case should be remitted for proof,as the pursuer did not ask for an issue.

Lord MacMillan

The incident which in its legal bearings your Lord-

ships are called upon to consider in this appeal wasin itself of a trivial character, though the con-sequences to the appellant, as she describes them,were serious enough. It appears from the appellant'sallegations that on an evening in August 1928 sheand a friend visited a café in Paisley, where herfriend ordered for her some ice-cream and a bottleof ginger beer. These were supplied by the shop-keeper, who opened the ginger beer bottle andpoured some of the contents over the ice-cream,which was contained in a tumbler. The appellantdrank part of the mixture, and her friend then pro-ceeded to pour the remaining contents of the bottleinto the tumbler. As she was doing so a decom-posed snail floated out with the ginger beer. In con-sequence of her having drunk part of the contamin-ated contents of the bottle the appellant alleges thatshe contracted a serious illness. The bottle is statedto have been of dark opaque glass, so that the con-dition of the contents could not be ascertained byinspection, and to have been closed with a metalcap, while on the side was a label bearing the nameof the respondent, who was the manufacturer of theginger beer of which the shopkeeper was merely theretailer.

The allegations of negligence on which the appel-lant founds her action against the respondent maybe shortly summarised. She says that the gingerbeer was manufactured by the respondent for saleas an article of drink to members of the public, in-cluding herself; that the presence of a decomposingsnail in ginger beer renders the ginger beer harmfuland dangerous to those consuming it; and that itwas the duty of the respondent to exercise his pro-cess of manufacture with sufficient care to preventsnails getting into or remaining in the bottles whichhe filled with ginger beer. The appellant attacks therespondent's system of conducting his business, al-leging that he kept his bottles in premises to whichsnails had access, and that he failed to have hisbottles properly inspected for the presence of for-eign matter before he filled them.

The respondent challenged the relevancy of the ap-



pellant's averments, and taking them pro veritate ,as for this purpose he was bound *334 to do,pleaded that they disclosed no ground of legal liab-ility on his part to the appellant.

The Lord Ordinary repelled the respondent's plea tothe relevancy and allowed the parties a proof oftheir averments, but on a reclaiming note theirLordships of the Second Division (Lord Hunter dis-senting, or, perhaps more accurately, protesting)dismissed the action, and in doing so followed theirdecision in the previous cases of Mullen v. Barr &Co. and M'Gowan v. Barr & Co. (1929 S.C. 461) .The only difference in fact between those cases andthe present case is that it was a mouse and not asnail which was found in the ginger beer. Thepresent appeal is consequently in effect against thedecision in these previous cases, which I now pro-ceed to examine.

The two cases, being to all intents and purposesidentical, were heard and decided together. In Mul-len v. Barr & Co. the Sheriff-Substitute allowed aproof, but the Sheriff, on appeal, dismissed the ac-tion as irrelevant. In M'Gowan v. Barr & Co. theSheriff-Substitute allowed a proof and the Sheriffaltered his interlocutor by allowing a proof beforeanswer —that is to say, a proof under reservation ofall objections to the relevancy of the action. On thecases coming before the Second Division on the ap-peals of the pursuer and the defenders respectivelytheir Lordships ordered a proof before answer ineach case and the evidence was taken before LordHunter. It will be sufficient to refer to Mullen'scase, in which their Lordships gave their reasonsfor assoilzieing the defenders in both cases. TheLord Justice-Clerk held that negligence had notbeen proved, and therefore did not pronounce uponthe question of relevancy. Lord Ormidale held thatthere was no relevant case against the defenders,but would have been prepared, if necessary, to holdthat in any case negligence had not been establishedby the evidence. Lord Hunter held that the case wasrelevant and that negligence had been proved. LordAnderson held that the pursuer had no case in law

against the defenders, but that if this view was erro-neous negligence had not been proved.

I desire to draw special attention to certain passagesin the opinions of their Lordships. At p. 470 thelearned Lord Justice-Clerk states that he prefers “tobase his judgment on the proposition that the pur-suer has failed to prove fault on the part of the de-fenders,” and feels “absolved from expressing aconcluded opinion on the thorny and difficult ques-tion of law whether, assuming fault to be proved onthe part of the defenders, the pursuer has in law aright to sue them.” In the present case his Lordship,after pointing out that he had formally reserved hisopinion on the point in Mullen v. Barr & Co. , pro-ceeds: “I think I indicated, not obscurely, the viewwhich I entertained on a perusal of the Englishcases,” and to that view, in deference to the Englishcases which his Lordship has reconsidered, he hasgiven effect adversely to the present appellant. Thatthe opinions of the majority of the judges of theSecond Division in Mullen's case on the question ofrelevancy are founded entirely on their reading ofthe series of English cases cited to them is madeclear by Lord Ormidale. After stating the questionsin the case, the first being “whether, in the absenceof any contractual relation between the pursuersand the defenders, the latter owed a duty to the pur-suers, as the consumers of the beer, of taking pre-cautions to see that nothing of a poisonous or dele-terious nature was allowed to enter and remain inthe bottles,” his Lordship proceeds: “I recognise thedifficulty of determining the first of these questionswith either confidence or satisfaction; and were itnot for the unbroken and consistent current of de-cisions beginning with Winterbottom v. Wright(1842, 10 M. & W. 109) , to which we were re-ferred, I should have been disposed to answer it inthe affirmative. The evidence shews that thegreatest care is taken by the manufacturers to en-sure by tab and label that the ginger beer shouldpass, as it were, from the hand of the maker to thehand of the ultimate user uninterfered with by theretail dealer—who has little interest in, and no op-portunity of, examining the contents of the contain-






ers. Accordingly it would appear to be reasonableand equitable to hold that, in the circumstances andapart altogether from contract, there exists a rela-tionship of duty as between the maker and the con-sumer of the beer. Such considerations, however, asI read the authorities, have been held to be irrelev-ant in analogous circumstances.” Lord Ormidalethus finds himself constrained to reach a conclusionwhich appears to him to be contrary to reason andequity by his reading of what he describes as an un-broken and consistent current of decisions begin-ning with Winterbottom v. Wright . In view of thedeference thus paid to English precedents it is a sin-gular fact that the case of Winterbottom v. Wrightis one in which no negligence in the sense of breachof a duty owed by the defendant to the plaintiff wasalleged on the part of the plaintiff. The truth, as Ihope to shew, is that there is in the English reportsno such “unbroken and consistent current of de-cisions” as would justify the aspersion that the lawof England has committed itself irrevocably to whatis neither reasonable nor equitable, or require aScottish judge in following them to do violence tohis conscience. “In my opinion,” said Lord Esher inEmmens v. Pottle (1885, 16 Q.B.D. 354 at pp.357—358), “any proposition the result of whichwould be to shew that the common law of Englandis wholly unreasonable and unjust cannot be part ofthe common law of England.”

At your Lordships' Bar counsel for both parties tothe present appeal, accepting, as I do also, the viewthat there is no distinction between the law of Scot-land and the law of England in the legal principlesapplicable to the case, confined their arguments tothe English authorities. The appellant endeavouredto establish that according to the law of England thepleadings disclose a good cause of action; the re-spondent endeavoured to shew that on the Englishdecisions the appellant had stated no admissiblecase. I propose therefore to address myself at onceto an examination of the relevant English preced-ents.

I observe, in the first place, that there is no decision

of this House upon the point at issue, for I agreewith Lord Hunter that such cases as Cavalier v.Pope ([1906] A.C. 428) and Cameron v. Young(1908 S.C. (H.L.) 7) , which decided that “astranger to a lease cannot found upon a landlord'sfailure to fulfil obligations undertaken by him un-der contract with his lessee” are in a differentchapter of the law. Nor can it by any means be saidthat the cases present “an unbroken and consistentcurrent” of authority, for some flow one way andsome the other.

It humbly appears to me that the diversity of viewwhich is exhibited in such a case as George v. Skiv-ington (1869, L.R. 5 Ex. 1) on the one hand andBlacker v. Lake & Elliot (1912, 106 L.T. 533) onthe other hand—to take two extreme instances—isexplained by the fact that in the discussion of thetopic which now engages your Lordships' attentiontwo rival principles of the law find a meeting-placewhere each has contended for supremacy. On theone hand there is the well-established principle thatno one other than a party to a contract can complainof a breach of that contract. On the other hand thereis the equally well-established doctrine that negli-gence apart from contract gives a right of action tothe party injured by that negligence—and here I usethe term negligence, of course, in its technical legalsense, implying a duty owed and neglected. Thefact that there is a contractual relationship betweenthe parties which may give rise to an action forbreach of contract, does not exclude the co-existence of a right of action founded on negligenceas between the same parties, independently of thecontract, though arising out of the relationship infact brought about by the contract. Of this the bestillustration is the right of the injured railway pas-senger to sue the railway company either for breachof the contract of safe carriage or for negligence incarrying him. And there is no reason why the sameset of facts should not give one person a right of ac-tion in contract and another person a right of actionin tort. I may be permitted to adopt as my own thelanguage of a very distinguished English writer onthis subject. “It appears,” says Sir Frederick Pol-











lock (Law of Torts, 13th ed., p. 570), “that therehas been (though perhaps there is no longer) a cer-tain tendency to hold that facts which constitute acontract cannot have any other legal effect. The au-thorities formerly relied on for this propositionreally proved something different and much morerational, namely, that if A breaks his contract withB (which may happen without any personal defaultin A or A's servants), that is not itself sufficient tomake A liable to C, a stranger to the contract, forconsequential damage. This, and only this, is thesubstance of the perfectly correct decisions of theCourt of Exchequer in Winterbottom v. Wright (cit. sup. ) and Longmeid v. Holliday (1851, 6 Ex.761) . In each case the defendant delivered, under acontract of sale or hiring, a chattel which was infact unsafe to use, but in the one case it was not al-leged, in the other was alleged but not proved, tohave been so to his knowledge. In each case astranger to the contract, using the chattel—a coachin the one case, a lamp in the other—in the ordinaryway, came to harm through its dangerous condition,and was held not to have any cause of actionagainst the purveyor. Not in contract, for there wasno contract between these parties; not in tort, for nobad faith or negligence on the defendant's part wasproved.”

Where, as in cases like the present, so much de-pends upon the avenue of approach to the question,it is very easy to take the wrong turning. If you be-gin with the sale by the manufacturer to the retaildealer, then the consumer who purchases from theretailer is at once seen to be a stranger to the con-tract between the retailer and the manufacturer andso disentitled to sue upon it. There is no contractualrelation between the manufacturer and the con-sumer; and thus the plaintiff, if he is to succeed, isdriven to try to bring himself within one or other ofthe exceptional cases where the strictness of therule that none but a party to a contract can found ona breach of that contract has been mitigated in thepublic interest, as it has been in the case of a personwho issues a chattel which is inherently dangerousor which he knows to be in a dangerous condition.

If, on the other hand, you disregard the fact that thecircumstances of the case at one stage include theexistence of a contract of sale between the manu-facturer and the retailer, and approach the questionby asking *336 whether there is evidence of care-lessness on the part of the manufacturer, and wheth-er he owed a duty to be careful in a question withthe party who has been injured in consequence ofhis want of care, the circumstance that the injuredparty was not a party to the incidental contract ofsale becomes irrelevant, and his title to sue themanufacturer is unaffected by that circumstance.The appellant in the present instance asks that hercase be approached as a case of delict, not as a caseof breach of contract. She does not require to in-voke the exceptional cases in which a person not aparty to a contract has been held to be entitled tocomplain of some defect in the subject-matter ofthe contract which has caused him harm. The ex-ceptional case of things dangerous in themselves, orknown to be in a dangerous condition, has been re-garded as constituting a peculiar category outsidethe ordinary law both of contract and of tort. I mayobserve that it seems to me inaccurate to describethe case of dangerous things as an exception to theprinciple that no one but a party to a contract cansue on that contract. I rather regard this type of caseas a special instance of negligence where the lawexacts a degree of diligence so stringent as toamount practically to a guarantee of safety.

With these preliminary observations I turn to theseries of English cases which is said to compose theconsistent body of authority on which we are askedto nonsuit the appellant. It will be found that inmost of them the facts were very different from thefacts of the present case, and did not give rise to thespecial relationship, and consequent duty, which inmy opinion is the deciding factor here. Dixon v.Bell (1816, 5 M. & S. 198) is the starting-point.There a maid-servant was sent to fetch a gun from aneighbour's house; on the way back she pointed itat a child, and the gun went off and injured thechild. The owner of the gun was held liable for theinjury to the child on the ground that he should







have seen that the charge was drawn before he en-trusted the gun to the maid-servant. “It was incum-bent on him who, by charging the gun, had made itcapable of doing mischief, to render it safe and in-noxious.” This case, in my opinion, merely illus-trates the high degree of care, amounting in effectto insurance against risk, which the law exacts fromthose who take the responsibility of giving out suchdangerous things as loaded firearms. The decision,if it has any relevance, is favourable to the appel-lant, who submits that human drink rendered pois-onous by careless preparation may be as dangerousto life as any loaded firearm. Langridge v. Levy(1837, 2 M. & W. 519; 4 M. & W. 337) is anothercase of a gun, this time of defective make andknown to the vendor to be defective. The pur-chaser's son was held entitled to sue for damages inconsequence of injuries sustained by him throughthe defective condition of the gun causing it to ex-plode. The ground of the decision seems to havebeen that there was a false representation by thevendor that the gun was safe, and the representationappears to have been held to extend to the pur-chaser's son. The case is treated by commentatorsas turning on its special circumstances, and as notdeciding any principle of general application. Asfor Winterbottom v. Wright ( cit. sup. ) and Long-meid v. Holliday ( cit. sup. ), neither of these casesis really in point for the reason indicated in the pas-sage from Sir Frederick Pollock's treatise which Ihave quoted above. Then comes George v. Skiving-ton (1869, L.R. 5 Ex. 1) , which is entirely in fa-vour of the appellant's contention. There was a salein that case by a chemist of some hairwash to a pur-chaser for the use of his wife, who suffered injuryfrom using it by reason of its having been negli-gently compounded. As Kelly C.B. points out, theaction was not founded on any warranty implied inthe contract of sale between the vendor and the pur-chaser; and the plaintiff, the purchaser's wife, wasnot seeking to sue on the contract to which she wasnot a party. The question, as the Chief Baron statedit, was “whether the defendant, a chemist, com-pounding the article sold for a particular purpose,and knowing of the purpose for which it was

bought, is liable in an action on the case for unskil-fulness and negligence in the manufacture of itwhereby the person who used it was injured.” Andthis question the Court unanimously answered inthe affirmative. I may mention in passing that LordAtkinson in this House, speaking of that case and ofLangridge v. Levy ( cit. sup. ) observed that: “Inboth these latter cases the defendant representedthat the article sold was fit and proper for the pur-poses for which it was contemplated that it shouldbe used and the party injured was ignorant of its un-fitness for these purposes.” It is true that George v.Skivington has been the subject of some criticism,and was said by Hamilton J., as he then was, inBlacker v. Lake & Elliot (1912, 106 L.T. 533) tohave been in later cases as nearly disaffirmed as ispossible without being expressly overruled. I amnot sure that it has been so severely handled as that.At any rate I do not think that it deserved to be, andcertainly, so far as I am aware, it has never beendisapproved in this House. It has been cited in ajudgment of the Privy Council by Lord Dunedinwithout any indication of disapproval ( DominionNatural Gas Co. v. Collins, [1909] A.C. 640 at p.646).*337

Heaven v. Pender (1883, 11 Q.B.D. 503) has prob-ably been more quoted and discussed in this branchof the law than any other authority because of thedicta of Brett M.R., as he then was, on the generalprinciples regulating liability to third parties. In hisopinion “it may safely be affirmed to be a true pro-position” that “whenever one person is by circum-stances placed in such a position with regard to an-other that everyone of ordinary sense who did thinkwould at once recognise that if he did not use ordin-ary care and skill in his own conduct with regard tothose circumstances he would cause danger of in-jury to the person or property of the other, a dutyarises to use ordinary care and skill to avoid suchdanger.” The passage specially applicable to thepresent case is as follows: “Whenever one personsupplies goods … . for the purpose of their beingused by another person under such circumstancesthat everyone of ordinary sense would, if he










thought, recognise at once that unless he used or-dinary care and skill with regard to the condition ofthe thing supplied or the mode of supplying it therewill be danger of injury to the person or property ofhim for whose use the thing is supplied, and who isto use it, a duty arises to use ordinary care and skillas to the condition or manner of supplying suchthing. And for a neglect of such ordinary care orskill whereby injury happens a legal liability arisesto be enforced by an action for negligence.” CottonL.J., with whom Bowen L.J. agreed, expressed him-self as “unwilling to concur with the Master of theRolls in laying down unnecessarily the larger prin-ciple which he entertains, inasmuch as there aremany cases in which the principle was impliedlynegatived,” but the decision of the Court of Appealwas unanimously in the plaintiff's favour. The pas-sages I have quoted, like all attempts to formulateprinciples of law compendiously and exhaustively,may be open to some criticism, and their universal-ity may require some qualification, but as enunci-ations of general legal doctrine I am prepared, likeLord Hunter, to accept them as sound guides. I nowpass to the three modern cases of Earl v. Lubbock([1905] 1 K.B. 253) , Blacker v. Lake & Elliot ( cit.sup. ), and Bates v. Batey & Co. Ltd. ([1913] 3K.B. 351) . The first of these cases related to a vanwhich had recently been repaired by the defendantunder contract with the owner of the van. A driverin the employment of the owner was injured in con-sequence of a defect in the van which was said tobe due to the careless manner in which the repairerhad done his work. It was held that the driver hadno right of action against the repairer. The caseturns upon the rule that a stranger to a contract can-not found an action of tort on a breach of that con-tract. It was pointed out that there was no evidencethat the plaintiff had been invited by the defendantto use the van, and the van owner was not com-plaining of the way in which the van had been re-paired. The negligence, if negligence there was,was too remote, and the practical consequences ofaffirming liability in such a case were considered tobe such as would render it difficult to carry on atrade at all. “No prudent man,” says Mathew, L.J.,

“would contract to make or repair what the employ-ers intended to permit others to use in the way ofhis trade.” The species facti in that case seems tome to differ widely from the circumstances of thepresent case, where the manufacturer has specific-ally in view the use and consumption of hisproducts by the consumer, and where the retailer ismerely the vehicle of transmission of the productsto the consumer, and by the nature of the productsis precluded from inspecting or interfering withthem in any way. The case of Blacker v. Lake & El-liot ( cit. sup. ) is of importance because of the sur-vey of previous decisions which it contains. It re-lated to a brazing lamp which, by exploding owingto a latent defect, injured a person other than thepurchaser of it, and the vendor was held not liableto the party injured. There appears to have beensome difference of opinion between Hamilton J.and Lush J., who heard the case in the DivisionalCourt, as to whether the lamp was an inherentlydangerous thing. The case seems to have turnedlargely on the question whether, there being a con-tract of sale of the lamp between the vendor and thepurchaser, the article was of such a dangerous char-acter as to impose upon the vendor, in a questionwith a third party, any responsibility for its condi-tion. This question was answered in the negative.So far as negligence was concerned, it may wellhave been regarded as too remote, for I find thatHamilton J. used these words at p. 537: “In thepresent case all that can be said is that the defend-ants did not know that their lamp was not perfectlysafe, and had no reason to believe that it was not so,in the sense that no one had drawn their attention tothe fact, but that had they been wiser men or moreexperienced engineers they would then have knownwhat the plaintiff's experts say that they ought tohave known.” I should doubt indeed if that is reallya finding of negligence at all. The case on its factsis very far from the present one; and if any prin-ciple of general application can be derived from itadverse to the appellant's contention, I should notbe disposed to approve of such principle. I may addthat in White v. Steadman ([1913] 3 K.B. 340 at p.348), I find that Lush J., who was a party to the de-








cision in Blacker v. Lake & Elliot , expressed theview “that a person who has the means of *338knowledge and only does not know that the animalor chattel which he supplies is dangerous becausehe does not take ordinary care to avail himself ofhis opportunity of knowledge is in precisely thesame position as the person who knows.” As forBates v. Batey & Co. Ltd. ( cit. sup .), where aginger beer bottle burst owing to a defect in itwhich, though unknown to the manufacturer of theginger beer, could have been discovered by him bythe exercise of reasonable care, Horridge J. thereheld that the plaintiff, who bought the bottle ofginger beer from a retailer to whom the manufac-turer had sold it and who was injured by its explo-sion, had no right of action against the manufac-turer. The case does not advance matters, for itreally turns upon the fact that the manufacturer didnot know that the bottle was defective, and this, inthe view of Horridge J. as he read the authorities,was enough to absolve the manufacturer. I wouldobserve that, in a true case of negligence, know-ledge of the existence of the defect causing damageis not an essential element at all.

This summary survey is sufficient to shew, whatmore detailed study confirms, that the current ofauthority has by no means always set in the samedirection. In addition to George v. Skivington ( cit.sup. ) there is the American case of Thomas v.Winchester (1852, 6 N.Y. 397) , which has metwith considerable acceptance in this country andwhich is distinctly on the side of the appellant.There a chemist carelessly issued, in response to anorder for extract of dandelion, a bottle containingbelladonna which he labelled extract of dandelion,with the consequence that a third party who took adose from the bottle suffered severely. The chemistwas held responsible. This case is quoted by LordDunedin in giving the judgment of the Privy Coun-cil in Dominion Natural Gas Co. v. Collins ( cit.sup. ) as an instance of liability to third parties, andI think it was a sound decision.

In the American Courts the law has advanced con-

siderably in the development of the principle exem-plified in Thomas v. Winchester . In one of thelatest cases in the United States ( Macpherson v.Buick Motor Co., 1916, 217 N.Y. 382 ) theplaintiff, who had purchased from a retailer a mo-tor-car manufactured by the defendant company,was injured in consequence of a defect in the con-struction of the car, and was held entitled to recoverdamages from the manufacturer. Cardozo J., thevery eminent Chief Judge of the New York Courtof Appeals and now an Associate Justice of theUnited States Supreme Court, thus stated the law:

“There is no claim that the defendant knew of thedefect and wilfully concealed it… . . The charge isone, not of fraud, but of negligence. The question tobe determined is whether the defendant owed a dutyof care and vigilance to anyone but the immediatepurchaser. The principle of Thomas v. Winchesteris not limited to poisons, explosives, and things oflike nature, to things which, in their normal opera-tion, are implements of destruction. If the nature ofa thing is such that it is reasonably certain to placelife and limb in peril when negligently made, it isthen a thing of danger. Its nature gives warning ofthe consequences to be expected. If to the elementof danger there is added knowledge that the thingwill be used by persons other than the purchaserand used without new tests, then, irrespective ofcontract, the manufacturer of this thing of danger isunder a duty to make it carefully. That is as far aswe are required to go for the decision of this case.There must be knowledge of a danger, not merelypossible, but probable… . . There must also beknowledge that in the usual course of events thedanger will be shared by others than the buyer.Such knowledge may often be inferred from thenature of the transaction… . . The dealer was in-deed the one person of whom it might be said withsome approach to certainty that by him the carwould not be used. Yet the defendant would haveus say that he was the one person whom it [the de-fendant company] was under a legal duty to protect.The law does not lead us to so inconsequent a con-clusion.”



The prolonged discussion of English and Americancases into which I have been led might well disposeyour Lordships to think that I had forgotten that thepresent is a Scottish appeal which must be decidedaccording to Scots law. But this discussion has beenrendered inevitable by the course of the argument atyour Lordships' Bar, which, as I have said, pro-ceeded on the footing that the law applicable to thecase was the same in England and Scotland. Havingregard to the inconclusive state of the authorities inthe Courts below and to the fact that the importantquestion involved is now before your Lordships forthe first time, I think it desirable to consider thematter from the point of view of the principles ap-plicable to this branch of law which are admittedlycommon to both English and Scottish jurispru-dence.

The law takes no cognisance of carelessness in theabstract. It concerns itself with carelessness onlywhere there is a duty to take care and where failurein that duty has caused damage. In such circum-stances carelessness assumes the legal quality ofnegligence and entails the consequences in law ofnegligence. What, then, are the circumstanceswhich give rise to this duty to take care? In thedaily contacts of social and business life human be-ings are thrown into, or place themselves in, an in-finite variety of relationships with their *339 fel-lows; and the law can refer only to the standards ofthe reasonable man in order to determine whetherany particular relationship gives rise to a duty totake care as between those who stand in that rela-tionship to each other. The grounds of action maybe as various and manifold as human errancy; andthe conception of legal responsibility may developin adaptation to altering social conditions andstandards. The criterion of judgment must adjustand adapt itself to the changing circumstances oflife. The categories of negligence are never closed.The cardinal principle of liability is that the partycomplained of should owe to the party complaininga duty to take care, and that the party complainingshould be able to prove that he has suffered damagein consequence of a breach of that duty. Where

there is room for diversity of view is in determiningwhat circumstances will establish such a relation-ship between the parties as to give rise, on the oneside, to a duty to take care, and on the other side toa right to have care taken.

To descend from these generalities to the circum-stances of the present case, I do not think that anyreasonable man or any twelve reasonable menwould hesitate to hold that, if the appellant estab-lishes her allegations, the respondent has exhibitedcarelessness in the conduct of his business. For amanufacturer of aerated water to store his emptybottles in a place where snails can get access tothem, and to fill his bottles without taking any ad-equate precautions by inspection, or otherwise, toensure that they contain no deleterious foreign mat-ter, may reasonably be characterised as carelessnesswithout applying too exacting a standard. But, as Ihave pointed out, it is not enough to prove the re-spondent to be careless in his process of manufac-ture. The question is, Does he owe a duty to takecare, and to whom does he owe that duty? Now Ihave no hesitation in affirming that a person whofor gain engages in the business of manufacturingarticles of food and drink intended for consumptionby members of the public in the form in which heissues them is under a duty to take care in the man-ufacture of these articles. That duty, in my opinion,he owes to those whom he intends to consume hisproducts. He manufactures his commodities for hu-man consumption; he intends and contemplates thatthey shall be consumed. By reason of that very facthe places himself in a relationship with all the po-tential consumers of his commodities, and that rela-tionship which he assumes and desires for his ownends imposes upon him a duty to take care to avoidinjuring them. He owes them a duty not to convertby his own carelessness an article which he issuesto them as wholesome and innocent into an articlewhich is dangerous to life and health. It is some-times said that liability can only arise where a reas-onable man would have foreseen and could haveavoided the consequences of his act or omission. Inthe present case the respondent, when he manufac-



tured his ginger beer, had directly in contemplationthat it would be consumed by members of the pub-lic. Can it be said that he could not be expected as areasonable man to foresee that if he conducted hisprocess of manufacture carelessly he might injurethose whom he expected and desired to consumehis ginger beer? The possibility of injury so arisingseems to me in no sense so remote as to excuse himfrom foreseeing it. Suppose that a baker, throughcarelessness, allows a large quantity of arsenic tobe mixed with a batch of his bread, with the resultthat those who subsequently eat it are poisoned,could he be heard to say that he owed no duty to theconsumers of his bread to take care that it was freefrom poison, and that, as he did not know that anypoison had got into it, his only liability was forbreach of warranty under his contract of sale tothose who actually bought the poisoned bread fromhim? Observe that I have said “through careless-ness,” and thus excluded the case of a pure accidentsuch as may happen where every care is taken. Icannot believe, and I do not believe, that neither inthe law of England nor in the law of Scotland isthere redress for such a case. The state of facts Ihave figured might well give rise to a criminalcharge, and the civil consequences of such careless-ness can scarcely be less wide than its criminal con-sequences. Yet the principle of the decision ap-pealed from is that the manufacturer of foodproducts intended by him for human consumptiondoes not owe to the consumers whom he has inview any duty of care, not even the duty to takecare that he does not poison them.

The recognition by counsel that the law of Scotlandapplicable to the case was the same as the law ofEngland implied that there was no special doctrineof Scots law which either the appellant or the re-spondent could invoke to support her or his case;and your Lordships have thus been relieved of thenecessity of a separate consideration of the law ofScotland. For myself, I am satisfied that there is nospecialty of Scots law involved, and that the casemay safely be decided on principles common toboth systems. I am happy to think that in their rela-

tion to the practical problem of everyday life whichthis appeal presents the legal systems of the twocountries are in no way at variance, and that theprinciples of both alike are sufficiently consonantwith justice and common sense to admit of theclaim which appellant seeks to establish.*340

I am anxious to emphasise that the principle ofjudgment which commends itself to me does notgive rise to the sort of objection stated by Parke B.(at p. 768) in Longmeid v. Holliday , ( cit. sup .),where he said: “But it would be going much too farto say that so much care is required in the ordinaryintercourse of life between one individual and an-other that if a machine, not in its nature danger-ous—a carriage, for instance—but which might be-come so by a latent defect entirely unknown, al-though discoverable by the exercise of ordinarycare, should be lent or given by one person, even bythe person who manufactured it, to another, theformer should be answerable to the latter for a sub-sequent damage accruing by the use of it.” I readthis passage rather as a note of warning that thestandard of care exacted in human dealings mustnot be pitched too high than as giving any counten-ance to the view that negligence may be exhibitedwith impunity. It must always be a question of cir-cumstances whether the carelessness amounts tonegligence, and whether the injury is not too remotefrom the carelessness. I can readily conceive thatwhere a manufacturer has parted with his productand it has passed into other hands it may well beexposed to vicissitudes which may render it defect-ive or noxious, for which the manufacturer couldnot in any view be held to be to blame. It may be agood general rule to regard responsibility as ceas-ing when control ceases. So also where between themanufacturer and the user there is interposed aparty who has the means and opportunity of ex-amining the manufacturer's product before he re-issues it to the actual user. But where, as in thepresent case, the article of consumption is so pre-pared as to be intended to reach the consumer in thecondition in which it leaves the manufacturer, andthe manufacturer takes steps to ensure this by seal-



ing or otherwise closing the container so that thecontents cannot be tampered with, I regard his con-trol as remaining effective until the article reachesthe consumer and the container is opened by him.The intervention of any exterior agency is intendedto be excluded, and was in fact in the present caseexcluded. It is doubtful whether in such a case thereis any redress against the retailer ( Gordon v.M'Hardy, 1903, 6 F. 210 ).

The burden of proof must always be upon the in-jured party to establish that the defect which causedthe injury was present in the article when it left thehands of the party whom he sues, that the defectwas occasioned by the carelessness of that party,and that the circumstances are such as to cast uponthe defender a duty to take care not to injure thepursuer. There is no presumption of negligence insuch a case as the present, nor is there any justifica-tion for applying the maxim res ipsa loquitur. Neg-ligence must be both averred and proved. The ap-pellant accepts this burden of proof, and in myopinion she is entitled to have an opportunity ofdischarging it if she can. I am accordingly of opin-ion that this appeal should be allowed, the judgmentof the Second Division of the Court of Session re-versed, and the judgment of the Lord Ordinary re-stored.END OF DOCUMENT





donoghue v stevenson westlaw_document_17!53!47

Documents